m-s-* •*,--•«,->.. i ^ UNI\^ERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY TREATISE ^ ON CRIMES AND MISDEMEANORS. IN TWO VOLUMES. VOL. I. By WM. OLDNALL RUSSELL, OF Lincoln's inn, esq. barrister-at-law. LONDON : PRINTED FOR JOSEPH BUTTERWORTH AND SON, 43, FLEET-STREET', AND J. COOKE, ORMOND-QUAY, DUBLIN. 1819. T •< J, & T. Claruk, PrinUrs, 3B, S<. Jo/m Square, London. TO SIR ROBERT GIFFORD, ATTORNEF GENERAL OF ENGLAND, THIS WORK IS DEDICATED : A SMALL TRIBUTE TO HIS GREAT PROFESSIONAL ATTAINMENTS; TO HIS DESERVED HONOURS ; AND TO THE AMIABLE AND EXCELLENT QUALITIES BY WHICH HIS CHARACTER IS DISTINGUISHED AND ADORNED. PREFACE In the following Treatise I have attempted to dispose, in an appropriate arrangement, the principles of the common law, the statutes, and the decided cases relating to every offence which may be made the subject of prosecution by in- dictment ; except only that of High Treason. The substance of the law of crimes and misde- meanors, contained in the Works of Hale, Haw^ kins, Foster, Blackstone, East, and Leach, has been carefully collected ; and to this important matter cases from the various printed reports have been added, together with such MS^ cases as I was able to obtain, and of the authenticity of which I had reason to be satisfied. I have anxiously endeavoured so to make the selections and citations as not to load the work with any superfluous matter, and yet to supply the ne- cessary information as well to those who, in a Viii PREFACE judicial character, may be called upon to carry the criminal law into execution, as to those who may be eniiaged either in the prosecution or defence of a party indicted. The crime of High Treason was not originally included in the plan of this Work, on account of the great additional space which the proper dis- cussion of that important subject would have occupied ; and because prosecutions for that crmie, happily not frequent, are always so conducted as to o-ive suflicient time to consult the highest authorities. But it was a part of the original plan to have subjoined a copious chapter or book upon tlie law of Evidence in criminal prosecu- tions ; and it was not till I had made considerable progress, and ascertained the length to which the work Avould necessarily extend Avithout such ad- dition, and also the impossibility of finishing it even in its present shape without consider- able professional sacrifices, that such part of the original plan was, for the present, abandoned. But though the law of Evidence on criminal prosecutions is not fully treated of, I should ob- serve that the points relating to Evidence and the competency of witnesses whicli apply more immediately to particular offences are for the most part introduced in the conclusions of the several Chapters. PREFACE. IX The subject of Process, and other matters of Practice in criminal prosecutions, having been so lately treated of by a learned author,* are not introduced into this Treatise ; and it seemed also, that in a work which is intended to offer only that which may be useful to the public, it would be deemed superfluous to insert precedents of Indict- ments which have been so abundantly supplied in several modern publications, t And neither the object of the work, nor its reasonable limits, would admit the introduction of the law relating to minor offences cognizable only by summary proceedings before Justices of Peace, which are, therefore, only occasionally mentioned where they appear to explain, or to be closely connected with offences of a higher degree. It would not become me on the present occa- sion, to omit the expression of my best thanks and acknowledgments to Sir Edward Hyde East, for the assistance which I have derived from his laborious and most learned Treatise : and I gladly also take this opportunity of thanking Mr. Chet- WYND, the learned Chairman of the Quarter Ses- sions for the County of Stafford, for many friendly * See the First Volume of Mr. Chitty's Criminal Law, published in 1816. + The Crown Circuit Companion (8th Ed.) ; Mr. Starkie's Treatise on Criminal Pleading ; and Mr. Chitty's second and third yoluraes of his Treatise on Criminal L«aw. X PREFACE. communications, rendered peculiar!)^ valuable by his long and close application to the study of the criminal laws of the country. How far the pains which I have taken w4th this Treatise may be rewarded with the appro- bation of those for whose use it is intended, is a subject, on wdiich the hopes I may venture to entertain cannot but be clouded with apprehen- sions whicli my late attentive and minute exa- mination of the works of others has not been calculated to allay. The most cheering reflection under such circumstances is, that those wdio are best qualified to judge of the merits, will be most likely to take into consideration the great diffi- culties of the undertaking, and most disposed to criticise in the same kind spirit w^ith Avhich Dr. Burn, after pointing out one of the errors in the work of a celebrated writer on the crown law, says : '' This is only remarked as an instance, *' that in a variety of matter it is impossible for '' tlic mind of man to be always equally atten- '' tive." Wm. OLDNALL RUSSELL. 5, Old Square^ Ijincolns JiU7, 1th Jul)/, 1810. TABLE OF CONTENTS BOOK I. Of Persons capable of committing Crimes, of Principals and Accessories^ and of Indictable Offences. CHAP. Page I. Of Persons capable of committing Crimes . . 1 II. Of Principals and Accessories ... 29 III. Of Indictable offences .... 58 BOOK II. O/" Offences principallj/ affecting the Government, the Public Peace^ or the Public Rights. CHAP. Page I. Of Counterfeiting Coin. Of importing into the king- dom counterfeit or light money. And of exporting counterfeit money . . . . 71 II. Of Frauds relating to Bullion, and of Counterfeiting Bullion . . .... 95 III. Of the making, mending, or having in possession any instruments for Coining , , , 99 2 Xll TABLE OF CONTENTS. CHAP. Page IV. Of receiving, uttering, or tendering Counterfeit Coin ...... 107 V. Of receiving or paying for the Current Coin any more or less than its lawful value . . 122 VI. Of serving or procuring others to serve Foreign States ..... 127 VII. Of seducing Soldiers to desert or mutiny . 131 VIII. Of Piracy 135 IX. Of neglecting Quarantine, and of spreading conta- gious Di'^orders .... 149 X. Of Offences against the Revenue Laws relating to the Customs or Excise . . . 160 XI. Of hindering the exportation of Corn, or prevent- ing its circulation within the kingdom . 189 XII. Of seducing Artificers .... 193 XIII. Of administering or taking unlawful Oaths . 200 XIV. Of misprision of Felony, and of compounding Offences 209 XV. Of Offences by persons in Office . . 213 XVI. Of Buying and Selling Offices . . 227 XVII. Of Bribery 239 XVI II. Of neglecting or delaying to deliver Election Writs 247 XIX. Of dealing in Slaves .... 250 XX. Of Forestalling, Regrating, and Ingrossing, and of Monopolies .... 255 XXI. Of Maintenance and Champerty, and of buying and selling pretended Titles . . ^GQ XXI I. Of embracing, and dissuading a witness from giv- ing Evidence .... 277' XXIII. Of barratry and of suing in the name of a fictitious IMaintiff 280 XXIV. Of Bigamy 283 XXV. Of Librl and indictable Slander . . 302 XXVI. Of Biul-, Routs, and unlawful Assemblies . 350 XXVI I. Of A {Trays 388 XXVIII. Of challenging to Eight . . 396 XXIX. Of disturbances in Places of Public Worship 400 XXX. Of forcible Entry and Detainer . » 408 TABLE OF CONTENTS. xui CHAP. XXXI. XXXII. XXXIIT. XXXIV. XXXV. XXXVI. XXXVII. XXXVIII. XXXI X. XL. XLI. Page Of Nuisances . . . . 427 Of obstructing Process, and of disobedience to orders of Magistrates . . . 519 Of Escapes . . . .529 Of Prison-breaking by the Party confined 546 Of Rescue ; and of actively aiding in an Escape, or in an attempt to Escape . . 553 Of returning or being at large after sentence of Transportation ; and of rescuing or aiding the escape of a Person under such sentence . 565 Of Incorrigible Rogues . . • 589 Of Gaming ..... 593 Of Usury and Illegal Brokerage . . 598 Of Offences relating to Dead Bodies . 606 Of going armed in the night-time for the destruc- tion of Game . . . • 610 BOOK III. Of Offences against the Persons of Individuals. CHAP. I. Of Murder ..... II. Of Petit Treason .... III. Of Manslaughter .... IV. Of excusable and justifiable Homicide V. Of destroying Infants in the Mother's womb VI. Of Rape and the unlawful carnal knowledge of Female Children ..... VII. Of Sodomy ..... VIII. Of the forcible abduction and unlawful taking away of Females; and of Clandestine Marriages IX. Of Kidnapping and Chihl-stealing X. Of attempts to Murder, of Mayhem or ?/Iaiming, and of doing or attempting some great bodily harm XI. Of common and aggravated Assaults Page 613 693 699 772 796 800 814 817 837 841 862 xiv TABLE OF CONTENTS. BOOK IV. Of Offences against PropertT/^ Public or Privale. CHAP. Page I. Of Burglary . . . . .899 II. Of Sacrilege, or of Robbery and Larceny, in Churches and Chapels . . . 961 III. Of IIouse-Breaking . . . .965 IV. Of Robbery and Larceny in a Dwelling House, where there is no Breaking of the House . 979 V. Of Robbery from the Person . . . 987 VI. Of Larceny 1031 VII. Of Privately Stealing to the value of Five Shillings in a Shop, Warehouse, Coach-house, or Stable 1166 VIII. Of Stealing from the Person IX. Of Stealing Horses, Sheep, and other Cattle X. Of Stealing and Destroying Deer . XI. Of Stealing Conies XII. Of Stealing Fish XIII. Of Stealing to the value of Forty Shillings in any Vessel upon a Navigable River, &c. ; and of Plundering Vessels in Distress or Wrecked . 1206 XIV. Of Larceny by Servants .... 1212 XV. Of Embezzlement by Servants, Clerks, Bankers, Brokers, and other Agents . . . 1229 XVI. Of Embezzlement by Ollicers and Servants of the Bank of England ; and by Public Officers . 1252 XVII. Of Larceny and Embezzlement by Persons in the Post-Ollice ; of Stealing Letters; and of Se- cretinir Basrs or Mails of Letters . . 1259 XVIII. Of Larceny and Embezzlement of Naval and Military Stores .... 1278 XIX. Of Larceny and Embezzlement of Cloth and other IManufactures .... 1285 XX. Of Larceny and Embezzlement from Lodgings 1295 XXI. Of Receiving Stolen Goods . . . 1301 1173 1176 118* 1193 1197 TABLE OF CONTENTS. xv CHAP. Pf/fi-e XXII. Of Unlawfully Receiving, or having Possession of Public Stores .... 1322 XXIII. Of Receiving Goods Stolen on the River Thames 1345 XXIV. Of Receiving Jewels, Plate, or Watches, Stolen by burglary or highway robbery . . 1348 XXV. Of Receiving Stolen Lead, Iron, Copper, Brass, Bell-Metal, Solder, and Pewter . . 1350 XXVI. Of Cheats, Frauds, False Tokens, and False Pretences ..... 1360 XXVII. Of Forgery . . - . .1411 XXVIII. Of the Forging, Avoiding, &c. of Records, and of Judicial Process .... 1517 XXIX. Of Forgeries relating to the Public Funds, and the Stocks of Public Companies . . 1522 ^ XXX. Of Forging the Securities of the Bank of England 1536 XXXI. Of Forging the Securities of other Public Com- panies ...... J550 XXXII. Of Forging and Transposing Stamps . . 1553 XXXIII. Of the Forgery of Official Papers, Securities, and Documents ..... 1580 XXXIV. Of the Forgery of Private Papers, Securities, and Documents . . . . 1615 XXXV. Of Falsely Personating Another . . . 1653 XXXVI. Of Arson, and the Burning of Mills, Ships, Mines, Corn, and other Property . . . 1657 XXXVII. Of Maiming and Killing Cattle . . . 1682 XXXVIII. Of Injuring and Destroying Timber and other Trees, Vi^oods, Underwood, Roots, Shrubs, &c. 1690 XXXIX. Of Cutting Hop-binds, and of Destroying Heath, Fern, &c. or Madder Roots . . . J703 XL. Of Destroying Fences, Inclosures, Mounds of Fish-ponds, Banks of Rivers, and Sea-banks, Locks and Works on Rivers, and other Public Works . . . . .1706 XLI. Of Destroying or Injuring Turnpikes or Bridges 1718 XLII. Of the Destroying and Damaging Mine^ and En- gines 1721 XVI TABLE OF CONTENTS. CHAP. XLIII. Of Destroying and Injuring- Manufactures XLIV. Of Destroying and Damaging Ships and other Ves sels, and Articles thereunto belonging XLV. Of Overloading Boats on the river Thames XLVL Of Offences by Bankrupts Page 1725 1731 1741 1743 BOOK V. Of Offtt2C€s which may Effect the Perso7is of Individuals or Property. CHAP. I. Of Perjury and Subornation of Perjury II. Of Conspiracy HI. Of Threats, and Threatening Letters Page 1800 1829 TABLE OF THfi PRINCIPAL STATUTES CITED. EDWARD I. 3. (Westra. 1.) Page 540 4. Stat. 3. c. 5 13. (Westm. 2.) c. 34. Rape c. 4G. Castins c. 3. Escape c. 9. Conceal- ment of Felony 217 c. 13. Deflower- ing a child under 12 years 811 c. 15. Grand and Petit Larceny 1031 c. 25. Champerty 272 c. 26. Extorfion of Sheriffs, .^c. 221 c. 34. False news 319, 326 283 801 Bigamy 21. Stat. 1. De down Fences 1706 c. 49. Champer- ty — Buying Ti- tles * ^272, 275 malej'acloribus in paras 28. c. 11. Champerty — Mainte nance 28. St. 3. c. 20. Gold, &c. 33. St. 2. Conspirators \0J.. I. C61 273 Alloy 95 1802 EDWARD ir. Pase De frangeniibus pri'so- I. St. 2. nam 546, 553 9. c. 3. Assaulting a Clergyman 879 EDWARD IIL 2. c. 3. Persons going armed, and Night-walkers 300j 391, 727 5. c. 8. Marshal of K. B. suf- fering Escapes 542 c. 10. Embracer)' — Jurors 278 c. 14. Apprehending Night- walkers, &c. 727 II. c. 1. Transporting Wool, i'tc. 177 14. c. 10. Gaoler, (misconduct of) 216 18 23 St. 3. c. 2. c. 6. Cheat Biir amy 283 265 25. St. 2. c. 12. Coin 122 St. 5. c. 2. Coining 71, 73, 76, 82, 85, 91, 92, 94 Petit Treason 695, et sequ. Escape 540 Barratry — Punishment 282 Suppression of Riots 385 Embracery — Jurors ^78 b 31. c. 14 34. c. 1. c. 1. c. 8. XVlll 38. c. 50. c, Table of the Principal Statutes Cited. EDWARD in. Page 12. Embracery — Jurors 278 5. Arresting Clergymen 404 RICHARD II. 4. Maintenance 9. Buying Titles 15. Arresting Clergymen 1. 0. 5. Scaudalum Magna- tum 7. Forcible Entry 8. Forcible Entry 13. Persons going armed 4. Judges, &c. Falsely en- tering Pleas, &c. 12. c. 2. Buying and selling Of- fices 11. Scandalum Magnatum 8. Undue Abatement of Commodities 2. Forcible Entry and De- tainer 409, 414, 3. Admiral's Jurisdiction in Homicide 144, 1. c. c. c. 2. St. 5. c. c. 7. c. 8. c. c. 13. c. 15. c. 15. c. 17. c. c. 20. c. 4. c. 5. c. c. 1. Foreign Coin 8. Suppressing Riots 1. Persons going Armed HENRY IV. 275 274 404 326 420 409 391 1520 228 326 265 420 146, 673 77 385 391 229 5. Selling Offices 5. Cutting Tongues, &c 8 43, 844 6. Assaults upon Servants of Members of Par- liament 879 Page HENRY VI. 11. c. 11. Assaults upon Lords and Members of Parlia- ment 879 18. c. 19. Desertion of Soldiers 133 33.0. 1. Servants making spoil of their master's goods 1212 EDWARD IV. 17. c. 1. Impairing Coin RICHARD in. 1. c. 3. Escapes 90 540 HENRY VII. 1. c. 7 3. c. 1. O* C/* Ml* 3. c. t . s. 1. Suppression of Riots HENRY V. 385 23. c. 1. c. 1. c. 1. 2. c. 8. Suppression of Riots 385 c 9. Suppression of Riots HENRY VI. ib. 24. C.23 c. 5. 2. c. 14. Suppression of Puots 385 25. c. 3. 8. c. 9. Forcible entry, &r. 410, 411, 412, 418, 420, 423 0. 6. c. 12. Stealing, avoiding, >hips by captain, &c. 1731 c. 18. Embezzling manu- factures 1286 2 & 3. c. 4. Forging, &c. concern- ing lands registered in Yorkshire. 1610 Perjury before the re- gister, &CC. 1772 5. c. 6. s. 2. Larceny — House of Correction 1158 s. 4. Benefit of Clergy 34 14. Penalty of killing a Hare 67 31. Accessories, Receivers 50, 51 31. Receiving stolen goods 1302, 1304 Burglary, for Accessories after 959 c. 34. Forestalling, &c. 256 S&6.C. 18. Forger), &c. concern- ing lands registered in Yorksliiro 161 1 Perjury before the Re- gister, 1772 6. c. 7. Libel, &c. against the King 319 c. 16. Alluring and marrying Femalos {Irish) 835 c. 31. Servantsliiing liouses, &c. by negligence 1681 7. c. 20. Forgery, ^c. concerning lands rt'gibtert'd in Mid- dlesex 1611 c. c. c. ANNE. Page 7. c. 25. Counterfeiting Coins, &c. 74, 98, 101, 109 9. c. 12. s. 24. Forestalling, &c. Hops 261 c. 14, s. 5. Gaming 594, 1406 s. 8. Assault on account of Gaming 895 c. 16. Attempting to kill, &c. Privy Counsellors 850,879 c. 21- Forgeries on the South Sea Company 1550 10. c. 19. Forging Stamps for Li- nens, k.c. 1570 12. St. 1. c. 7. s. 3. Burglary — breaking out 907 c. 7. Stealing 40*. in house 9, 982 St. 2. c. 18. s. 5. Stealing Pump from Vessel in distress 1208 D Re- venue Laws 170, 172 c. 22. Forgeries relating to the Public Funds 1522 c. 24. s. 1, 2. Piracy 137, 138 s. 3. Piracy — Accesso- ries 141 s. 4. Piracy— Clergy 138, 143 9. c. 8. Receiving stolen Naval Stores 1325 c. 11. (Irish^) Marrying Fe- males without con- sent 836 c. 12. Forgeries relating to the Public Funds 1528 c. 22. (Black Act,) Rescue 557 Maliciously shooting 851 Deer stealing, by persons armed 1184 Stealing Co- nies by per- sons armed 1194 Stealing Fish 9. c. 22. GEORGE I. Page by persons armed 1198 Setting Fire to use. any &c. Ho 1C65 Killing, Maim- ing, &c. of Cattle 1683 Maliciously de- stroying of Trees, «&c. 1 692 The Malicious- ly breaking Heads, itc. — Of Fish- ponds 1710 Of Threatening Letters 1831 Aiders and Al'ettors 37 Obstructing Process 520 11. c. 4. s. 6. Mayors, &c. hinder- ing Elections 219 c. 22. Obstructing Process 520 c. 30. Officers taking Bribes 240 s. 32. Officers of Kxcise, &c. — Evidence 185 12. c. 25. Bricks— Penalty 67 c. 28. Customs, &c. — JEvidence 185 c. 29. Attornies convicted of Forgery, Perjury, or Barratry ; and Prac- tising afterwards 71, 798 c. 32. Forgeries on the East India and South Sea Companies 1551 Forging against Suitors in Chancery 1605 c. 34. Threatening Letters 1834 Assault upon Manufac- tures 894 c. 59. Attornies convicted of Forgery, afterwards Practising 1516 GEORGE n. 1. St. 2. c. 19. Destroying Locks, (fee. upon livers 1714 2. c. 21. Homicide — County 146, 676 c. 24. Perjury by Electors 1773 Bribery in elections 241, 242, 244 XXIV Table of the Principal Slaiuies Cited. GEORGE n. Page 2.C. 25. Stealing Bills, Notes, &c. 1114 Forginji; Deeds, "Wills, Notes, kc. 1G19 Perjury and Subornation — Punishment 1763 c. 28. Piracy 137 4. c. 18. Forging, &c. Meditera- nean Passes 1G03 c. 32. Stealing Lead, &c. aflixed to Buildings 963, 1099 5. c. 30. Oliences by Bankrupts 1743, et seq. Perjury 1'y Bankrupt, and Others, before the Comraiseioners 1774 6. c. 2fi. Coin 73 c. 37. Destroying Banks of Ri- vers, or Sea-Banks 1712 7. c. 21. Assault with intent to commit Robbery SSO c. 22. Forging Bills, &c. War- rants or orders 1619 8. c. 6. Forging certificates. Sec. of Lands rrgistrred in the North Riding of Yorkshire 1611 Peijury before the Re- gi.-,lcr, &c. 1773 c. 20. Destroying Locks, &c. on Rivers 1714 9. c. 5. Pretending to Wifcli- craft, kc. 1407 c. 11. Clandestine Marriages in Ireland c. 23. Gin, conviction c. 30. Foreign service 835, 836 25 128, 129 130 c. 35. s. 10. Rcsistitiaws 1 68, 171, 172, 173, 181, 186 10, c. 28. PlayliousFs regulntod 435 c. 31. Watermen overlnarling boats in the 'J'linmrs 770, 17J1 c. 32. Setting on Fire Mines of Coal IGGG De'-trnyiuij I'anl.sof Pii- \(TH or Sea- Banks 1712, 1713 ll.c. 22. Hindering exportation cf Cora 189, 190 11. 12. 13. 14, c. 40. c. 29. c. 8. c. 21. c. 6. GEORGE n. Page Counterfeiting Copper Monies Repairing Biidges 15. c. 13. c. 27. c. 28. 16, c. 30. c. 34. c. 15. c. 31. 86 of Public 508, 510, 511 Embezzling Manufac- tures (Scot'at'd) 1287 Drowning Coal Mines 1721 Stealing Sheep and otlier Cattle 1179 County Bridges 501 Embezzlements, by Of- ficers, &c. of the Bank of England 1252 Stealing Woollen Goods from the rack, &c. by idght 1288 Counterfeiting Coin 73, 74, 76, 79, 80 s. 2, 3, 5, 9. Utiering counterfeit Coin 112, 116, 117, 119 298 Stealing cattle 1180 Escape or return from transportation 507, 5C8 Marriage of Lunatics Aiding escape from transportation 568 Aiding escnpe 560. rt seq. 17. c. 5. Vagrant Act — Incorri- gible rogues 589 Counterfeiting Certifi- cates 1614 Lunatics, removal of 22 c. 40. Receiving stolen j^nblic Stores— Trial, cScc. 1327 c. 18. Jerjury at i'Jlections 1773 c. 30. Pitacy I'SG, 139, 140 c. 34. (ramiiig 595 c. 22. Nuisances in ILirbours, Havens, &c. 1714 c. 34. Registry, tVc. I^L-venue J>a\vs 166, 167, 168, 186, 187 22. c. 27. Assault ujion manufac- tures 8L3 Embezzling manufac- tures 1289 Thrrafening Letters 1834 c. 32. Burning any Ship, Store of Powder, kc. 1668 I'erjur) in Naval Courts lilurlial J770 18 19 Table of the Principal Statutes Cited. xxy GEORGK IT. Page 23. c. 11. empowers judges to di- rect prosecutions for perjury 1778 Framing of Indictments for Perjury 1779 Seducing Artificers 195, 196 s. 34. Revenue Officers, Warrant 186 s. 28. ResistiMg,&c. Re- venue Laws 175 Annoyances in High- ways 462 Irregular Warrant — In- demnity 733 Stealin>i; to 40*. upon Navigable Rivers 1206 False Affirmations by Quakers 17G4 Breaking, &c. into Lead Mines G5, 1097 Receiving Stolen Black Lead 1350 s. 6. Coroner — Misde- meanor in Office 213 Rewaid for Return of Stolen Goods 210, 1320 s. 3, 4, 8. Disorderly Houses 435, 436 s. 9. Rescuing Murderers 558 Judgment and Execu- tion in Cases of Mur- der 688 Neglecting Quarantine 150, 156 Beating, &c. Persons Siiipwrerked 835 Assaulting Persons sav- ing Vessels, &c. 891 Plundering Sliipsln Dis- tress, making False Lights, (fee. 1732 Stealing Goods, &c. from Vessels in dis- tress 1207 Stealing Goods, 6cc. stranded 1208 c. 32. Resisting, «S:c. Revenue Laws 166, 187 c. 33. Marriage Act 290, 291, 292, 294, 296, 299, 833 C. 33. Falsifying Registers, and Forging Marriage Li- cences 1C07 c. 13. c. 21. 24. c. 40. c. 43. c. 44. c. 45. c. 16. 25. c. 10. c. 10. c. 29. c, 36. c. 36. c. 36. c. 37. 26. c. 6. c. 19. c. 19. c. 19. c. 19. GEORGE IL Page 27. c. 15. Threatening Letters 1832 28. c. 19. Disorderly Houses 433 Setting Fire to Gorze, Furze, &c. 1704 29. c. 17. Serving Foreign States 129, 130 c. 30. Receiving Stolen Lead, Iron, &c. 1351, 1357 Accessories — Transport- ation 45 c. 34. Ships of War — Commis- sion 138 c. 36. Damaging Trees in New Inclosures 1693 30. c. 22. Annoyances in High- ways 462 c. -24. Obtaining Goods, &c. by False Pretences 1382 Pawning Goods of Ano- ther 1297 Threatening Letters 1832 31. c. 22. Forgeries relating to the Public Funds, &c. 1523 Forgeries against Cor- porations 1619 c. 35. Stealing and Destroying Madder Ptoots 1112,1705 32. c. 10. Resisting, &c. Revenue Laws 166. 187 c. 14. Forging the Mark, &c. of the Receiver of Prefines 1580 c. 25. s. 12. Piracy — Ransom- ing Vessels 138 s. 20. Piracy— Trial 147 GEORGE IIL 2. c. 28. Receiving Goods, &c. Stolen on the Thames 45, 1345 Damaging Buoys, &c. in the Thames 1738 3. c. 16. Personating Out-pen- sioners at Greenwich 1599 4. c. 12. Resisting Revenue Laws 166. 187 Breaking down Banks &c. of Rivers 1716 <:. 25. Forgeries Relating to Public Companies 1524 XXVI 4. c. 37. 5. c. 14. c. 25. Table of the Principal Statutes Cited. Page Stealing Coiues StPaling Fish c. 43. 6. c. 36 c. 37 c. 48 c. 78. 7. c. 50 8. c. 15. 9. c. 16 c. IS. c. 29. c. 29. c. 29. c. 30. c. 32. c. 41. c. 48. 11. c. 40. GEORGE III. Breaking, &c. with in- tent to Steal, &c. Linen Yarn 65. 1294 Deivtroj ins Looms, &c. 1725 1194 1198 Embezzlement, &c. of Letters 1259 Embezzling Postage, &c. 1269 s. 20. Excise OtTicer — Warrant 186 Cutting down, spoiling, and taking away Roots, &c. 1103, 1693 Cutting Hop-binds 1703 Cutting down, spoiling, &c. Timber-trees, Wood, &c. 1104,1695 Repairing Roads 474 Embezzlement, &c. of Letters 1259 Embezzling or Advanc- ing Po'-tage, &c. 1269 Stealing Letters sent by the Post 1270 Return from Transport- ation 568, 569 Perjury before Commit- tees of the House of Commons 1773 Stealing Dogs 1128 s. 1. Riots — Pulling down Mills, &c. 358,359, 360 Destroying, &c. Engines for Mines 1722 Setting Mills on Fire 1667 Setting Fire to, De^toy- ing, &c. Fences or In- closures 1707 Apprehending Persons stealing Naval Stores 1282 Cutting Hop-binds 1703 Destroying, Carrying away, &r. Hollie-;, Quick Sets, &r. 1108, 1697 Receiving Jrvvels, &c. Stolen by Burglary, ice. 1348 Counterfeiting Copper Monies73,79,80, 107, 108 11. c. c. 12. c. c. c. c. c. 13. c. GEORGE IIL Page 40. s. 2. Uttering Counter- feit Copper Monies 112 51. Resisting, &c. Revenue Laws 166, 187 11. Marriages of the Royal Family 834 24. Setting Fire to Ship Stores of War, &c. 1 667 24. Destroying Ships of War Stores, &c. 1733 48. Transposing Stamps, &c. 1568 61. Nuisances — Gunpowder 431 71. Forestalling, &c. 256,260 31. Receivers of Stolen Goods— Trial 1316 c. 31. Larceny — Goods Stolen in Scotland— Trial 1153 c. 31. Apprehending Persons escaping to Scotland, &c. 530 c. 32. Stealing and Destroy- ing Turnips, &c. 1111 c. 33. Destroying, &c. certain Trees 1698 c. 38. Stealing, &c. British Plate Glass 1294 c. 56. Forging Stamps, &c. on Linen, &c. 1571 c. 59. Forging Assay Marks on Plate 1565 c. 71. s. 1. Counterfeit Gold Coin 87 c. 78. General Highway Act 453 et seqii. and 525 c. 79. Forging of Bank of J^ng- land Notes, &c. 1538 c. 84. General Turnpike Act 472, 473. 486 Destroying Turnpike Gates, Machines, kc. 1718 Injuring Bridges 1719 Importing Light Silver Coin 93 Servants firing Houses, &c. by negligence 1681 Deer-stealing, &;c. 1185, 1189 Destroying Pales, &c. of Deer Park 1708 17. c. 26. Illegal Brokerage, 602, 603 14 c. 42. c. 78. 16. c. 30. Table of the Principal Statutes Cited. xxvu GEORGE HI. Page 17. c. 56. Embezzling Manufac- tures 1289, 1290 18. c. 18. Forgeries against Cor- porations 1620 c. 19. Payment of Constables 218 19. c. 69. Resisting, Sec. Revenue Laws, 166, 169, 173, 174, 182, 187 c. 74. Punishment — Fine, &c. in lieu of burning 112, 176, 771, 1159 Transportation of Con- victs 301, 569 21. c. 53. Marriages, making valid 290 C. 68. Stealing Copper, &c. fixed to a House, &c. 1099 c. 69. Receiving stolen Pewter 1352 22. c. 25. Piracf 138 c. 40. Destroying of Woollen Goods, Tools, &c. 1725 c. 58. Receivers of stolen Goods — Misdemeanor 51, 1305 c. 60. Seducing Artificers 196 23. c. 70. Forgery of Excise Per- mits, &c. 1582 c. 88. Persons having Pick- lock Keys, &c. 64, 959 Rogue and Vagabond 590 24. c. 47. Resisting, &c. Revenue Laws 175, 176, 177, 184, 186, 763 s. 32. Officers of the Excise receiving Bribes 240 c. 48. s. 10. Obstructing Ex- cise Officers 177 sess. 2. c. 37. Forging Franks of I^etters 1587 sess. 2. c. 53, Forging Marks on Plate 1567 c. 56. Confinement of Convicts 571 25. c. 46. Transportation of Of- fenders in Scotland 572 c. 67. Seducing Artificers, &c. 197 26. c. 71. Slaughtering Cattle 1181 27. c. 43. Per^^onating Bail in Chester 1656 28. c. 23. Registry, &c. Revenue Laws 166, 187 c. 30. Licensing Theatrical Re- presentations 435 GEORGE in. Page 28. c. 38. Transporting of Sheep, Wool, &c. 177 c. 55. Deslroying Frame-work knitted Pieces, Stock- ings, &c. 1727 Destroying Ships, &c. in Scotland 1734 s. 10. Newspapers. Stamp-office 344 29. c. c. 30. c. 31. c. 46. 50. 48. 32. Judgment upon Women in Petit-treason 698 s. 10. Disturbing Roman Catliolic Congrega- tions 406 c. 35. Persons convicted of Pe- tit-laiceny competent Witnesses 1032 c. 46. Hard Labour instead of Transportation 574 c. 51. Stealint; Oysters 1202 32. c. 44. Receiving of embezzled Silk, &c. 1291 c. 56. Giving false Characters to Servants 1408 c. 60. Libel. — General Ver- dict 349 33. c. 30. Forgeries relating to the Public fuiids 1524 c. 52. s. 62. Extortion 224 s. 66. Buying and selling Offices 233 c. 55. Punishing Constables 218, 527 c. 67. Seamen, &c. riotously assembled 358 Obstructing Seamen, &c. 892 c. 67. Setting Ships on Fire 1668 Seamen destroying &c. ships 1734 Highway, repairing, &c. 459 460, 467, 408, 473 Forgeries relating to the Public Funds 1528 s. 1. Bigamy — Punish- 34. c. 35. c. c. 36. c. c. c. c. 61. 66. 67. 8. 9. 27. 40. ment 301, 584 Meetings upon Public grievances - 371, 380 Preventing the circula- tion of coin 191, 192 (Irish) Conspiring or proceeding to Murder 861 Resisting, &c. Revenue Laws 166, 187 XXVUl Table of the Principal Slainlcs died. GEORGE III. Page 37. c. 46. Forgeries relating to the Public Funds 1528 c. 70. Seducing Soldiers or Sailors 131, 132 c. 98. Alum in Bread prohi- bited 1364 c. 122. Forgeries relating to the stocks of Public Companies 1527 c. 123. Unlawful Oaths 200, 367, 376, et seq. c. 126. Counterfeiting Copper IVIonies 79 s. 2. Counterfeiting fo- reign Coin 77, 79, 92 Importing of such coin 92 s. 3. Utteiirig, &c. fo- reign counter- feit Coin 108, 119 c. 136. s. 7. Searching for fo- reign counter- feit Coin, Sec. 87 c. 143. False Weights and Ba- lances 1408 38. c. 17. Destroying Plate Glass, materiiU?, &c. 1728 c. 57. (Irish) Conspiring or Persuading to Murder 861 c. 67. Exporting Counterfeit Money 91 c. 69. Forging marks on Plate 1567 c. 78. Evidence of Libels in NewspT])ers 341, ei scqu. 59. c. 37. Trial of Olfences com- mitted at Sea 143. 684 c. 56. Seducing Artificer':, &;c. 198 c. 69. Setting Fire to Works, Ship*:, &c. in the port of London 1669 Destroying Works, cut- ting Hopes, kc. 1729 39. c. 77. Damaging, &c. Mines and Minerals 1723 c. 79. Utilawful Assemblies 366, et scq. 380, el seq. c. 85. Embezzlement by Ser- vants, Clerks, &r. 1229 c. 89. llcreiviiig stolen Public Stores 1 328, et acqu. False Certificate of GEORGE III. Page 39. Naval Stores 1591 Perjury concern- ing Naval Stores 1768 39 & 40. c. 77. Stealing Coals 1098 c. 87. Receiving Goods, &c. stolen on the Thames 1346 c. 94. s. 1, 2, 3. Disposal of Persons Insane 21, 22 41. c. 57. Making paper for For- geries 1648 c. 109. Destroying Fences of Inclosures 1708 Perjury under the In- closureAct 1772 42. c. 63'. Forging Franks of Let- ters 1588 42. c. 56. Fryer's Balsam, Stamp 212 c. 67. Stealing, Jtr,uring, &c. Turnips, Potatoes, &c. 1111 c. 81. Embezzlement, kc. of Letters 1259 Secreting. &c. Mails and Letters found or left kc. 1276 c. 107. Deer stealing, 1185,1188 c. 116. Forgeries, (fee. relating to Land-tax 1581 c. 1 1 9. Lotteries, Little Goes 593 43. c. 28. (Ireland) Forging Franks c. 49. Licences for bullion 97 on Letters 1.588 c. 55. Perjury as to Passeng- ers to Foreign parts 1767 c. 58. MurderofBa>.tard Child- ren 618 Veidict of Concealment 685, 686 Destroying Infants in the womb 796 Shooting at, Stabbing,&c. 856 Sotting Fire to Houses, Barns, kc. 16G9 c. 59. Widening Bridges, &c. 501, 510 Ownership of Tools, Materials, kc. be- longing to Counties 1142 Repairs of Bridges 506 Suing for damages to Bridges 512 c, 113. s. 5, Accessories, Table of the Principal Statutes Cited. XXIX. GEORGE III. Pui^e 43. c. 1 1 3. s. 5. Trial, kc. 52, 57, G74, 676, 685 Destroying Ships^ &c, with intent to defraud 1735 c. 139. Counterfeiting Foreign Pt'Ioney 78, 87 Forging Foreign Bills of Exclmnge 1620 c. 149. Engraving plates for Forging Foreign Bills of Exchange 1651 c. 157. Resisting Revenue Of- ficers 166 c. 159. Offences against Re- venue Laws — Trial 187 44. c. 1. Bank restriction act 124 c. 77. Marriages in chapels 297 c. 92. Offenders escaping to Ireland, &c. 530 Larceny, Goods stolen in Ireland — Trial 1153 Receiving stolen goods —Trial 13 16 45. c. 10. Quarantine 149 to 156 c. 66. Destroying, &c.. Wood Grounds, taking away bark, &c. 1109, 1699 c. 89. Forgery of Bank of England notes, &c. 1536, 1510 Forgeryof Deeds, Wills, JVotes, Receipts, Or- ders, &c. 1G21 c. 92. Admitting to bail 630 c. 121. Resisting Revenue laws 166, 169, 178, 182, 187 46. c. 45. Forging the Hand of Treasurer of t\\ki Ord- nance 1592 52. Dealing in Slaves 250, 254 c. 52. Perjury in respect of Slaves 1771 c. 54. Trial of Murders, &:c. committed on the sea 674 c. 75. Forging the name of the Receiver-gencFal &c. of the Excise 1583 46. c. 76. Forging the name of the Receiver-General of Stamp duties 158 c, 83. Forging the Hand of GEORGE in. 46. Receiver-General Post Office of Page 1589 c. 98. Quarantine 154, 156 Forging, &c. Quaran- tine Certificates 1604, 1770 Perjury relating to Qua- rantine 1770 c. 112. Perjury in Matters of the Excise or Cus- toms 1766 c. 142. Forging, &c. the name of the Surveyor-ge- neral of Woods 1613 c. 150. Forging the name of the Receiver-general of Customs, &c. 1585 47. sess. 1. c. 30. Property of the Globelnsurancecora- • pany 1143 sess. I.e. 36. Dealing in Slaves 250, 254 Forging, &c. certifi- cates, &c. relating to the Slave Trade 1604 sess. 2. c. 2. Damaging Ship, ping, kc. in Folke- stone Harbour 1739 sess. 2. c. 59. Forging the hand of Receiver-ge- neral of Post-of- fice 1590 c. 66. s. 16. Id. Ibid. 183, 184 s. 32. Id. Ibid. 184 s. 34. Registry, &r. Revenue Laws 179, 180, 187 Counterfeiting li- cences forships 1605 48. c. 1. Forgery of Exchequer Bills 1530, 1586 c. 75. Dead Bodies cast on Shore 607, CCS c, 82. (Ireland) Fulse permits 1589 c. 84. Resisting &c. Reveuue Laws 181, 183, 187 c. 9G. Lun;itic Paupers, kc. 22 c. 104. Perjury in respect of Pilotage, (S:c. of ships 1771 c, 116. Portuguese Letters 1277 XXX Table of the Principal Statutes Cited. GEORGE III. Page 48. c. 127. Marriages in Chapels 297 c. 129. Stealing from the Per- son 36, 1173 c. 130. Cutting, Injuring buoys, &c. in the Cinque Ports 1739 c. 142. Forging, &c. Registers concerning Life An- nuities 1609 c. 144. Stealing Oysters 1203 49. c. 35. Personating widows en- titled to Pensions 1597 C. 45. Personating Sailors, &c. titled to Half-pay, &c. 1598 C. 46. Perjury, in the Customs &c. in the West In- dies 1767 c. 65. Revenue Laws, Penal- ties 100 c. 69. Forgery, &c. concern- ing iJfe Annuities, IGIO c. 81. Forging, &c. Stamps on Paper 15G9 c. 84. Bridge over the Tone 507 c. 94. Forgery, Sec. of Lot- tery Tickets, &c. 1612 c. 101. Child Stealing 839 c. 109. Admitting to Bail 473 c. 110. Fimbezzlements by Pen- sioners, (Sec. at Green- wich 1250 c. 118. Giving Offices, &c. for Election purpose 238 Bribery in Elections 245, 246 c. 122. Injuring Buoys, &c. 1738 c. 126. Buying and Selling of- fices 232, 238 c. IGP. Forging Post-office maiks 1589 50. c. 20. Supprintendants of Qua- rantine 154 c, 41. Forging Fluwker's li- ceiK'e^ 1614 c. 59. Embezzlements by Pub- lic Officers 1257 c. 65. Peijury in re^-pect of the Land UuvcMiuesof the Crown 1772 c. 102. Unlawful Oath in Ire- land 207, 208 .51. c. 15. Forging Receipts, &c. GEORGE III. Page relating to Exche- quer Bills 1587 Perjury in respect of c. 15. Exchequer Bills 1766 c. 23. Dealing in Slaves, 250, et sequ. c. 38. Embezzlement by ser- vants, .^c. in Ire- land 1245 c. 39. Stealing Linen, Sec. from bleach-yards, (Irish) 1293 c. 41. Stealing linen. See. ex- posed to be bleached, &c. 1292 c. 46. Superintendantsof Qua- rantine 154 c. 120. Deer stealing — Penal- ty 1187 c. 127. Buying and Selling Coin 122, 125 52. c. 12. Embezzling Stores of War, &c. (Ireland) 1335 Receiving stolen Public Stores (Ireland) 1279 Buying and Selling Coin 123, et sequ. Forgeries relating to the Public Funds 1529 Embezzlement by bank- ers, brokers, &c. 1246 Threatening Letters 1833 Obtaining Bonds, Bills, &;c.by false pretences 1383 . Unlawful Oaths, 202, et sequ. Perjury, in respect of Life Annuities 1765 Forgeries relating to the Public Funds 1528 Selling fire to Buildings, Engines, &c. used for Trade 1670 , Rioters pulling down Buildings, &c. 359, 369 Forgery of Bank of England Notes, Sec. 1543 Persons in the Post- office embezzling Let- ters 1260 , Persons stealing Letters sent by Pobt 1272 c. 50. c. 53. c. 63. c. 64. c. 64. c. 104. c. 129. C. 130. c. 130 c. 138. c. 143. c. 143 7'able of the Principal Slaliilcs Cited. XXXI GEORGE III. Pa^e 52. c. 113. Forging the hand of the Receiver of Prefines Id^l, 15S0 Forging, &c. Stamps 1553 Forging Contracts, &c. relating to the sale &c. of land-tax 1582 Forgery of Excise Per- mits, &c. ib. Forgery of Debentures, &c. relating to Cus- toms or Excise 1583 c. 143. Resisting and evading Revenue Laws 161, et seqit. 179, 188 c. 146. Forging, Sec. in Parish Registers, or de- stroying them 1608 c. 155. Disturbing Religious Assemblies 406 c. 156. Aiding escape of Pri- soner- of War 559 53. c. 89. Neglecting, &c. to deli- ver Election Writs 247 c. 102. Perjury by Insolvent Debtors 1775 c. 108. Offences against the Stamp Acts — Trial 1579 c, 112. Dealing in Slaves 250 c. 138. Perjury by Insolvent Debtors 1775 c. 151. Forging the name, &c. of Regi- trar of Ad- miralty Court 1591 c 160. Doctrine of the Trini- ty 313, 314 c. 162. Larceny Imprison- ment and hard Labour 1160 54. c. 23. Perjury by Insolvent Debtors 1775 c. 28. ib. c. 37. s. 18. Apprehending re- puted Thieves, &c. 727 c. 52. Buyingand Selling Coin 124 c. 60. Unlawful Possession of Public Stores 1336 c. 90. Repairing of Public Bridges 502 c. 96. Repeal 5 Eliz. c. 4. as to trading without ap- prenticeship 65 c. 106. Admitting to Bail 630 c .68. c. 103. c. 108. c. 127. c. 137. GKORGE IIL Page 54. c. 133. Forging, &c. concern- ing Policies of Insur- ance 1612 c. 151. Forging the Hand of Agent general of Vo- lunteers, &c. 1592 55. c. 43. False measures 1408 c. 60. Signing false Petitions, &c. to the Treasurer of the Navy 1600 c. 60. Of Perjury concerning Wills, Letters, &c. of Seamen 1769 Diverting and Stopping Public Roads, 455 et sequ. (Ireland) Forging Post- offire Marks 1589 Embezzling Military Stores 1283 Receiving, Sec. stolen Public Stores 1336 Ownership of Goods, &c. for the Use of the Poor 1142 The Embezzlement of Goods, (Stein Work- houses 1250 c. 143. Repairing Bridges 510, 511, 512 c. 157. Perjury iti Affidavits, &c. for Irish Courts 1769 c. 184. Perjury relating to the Stamp Duties 1767 Forging and transpos- ing Stamps 1556 c. 185. Forging Stamps, &c. 1558 56. c. 10. Return from Transport- ation after sentence by Court-Martial 582 c. 22. Aiding the Escape of Buonaparte 560 c. 27. Transportation Re- turn, Rescue, and Escape from 575, et seqif. 40. Bank of England Re- striction 124 56. (Irish) Forging and transposing Stamps 1560 . 63. s. 12. 44. Officers of Pe- nitentiary, (miscuoduct of,) «20, 545 xxxu Table of the Prmcipal Statutes Cited. GEORGE III. Page 56. c. 63. Penitentiary at Mill- bank, 580, et sequ. c. 63. Frauds by Oflicers, &c. of Penitentiary U09 c. 68. Silver Coinage 72, 76, 87, 89, 93 s. 13. Buying of Gold Coin 124 s. 15. Coinage — Indict- ment 125 s. 16. Gold Coinage — Evidence 125 c. 73. Ownership of Minerals and Materials for working mines 1143 c. 78. Forging Stamps, &c. on pasteboard, &c. 1564 c. 101. Forgery in Drawing for Pay, Pensions, &c. 1601 c. 104. Resisting &c. Reve- nue Laws 161, c. 108. s. 13. Execution of Persons sen- tenced by C. Martial c. 117. Convict Insanes c. 119. Transportation-- Court- martial c. 125. Rioters, &c. injuring Collieries, &c. 301 c. 138. Abolition of Pillory 133, 211, note (w) 184 558 22 583 57. c. 7. c. 12. Page 132 134 GEORGE II!. Seduciiig Soldiers, &c. Seducing Soldiers, &c. —Desertion 132, False Representations to obtain Bounty-mo- ney 1409 Perjury under the Mu- tiny. acts 1770 Societies taking unlaw- ful Oaths 206, 376 Unlawful Public Meet- ings 370, et sequ. Damages by Rlotors 357 c. 31. Stealing Lottery Tick- ets 1122 Trial of Murders, &c. committed abroad 674, 674 Destroying Game in the c. 19. c. 53. c. 90. night / 610 c. 126. Forcibly entering, &c. to destroy Machinery 1729 c. 127. Forgery to obtain Prize Money, &c. of Sailors and Mariners 1593 58. c. 23. Forging Certificates, &c. for the discharge 59. c. 19. Religious, or Charita- ble Meetings 368 of Exchequer Bills 1587 TABLE OF TUE NAMKS OF CASES CITED A. Abingdon, Lord, Rex u. Abrahat's case Abraham's case Abraham, q. t. v. Absor V. French Adams's case Adey's case Admiralty case Aickles's case Bunn 308, 1428, 859, 569, 585, 587, 1072, 1085, 1395, Airey, Rex v. Akehurst's case Akenhead, Rex v. Alexander's case Alford, Rex v. Allan V. The Hundred of Kirton Allen, Rex v. Allen V. Hearne Almon, Rex v. Anderson and others, case of Andrews v. Cawthorne Anon., aiders and abettors, Annesley and Redding, ca'^e of Armstrong's case Page 311, 348 1220 1646 1791 450 1061 754 142 588, 1433 1400 1755 859 1755 1786 1671 341 243 20 1153 607 32 789 1168 Page Arnold's case 14, 851 Asaph's, Dean of, case 349 Ashley's Sir Anthony, case 352 Askew, Rex v. All Aspindall v. Brown 1828 Aslett's 1st case 1116, 1254 Asleit's 2d case 1253, 1257 Astley's, James and Ezekiel, case 1009 Astley V. Younge 307 Ashley v. Harrison 334 Atho's case, father and son, 475, 692 Atkins's case 39 Atkins, Rex v. 70 Atkinson, Rex o. 70 Atkinson and another. Rex v. 225 Atkinson's case 859 Atkinson's, James William, case 1067, 12^1, 1273, 1396 Atkinson, Rex v. 1788 Attorney-General v. Parnther 20 Atwell, O'Donnell, and Others, Rext). 1311 Austin's case 448, 465 Austin and King 1116 Aylettj Rex v. 1753, 1782, 1785, 1786, 1788, 1789 XXXIV Talk of the Names of Cases cited. Page Page B. Beeley v. Wingfield Bembridge, Rex u. 211 213 Page Bealc, Rex v. 228, 239 Barham's case 1657 Bear, Rex v. 1482 J3:i(on's case 841 Beach, Rex v. 1482 Bakewell's case 1253 Bell's case 101, 104 Bastoii, Hex v. 1791, 1792 Best, Reg, v. 1800, 1801, 1803, 1804, Biirllett V. Pickersgil [ 1792 1819, 1820, 1822 Bayley, Rex v. 336 Beech's case 1784, 1785 Baillie, Rex v. ib. Bembridge and Powell, Rexr. 61 Bass's case 1219 Beverley's case 10, 11 Barnes, Rex r. 1750 Bellingham's case 17 Baston V. Gouch 1756 , 1775, 1776 Benstead's case 549, 554 Baiuton, Rex v. 1790 Belt, Rex v. 523 Bazeley's case 944, 1227, et seq. Bigg, Rex V. 1415, 1545 Barlow, Rex v. 218 Birt v. Barlow 299 Ball o. Herbert 490 Billinghurst, Rex v. 293 Balme, Rex v. 66, 454, 525 Binglose's case 905 Barnett, Smith, Bi irton. and Bid mead v. Gale 596 Purser (case of) 1152 Birch and Martin (case of) 1483 Baynes, Rex v. 597 Bill's case 1298 Bayiies's case 973 Blackburn, Rex v. 1361 Baker's case 991, 997 Blackman's case 1002 Ball, Rex v. 1515 Blankard v. Galdy 231 Barnes v. Constantine 281 Bloomfield's case 804 Barr, Rex v. 451 Blackmail, Rex c. 1342 Baker's case 733, 747 Bland, Rex v. 1343 Ball's case 118 Blaxfon V. Pye 596 Bangor, Bishop of, Rex I 363 Holland's case 1426 Bake and Others, Rex v. 408 Host, Du, V. Beresford 303, 305 Bathurst, Rex v. ib. Boys, Rex V. 218 Baude's case 419, 421 Bower, Rex v. 69, 96 Baltimore's, Lord, case 801 Box's case 1629 Baxter's case 1314 Both wick's case 664, 666, 731 Baldwin, Rex v. 1315, 1317 Boulsfon's case 1193 Banks, Rex v. 1339, 1343 Bower, Rex v. 1365, 1369 Baldwin's case 54 Botolph, St., Minister of, Rexr. 1366 Baynes and Others, Case of 36 Bones V. Booth 596 Baillie's case 590, 592 Bodenham, Rex v. 483 iienson, Rex v. 1784, 1795 Boston, Rex v. 1501 Beas ley's case 1655 Bowes 1822 Beech, Rex v. 345 Boulter r. Clark 867 Bernard, Rex v. 226 Boyal, Rex v. 66, 833 Beinbridge and Another, Rex V. Bowler's case 16 220, 1366 iiothe's case 44, 1474 Bedford Reg. v. 318 Fioyall, Rex v. 539 Bear, Rex v. 329, 339 Bootie, Rex v. 534, 539 Benlield and Sanders, Rex v. 305, 871 Brown, Rex v. 960 Bpi wick's case 289 Brazier's case 812 Bertie v. Beaumont 928 Brown's case 828 Bennett v. Tilkinu 480 Broughton, Rex v. 1791 Berry many. Wibe 485 Bradley v. Methuen 2 30A Table of the Names of Cases cited. XXXV Broughton, Rex v. Bradford, Rex v. Bradley v. Banks Bryan's case Brian, Rex v. Bridgevv;iter's case Bryan, Rex v. Brain's ca'^e Broomwick's case Breerton, Rex v. Brampton, Rex v. Bridges, Rex v. Breeme's case Brown's case Brown's case Page 223 70 680 1375 1384 294 68 632 645 1371 290, 298 1344 IGGO, 1671 1595 916, 926, 928, 1006, 1013 Broughton, Rex v. 478 Brown's case 903 Brady's case 160, 177, 186 Brigg's case 744 Brady and others (case of) 1475 Brown's case 722 Broad foot's case 730, 731 Browning's case 731 Bruce's case 146, 674 Brown V. Holt 443 Brady's case 1795 Brisac and Scott 1 822 Brown's case 1296 Brandon's case 64 Brown V. Beckley 595 Burdett, Rex v. 223, 225, 597, 605 Bull's case 1226 Bushel's case 1791 Bucks, Inhabitants of. Rex v. 494, 495, 504 Burgess's case 931 Buckner's case 703, 709, 712, 713 Bulbrooke v. Sir R. Goodhere and others 492 Butler's case 295 Bullock's case, 1745, 1749, 1795 Buck, Rex v. 67 Butler's case 1 164 Bunting, Geo., Rex v. 1503 Burton's case 756 Bucknell, Reg. v. 479 Buccleugh (Duchess of) Reg. v. 470, 497 Busby V. Watson 281 Burdett v. Abbot 744 Running's case \\ 1 Page Burnett, Rex v. 159 Buck c. Buck 443,441 Burgess, Rex y. 801 Burnel'« case 1299 Butlor'v^ ca'^e 1300 Burridge, Rex v. 538, 551, 554, 555, 556, 5G5 Buckingham, Marqui'? of, Rexu. 495 Bucknall, Sir John, Reg. v. 497 By ard's case 13 c. Carrel I's case 937 Gary v. Pitt 1508 Castlehaven's, Lord, case 802, 808 Carter's case 1484, 1489 Caffy's case 1502 Cartwright, Rex u. 1167 Carridice and Cleasby's case 1199 Campbell's case 983, 984, 1053 Castledine's case 984 Cartwright v. Green 1046 Callan's case 904 Casey and Cotter (case of ) 909 Castle's case 916 Cave's case 804 Calthorpe v. Axtell 831 Carrol and King(caseof) 846, 847, 848 Carpenter, R?x v. 517 Castell V. Baenbridge and Corbet 66S Cator, Rex r. 1509 Can field. Great, Rex v. 478 Caywood's case 441 Caton, Rex v. 314 Carr v. Hood 333 Cator, Rex v. 335 177 18S Cator, Rex v. 195 Case's case 84 Cates XK Knight 66 Castle's case 68 Cassano, R;>x r. 63 Channell's case 1377 Chappie's case 1343 Chipchase's case 1222 Cherry's case 1035 Chisser's case 1054 Charlewood's case 1084,1089 Cholmley's case 874, 875 • c 2 Cator, Rex v Cartwrisht, Rex v. XXXVl Table of the Names of Cases cited. Chichester's, Sir John, cas6 Chisholm's case Chadderton, Rex v. Chappel. Rex v. Chappie. Rex v. Channell, Rex v. Chaundler, Rex v. Cirwan's case Clay's case Clinch's case Clarke's case Clarke's ease Clendon, Rex v. Clifford r. Brandon Clayton v. Jennings Clark, Reg. v. Cleeworth, Rex v. Cliftordr. Brandon 352, 354, 355, 394 Clarke v. P< riatn 437 Clifton, Inhabitants of, R x i;. 4G6, 467, 488, 511 1443, 1471, 1497 1449, 1453, 1579 136() Page 758 1625 488 398 226 68 69 108, 114 1263 1265, 1450, 1644 1116, 1267 906 870 1810 596 609 484 Coogan's case Collicott's case Comniings and Another, Rex v. Coleman's case 1395 Cooke's case 1148,1181,1398 Cowell and Green, Rex v. Cole, Rex v. Corder's case Corden's case Coslel's case Coleman's Catherine, case Cornwal's case Cole's case Comer's case Cook's case Cooke V. Birt Cornforth, Rex v. Commerell and Ellis, Rex r. Cooper, Rex v. Cobbett, Rfx v. Colling wood, Reg. v. Collir\s V. Blantern Compton, Rex v. Conimiwgs, Rex v. Corry, Rex ;;. Coombe v. Pitt and another Conier's case Coombes's case Cosan's case Cock, Rex V. 1315 1340, 1342 116S 1200 1034 1060 910 949 957 737, 746 747, 748 831 Coke and Woodburn, Rex v. 849, 890 Cope and another. Rex v. Cochrane, Lord, Rex v. Cole's case Coke V. Woodburn Coxc V. Wirrall Cohen, Rox v. Compagnon v. Martin Coke V. Woodburne Cox's case Cole, Rex v. Cottingham, Inhabitants of. Cotton, lU'X V. Cohen uud Jacob, Rex v. Page 488 439 323, 329 199 211 216 216, 218 219 243, 244 83 146, 677 167 181 Cox's case 64 Coal-heavers' case 30, 38, 851, 832 Cook V. Field (case of) 36 Crocker's case 1412, 1300, 151G 1824 1828 688 694 724 1756 1783, 1793 1659 1G7G, 1786 1749 474 482 484 Crooke's case Crocker's case Cross and Wife, Rex v Craven's case Criijhton, Rex v. Ciooke's case Crespegny, Rex v. 1441 1503 1303 1148 1238 1618 1753 Cros'sley,"' Rex v. 1754, 1733, 1781, 1783 527 430, 446, 463, 464 297 310, 311, 312 318 218 39 Crunden, Rex v. 61, 438 Croft's case 25 Curtis's case 734, 736, 742, 744 Cumberland, Inhabitants of. Rex ^,. 509, 318 Curry r. Walter 309, 310 Crowhurst, Rex v. Cross, Rex v. Ciompton V. Bearcroft Creevey, Rex v. Crohagan's case Crowther's case Cross, Rex v. Curl, Rex V. Curgeuvcn v. Cuming D Dal by. Rex r. Davis and Hall, Rex v. Davies's case Dawson's case Davis's case Daw '■•Mi's case Davidson's case 317 244 1791 1475 144G 1415, 1481 1185 1268 1308 Table of the Names of Cases Cited. xxxvu Page Darnforfl and Newton (case of) 1029 Darley, Rex v. 897 Davies's (Alias Silk's) case 924, 927, 982 Davis's case 963, 998 Dacre's, Lord, case 656 D;ivies and others, Rfx v. 437 Davey and Another, Rex v. 430 Davis, Rex v. 177, 854, 884 Daniel, Rex u. 199 Davis and Another, Reg v. Davy V, Baker Davis, Rex v 218, 525 244 66 1688 1740 Di'.wson's case De Lendo's case De Berenger and Others, Rex v. 1800, 1809, 1814 De man, Reg. V. 1786 Deakins's case 1441, 1469 De Veaux and Others (case of) 1403 Deakin's case 1131 Deakin and Smith (case of) 1131, 1135, 1140 Dean's case 984 Devon, Inhabitants of, Rex v. 509 De Ponthieu v. Pennyfeather 458 Dean of St. Asaph's case 349 Dethick's case 402 Dev?snap and Another, Rex v. 427, 447 D'Eon, Rex v. 302, 337 Delaney v. Jones 335 De Waldborough's, Alice, case 5 De Yonge, Rex v. Depardo, Rex v. Dean's case Dick's case Dixon, Rex v. Dingley's case Dickenson v. Watson Dixon's case Dixon, Rex v. Digby's Lord, case Dihden >;. Swan Dixon and Wife, Rex v. Dixon, Rex v. Donnevan's case Doran, Rex v. Dobbs's case Dowlin, Rex v. Dodd's (Dr.) case Downes's case Douglass, Rex v. 122 147 4 1622 1364 944 867 667, 731 433 289 334 25 69 1672 1679 1688 1781, 1787, 1794 1505 1507, 1611. 1513 1399 Dolphin's case Donally's case Dobb's case Do dd. Rex r. D(H.spt, Justices of, Rex v. Dod, Rex V. Dorney, Rex r. Donally and Vaughan (case of ) Page 1355 992, 1013 995, 996, 1003, 1004, 1013. 1016 943, 948 443 503 341 420 41, 51, 1047 Douse, Rex v. 66 Dorrington's, Hannah, case 111 Drake, Reg. v. 1482 Driffield, U» X V. 1369, 1370 Drinkwater's case 1319 Dray too Basset (tase of ) 759 Dr. Shebbeare's case 318 Dr. Smollett, Rex y. 330 Dupee's case, 1654 Dunn's case 1422, 1426, 1432, 1434, 1483 Dudley's case Dunnett's rase Dunnage, Rex v, Dunmow's case Duffin's case Dunnel, Rex v. Durour's case Duchess of Buccleugh, Rpg. v. Duncombe's case Duchess of Kingston's case Du Bost V. Beresford Dyer and Disting, Rex v. Dyson, Rex v. Dye, Reg. v. 1469 1496 1370 984 804 811 854 470 470 288 303, 305 1310 861 601 E. Easterby and M'Farlane Ealing's case Eardisland, Rex v. p]arl of Macclesfield's case Earl of Shrewisbury's case Eail of Somerset (case of) Eccles and others. Rex v. Ecciesfield, Rex v. Edsall's ca>e Edwards, Rex v. Edwards and others. Rex v. Edwards's rase Edwards, (Penelope) case 1738 676 481 229 217 43 1S!6 4)- 1 I4yj 1754 1812 1368 695, 696 1805 XXXVIU Table of the Names of Cases died. Edmonton, Rpx v. Edmonson r. Stephenson Edgcombe v. Rodd and others I'd wards, Rex v. \\A\vanU, Rex v. Eijgiugton and others, (case of) 918, 1050 295 335 211 67 f>'3 463 1791 1412, 1447 1414, 1494, 1496 1265 Egerly's case Elli«, Rex V. Elliott's case Elsworth's case Eller'b case Elliott, Rex V. Elkins, Rex v. Ely, Rex v. Ellis, Reg. V. Ellis's case Ellis f. Ruddle Embdcn, Rex v. Empson's case Empson r. Bathurst Emmett r. Lyne England's case Etherington and Brook, (case of) 981 Evans and Finch (case of) 36 Evans's case 1303 Evans and Fynche, (case of) 973, 975 Evans's case \\64 Evans's case ^"^^ Evans's case '^•^5 "*"* Eystcn and Stud's case 8 853 523 523 33(3 419 230 1790 853 223 866 177 Fitzgerald and Lee's case Fisherman's (The) case Fisher and others. Rex v. Fieldhouse, Rex v. Flemming and Windham, ( Flecknow, Rex v. Fletcher's case Fletcher v. Ingram Fowler and others. Rex v. Folkes r. Chad Forsgate's case Ford's case Fowler V. Saunders Foster, Kex v. Forsyth'h case Foster's case Foxley's case Fredeiick, Rex v. Frith, Rex v. Freeth"s case Francis's case Francis, Rex v. Fry's case Fray's case Franklin, Rex v. Franklin's case Franks's case Furneaux's case Fuller's case Ful wood's case Fuller's case Farrlngton's case 1675 Farr's case l'^^^ Fawcett's case, 1302, 1452, 1470 Farr and Chadwick's case 1087 Farley's case 1 ' ^^ Farre's case ^08, 928 Farrcll's case O'JO, 10^^ Farewell, Rex v. ^^^ Faulkner's case 67 Fabian's case ^^ Ferrers, Rex r. 1469 Frarnley, Rex r. 525, 527 Fell, Mexv. 531,536,539,540,511, 543 FerrPis's, Sir Henry, cabe 734, 751 Ferrcrs's, Lord, ca.e 13, 20, 091 Field's case 1*^- 1450, 1603 993 310 422, 871 case of) 807 471, 472 168 226 1812 1509 1136 793 427, 446 264 289 25 25 1823 1748 1392, 1395 1439 994, 1030 872 705 324 168 114 1237 923, 1400 820, 821, 828 132 Gastineaux's case Gamlingay, Rex v. Gash and Another, Rex Gades's case Gascoigne's case Garland's case Gaby's case Gcnner v. Spa ikes George, Rex v. Gilbert, Rex v. Gibbs, Rex v. Gillham, Rex v. 225, Gibbs, Ilex v. Gill, Rex V. (Jillson's case Gill, Rex V. Gibbons v. Pepper Gibbon's case 613, 852 474 r. 484, 526 1531, 1534 908, 1001 917, 948 1137 748, 749 70 264 264 597, 602, 605, 228, 239 08, 463, 807 1680 1821 867 563 Table of the Names of Cases cited. XXXIX Page Gibbons's case 911 Gibson,Matten,andWlggs, Rex v. 851, 920 Gibson, Rex v. 1469 Gibson's case Gilchrist'ji case 1487, Gilbert, Rex v. (MS. case) 1378, 1453, 1607 1497 1237 1497 Gibbs, Rex v. Glamorgan, Inhabitants of, Rex v. 494, 503 Glasburne bridge case 494, 503 Glamorganshire, Justices of, Rex v. 501 Glass's case 67 Glanfield's case 1677, 1678 Glover's case 1195 Goodburn v. Marley 596 Gould, Reg. V. 525 Goodenough, Reg. v. 424 Gordon, Lord George, Rex v. 337, 384 Goddard o. Smith 281 Godbolt's case 231 Godolphin v. Tudor 232 Gordon's, Winifred and Thomas, case Gough, Rex V. Goodtitle V. Braham Gowen's case Govers, Rex v. 1442, . Wel- Goate's case Goodtitle, dem. Fowler, ford Godfrey's case Gould's case Goodright, dem. Richards, r.Wil liams Goddard and Fraser (case of) Gould's case 39, 52 1781 1508 1661 1372 1481 Goffe's case Gordon's case, Loudon) Gore's case Gordon's case GreenifF's case Griffith, Rex v. Grove, Rex v. (Lockhart and 1506 1170 1200 1211 1298 982 760 827 659 739 563 420 281 333 168 Griffin and others, Rex v. Gray's case Griepe, Rex v. 1757, 1758,1788, 1789 Grey, Lord, and others. Rex v. 1S16 Graham's case 1639, 1643 Grimes's case 1207 Groenvelt's case Green u. Goddard Gray's case Grey's, Lord and Others, Rex Griffin V. Parsons Gregg's case Gulston and Others, Reg. v. Gythin's case Page istie 869 905, 945 V. 818, 837 866 671 383 628 H. Hammond t\ Brewer 474 Harrow, Rex v. 474 Haslinglield, Inhabitants of, Rex v. 475 Hartford, Rex v. 477 Hammersmith, Rex v. 479, 482 Handy, Rex v. 433 Harring v. Walrond 438 Hall's case 444 Hayward's, Sir R,owland, case 445 Hatfield, Rex u. 448 Hankey, Rex r. 398 Harris, Rex v. Harrison, Rex v. Harman v. Delany Hall, Rex V. Hart, Rex v. Haudcock v. Baker and others Haydon, Rex v. Hadnett, Rex v. Hamlyn, Rex v. Harpur, Rex v. Hardwicke, Rex v. Hannon, Reg. v. Hana and Price, Rex v. 385, Harris, Rex v. 65, 150, Hartley v. Hooker Haynes, Rex v. Harris and Minion (case of) Hammond's case Harrison's case Haydon's case Hammond and Webb, Rex v. Harris's case Hassel's case 1670, Haywood's case Harris's case Hall and Crutchfield's case Harrison's case 1495, 1623, 426 318 332 340 336, 343 384, 794 243 295 224 226 280 280 215 156, 523 6G 68 82 26 27 39 1825 1660 1702 1685 1781 1575 1632 xl Tahle of the Names of Cases cited. Page Hales and Kinnersley, Rex v. 1469 Hart's case 1482 Hadfield's case, 1425, 1437 Hawkeswood's case 1443 Hall and Crutchfield's case 1495 _ Hasham's case 1317, 1320 Harman, Reg. v. 1341 Hales's case 1373 Hannon, Reg. v. 1375 Hay lies, Rex v. 1377, 1378 Hawkeswood's case 1266 Hassel's case 1115 Haynes's case 1136, 1141 Hammond's case 1223, et seq. Harman's case 995 Harrold's, alias Hutton's, case 1013 Hammond's case 1033 Harvey's case 1055 Hallard's case 923 Harris's case 923 Hamilton's case 969,985,1157 Hammond's case 984 Harm wood's case 806, 810 Harris's case 854 Hawe V. Planner 870 Hawkins's, Ann, case of 909, 932 Hazel's case 638, 706, 707, 765 Halloway's case 639, 704 Handcock v. Sandham and others 726 Harrison v. Parker and Another 505 Hamworth, Inhabitants of, Rexi>. 518 Henn's case 470 Heydon, Rex v. 243 Herbert, Rex v. 216 Hescott's case 223 Herbert and others, Rex v. 1811 Hevey, Beatty, & M'Carty, (case of) 1510, 1813 Hevey's case 1422 Hebb's case, Richard Astley, (MS case) 1242 Herbert's case 1170 Heath's case 1185 Headge's case 1231 Hench's case 1072 Hed«,'e, Rex v. 1101 Hendricks, Rex v. 601 H'cks's case, 396 Jli iqinson, Rex v. 43 1 Higuins's case 61, 62, 63, 199, 210 JI i;i;iiiS R'-x t'. 1498, 1790 Hickman's case Hill's case Hicks V. Gore Hiiidmarsh's case Page 987, 1016, 1018 805, 806 831 678, 682 Hill and Dod, (case of) 535 Hill, Darley, and others, Rex v. 597, 605 Hornsey, Rex v. 480 Howell, Rex v. 434 Holt, Rex t). 347, 348 Hodnett, Rex v. 295 Horner v. Liddiard 295 Holland, Rex v. 221, 527 Holt V. Ward 288 Holland and Foster, Rex u. 215 Holmes V. Walsh 54 Hodgson and others (case of ), 32, 664 Holden's case 1547 Holmes's case 1660, 1662 Boost's case 1447 Howatt's case 1270, 1274, et seq. Howard's case 1169 Hobson's case 1238 Horner and others, (case of) 1076 Howe's case 1107, 1701 Horner's case 991, 997 Housin V. Barrow 736 Horner v. Battyn and Another 666 Hotham v. E. I. Company 586 Hudson, Rex v. 452, 469 Hube, Rex v. 405, 406 Hunt and Another, Rex v. 346 Hutchinson's case 166, 167, 168, 169 Hucks, Rex v. 1782, 1784 Hunt's case 1498 Hughes's case 1507 Hughes's, Martha, (case of) 1478 Hunter's case 1485, 1632 Hugill's case 1293 Hunsdou's case 1200 Huiigerford's case 957 Hutchinson v. Birch and Another 747 Hull's case 769 Hughes and others, (case of) 912 Huggins r. Barnes, (case of ) 668, 669 Hunter's case 444, 769 Huggctt's case 721, 751, 752, 754 Human's case 53 Ilynian's case 1314 H)deand others, (case of) 1026 HicKmaii and Dyer, (case ) 1 'JO 3, 964 Table of the Names of Cases cited. xli 1. Page Ilderton V. Ilderton 297 Ince's case 167 Incledon, Rpx v. 485, 489 Ingham, Justice, (case of) 1520 Ingram's, Sir Arthur, case 230 Inhabitants of Sheffield, Rex v. 465 St. George, Han- over-square, Rex V. 466 — — Weston, Rex v. 466, 467, 488, 511 Clifton, Rex v. 466, 467 St. Pancras, Rex v. 468 480, 481 Stretford, Reg. v. 469 naslingfield,Rext?. 475 Cottingham, Rex v. 474 Steyning, Rex v. 477 Norwich, Rex v. 479, 500,501, 512,514, 516 St. George, Rex v. 479 Oxfordshire, Rex u. 484, 516 Bucks, Rex v. 494, 495, 504 Glamorgan, Rex v. 494, 503 West Riding of Yorkshire, Rex v. 494, 495, 504, 506, 508, 511, 515 — - ■ — Northampton, Rex 495, 514 Salop, Rex v. 496 St. Peter's in York, 501 Kent, Rex v. 504, 505, 507 Wilts, Rex u. 505, 514, 516 507 508 509 V. Rex V. Llndsey, Rex v. Somerset, Rex v. Devon, Rpx v. Cumberland, Rex v. 509. Ipswich case Isaac's case Wilts, Reg. V. Hamworth, Rex v. Winwick, Rex v. ^ 518 Surry, Rex v. 511, 515 516 518 736 1027 1659 Page J. Jacobs and Lazarus, (case of ) 111 Jackson Rex, v. 96 Jackson Rex, v. 1376, 1396 Jackson and Shipley (case of) 1019, 1024 Jackson and Randall (case of) 882 885, 886 Jackson's case 654, 723 Jackson and others (case of) 662, 678 James, ex parte 1750 James, Rex v. 67 J'Anson v. Stuart 281, 437, 934 JeiTreys v. Walter 596 Jekyll V. Sir John Moore 308 Jenks's case 946 Jenour, Rex v. 305 Johnson's case 905 Johnstone's case 1029 Johnson, Rex y. 1148, 1230, 1233, 1236, 1238, 1245, 1341 Johnson v. Leigh 747, 748 Johnstone's case 855 Johnson v. Bann 696 Johnson's case 59 Johnson, Rex v. 346 Jolliffe, Rex u. 1806 Jones and Palmer's case 1440, 1472, 1494, 1638 Jones's case 1245, 1367, 1410, 1453, 1485, 1545, 1647 Jones, Reg. v. 1375 Jones's, alias Evans's, case 1012, 1028 Jones and Longman, (case of) 926 Jones's, Martha, case 939 Jones's and Beaver, Rex v. 954, 956 Jones's case 1126, 1138, 1167 Jones, Rexu. 1793 Jones V. Clay 870 Jones V. Ashburnham 609 Jones, Rex v. 465 Jones, Rex v. 423 Jones, Rex v. 216, 226 Jones, Rex v. 70 Journeymen tailors of Cambridge, Rex r. 1800,1801,1818 Judd's case 1671 Justices of Tiancashire, Rex v. 486 Glamorganshire, Rex v. 501 xlii Table of the Names of Cases cited. Page Justices of Dorset, Rpx r. 503 Yorkshire, Rex v. 447, 485 K. Keate's case 63 Kemp's case 1108, 1701 Kent, Inhabitants of, Rex u. 504, 505, ' 507 Keite's case 670, 764 Kerrison, Rex u. 513 Kettleworth, Rex v. 489 Kilderby, Rex v. 65 Kingston's, Duchess of, case 288 Kinnersley, Rex v. 330 King's case 1311 Kinder' s case 1415 Kinnersley and Moore, Rex v. 1819 King, Lord, v. Chambers and an- other 357 King's case 397 Kingston and others, Rex v. 437, 527 Knewland and Wood (case of) 1010 Knevet's, Sir Edmond, case 876 Knight and Roffey, Rex v. 944, 945, 1040 Kroehl and others, Rex v. 1826 L. Langham's case 1751 Lade, Sir John, v. Shepherd 450 Lara's case 1376, 1381, 1384, 1396 Lavender's case 1215, 1221 Lapier's case 987, 991, 997, 1035 Lamb's case 1042 Lane v. Degberg 869 Lanure's case 702 Lawrence v. Hedger 727 Ladd's case 623, 679 Lancashire, Justices of, Rex v. 486 Lamb's case 338, 339 Lakeu. King 311 Langley, Reg. v. 329, 397 Lambert and Perry, Rex v. 302, 304, 321, 348 Law V. Law 230 Lawley, Rex v. 279 Lady Madison's case 285 LangUy, Rex v. 69 Lavey and Paiker (case of ) b3 Page 1783, 1784, 1793 1426, 1436, 1442 1444, 1576 1368 1369, 1375 1090 1096 1207 909 848 868, 869 747, 937 491 Leefe, Rex v. Lewis's case Lee's case Leeson's case Lewis, Rex v. Leigh's case Lee V. Redson Leigh's case Le Mott's case Lee's case Leward v. Baseley Lee V. Gansel Leach, Reg. v. Lethbridge v. Winter 451 Lee and Another, Rex v. 310 Levi's (Benjamin) case 116 Lennard's case 102 Lee and others (case of ) 64 Levett's case 28, 792 Lisle V. Brown 1201 Lindsey's case 1237 Lindsey, Inhabitants of. Rex v. 507 Limerick's case 549, 554 Liverpool, Mayor of. Rex v. 466 Llandilo district, com. of, Rex v. 473, 474 Lloyd, Rex v. 429 Lloyd, Rex v. 451 Lockett's case 1397, 1428, 1434, 1639, 1646 Locket's case 1265 Lockyer and Another, Rex v, 1823 Lord Digby's case 289 Lord Cochrane, Rex v. 1828 liOrd Grey and others, Rex v. 1816 Lord Thanet, Rex v. 878 Lord Baltimore's case 801 Lord Castlehaven's case 802, 808 Lord Grey and Others, Rex v. 818, 837 Lord Morley's case 633, 701 Lord Dacre's case 656 Lord George Gordon, Rex v. 337, 384 Lord King v. Chambers and Another 357 Lord Abingdon, Rexu. 308, 311, 348 Lord Sanchar's case 41, 54, 56 Lord Ferrcrs's case 13, 20, 691 Locost and Villars, Rex v. 945, 946 Loggen and Another, Rex v. 214, 223, 224, 225 Lolly's case 287 Longraead's case 166 Table of Die Names oj Cases cited. xlii 111 Page 678 1797 597 678 1491 226 1806 595, 596 606, 608 1481, 1636 922 290 Long's case Lookup, Rex V. Lookup, Rex V. Lorkin's case Lovell's case Lowe, Rex v. Lynn, Rex v. Lynall v. Longbotham Lynn, Rex v. Lyon's case Lyons and Miller (case of) Lyon's case M Maccarty v. Wickford 230 Macclesfield's, Earl of, case 229 Macdaniel, Egan, and Berry (case of) 43 Macdaniel, Berry, and Jones (case of ) 622, 996, 1801 Macdonald, Rex v. 69 Macdougall v. Claridge 334 Madan's case 586 Madison's, Lady, case 285 Maloney v. Bartley 339 Malland, Rex v. 67 Mann, Rex v. 484 Martin, Rex v. 220 Martin's case 115 Marrow, Rex v. 423 Marton, Rex v. 478 Mawbey, Sir Joseph, and others, Rex V. 484, 485 Marquis of Buckingham, Rex v. 495 Marks, Rex v. 201 Master v. Miller 267, 269 Mason's case 139 May, Bishop, and others, Rex v. 139 Maynard, Rex v. 256 Mayor of Stratford-upon-Avon, Rex V. 499 May's case 1785 M'Carthur 1786 Mawbey, Rex v. 1754, 1800j 1808, 1820 Mariot's case 1481 M'Guire's case 1507 Marsh and others, Rex v. 1517 M'Annelly's case 1596 M'Kay's case Maddocks' case M'Intosh's case Page 1622 1626 1452, 1639, 1640, 1647 1385, 14U0, 1481 1413 1414 466 1366 1368 Mason, Rex v Marsh and others, Rex v. Master v. Miller Mayor of Liverpool, Rex v. Martin, Rex v. Maddock's case Macarty and Fordenbourgh, Reg. V. 1372, 1654, 1800, 1814 Mann's case 1299 May's case 1299 Martin's case 1123 M'Gregor's case 1234 Marsh's case 1079 Macauley's case 991, 997 Matthew V. Ollerton 867 Mathews's case 875 Maynard's case 931 Margett and others (case of) 933 Mackey and Arrigoni, Rex v. 848, 849 642, 707 647, 658, 711, 792 Mason's case Mawgridge's case Mansell and Herbert's case 663, 664 Mackallj's case, 628, 683, 737, 739, 742, 750 Manning's case 704 Merriman v. The Hundred of Chip- penham Mead v. Young Meeres's case Meers, Rex v. Mecalfe, Rex v. Michael's case Minify, Rex v. Mitton, Rex v. Miller's case Middleton's case Middleton, Rex v. 999 1416 1295 944 194 117 523 527 585, 586 286 346, 34« 387- Middlemore, Reg. v. Midwinter and Sims (case of) 37, 1689 Miller's case Mitchell's case Minton's case Mitchell's case Milne's case Mitlon's case Mills's case Moore's case Morris, Rexu. 1751, 1753 1641, 1646 1671, 1675^ 1676 1265 984, 1148 Ml 846, 847 31 1795 xliv Table of the Names of Cases cited. Page Moyle's case 1685 Morri* V. Miller 290, 299 Moors and others, Rex v. 205 Morris's case 44 Mortis's case 1678 Mott'scase 1685 Morton's case 1444 Morris's case (John and Sarah) 1476 Moffatt's case 1265, 1451, 1453, 1533 Morton's case 1276 Morris's case 1315 Moses, Rex v. 1349 Morgan's case 1 150 Moore's (Isaac) case 1262 Mouncer and others (case of) 976 Moore's case 998 Moore's case 1078 Monteth's case 883, 888 Moor's case 832 Moor, Rex V. 833 Morti'i's case 855 Morley's, Lord, case 633, 701, 709 Murphy, Mary and Bridget (case of) Muscot, Reg. V. 1791 Murphy's case 1442 Munos, Rex v. 1384, 1400 Munday's case 1102 Murray's case 1054 Murray and Harris (case of) 925 Myddleton, Rex v. 195 N. Nathan, Rex v. 1751 Newland's case 1504 NehufF's case 1375 Newman's case 711 Neville, Bartholomew, Rex r. 430 Neville, Samuel, Rex v 430 Nicholls and Bvgrove, Rex v. 1819 NichoUs, Rex u. 1828 Nicholson, Rex r. 1370 Nicholson, Jones, and Chappel, (case of) 1059, 1076 Nicholson's, Mary, case 684 Nightingale v. Stockdale 334 Now Ian, ex parte 1751 North's case 1673, 1677 Noble V. Adams 1-403 Norrib'scase 1102 Page Norden's case 996 Norwich, city of, Rex v. 480 Northampton, inhabitants of. Rex V. 495, 514 Norwich, Inhabitants of, Rex v. 479, 500, 501, 512, 514, 516 Northampton's. Mayor of, case 330 North field, Rex v. 296 Nunez, Rex v. 1791 Nueys and Galey, Rex v. 1797 Nutbrown's, John and Miles, case 926 Nutt, Rex u 341,348 Nutt, Rex V. 318 o. O' Brian's case O'Brian's case Oldfieid'scase Oliver's case Omealy v. Newell Omealy v. Newell Otieby's case Opie and others, Rex v, Orme, Rex v. Orbell, Rex v. Osmer, Rex v. Osborne, Rex v. Osborn, Rex v. Owen's case Owen, Rex v. 1618 1383, 1469 1482 1075 1362 1518, 1760 643, 646, 647, 649 277 332 1371 521 332 68 984 321 Oxley V. Flower and another 866 Oxfordshire, Inhabitants of. Rex u. 484, 516 P. Parker's case 15 Page and Harwood's case 35 Parkhouse and Trenilet, Rex v. 1812 Pardons and others, Rex v. 1823 Pasley v. Freeman 1801 Parr's case 1504, 1511, 1535 Palmer and Hudson's case 1545 Palmer's case 1574 Paty'scase 1685 Page's case 1746 Paris and others, Rex v. 1371 Parker v. Patrick 1403 Parkes and Brown (case of) 1420, 1471, J499 Table of the Names of Cases cited. xlv Page 1317 1297 1298 1210 1218 1057 1077 1132 Patram's case Fal;ner's case Phtuin's case Parr); and Roberts (case of ) Paradice's case Parkes's rase Patch'', case Pa-ktr's case Patrick and Pepper (case of) 1143, 1701 Parminter's case 940 Parker & Easy, Rex v. 963 Parfait's case 885 Papworth (Upper) Rex v. 487 Parry's esse 673 Pappineau, Rex v. 429, 446, 484, 485 Paine, Rex v. 338, 340, 347 Parcel's case 281 Parker's case 64, 108 Palmer's case 112 Palmer and others, Rex o. 214 Perrott, Rex u. 1751 Pedley, Rex u. 1751, 1753 Pepys, Rex v. 1759, 1792 Pedley's case 1660 Pearce's case 1686 Perrott, Rex v. 1401, 1787 Peck's case 1233 Pearce's case 1272 Pearce's case 1174 Pearles's case 1179 Pelf ry man and Randal (case of ) 1027 Pear's case 1033, 1081, 1085, 1360, 1385 Pedley, Rex v. 954 Pearce's case 979 Petrie's case 985, 1156 Peat's case 987, 990 Perchall's case 874 Penhalla's case 874 Pegge's case 883, 884 Peyton's case 931 Peat's case 687 Pew's case 737 Perry's case 828 Penderryn, Rex v. 478, 483 Penny, Rex v. 328 Peacock v. Sir George Reynell 334 Pearce, Rex v. 345 Peltier, Rex v. 302, 338 Peltier, Rex v. 347 Perry and another, Rex v. 323 Page Phillips, Rpx V. 62 Philips and another, Rex v. 1781 Philipps and Strong (case of) 1038, 1178 Phipoe's case 989, 1122, 1150, 1155 Phillips's case 763 Phillips, Rex v. 797, 798, 799 Phillips, Rex v. 396, 397 Philips u. Hunter 297 Pinckney's case 1369, 1374 Pike's case 1207, 1299 Pickering X7. Rudd 911 Picket's case 931 Pierson, Rex v. 435 Pitt and another, Rex v. 239, 241, 242, 243 Plummer's case 663, 664 Plestow, Rex v. 1403 Plyinpton's case 63, 240 PoUman and others. Rex x>. 62 Pollman and others. Rex y. 1824, 1826 Pollman's case 1809 Powell's case 1472, 1481, 1493 Pollard & Taylor, Rex v. 1304, 1314 Pope's case 1298 Pooley's case 1264, et seqii. 1276 Pooley's (3d) case 1274 Poulter's case 977 Powell's case 812 Ponthieu, De, tJ. Pennyfeather 458 Porter's case 286 Pool V. Sacheveral 326 Pollman and otheis. Rex v. 228, 240 Prosser's case 55 Price (alias Wright), Rex i?. 1796, 1798 Probert's case 1659, 1662 Price, Rex v. 1041 Prosser's case 936 Prat V. Steam 445 Priestley v. Hughes 296 Punshon, Rex v. 1749, 1795 Pudsey's case 1026 Pugh V. Curgenven 243 Purdy V. Stacey 231 Pywell's case 1817 Pywell's case 1379 Pye's case 1029 Pye's case 855 R. Radbourne's case 695 d XlVl Table of the Names of Cases cited. Page Rayner, Rex v. 321 Ray V. Eyres 223 Rastal V. Stratton 1782 Ranger's case 1682, 1688 Raven's, alias, Aston's case 1295 Ranson's case 1119, 1267 Rawlins's case Randall and others. Rex u. Ratclifle V. Burton Rampton's case RatclifFe's case Reeves, Rex v. Revel, Rex v. Read's case Read, Rex v. Reddeard's case Reilly's case Revett V. Brahara Reading's case Reeves's case Redman's case Remnant, Rex v. Reane's case Reaves' s case Reynell, Rex v. Rhodes and Cole, Reg. v. Rhodes and another, Reg 1180 896 747 776 831 321 329 317 133 43 1796 1509 1453, 1487, 1497 1490, 1502, 1636 1315 882, 888 996, 1019, 1021 1005 445, 484 1759 1781, 1783 1502 1505, 1603 104, 105 69, 864 81 1801, 1804, 1822 1661, 1677, 1679 1266, 1276, 1446 Rhodes, Rex v. Rhodes, Robert, Rex v Ridgelay's case Ridley's case Ridgeley's case Rispal, Rex v. Rickman's case Riculist's case, Richardson and Greenow, fcase of) 1027 Richards and Love's case 1101 Jlickeits, Rex v. 860 Rice, Rex v. 396, 399, 644 Richards, Rex v. 449 Robinson v. Jermyn and others 331 Rogers v. Sir G. Clifton 335 Robinson v. Bland 297 Roberts, Rex v. 223 Rose's case 167 Robinson, Rex v, 216, 524 Robinson's case 104 Robinson, Rex v. 66 Roper, Rex v. 1784 Robinson and others, Rex v. 1806 450, 451 Page Roberts and others. Rex v. 1814, 1825 Robinson's case 1836 Roberts t'. Camden 1789 Robinson v. Bland 1622 Robinson and Taylor, (case of) 1653 Ross's case 1711 Robinson's case 1450 Rough's case * 1126 Roger<;, Rexu. 1189 Robinson's case 1219 Roberts, alias, Chambers's case 912 Rogers's case 914, 937, 938 Robins's case 997 Roberts v. Karr 451, 494 Rnbiuson vl Comyns 586 Rowley's case 637, 705 Roger's case 733 Royce, Rex v. 356, 357 Rush by, Rex v. 258 Rushworth case 1643 Russel's case 1502 Russen's case 803, 804 Rugby charity, Trustees of, v Merryweather Russell, Rex t;. 463 s. Sadbury and others. Rex v. 386 Sadi and Morris's ca:H 1150, 1309 St. George's, Hanover Square, In- h-ibitaiits of. Rex v. 466 St. Pancras, Inhabitants of, Rex v. 468, 480, 481 St. Andrews, Rex v. 479, 480 St. George, Inhabitants of, Rex v. 479 St. Peter in York, Inhabitants of, Rex V. 501 Salisbury, Rex v. 309 Sainsbury, Rex v. C6, 215 Sancliar's, Lord, case 41, 54, 56 Samuel r. Payne 724, 725 Sanders's case 659 Savile V. Roberts 1800 Sawyer's case 617 Salop, Inhabitants of, Rex v. 496 Salmon's case 341 Sampson r. Chambers and another 359 Saintiir, Reg. v. 448 Savage's case 1469, 1481 Table of the Names of Cases cUed. xlvii Page 864 1136 1157, 1660, 1662 61, 62, 63 142, 557 386 1782 1353 .1101 1127 1044 744 620, 768 67, 463 61, 438 1084, 1087 1368 1171 804 537 Scott V. Shepherd Scott's case Scofield's case Schofield's case Scadding's case Scott and another. Rex v. Scoole, Rex v. Scott's case Senior's case Searing's case Sear's case Semayne's case Self's case Sermon, Rex v. Sedley, Sir Charles, Rex v. Semple's case Serlestead's case Sea's case Sheridan's case Shrewsbury's, Gaoler of, case Sheffield, Inhabitants of. Rex v. 465, 47S Sharwiu's case 883 Sharpness, Rex v. 489 Sherrington and Bulkley's, case 1145 Shebbeare's, Dr., case 31 S Shrewsbury's, Earl of, case 217 Shelly's case 185 Sharpies, Rex v. 70 Shigumal's case 5 Sharpless and Greatrex, (case of), 1069 Short i>. Lovejoy 864 Shepherd's case 1639 Shepherd's case 1687 Shiles, ex parte, 1747 Sheppard's case 1432 Sheldon's case 1469 Shaw's case 1267 Shepherd's case 1264 Sir Edmond Knevet's case 876 Sir Anthony Ashley's case 352 Sir Rowland Hayward's case 445 Sir John Lade v. Shepherd 450 Sir Joseph Mawbey and others, 484, 485 Sir John Bucknall, Reg. v. 497 Sir Charles Stanley's case 653, 654 Sir Charles Stanslie and others, (case of) 654,741 Sir John Chichester's case 758 Sir Henry Ferrers's case, 734, 751 Sir Charles Sedley 's case 317 Page Sir Arthur Ingram's case 230 Sibly V- Cuming 244 Simson's case 1034 Simons, Rex v. 993, 1004, 1005 Simson's case 973, 974 Silverton, Rex v. 484 Sissinghurst House, (case of) 356, 658, 692, 738 Skinner, Rex v. 471 Skerrett and others. Rex v, 1371 Skutt's case 1273 Slaughter, Rex v, 217 Sloper's case 1270 Smith V. Prager 1792 Smith's case 1498 Smith's, Captain, case 1507 Smith, Rex u. 218 Smith's case 115, 116 Smith and others. Rex v. 66 Smith's case 55, 1317 Smith's case 1028 Smith's case 926 Smith's case 975 Smith, Reg. v. 601 Smith, Rex v. 491 Smith, Rex v. 439 Smith V. Wood 340 Smith and others, Rex v, 446 Smollett, Dr., Rex v. 330 Smith's case 1383 Snow's case 718 Somerset, Earl of, 43, 53 Softly, Rex V. 730 Somerset, Inhabitants of. Rex v. 508 Soley and others, Reg. v. 351, 353, 362, 386 61,212 Soares, Atkinson, and Brighton (case of) 44 Southerton, Rex v. 1 829 Souter, Rex v. 1789 Soares, Atkinson, and Brighton, (case of) 1475 Southerton, Rex v. 1372 Sparrow v. Reynold 231 Spice's case 168 Spencer's case 1007 Spragg, Rex u. 1801, 1802, 1820, 1828 Spalding's case 1660 Sponsonby's case 1505, 1510, 1511 Spears's case 1219 Squire and his Hife, (case of) 25 Southerton, Rex v xlviii Table of the Names of Cases cited. Page 621 596 221 309 ^79 223 227 70 64, 108 36 1133 1041 997 1016 Squires and his wife, (case of), Squires v. Whisken Stockdale, Rex v. Stiles V. Nokes Steventon and others, Rex v. Stotesbury v. Smith Stockwell V. North Starr, Rex v. Stewart's case Sterne's case Statham's ca^^e Steele v, Houghton and wife Steward's case Staple's case Stockton and Edwards, (case of), 930 Stockley's case 735 Stevenson's case 736, 749 Strickland v. Pell 726 Stedman's case 634, 703 Stick's case 536 Stratford-upon-Avon, Mayor of, Rex V. 499 Stratford Bridge case 505 Stretford, Inhabitants of, Reg. v. 469 Staughton, Rex v. 471 Steyning, inhabitants of, Rex v. 477 Stoughton, Rex v. 40O, 470, 471, 477, 478, 479, 480 Stratton and others, Rex v. 444 Stead, Rex 7). 414,447,485 Starr, Rex v. 308 Steventon and others, Rex u. 1806 Starling, Rex v. 1809 Stratton and others. Rex v. 1818 Sterling's case 1442, 1505 Stocker's case 14G9, 1480, 1495 Storey's case 1390, 1392 Stratton and others, Rex v. 1396 Stott's case X315, 1357 Stokes's case 1168 Stone's case 1171 Sulston V. Norton 243 Sutton V. Bishop 245 Sutton's case 63 Summers's ca'^e 1029 Surrey, Inhabitants of, Rox v. oil, 515 Sutton, Rex V. 347 Sweeting, R»'X u. 831 Swend^on'scase 820,828 Swau aud Jclfroys (ease of) 690, 694, 698 T Page 334, 345 1783, 1788 Tabart v. Tipper Taylor, Rex v. Tarrant, Rex u. 1811 Taylor and Robinson (case of) 1815 Taylor's case 1671 Taft's case 1429 Taylor's case 1429, 1434, 1471, 1485 1502, 1505 Tatlock V. Harris 1472 Tannet's case 1597, 1603 Taylor's case 1133 Taylor's case 1240 Taplin's case 1006 Taunton, St. Mary, Rex v. 483, 489 Taylor and Shaw (case of) 627 Taylor's case 692, 717 Tanner, Reg. v. 361 Taylor, Rex v. 430 Taylor v. Whitehead 450 Taylor, Rex v. 314 Tandy's case 115 Tattershall's case 118 Tawney's case 216, 218 Tarrant, Rex v. 216, 1367 Taylor, Ellen, Rex v. 25 Teal and another, Rex v. 1828 Testick's case 1485, 1504, 1630 Terry's case 1400,1403 Teague's case 1415,1446 Thorogood, Rex v. 1791 Thornton's case 1502 Thompson's case 1636 Thomas's case 1636 Thomas's case 1271 I'horne's case 1280 Thomas's case 1313 Thompson's case 947 Thompson and Macdaniel 982 Thanet, Lord, Rex v. 878 Thomas's case 884, 885, 886 Thomas, Rex v. 692 Thorpe's case 588 Thompson's case 664 Thorley v. Lord Kerry 329, 330, 335 Timberly's case 1655 Tims and Cecil (case of ) 1167 Tickner's case 848 Tickel V. Read 868 Tilley's case 556, 564 Tinckler's case 650 Table of the Names of Cases cited. xlix Page Todd's case 1132 Tooley and others, Reg. v. 394, 727, 750, 752, 754 Topliam, Rex v. Tobart v. Tipper Towiisoii V. Wilson Tovey V. Lindsay 333, 344, 348 334, 345 220 287 Tooke V. Iloilingworth (case of) 111 Treeves's case 13G2, 1378 Treble, Rex v. 1414, 1503 Trapsbaw's case 938, 970 Tracy v. Talbot 939 Trusty and Howard, Rex v. 886 Travers, Rex r. 811 Tranter and Reason (case of) 635, 760 Trustees of the Rugby Charity, V. Merryweather 450, 451, 452 Truman's case 300 Turner, Rex v. 1816 Turner's case 1030 Tannard's case 1090 Turner and another. Rex v. 958 Turberville v. Savage 863 Turner's case 915, 956 Turner's case 706 Tucker's case 812 Tuchin, Reg. v. 325 Twisleton and others. Rex v. 832 u. Underwood v. Hewson 867 Upfold V. Leit 1413 Upton, Rex v. 601 Urlyn, Rex v. 280, 281 Usher's case 15 ;4 V. Vaughan's case 62, 228, 231, 239, 240 Variey's case g2 Vantandillo Rex r. 158 Vaux's case 617^ 1497 Vandercomb and Abbott (case of ) 945 ,^ 955, 956 Verelst, Rex v. 1794 472 1827 Venuor, ex parte, V^ille de Varsovie's case Vint, Rex v. Villeneuve's case Villars V. Monsley w. Waiinop, Rex v. « Wadley, Rex v. Watson, Rex v. Watson and others, Rex v. ^V'alter, Rpx v. Watson and others, Rex v. Page 338 1389 329, 330 345, 304. Waterfield v. The Bishop of Chi- 420 406 346 345 341 327 Chester Ward's case Wade's case Waddington, Rex v. 256, 309 757 768 261, 262, 263 627, 655 477 Walker's case Wall is and others (case of) Watts, Reg. v. Watts, Rex v. Watson, Reg. v. Waite V. Smith W^all's case Walker's case Walcot's case Watts's case Walker, R,ex v. Ward's case 1360, 1370, 1374, 1383, 1442, 1469, 1471 Walker's case 1140 492, 493 496, 497 459 1451, 1454 1420 1495 1502 1313 Walsh's case 1216, 1220 Walters (James and Barnabas) case of) Walsh's case 1045 1053, 1061, 1075, 1122 1245 Watson's case 984, 1080 Wardle's case 1029 Waddington's case 947 Watson's case 1215, 1221 Waite's case 1226 Walford, Rex v. 1203 Wa; tie, Rex r. 69 W'atsou's case 67 Walker, Rex v. 52 Waldborough's, Alice de, case 5 Weltje, Rex v. 328 Weatherstone v. Hawkins 335 Wetheril atd another, Hex v. 21(3 d Table of the Names of Cases cited. Page Webb, Rex v. 462 Weston (Inhabitants of) Rex v. 466. 467, 511 Weld V. Hornby 430, 445, 492 Webb and others, Rex v, 44 '1 AVestine^s, Rex v. 1790 Wells's case 1504 Wet tbeer's case 1113 WpH's case 852 AVeston's case 853 M^aver V. Ward 866 Weaver v. Bush 870 Welsh's, Patrick aiul John, case 82 West and others. Rex v. 79, 112 White and Ward, Rex v. 429, 430 AV'liite and another, Rex v. 32S AVhite, Rex v. 344, 348 AVhaley v. Pajct 596 Whiley and llaines (case of) 118 Whiting, Rex v. 1791 Vv'|)iley and Haines 1515 Whiley's case 1437 Wheatley, Rex v. 1369, 1370, 1377 1380 AViiite's case 949, 985 Whittingham's case 1230, 1236 AVhite'scase 812,813 Whistler, Reg. v. 35 Wheatley, Rex v. 68, 69 Winter, Reg. v. 424 Wilson, (clerk) v. Greaves 401, 402 Wilson and others, Rex v. 408, 419, 420 Williams, Rex v. 346, 398 Wilkes, Rex v. 317 Wilkes, Rex v. 303 Williams, Rex t>. 311 Williams, Rex 11. 313,314,316 Winship and another, Rex v. 216, 218 Williams v. Lyons 223 Willoughby and another (case of) 636 Williams's case 65K, 71 1 Wither's case 703 Wigrr.'s case 707, 766 Williams v. Denipsey 726 Winwick (Inhabitants of) Rex v. 736 Wi Minims and Davis, Rex v. 215 Wingfifld, Rox V. 485 Wilts, (Inhabitants of) Rex r. 505, 514, 516 Williams; Rex v. 430 Page Williams v. The East India Com- pany 431 Williams, Reg. v. 433 Winter's case 1673 Wilcock's case 1623 Wilkins's case 1071, 1131, 1217, 1219 Withal and Overend (case of) 957, 968 Willoughby's case 1263, 1639 Williamf's case 1265 Williams and others, (case of) 931 Williams's case 1642 Wick's ca'e 1451 Wilson's case 1498 Witchell's case 1385,1390 Wilks's case 1426 Wilders, Rex f. 1376,1384 Wilkes's case 1305 Willis's case 1342 Wilson and Wife, Rex v. 1356 Wilkinson's case 1035 Williams's case 889, 891 Wild's, Jonathan, case 1172, 1305, 1319 Window, Rex v. 121 1 Wilson's case 81 Wiseman's case 816 Wilder, Rex v. 68 Willace's case 76, 101, 109 Willoughby's case 68 Wisg, Rpx r. 66 Williams's case 25 Woodfall, Rex v. 348 Woolston, Rex y. 314,315 Woodfall's case 341 Woolnoth v. Meadows 304 Wuodyer v. Iladden 450, 452 Wood, Ex parte 1747 Woodman's case 1755 Wooldrige's case 110 Worrell's case 1368 Wood, Rex V. 1379 Woodward's case 1132 Woodward's case 949, 985 Wrightson, Rex v. 328 Wrighf, Kcx r. 309,311 Wright, Rex y. 122 Wright, Rex v. 65, 66 Wyat, Rog. ;•. 213, 218 Wyjie and another (case of) 1514 Wyer, Rex r. 1 347 Wynne's case 1043 Table of the Names of Cases cited. li X. Ximenes v. Jaques Y. Yarnton, Rex v. Yarririgton's case Yon£;e (De) case of York's case Yorkshire (Justices of) Page 596 480 1497 122 8 447, 485 Page Yorkshire, West Riding (Inhabi- tants of) Rex V. 494, 495, 504, 406, 508, 511, 515 Young's case Young and Pitts, Rex v. Young and others, Rex y. Young's case Young, 240 '215 608 740, 730 831, 897 Rex V. Young and others (case of) 1242, 1370, 1384, 1385, 1388, 1401 Young, Rex V. 1306 Young, Rex v. 1806 d$ ERRATA, CORRIGEJ^DA, ET ADDENDA. 11, Note (/) Add — In Steel's case, 1 Leach 451, A prisoner who could not hear, and could not be prevailed upon to plead, was found mute by the visitation of God, and then tried, found guilty, and sentenced to be transported. And in Jones's case, 1 Leach 102, where the prisoner (who was indicted on 12 Anne, c. 7. for stealing in a dwelling-house) on being put to the bar, appeared to be deaf and dumb; and the jury found a verdict, " Mute by the visita- tion of God ;" after which a woman was examined upon her oath, as to the fact of her being able to make him understand what others said, which she said she could do by means of signs, was arraigned, tried, and convicted of the simple larceny. 26, Note {g) Add — But qu. and see 1 Hawk. P. C. c. 81. s. 6. and post. Chap, xxiii. 38, Note (/) Add — And all the Judges were of opinion that this case is good in law, in Wells's case, 1 East. P. C. c. 8. s. 7. p. 414. 1 Leach 360, in the note. And see also 2 Hawk. c. 33, s, 98, 99. 45, Note {I) Add— But see 2 East. P. C. c. 21. s. 9, where it is said that Lord Hale, and Foster J. were decidedly of opinion that principals in arson were virtually 11 V Errata^ Corrigenda, et Addenda. excluded from the benefit of clergy by the stat. 4 & 5 P. and M. c. 4, which excluded the accessory before. 62, Note (m) Add — And see 1 Hawk. P. C. c. 55. 66, Note (n) Add — But not if the statute relate merely to pri- vate rights. " Many public acts are passed which "regulate private rights; but it never was con- *' ceived that an indictment lay oa that account, " for an infringement of such rights." Rex v. Richards, ST. R. 637. Per Cur. 66, Note {p) Add — And see the cases collected in Rex v. Dick- inson, 1 Saund. 135, note (4) 66, Note («) Add — And see Faulkner's case, 1 Saund. 250. c. note (3). 69, Note (i) In a late case it is stated to have been held, that no indictment will lie for procuring the marriage of a female pauper with a labouring man of another parish, who is not actually chargeable. Rex v. Tenner and Another. 1 Esp. 304. 140, Line 23, add— The 48 Geo. III. c. 130, s. 7, 10, and 49 Geo. III. c. 122, s. 1. and s. 13. 16, relate to the unlawfully keeping possession of anchors and other materials belonging to ships, and the receiving of such stolen articles, &c. 16G, Note (/) line 16, instead of 28 Geo. III. c. 25, read 28 Geo. Hi. c. 23. 167, Note (?i) instead of 2 Leach, 7eud 1 Leach. 170, line 4, add — In a case where the defendant was indicted for assaulting and beating a custom-house officer in the execution of his office, a motion was made to quash the indictment, on the ground that this statute in- Errata , Corrigeiida^ et Addenda. Iv flicts a penalty, and presci il)es the particular method of punishing the offence, namely, by the Justices of Peace, by fine and imprisonment, aud that therefore no indictment lay for the offence j and the indictment was quashed. («) t « 185, Note (x) Add — And see the case of Rex a. Knight and Roffey, 2 East. P. C. c. 15, s- 22. p. 510. that the circumstances of goods being found io oil-cases, or in great quantities in an unentered place, will be sufficient to throw the proof of the duties being paid on the other party. 211, Note (0- After Beeley v. Wingfield, 11 East. 46, add— And see also Baker v. Tounsend, 7 Taunt. 422. 212, line 4, add — But it does not apply to offences cognizable only before magistrates ; and an indictment for compounding such an offence was holden bad in arrest of judgment, (b) 212, Note (q) Add— But qu. and see Rex v. Crisp and Others, 1 Barnw. and Aid. 286 and 287. 226, Note (w) Add— In Rex v. Burder, 4 T. R. 778, it was held that an appointment of an overseer for the poor, for the year next ensuing^ must be understood to be for the overseer's year: and an indictment that the defendant was appointed " overseer of the poor of the parish of A:' and that he afterwards refused "to take the said office of overseer of the parish to which he was so appointed," was held good on demurrer. ■» 242, line 3, add — An action will lie, though the party bribed does (a) Anon. 2 Ld. Raym. 991. 3 Salk. 189. In 2 Ld Rayra. 991^ Reg. V. Watson is cited as a case where the same point was resolved by all the Judges two years before. (Z») Rex V. Crisp and Others, 1 Barn. & Aid. 282. Ivi Errata^ Corrigenda^ et Addenda. not vote according to the bribe. Sulston v. Nor- ton, 1 Black. Rep. 317, and Orme 296, notes. 281, Note (0 Add— And per Heath J. in Rex v. Wylie and Another, 1 N. R. 95. 283, Note (&) Add — But see 5 Evans's Col. Stat. 347, where it is said that the enactment in 4 Ed. I. c. 5. did not relate to marriage during the life of a former hus- band or wife, as being a substantive felony, but to the excluding from the privilege of clergy per- sons convicted of any other felony, who had been twice married, or who had married a widow or widower which by the later statute, 1 Edw. VI. c. 12. s. 16. was abrogated. 287, Note (/«) line 10, after Dow's Rep. 117, add— In 5 Evans's Col. Stat. 348, note (4), it is said that Thompson, B., stated the opinion of the Judges to be — 1. That a marriage law fully contracted in England cannot be dissolved in a ditferent country, by any authority whatever ; and — 2. That the proviso relates only to the sentences of courts in England. 289, Note (0 line 2, for 2 Chit. Crim. L. read 3 Chit. Crim. L. 294, line 8. add, note. Rex v. Burton-upon-Trent, 3 M. and S. 537. 310, after the last line, add — And the Court of King's Bench has gone to the extent of granting a criminal inform- ation, for publishing in a newspaper a statement of the evidence given before a coroner's jury, ac- companied with comments, although the statement was correct, and the party had no malicious mo- tive in the publication, (c) 334, Note (/) add — And see in Jlorriott v. Stuart, 1 Esp. 437, and Stuart v. Lovell, 2 Stark. R. 93, that the (c) Rex V. Fleet, 1 Barnw. & Aid. 379. Errata, Corrigenda.^ et Addenda. Ivii editor of one public newspaper is not justified in attacks upon the private character of the writer of another public newspaper. 340, Note (g-) add — And see arte., 334, a further publication is necessary to support an action. Thus it has been held, that where the action was brought for a libel contained in a letter transmitted by the de- fendant to the plaintiff by means of a third person, it is a question for the jury, whether there has been any publication, except to the plaintiff himself; and that, if there has not, the defendant is entitled to their verdict. Clutterbuck v. Chaffers, 1 Stark. R. 471. But in another case of an action for a libel, contained in a letter written by the defend- ant to the plaintiff, it was holden, that proof that the defendant knew that the letters sent to the plaintiff were usually opened by his clerk, is evi- dence to go to the jury of the defendant's inten- tion that the letter should be read by a third per- son. Delacroix v. Thevenot, 2 Stark. R. 63. 348, Note (/} add — In a late case of an action for a libel, con- tained in the Statesman newspaper, subsequent pub- lications by the defendant in the Statesman news- papers were tendered in evidence to shew quo animo the defendant published the paragraphs in question. Lord Ellenborough said, '' No doubt *' they would be admissible in the case of an in- " dictment ; and so they would here shew the in- " tention of the party if it were at all equivocal : " but if they be not admitted for that purpose, they " certainly are not admissible for the purpose " of enhancing the damages." Stuart v. Level, 2 Stark. R. 93. 440, after the last line, add— A late act, however, 42 Geo. IIL c. 119., declares all games or lotteries, called Little GoeSf to be public nuisances, and provides for their suppression ; and also imposes heavy pe- Iviii Errata, Corrigenda, et Addenda. nalties upon persons keeping offices, &c. for lot- teries not authorised by parliament. 457, line 36, add note — (u"-li trow, or other vessel whatever, employed or wlii( li the na- " ubcd in carrying or conveying goods, wares, " iiiid merchandize, or in which any such goods, " wares, or merchandize shall be, in or upon any ficatc delivered by the clrrk of assize being sufficient evidence of con- viction, Ac. in such cases, extends those provisions also to prosccutioni for aiding or assisting an escape, or attempt to escape. vijjiilioa passes Errata, Corrigenda, et Addenda. Ixiii " canal, navigable river, or in'and navigation, " in any part of the kingdom of Great Britain " and Ireland, it shall be sufficient to allege that " such felony was committed within any county " or city through any part whereof such boat, " barge, trow, or other vessel shall have passed in *' the course of the voyage or journey during *' which such felony shall have been committed ; *' and in cases wherein the sides or banks of any *' navigable river, canal, or inland navigation, or *' the centre thereof, shall constitute the boun- " dary of any two counties or cities, it shall be " sufficient to allege that such felony was commit- *' ted in either of the said counties or cities through " which, or any part thereof, such boat, barge, " trow, or other vessel, shall have passed in the " course of the voyage or journey during which " such felony shall have been committed ; any and " every such felony shall and may be inquired of, ^' tried, and determined in the county or city " within which the same felony shall be so al- " leged to have been committed; and all and Persons so K. ^ J 11.., .1 tried and con- every person and persons who shall be convicted yictcd to be " of any such felony as to be inquired of, tried, subject to " and determined, as aforesaid, shall be subject penaytiera's"if *' and liable to all such pains of death, and other tried in the " pains, penalties, and forfeitures, as such person fact was^coin- '' and persons convicted of such felony would have mitted. *' been subject and liable to in case such felony *' had been inquired of, tried, and determined *' in the county in which the same felony was *' actually committed ; any law, statute, or usage *' to the contrary in any wise notwithstanding: " Provided always, that nothing herein contained " shall extend, or be construed to extend, to affect " the jurisdiction of the High Court of Admiralty, *' or of any commission for the trial of offences « under 28 H. VIII. c. 15." 1309, Note (u) add — And this doctrine has been established in a Ixiv Errata^ Corrigenda^ et Addenda. late case by the decision of the twelve Judges. Gaze's case. East. T. 1819. 1441, Note, (p) Instead of 1 East. P. C. c. 2. s. 25. p. 86. read 2 East. P. C. c. 19. s. 33. p. 921. 1329, line 2. add — And the 54 Geo. III. c. 70. which was passed for the further improvement of the land revenue of the Crown, makes it a capital offence (by s. 38,) to forge any transfers of funds by that act directed to be sold. Sac. or any receipts, warrants, &c. for dividends, monies, &c, under any of the provi- sions of that act. *^* It may be useful to mention that the edition of Hawkins's Pleas of the Crown, referred to in this Work, is that of the year 1795 ; and the edition of Leach's cases in Crown Law, that of the year 1815. TREATISE ON CRIMES AND MISDEMEANORS. BOOK THE FIRST. OF PERSONS CAPABLE OF COMMITTING CRIMES, OF PRINCIPALS AND ACCESSORIES, AND OF INDICTABLE OFFENCES. CHAPTER THE FIRST. Of Persons capable of committing Crimes. XT is a general rule that no person shall be excused from puniishment for disobedience to the laws of the country, ex- cepting such as are expressly defined and exempted by the laws themselves (a). The inquiry, therefore, as to what persons are capable of committing crimes, will best be dis- posed of by considering the several pleas and excuses by which a person who has committed a forbidden act may be exempted from punishment. (a) 4 Blac. Cora. 20- VOL. I. B 2 Of Persons capable of [book i. Wanf or de- Those pleas and excuses must be founded upon the want ' or defect of will in the party by whom the act has been com- mitted. For without the consent of the zeill, human actions cannot be considered as culpable ; nor, where there is no will to commit an offence, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offences (b). The cases of want or defect of will seem to be reducible to four heads: — I. Infancy — II. Non compos mentis — III. Subjection to the power of others — IV. Ignorance. Infants com- !• The full age of man or woman by the law of England mitting mis- jg twenty-one vears (c) : under which as^e a person is termed demeanors. . ' . . . an infant, and is exempted from punishment in some cases of misdemeanors and offences that are not capital (d). But the nature of the offence will make differences which should be observed. Thus, if it be any notorious breach of the peace, as a riot, battery, or the like, an infant above the age of fourteen is equally liable to suffer as a person of the full age of twenty-one (e); and if an infant judicially per- jure himself in point of age, or otherwise, he shall be pu- nished for the perjury; and he may be indicted for cheating with false dice, &c. (f) : but if the offence charged by the indictment be a mere non-feazance (unless it be of such a thing as the party be bound to by reason of tenure or the like, as to repair a bridge, &c.) there, in some cases, he shall be privileged by his non-age, if under twenty-one, though above fourteen years ; because laches in such a case shall not be imputed to him (g). It is said, that if an infant of the age of eighteen years be convicted of a disseisin with force, yet he shall not be im- (b) 1 Hale 14. (c) 4 Blac. Com. 23. 1 Hale 20. (c) It is the full age of male or fe- Co. Lit. 246, b. 2 Inst. 703. male according to comiuoa speech. (J) ^ ^^''- ^l^""- ^93- ^**^- ^^^' lit. 8. 104. 259. ig) I Hale 20. 3 Bac. Abr. 59K {fO 1 Hale 20. CHAP. 1.3 Committing Crimes — Infancy. 3 prisoned {h) ; and the law seems to be, that though an in- fant at the age of eighteen, or even fourteen, hy his own acts, may be guilty of a forcible entry, and may be fined for the same ; yet he cannot be imprisoned, because his in- fancy is an excuse by reason of his indiscretion, and it is not particularly mentioned in the statute against forcible entries, that he shall be committed for such fine (?). But an infant cannot be guilty of a forcible entry or disseisin by barely commanding one, or by assenting to one to his use; because every such command or assent by a person under such incapacity is void ; but an actual entry by an infant into another's freehold gains the possession and makes him a disseisor {k). With regard to capital crimes the law is more minute infants cora- and circumspect, distinguishing with greater nicety the se- ™!'^*"}S '^^P'" veral degrees of age and discretion : though the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's un- derstanding and judgment {I). But within the age of seven I/ears an infant cannot be punished for any capital offence; whatever circumstances of a mischievous discretion may appear ; for ex presumptione juris such an infant cannot have discretion ; and against this presumption no averment shall be admitted (w). On the attainment o{ fourteen years of age, the criminal {h) 1 Hale 21. (/) 4 Blac. Com. 23. (/) 4 Bac. Abr. 591. Dalt. 302. (;«) 1 Hale 27, 28. 1 Hawk. c. Co. Lit. 337. And see 1 Hawk. P. 1. s. 1. note (1). 4 Blac. Com. 23. C. c. 64. s. 35. that the infant ought Yet there is a precedent in the re- not to be imprisoned because he gister, fol. 309, /;. of a pardon shall not be subject to corporal granted to an infant within the punishment by force of the general age of seven years who was in- words of any statute wherein he is dieted for homicide ; the jury hav- not expressly named. ing found that he did the fact be- {k) 4 Bac. Abr. 591. Co. Lit. 357. fore he was seven years old. I Hawk. P. C. c. 64. s. 35. B 2 Of Persons capable of [book i. actions of infants are subject to the same modes of construc- tion as those of the rest of society ; for the law presumes them at those years to be dofi capaces, and able to discern between good and evil) and therefore subjects them to ca- pital punishments as much as if they were of full age (w). But during the interval between fourteen years and seveUy an infant shall be prima facie deemed to be doli incapax, and presumed to be unacquainted w ith guilt ; yet this pre- sumption will diminish with the advance of the offender's years, and will depend upon the particular facts and cir- cumstances of his case. The evidence of malice, however, which is to supply age, should be strong and clear beyond all doubt and contradiction : but if it appear to the Court and jury that the offender was doli capax, and could discern between good and evil, he may be convicted and suffer death (o). Thus it is said, that an infant of eight years old may be guilty of murder, and shall be hanged for it (p) : and where an infant between eight and nine years was indicted, and found guilty of burning two barns, and it appeared upon examination that he had malice, revenge, craft, and cunning, he had judgment to be hanged, and was executed accordingly ((/). An infant, of the age of nine years, liaving killed an infant of the like age, confessed the felony; and, upon examina- ()i) Dr. and Stii. c. 26. Co. Lit. 79. 171. 247. Dalt. 476. 505. 1 Hale 25. 3 Bar. Abr. 581. (o) 1 Hale 25, 27. 4 Blac. Com. 23. The rivil law, as to cnpiUil pu- nishments, (listin<;uishecl the ages into four ranks: — 1. /Elas pnhcr- lalis 7)/<7?fl,Mhi(li iseip;hteen \ears. 2. villas jmbfrtatis, or jiuhcrlns jrc- Tierally, which is fourteen years, at which line person.s were likewise presumed to he doli rapares. :i. JFjtas puhcrlali projcima ; hul in this the Roman Ia\Tyers were di- vided, some assip^ning it to ten years and a half, others to eleven ; before whir h the party was not pre- sumed to be doli rapax. 4. Jn~ fanlifi, which lasts till seven years ; within which a^o there can be no pnill of a capital offence. 1 Hale 17, 18, 19. (p) Dalt. Just. c. 147. (q) Derm's rase, MS. Report, 1 Hale 25. note («). CHAP. I.] Committing Crimes. — Infancy. 5 tion, it was found that he hid the blood and the body : the justices held tliat he ought to be hanged ; but they respited the execution, that he might get a pardon (?). Another infant, of the age of ten years, who had killed his companion and hid himself, was, however, actually hanged ; upon the ground that it appeared by his hiding that he could discern between good and evil ; and malitia supplet cetatetn (s). And a girl of thirteen has been burnt, for killing her mistress (0' In the case of rape, the law presumes that an infant under the age of fourteen years is unable to commit the crime ; and therefore it seems he cannot be guilty of it : but this is upon the ground of impotency rather than the want of discretion. For he may be a principal in the second de- gree, as aiding and assisting in this offence as well as in other felonies, if it appear by sufficient circumstances that he had a mischievous discretion (u). The following is an important case as to the capability of an infant of ten years old being guilty of the crime of mur- der ; and as to the expediency of visiting such an offender with capital punishment. At Bury summer assizes 1748, William York, a boy of Ca*- of mur- ten years of age, was convicted before Lord Chief Justice ^^f^ ^^^ \eai^ Willes, for the murder of a girl of about five years of age, t>I, a. iJut if one who is both deaf and dumb, may discover by signs that he halh the use of uiiderstiind- ing; iiuicb more may one who is only dumb, and consequently such :i one may be ;;uilly of felony ; scd quccre how he shall be arraigned. 1 CHAP. I.] Committing Crimes. — Lunacy, ^c. \\ been sometimes expressed, a person afflicted with dementia Non compos ,. , , ... , . • • 1 r. mentis from accidentaiis vet aaventftui., is excused in crmnnal cases ironi sickness. sucli acts as are committed while under the influence of his disorder (g). Several causes have been assigned for this disorder ; such as the distemper of the humours of the body ; the violence of a disease, as fever or palsy ; or the concus- sion or hurt of the brain : and as it is more or less violent, it is distinguishable in kind or degree, from a particular de- mentia, in respect of some particular matters, to a total alienation of the mind, or complete madness (h). A lunatic is one labouring also under a species of the de- Lunatics. mentia accidentalis vel adventilia, but distinguishable in this, that he is afflicted by his disorder only by certain periods and vicissitudes, having intervals of reason. Such a per- son during his phrenzy is entitled to the same indulgence as to his acts, and stands in the same degree with one whose disorder is fixed and permanent (/). The name of lunacj/ was taken from the influence which the moon was sup- posed to have in all disorders of the brain ; a notion which has been exploded by the sounder philosophy of modern times. With respect to a person non compos mentis from drunk- Persons enness, a species of madness which has been termed dementia "'^"°''- ajfectata, it is a settled rule, that if the drunkenness be voluntary it cannot excuse a man from the commission of any crime (A), but on the contrary must be considered as an aggravation of whatever he does amiss (I). Yet if a person, It may be observed, that from the (ft) 1 Hale 30. humane exertions of many inge- (/) 4 Co. 125. Co. Lit. 247. 1 nious and able persons, and from Hale 31. the extensive charitable institu- (k) Co. Lit. 247. 1 Hale 32. tions for the instruction of the deaf 1 Hawk. P. C. c. 1. s. 6. and dumb, many of those unfortu- (/) 4 Blac. Com. 26. Plowd. 19, nate people have at the present day Co. Lit. 247. Nam omne crimen a very perfect knowledge of right ebrietas incendit et detegit. And and wrong. see also Beverley's case, 4 Co. 125 C?) 1 Hale 30. 3 Bac. Abr. 526- 12 Of Persons capable of [book i. by the uiiskilfulness of his physician, or by the contrivance of his enemies, eat or drink such a thing as causes phrenzy, this puts him in the same condition n ith any other phrenzy, and equally excuses him ; also if by one or more such prac- tices an habitual or fixed phrenzy l)e caused, though this madness was contracted by the vice and will of the party, yet the habitual and fixed phrenzy caused thereby puts the man in the same condition as if it were contracted at first involuntarily (/;/). IdiocY and ^^^ though this subject o{ non compos mnilis may be spun lunacy are qj|(^ (q j^ oieater length, and branched into several kinds and the prevaihiig , ^ . , . .,.,...,. distiuctions. degrees, yet it appears that the prevailing distinction herein in law is between idiocjj and hoiaci/ ; the first, a fatuity/ a 7iati'citafe, or denicnlia naluraUs^ which excuses the party as to his acts ; the other, accidental or adventitious madness, which, whether permanent and fixed, or with lucid inter- vals, goes under the name of lunacy^ and excuses equally with idiocy as to acts done during the phrenzy (ji). nifliculty of The great difficulty in cases of this kind is, to determine ^'^'^ ' where a person shall be said to be so far deprived of his sense and memory as not to have any of his actions imputed to him ; or where, notwithstanding some defects of thi- kind, he still appears to have so much reason and understanding as will make him accouniable for his actions. JLo'd Hale, speaking of partial insanity, says, that it is the condition of very many, especially melancholy persons, who for the most part discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason ; and that this partial insanity seems not to excuse them in committing of any capital offence. And he says further, " Doubtless " most persons that are felons of themselves and others are " under a decree of partial insanitv when thev commit these " offences : it is very dilllcult to define the invisible line that ^' divides perfect and partial insanity ; but it must rest upon (ot) 1 Ilalc 32. (n)3Bac. Abr. 527. 4 Co. ig.'j. CHAP. I.] Commuting Crimes. — Lunacy, &;c. 13 *' cIi'Giimstances duly to be weii^hed and considered both by *' thejiidge and jury, lest on the one side there be a kind of " inhumanity towards the defects of human nature, or on " the other side, too great an indulj^ence given to great " crimes." And he concludes by saying, " the best mea- " sure I can think of is this: such a person as labouring " under melancholy distempers, hath yet ordinarily as great *' understanding as ordinarily a child of fourteen years " hath, is such a person as may be guilty of treason or « felony (o)." It will be proper to mention some of the cases which have Cases, been decided upon this difficult and most important subject. In the case of Lord Ferrers, who was tried before the j.ord Ferrers'* House of Lords for murder, it was proved that his lordship ^^^ ^"^" was occasionally insane, and incapable from his insanity of knowing what he did, or judging of the consequences of his actions. But the murder was deliberate ; and it appeared that when he committed the crime he had capacity sufficient to form a design and know its consequences. It was urged on the part of the prosecution, that complete possession of reason was unnecessary to warrant the judgment of the law, and that it was sufficient if the party had such possession of reason as enabled him to comprehend the nature of his actions, and discriminate between moral good and evil. And he was found guilty and executed (p). In Arnold's case, who w^is tried at Kingston before Mr. Arnold's case. J. Tracey for maliciously shooting at Lord Onslow, it ap- — ^'lootin;; at I ord Onslow peared clearly that the prisoner was, to a certain extent, deranged, and that he had greatly misconceived the conduct of Lord Onslow ; but it also appeared that he had formed a regular design, and prepared the proper means for carryin*' (o) 1 Hale :J0. (hy Howell) 947. (p) Lord Fcrrcrs's case, 19 St. Tri. 14 Of Persons capable of [book i. it into effect. Mr. Justice Tracey left the case to the jury^ observing that where a person has committed a great offence the exemption of insanity must be very clearly made out before it is allowed ; that it is not every kind of idle and frantic humour of a man, or something unaccountable in his actions, which will shew him to be such a madman as is to be exempted from punishment ; but that where a man is totally deprived of his understanding and memory, and does not know what he is doing, any more than an infant, a brute, or a wild beast, he will properly be exempted from justice or the punishment of the law {q). Parker's case. — Aiding the king's ene- mies by eu- lering into the French service. In Parker's case, who was indicted for aiding the king's enemies, by entering into the French service in time of war between France and this country, the defence of the pri- soner was rested upon the ground of insanity ; and a witness on his behalf stated, that his general character from a child was that of a person of very weak intellects; so weak that it excited surprize in the neighbourhood wlienhe was accepted for a soldier. But the evidence for the prosecution had shewn the act to have been done with considerable delibera- tion and possession of reason ; and that the prisoner, who was a marine, having been captured by the French and car- ried into the isle of France, after a confinement of about six weeks, entered voluntarily into the French service, and stated to a captive comrade that it was much more agreeable to be at liberty and have plenty of money than remain con- fined in a dungeon. The Attorney General replied to this defence of insanity, that before it could have any weight in rebutting a charge so clearly made out, the Jury must be properly satisfied that at the time when the crime was com- Tnitted the prisoner did not reall) know right from wrong. {q) AmoUrs case, M.'^. Collison on Lunacy, 475. 8 St. Tri. 317. 1(1 St. Tri. hy Howell, 764, 765. The jury fountl the iirisoncr guilty -, i hut at Lord Onslow's request he was reprieved and confined in pri- son 30 years, till he died. CHAP. I.] Co7nmitting Crimes. — Lunacy, ^c. 15 And the jury, after hearing the evidence summed up, with- out hesitation pronounced the prisoner guilty (r). Thomas Bowler was tried at the Old Bailey on the 2d Bowler's rase. July, 1812, for shooting at and wounding William Bur- Tpe^ison "fnd rowes. The defence set up for the prisoner was, insanity wounding occasioned by epilepsy ; and it was deposed by the prisoner's housekeeper that he was seized with an epileptic fit on the 9th July, 1811, and was brought home apparently lifeless, since which time she had perceived a great alteration in his conduct and demeanor; that he would frequently rise at nine o'clock in the morning, eat his meat almost raw, and lie on the grass exposed to the rain ; and that his spirits were so dejected that it was necessary to watch him, lest he should destroy himself. Mr. Warburton, the keeper of a lunatic asylum, deposed, that it was characteristic of insa- nity occasioned by epilepsy for the patient to imbibe violent antipathies against particular individuals, even his dearest friends, and to have a desire of taking vengeance upon them from causes wholly imaginary, which no persuasion could remove, and that yet the patient might be rational and col- lected upon every other subject. He had no doubt of the insanity of the prisoner, and said he could not be deceived by assumed appearances. A commission of lunacy was also produced, dated the 17th of June, 1812, and an inquisition taken upon it, whereby the prisoner was found insane, and to have been so from the 50th of March last (s). Mr. Justice Le Blanc, after summing up the evidence, concluded by observing to the jury, that it was for them to determine whetlier the prisoner, when he committed the offence with which he stood charged, was incapable of distinguishing right from wrong, or under the influence (r) Parker's case, tried by a spe- («) The report of this case, in cial commission, in Horsemonger- Collison on Lunacy, 673, does not lane, 11th of February, 1812, for state the day on which the prisoner high treason, Colhs. 477. shot at W. Bunowes. 16 Of p€7'sons capable of [book i. of any illusion in respect of the prosecutor which ren- dered his mind at the moment insensible of the nature of tlie act he was about to commit; since in that case '^® would not be leg-allv responsible for his conduct. On the other hand, provided they should be of opinion that when he committed the offence he was capable of distinguishing right from wrong, and not under the influence of such an illusion as disabled him from discerning that he was do- ing a wrong act, he would be amenable to the justice of his country, and guilty in the eye of the law. The jury, after considerable deliberation, pronounced the prisoner guilty (/). Bellinjhams In Bcllingham's case, who was tried for the murder of der. ^^r- Perceval, a part of the prisoner's defence, not urged by himself but by his counsel, was insanity ; and upon this part of the case Mansfield, Chief Justice, is reported to have stated to the jury, that in order to support such a defence it ought to be proved by the most distinct and unquestionable evidence that the prisoner was incapable of judging between right and wrong : that in fact it must be proved beyond all doubt, that at the time he committed the atrocious act with which he stood charged, he did not consider that murder was a crime against the laws of God and nature ; and that there was no other proof of insanity which would excuse murder, or any other crime. That in the species of mad- ness called lunacy, where persons are subject to temporary paroxypins in which they are guilty of acts of extravagance, such persons committing crimes when they are not affected by the malady would be, to all intents and purposes, amen- able to justice; and that so long as they could distinguish good from evil they would be answerable for their conduct. And that in the species of insanity in which the patient fan- cies the existence of injury, and seeks an opportunity of gratifying revenge by some hostile act, if such a person be capable in other respects of distinguishing right from wrong, (/) Bowlers ca»c, Olil Bailey, 2d July, 1812, Collis. 673, in the note. CHAP. I.] Committing Crimes — Lunacy, ^c. 17 there would be no excuse for any act of atrocity which he mig;ht commit under this description of derangement (u)- James Hadfield was tried in Westminster Hall, in the Hadfield's year 1800, before a special commission, for hi2,h treason in case.— >hoot- -^ ' ' 3 r> ing at the shooting at the king-, in Drury-lane theatre; and the defence king. made for the prisoner was insanity. It was proved that he had been a private soldier in a dragoon regiment, and in the year 1793 received many severe wounds in battle, near Lisle, which had caused partial derangement of mind, and he had been dismissed from the army on account of insanity. Since his return to this country he had been annually out of his mind from the beginning of spring to the end of the dog- days, and had been under confinement as a lunatic. When affected by his disorder, he imagined himself to hold inter- course with God : sometimes called himself God, or Jesus Christ, and used other expressions of the most irreligious and blasphemous kind; and also committed acts of the greatest extravagance : but at other times he appeared to be rational, and discovered no symptom of mental incapacity or disorder. On the 11th of ]May preceding his commission of the act in question his mind was very much disordered, and he used many blasphemous expressions. At one or two o'clock on the following morning, he suddenly jumped out of bed, and alluding to his child, a boy of eight months old, of w horn he was usually remarkably fond, said he was about to dash his brains out against the bed post, and that God had ordered him to do so : and upon his wife screaming, and his friends coming in, he ran into a cupboard and declared he would lie there, it should be his bed, and God had said so ; and when doing this, having overset some water, he said he had lost a great deal of blood. On the same and the follow ing day he used many incoherent and blasphemous expressions. On the morning of the Ijth of May he seemed worse, said that he had seen God in the night, that the coach was waiting, and that he had been to dine with the lu) Bellingham's case. Old Bailey, 15th M:iy. 1812, Collis. Addend. tJO VOL. I. C Is Of Persons capable of [boor i. king. lie spoke very highly of the king, the royal family, and particularly of the Duke of York. He then went tO" his master's workshop, whence he returned to dinner at two, but said that he stood in no need of meat, and could live without it. He asked for tea between three and four o'clock, and talked of being made a member of the society of odd fellows ; and after repeating his irreligious expres- sions, went out and repaired to the theatre- On the part of the Crown, it was proved that he had sat in his place in the theatre nearly three quarters of an hour before the king en- tered ; that at the moment when the audience rose, on his Majesty's entering his box, he got up above the rest, and presenting a pistol loaded with slugs, fired it at the king's person, and then let it drop ; and when he fired his situation appeared favourable for taking aim, for he was standing upon the second seat from the orchestra in the pit ; and he took a deliberate aim, by looking down the barrel, as a man usually does when taking aim. On his apprehension, amongst other expressions, he said that " he knew perfectly " well his life was forfeited ; that he was tired of life, and The counsel for the prisoner (w) in his very able address to the jury, put the case as one of a species of insanity in the nature of a morbid delusion of the intellect, and admitted that it was necessary for them to be satisfied that the act in (jucstion was the immediate unqualified offspring of the disease. And Lord Kenyon held that as the prisoner was deranged innnediately before the offence was committed, it> (hO The present Lord Erskine, then at the bar. CHAP. I.J Committing^ Crimes. — Lunacy, S^c. 19 was improbable that he had recovered his senses in the in- terim ; and al houoh. Mere they to run into nicety, proof might be demanded of his insanity at the precise moment when the act was commitled ; yet there being no reason for believing him to have been at that period a rational and accountable being, he ought to be acquitted (.r). The application of the rules and principles laid down in AppHcatioa .1 i 1 4- 1 -i. ' •!! «^ of the rules these cases, to each particular case as it may arise, will neces- ^^^ principles sarily in many instances be attended with difficulty : more of the forego- especially with regard to the true interpretation of the expres- ^ sions, which state that the prisoner in order to be a proper subject of exemption from punishment, on the ground of insanity, should appear to have been unable '* to disiingidsk right from z£rong,'^ or to discern " that he was doing a zcrong act,^^ or should appear to have been " totalliy deprived of his understanding and memory ,•" as even in Hadfield's case his expressions when apprehended, that " he was tired of life," that " he wanted to get rid of it," and that '• he did not intend any thing against the life of the king, but knew that the attempt only would answer his purpose ;" seem to shew that he must have been aware that he was doing a xtrong act, though the degree of its criminality might have been but imperfectly presented to him, through the morbid delusion by which his senses and understanding were affect- ed. But it is clear that idle and frantic humours, actions occasionally unaccountable and extraordinary, mere dejec- tion of spirits, or even such insanity as will sustain a com- mission of lunacy, will not be sufficient to exempt a person from punishment, vviio has committed a criminal act. And it seems that though if there be a total permanent want of reason, or if there be a total temporary want of it when the offence was committed, the prisoner will be entitled to an acquittal ; yet if there be a partial degree of reason, a C.r) Hadfield's case Collis. 4S0. " was under tlie influence of in- The verdict of the jury was "Not "sanity, when llie act wp.s coin- '' Guilty, it appearinsf to us that he " mitted.' c2 20 Of Persons capable of [book I. Proceedings with respert to lunnlic offenders. competent use of it, sufficient to have restrained those pas- sions which produced the crime ; if there be thought and design, a faculty to distinguish the nature of actions, to dis- cern the ditference between moral good and evil; then, upon the fact of tlie oftence proved, the judgment of the law must take place {i/). If a man in his sound memory commits a capital otfence, and before arraignment for it he becomes mad, he ought not to be arraigned for it ; because he is not able to plead to it with that advice and caution that he ought. And if after he 1ms pleaded, the prisoner becomes mad, he shall not be tried; as he cannot make his defence. If after he be tried and found guilty, he loses his senses before judgment, judg- ment shall not be pronounced ; and if after judgment he becomes of nonsane memory, execution shall be stayed ; for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged sojucthing in stay of judgment or execution {z). And by the common law, if it be doubtful whether a criminal, who at his trial is in appearance a lunatic, be such in truth or not, the fact shall be investigated {a). And it appears that it may be tried by the jury, who are charged to try the indictment (6), by an inquest of office to be returned by the Sherift of the county wherein the Court sits (c), or being a collateral issue, the fact may be pleaded and replied to ore tcnus, and a venire awarded returnable iiistanler, in the nature of an inquest of office (r/). And if it be found (y) Per Yorke, Solicitor General ill Lord Ferrers s case, I'J lloweirs >t. Tri. 917, 94h. el per Luwreiicc, J. Rev V. Allen, Shifl'ord Lent Assizes, 1807, MS. And oce also upon tlio subject of insanity. Lord ThurloMs jiid^nicnt in the Attor- ney General v. i'arntlier. .3 Br. Cli. Cas. 111. (=) 4 Blac. Com. 25. 1 Hale 31. (fl) 1 Hawk P. C. c. l.s. 4. (b) 3 Bac. Abr. 528. 1 Hale 33, 35, 30. 1 Hawk. P. C. c. 1. s. 4. Note (.5). ^_r) 1 Hawk. P. C. c. 1. s. 4. 1 And. 107. I Sav.50, 56. I Hale 35. (iolonce as nhal! be done by lirr in person, but not in respect of wlii-.t shall be done by others at her coniinand, because such <'(inniaiid is void. (0 1 Hawk. I'. C. c. 1. s. 13. II. 11. where 1 Bac. Abr. 294. is cited : sed qu. (d) I Bac. Abr. Baron and feme, (G.) notes. (e) 22 Ass. 40. Dalt. 157. (/) Hammond's case, 1 I.each 417. (ff) 1 Hawk. I'. C. c. 1. s. 13. I Bac. Al)r. Baron and feme (G.) where it is said in the notes, that slu; cannot be indicted for barratry* and Roll. Rep. 39. is cited. CHAP, i] Committing Crimes. — Subjection to others. ':i7 cannot commit larceny in taking- the goods of the hnsband by the delivery of the wife, as he may by taking away the wife by force and against her will, together with tlie goods of the husband. (//) And in a case wliere the prisoner was an apprentice to the And astran- prosecutor, and it appeared that the prosecutor's wife had S'^'' <^=V"V**^ continual custody of the key of the closet wliere her hus- ceny of the band's plate was usually locked up, and that she had S^oods'lfy^he pawned some articles of it in order to supply the prisoner tlclivery of with pocket money, but the articles she pawned were not less he Is her those which the prisoner was charged with stealing ; and the adulterer, prisoner confessed that he took the articles mentioned in the indictu)ent from the closet, and a pawnbroker proved that he received them in pledge from the prisoner, but it did not appear by what nwans the prisoner had gained access to the closet from which they were taken, the prisoner was ac- quitted. The court held, that the prosecutor's wife, having the constant keeping of the key of the closet where the plate was usually locked up, and it appearing that the prisoner could not have taken it without her pricitj/ or consent, it might be presumed that he had received it from her. (/ ) But it should be observed, that if the wife steal the iroods of her husband and deliver them to B. who knowinjr it car- ries them away, B. being the adulterer of the wife, this, according to a very good opinion, would be felony in B. ; for in such case no consent of the husband can be pre- sumed. (A) (A) 1 IIalt^514. uhere it is put " I take the lav; to be, nolwith- thus: " If she Uike or steal the " slandini;- the various opinions." " goods of her husband and deli- And he cites Dalton, cap. 104. p. " ver them to B., who, knowing it, 268, 269. ea: leclurd Cooke (new ed. " carries them away, this seems no c. 157. p. 504.) And .see 1 Hawk. " felony in B. ; for they are taken P. C. c. 33. s. 32. 3 Inst. 110. 2 " quasi by the consent of her hus- East P. C. 558. " band. Yet trespass lies against B. (0 Harrison's case, 1 Leach 47. " for such taking ; for it is a tres- 2 East P. C. 559. " pass; but infavorem vitte it shall (A) Dalton, cap. 104. pi. 268, 269. *' not be adjudged a felony, and so (ucw edit. c. 157. p. 504.) 28 Of Persons capable of committing Crimes, [boor i. Feme covert not accessory for rtceivinj^ her husbund. A feme covert shall not be deemed accessory to a felony for receiving lier husband who has been guilty of it, as her husband shall be for receiving her ; nor shall be a principal in receiving her husband when hi^ oftenco is treason ; for she is st(h potestate viri, and bound to receive him. (/) Neither is slie affected by receiving, jointly with her husband, any other offender, (m) Ignorance. IV. Upon the plea or excuse of ignorance, it may be shortly observed, that it will apply only to ignorance or mistake of fact, and not to any error in point of law. For ionorance of the municipal law of the kingdom is not allowed to excuse any one that is of the age of discretion, and compos mentis, from its penalties when broken ; on the "•round that every such person is bound to know the law, and presumed to have that knowledge, (n) But in some instances an ignorance or mistake of the fact will excuse ; •which appears to have been ruled in cases of misfortune and casualty ; as if a man, intending to kill a thief or house- breaker in his own house, by mistake kills one of his own family, this will not be a criminal action, (o) (/) 1 Hale 47. 1 Hawk. P. C. c. 1. s. 10. (m) 1 Hale 48. 621. But if the wife alone, the Imsbaiul being ig- norant, do Ivnowingly receive B. a felon, the wife is accessary and not the husband. 1 Hale 621. (n) 1 Hale 42. 4 Blac. Com. 27. Ignoranlia juris, quod quisque lenc- tur scire, neminem excusat, is a maxim as well of our own law as it was of the Roman. Plowd. 343. Ff 22. 6. 9. (o) Lcvett's case, Cro. Car. 538. 4 Blac. Com. 27. 1 Hale 42, 43. 29 CHAPTER THE SECOND. Of Principals and Accessories. W HERE two or more are to be brought to justice for one and the same felony, they are considered in the light either, I. of principals in the first degree ; H. principals in the second degree; IH. accessories before the fact; or, IV. ac- cessories after the fact. And in either of these characters they will he felons in consideration of law ; for he who takes any part in a felony, whether it be a felony at common law or by statute, is in construction of law a felon, according to the share which he takes in the crime, (a) I. Principals in the first degree are those who have Principals in actuallij and zcith their oxen hands committed the fact ; but it . *'' " does not appear necessary to say any thing in this place by way of explanation of the nature of their guilt, which will be detailed in treating of the different offences in the course of the work. II. Principals in the second degree are those who were Principals in present aiding and abetting at the commission of the fact. t"<^ s<^<^o"a de- They are generally termed aiders and abettors, and some- times accomplices ; but the latter appellation will not serve as a term of definition, as it includes all the participes cri- minis,- whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact, (b) The distinction be- (fl) Fost. 'j^n. (ft) Post. 341. gree. 30 Of Aiders and Abettors. [boor i. tween principals in the first, and principals in the second degree ; or, to speak more properly, the course and order of proceeding- against offenders founded upon that distinc- tion, appears to have been unknown to the most ancient writers on our law ; who considered the persons present aiding and abetting in no other light than as accessories at the fact, (r) But as such accessories they were not liable to be brought to trial till the principal offenders should be convicted or outlawed ; a rule productive of much mischief, as the course of justice was frequently arrested by the death or escape of the principal, or from his remaining unknown or concealed. And with a view to obviate this mischief the judges by degrees adopted a different rule ; and at length it became settled law that all those who are present aiding and abetting when a felony is committed are principals in the second degree, (d) How far a In order to render a person a principal in the second de- EeToml de- g^ee, or an aider and abettor, he must be present aiding and gree must bt- abettin<^3X the fact, or ready to afford assistance if necessary ; Krarof the* ^ but the presence need not to be a strict actual immediate fact com- presence, such a presence as would make him an eye or ear niitted. r " ' • ,^ ^ . -e. ^ . , witness of what passes. So that if several persons set out too-ether, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlaw- ful in itself, and each takes the part assigned him ; some to commit the fact, others to watch at proper distances and stations to prevent a surprize, or to favour, if need be, the escape of those who are more immediately engaged ; they are all, provided the fact be comuntted, in the eye of the law present at it ; for it was made a common cause with them, each man operated in his station at one and the same in- (c) Fo8t. 347. as the first of Queen Mary a chief {d) Coal-heavers' case, 1 Leach juslicc of Kiij;I:iii(l slroiiii;!) doubt- 06. And see Fost. 4'2H. This law cdofil, lii<)Uf;h indeed iJ had been was bj no means settled till alter sulliciently settled before that lime Ihe time of Edw. 111. ; and so late 2 CHAP. II.] Of Aiders and Abettors. SI stant, towards the same common end, and the part each man took tended to give countenance, encouragement, and pro- tection to the whole gang, and to ensure the success of their common enterprize. (e) It has been held, that to aid and assist a person to the jurors unknown to obtain money by the practice of ring dropping is felony, if the jury find that the prisoner was confederating with the person unknown to obtain tiie money by means of this practice, {f) If a fact amounting to murder should be committed /« Murder by prosecution of some unlawful purpose^ though it were but a secution'uf bare trespass, all persons who had gone in order to give some uulaw- assistance it need were, tor carrying such unlawiul purpose into execution, would be guilty of murder. But this will apply only to a case where the murder was committed in prosecution of some unlawful purpose, some common design in which the combining parties were united, and for the effecting whereof they had assembled ; for unless this shall appear, though the person giving the mortal blow may him- self be guilty of murder, or manslaughter, yet the others who came together for a different purpose will not be in- volved in his guilt, (g) Thus where three soldiers went together to rob an orchard ; two got upon a pear-tree, and the third stood at the gate with a drawn sword in his hand ; and the owner's son coming by collared the man at the gate, and asked him what business he had there, whereupon the soldier stabbed him ; it was ruled to be murder in the man who stabbed, but that those on the tree were innocent. It was considered that they came to commit a small inconsider- able trespass, and that the man was killed upon a sudden affray without their knowledge. But the decision would have been otlierwise if they had all come thither with a {e) Fost. 350. 2 Hawk. P. C. (g) Post. 351, 352. S Hawk, c. 29. s. 7, 8. P. C. c. 29. s. 7. (/) Moore's case. I Leach 314. 32 Of Aiders and Abettors. [book i. general resolution against all opposers; for then the mur- der would have been committed in prosecution of their ori- ginal purpose. (/?) Or where For where there is a general resolution against all oppo- there is a ge- ggj-g whether such resolution appears upon evidence to have neral resolu- ' ... tion against been actually and explicitly entered into by the confede- aii opposers. i-atgg^ qj. p,^yy ^g reasonably collected from their number, arms, or behaviour, at or before the scene of action, and homicide is committed by any of the party, every person present in the sense of the law when the Ijomicide is com- mitted will be involved in the guilt of him that gave the mortal blow. (/) But where the But it must be observed that this doctrine respecting the purpose was ^y],oig party bciuff involved in the ffuilt of one or more, will lawtulitwill 1 J » » ' he murder apply only to such assemblies as are formed for carrying "" "i killin'^ some common purpose unlawful in itself into execution, and his actual For if the original intention was lawful, and prosecuted by abettors lawful means, and opposition is made by others, and one of the opposing party is killed in the struggle, in that case the person actually killing may be guilty of murder or man- (h) Fost. 353. Case at Sarum Lent Assizes, 1697, MS. JJenlon and Chappie. 2 Hawk. P. C. c. 29. s. 9. And see Hodgson and others (case of) 1 Leach 6. And an Anon. case at the Old Bailej, in Deceni- I>er sessions, 1664. 1 Leach 7. note (a) where several soldiers, wiio were ••mplojed by the messengers of the SecrcUiry of Stale to assist in the apprehension of a person, unlaw- fully broke open the door of a Louse where the person was sup- posed to be; and having done so, Bonieof the soldiers began lo plun- der, and stole some goods. The question was, whether this was fe- lony in all ; and Holt, C. J. citing the case, says, " That they were " all engaged in an unlawful act is " plain, for they could not justify " breaking a mans house without " making a demand first; yet all " those who were not guilty of the " stealing were ac(|uitted, notwith- " standing their being engaged in " one unlawful act of breaking the " door ; for this reason, because '' they knew not of any sueii in- " tent, but it was a chance oppor- " tunily of stealing, whereupon " some of them did lay li:inds." (0 Fost. 353, 354. 2 Hawk, P. C. c. 29. s. 8. CHAP. II.] Of Aiders and Abettors. 33 slaughter, as circumstances may vary the case ; but the per- sons engaged with him will not be involved in his guilt, unless they actuallij aided or abetted him in the fact ; for they assembled for another purpose which was lawful, and con- sequently the guilt of the person actually killing cannot by any fiction of law be carried against them beyond their ori- ginal intention, {k) When the rule was first settled that aiders and abettors As to the pu- ... J nishment of should be deemed principals in the second degree, and not aiders and accessories flMhe fact, the object in view was probably to al>ettors: bring such offenders more speedily and certainly to their trial; (/) without any intention of enhancing the measure of their punishment upon conviction. Nor would the conse- quence of an increased punishment have immediately fol- lowed from the rule, as the distinction between principals and accessories did not at that time affect the life of the party upon conviction : and all were then alike liable to suffer death, from the principal in the first degree to the accessory in the lowest, unless the privilege of clergy, which in those days was founded solely on the clerical function or capacity of the delinquent, interposed. Whether principals or accessories, therefore, the punishment would have been capital to those who were not entitled to the privilege of clergy ; and to those who were entitled, the punishment would not have been capital, though principals in the highest degree. But in later times the question of principal or accessory has become a matter of the greatest importance to the prisoner ; in many cases life or death to him ; for by wiser regulations the allowance or non-allowance of clergy no longer depends upon the function and capacity of the offender, but upon the nature of the offence; and is extended, in cases in which it is allowable, to all ranks and orders of men. (m) (fc) Fost. 354, 355. 2 Hawk. P. Chap. 3. on Homicide. C. c. 29. s. 9. And see further {!) Ante, p. 30. upon this point, post. Book III. (m) 3 & 4 Will, and Mary, c. i*. VOL. I. I» ol Of Aiders and Abettors. [book i. Whether lia- Xow it bein£^ admitted as a settled rule that alders and lie to be pu- . . ^ . , liished as abettors are to some purposes at least principals in the pnnciinNii second decree, it has been made a question whether they the first de- fe ' i i • n jree: ouoht to be so considered to all purposes and in all cases; and especially with regard to new felonies created by statutes Mhich take away clerg^y from those who shall be guilty in such manner and under such circumstances as are therein particularly set forth, without express mention of aiders and abettors, or any words which manifestly extend to them : whether aiders and abettors also shall be ousted of their clergy in the construction of such statutes. The point is very ably and elaborately argued by Mr. Justice Foster, who thinks that if a departure from the ancient rule had in such cases affected the prisoner's life upon conviction, the judges would still have adhered to it, notwithstanding the mischiefs by which it was attended. («) Grounds for ^^ ^^ allowed on all hands that aiders and abettors have considerin<,r heen always ousted of their clergy, and properly so, by the them as not . ' ,. , i • i ^ i '• j so liable. construction ot the statutes which oust clergy i« murder, robbery, rape, and burglary, (o) But then it is said that the legislature in these statutes has made use of terms which at the time when the acts were made, and long before, were well known to include aiders and abettors; that in these statutes clergy is taken away from the several offences de- scribed by Iv gal technical terms of well known signification ; Tidime\)., murder^ robber 1/^ rape, m\A burghnjj ; and that the objects of these acts are persons convicted of murder, rob- bery, rape, and burglary ; aiders and abettors being, at the time these statutes were made, clearly liable to be convicted as principals in those offences. Whereas in many other statutes aiders and abetiors arc not once named, nor dc- s. 6. 5 Ann. c. f). s. 4. Vide Tost. (n) 1 Hale 537. 2 Hale 359. 359. Tost. 357. The statutes arc, 1 Ed. (n) See Mr. Justice Fosters argu- VI. c. I'i. s. 10. as to murder and ir.cnts, lost. 355 to 360. and 416 to rohherv ; and 18 Eliz. c. 7. as t» 430. rape and burglary. 3 CHAP. II.] Of Alders and Abettors, 35 scribed by anrj terms imporling iluit the legislature intended to oust them, (p) It certainly appears that in general the jiidjTes have been extremely tender in the construction of statutes which take away clerfjy ; and have in several instances carefully distin- j^uished between the cases of principals in the first and se- cond degrees, the actual perpetrators, and mere aiders and abettors. Thus in a case upon the statute of stabbing-, which enacts, " that every person which shall stab or *' thrust," &c. (q) two persons were present aiding and abetting a third person, who in fact made the thrust, and was denied his clergy ; and these persons, though agreed to liave been principals in manslaughter at common law, were admitted to their clergy ; for it was considered that tliougli in judgment of law every one present and aiding is a prin- cipal, yet in construction of this statute, which is so penal, it shall be extended only to such as really and actually made the thrust ; not to those who in construction of Law only may be said to make it. (r) So in a case upon the statute 39 Eliz. c. 15. against robbery in dwelling houses, (s) where two persons put a ladder against a chamber window, one of them opened the window, got into the chamber, and stole 40/., but the other stood on the ladder in the view of him who entered, saw him in the chamber, assisted in the rob- bery, and had a share of the booty, but did not enter the chamber ; it was held that as he did not enter he should have his clergy, though plainly a principal aiding and abet- (p) Fost. 357, 333. " ing away in the day time of any (9) 1 Jac. I. c. 8. " money, goods, or chattels, being (r) Page and IJanvoods case, " of the value of 5s. or upwurd.^, Fost. 353. Aleyn 4.3. Sir. SO. 1 "/« any dwelling house or houses, Hale 468. And the case of the " or any part thereof, or any out- Queen I'. Whistler, Salk. 34'>. 2 " hous.\ &c. although no person Lord llaym. S42. " be in the said house, &c. at the (s) The enactment of the statute " time of such folony committed, ' is, " that if any person shall be he sh til be excluded the benefit of eoavictcd for Ijic fclouious tak- clergy. D O 36 Of Aiders and Abettors. [book i. ting. (0 And the same rule- of construction has been held to govern in the case of larceny, clam et secrete a persond upon tlie statute 8 Eliz. c. 4. (w) where the person who actually picked the pocket was held to be ousted of his clergy, but not he who was present aiding and abetting ; though without some accomplice ready at hand to take off the booty, this sort of theft could seldom have suc- ceeded, (w) Upon the two first of these cases Mr. Justice Foster makes the following remarks : — " Why did not a constructive " thrust in one case and a constructive entry in the other ope- " rate so as to oust the accomplices present and abetting of " clergy ? The reason is plain, and hath been already hinted " at ; the judges were upon the construction of statutes very " penal, which were to be taken literally and strictly ; aiders *' and abettors or'' not named or described, and therefore could " not, as they conceived, be brought within the statutes." (.r) And Mr. Justice Foster cites the following passage from Lord Hale as seeming to favour the construction for which he con- tends: — ^ An act that makes an offence by name, as rape, " «&c. to be felony, virtually makes all that are present ^* aiding and assisting principals, though one only doth the " fact. Though as to the point of clergy in some cases it " differs ;"(^) and he thinks that the difference which JLord (0 Evans and Finch (case of) Cro. Car. 473. Hale, in citing this case, says that the ofTence must be a stealing in the house ; and there- fore he that steals, or is party to the stealing, being out of the house, is not ousted of his clergy. The law stood thus with regard to this statute, and also to the nth and fith Edw. VI. c. 9. ;igainst an ofienre of the like kind, till by W and 4 W. and M. c. 9. aiders and abettors were expressly ousted. (u) By which it is enacted, " that " no person indicted for the fe- " lonious taking of any money, " goods, or chattels from the per- " son of any other, privily without " his knowledge, shall have benefit " of clergy." This act is repealed by 48 Geo. III. c. 129. (It-) 1 Hale 529. Baynes and others (case of), 1 Leach 7. Mur- phy Mary and Bridget (case of), 1 Leach 266. Sterne's case, 1 Leach 473. (jr) Post 357. (y) 1 Hale 704. CHAP. II.] Of Aiders and Abettors. 37 Hale hints at must arise from the diirerent penning of the several acts. (;:) But some of the points insisted upon by Mr. Justice Fos- Grounds for ter, in his able argument, will probably appear to rest upon them'as"'o^ grounds rather too subtle and refined ; particularly his dis- liable. tinction between the phrase " person so offending-," in the statute 9 Geo. I. c. 22. and " person offending- in any such offence," in 25 Hen. VHI. c. 6. (a) And it appears that a great majority of the judges differed with him upon this subject. It is stated, that they gave great weight to the construction which had been constantly put on acts of par- liament touching high treason, and on those which take away clergy from murder, robbery, rape, and burglary ; aiders and abettors, though not named in the statutes, hav- ing always been brought within the compass of them to all intents, and suffered accordingly. (6) And contrary to his opinion they decided upon the 9th Geo. I. c. 22. (by which it is enacted, that " if any person shall unlawfully and niali- " ciously kill, maim, or wound any cattle, every person so " offending., being thereof lawfully convicted, shall be ad- " judged guilty of felony, and shall suffer death, as in cases " of felony, without benefit of clergy") that an aider and abettor was ousted of his clergy, (c) And in a subsequent case, called the Coal-heavers' case, seven reen were con- victed and executed on the same statute, 9 Geo. 1 . c. 22, (d) which takes away clergy in express terms only from those who maliciously shoot at another person, three of them not having discharged a gun or pistol. The judges determined that this offence was a new created felony ; and therefore that it must necessarily possess all the incidents which ap- pertain to felony by the rules and principles of the common law ; that the statute does not merely take away the privi- (z) Post. 417, 418. Post. Append. 415. 1 Leach 66. (a) Revived by 5 Eliz. c. 17. See Note (a). See also Dodsoa's Life Post. 417. and 422, 423. of Poster, 30. 35. (ft) Post. 421. (d) Commonly called The Black (c) Midwinter and Sims (case of)> Act. o S Of Accessories before the Fact, [boor i. lejie of clei'ffv from an oflence mMcIi was before known, but ordains that those <:7/o are guit/j/(e)o^ the thing- prohi- bited by it shall be adjudged felons without benefit of clergy; and therefore by a necessary implication makes all the pro- curers and abettors of it principals or accessories upon the same circumstances which would make them sucli in a felony by the common law; and that it had been long settled that all those who are present aiding and abetting when a felony is committed, are princi[)als in the second degree, (y) Mr. Justice It should be observed, iiowever, that Mr- Justice Black- lliackstone's ^^qj^q ju jjig excellent work, adopts, to a great extent, the opinion. ' 5 I ' n ' distinctions endeavoured to be established by Mr. Justice Foster, and lays down the following rules. That when the benefit of clergy is taken aWay from the ojfctice, (as in case of murder, buggery, robbery, rape, and burglary) a principal in the second degree, being present aiding and abetting the crime, is as well excluded from his clergy as he that is principal in the first degree; but that where it is only taken away from the person commitling the olTence (as in the case of stabbing, or committing larceny in a dwelling house, or privately from ti)e person,) his aiders and abet- tors are not excluded, through the tenderness of the law, which has determined that such statutes shall be taken literally, (g) OfaccMsories HI. An ', ''r\(r\ j-cT- (i;) 4 l)lf'^. cililip 1 SOU so oirciulinjj." Hale 559. Fost. 356, 357. ■ (f) Coal-hcavcrs" casf, 1 I.t-arh (/i) 1 I laic 615. 66. ciiAi'. II.] Of Accessories before the Fact. 39 not be encouraged by the hopes of any ihtimediate help or assistance from them, are accessories before the fact. But Vvords that amount to bare permission will not make an ac- cessory ; as if A. says he will kill J. S. and B. says " you may do your pleastiro for me," this will not make B. an accessory. (/) And it seems to be generally agreed that he who barely conceals a felony which he knows to be intended is guilty only of misprision of felony, and shall not be ad- judged an accessory. (/;) The same person may be a prin- cipal and an accessory in the same felony, as where A. com- mands B. to kill C. and afterwards actually joins with him in the fact.(/) The ofifence of an accessory before the flict diflTers so mucli Offence of ac- from that of a principal in the second degree, that where a theSdiffers person was indicted as an accessory before the fact, it was from th;it()f held that she could not be convicted of that charge upon tliesecoadde- evidence proving her to have been present aiding and abet- S""^*^- ting; it being clearly admitted to be necessary to charge a principal in the second degree with he'xng present aidin"- and abetting, (m) (/)2 Hawk. P. C. c. 29. s. !(j. {k) 1 Hale G 16. 2 ILnvk. P. C. c. 2«). s. 23. (/) 2 Hawk. P. C. c. 29. s. 1. where it is said also that he may be charged as principal and accessory ia the same iiidictment ; but qii. if this would be allowed at the pre- sent day. In Atkins's case, who Was tried for the murder of Sir E. Godfrey, two indictments were found against him, one as princi pal, the other as accessory -, and he was arraigned upon both at the same time. But the first was aban- doned, and evidence given only in support of the second : the verdicts appear, however, to have been pro- nounced successively. 7 Howell'* St. Tri. 2.S1. (m) Gordon Winifred and Tho- mas (case of), 1 Leach 515. S. C. I East. P. C. 332. And see Hay- don's case, t Co. 42. b. In Gor- don's case it was the opinion of all the judges that the prisoner who was discharged upon this ohjeclion migiit be indicted again as prin- cipal. So, in 1 Hale fi25 it appears, that if one person be indicted as principal and another as accessory, and bolh be acquitted, yet the per- son indicted as accessory may be indicted as principal, and the for- mer acquittal as accessory is no bar. But it is said that if a persou 40 Of Accessories before the Fact, [boor i. Case of Do- John Donally and George Vaughan were tried at the Old Vaughnn— Bailey, September sessions, 1816; Donally being indicted Objection on f^j. ^ burfflarv in the house of a Mr. Poole, and Vaughan as behaltofan t^ ^ 5 » accessory, that accessory before the fact to the " said felony and burglary." kd "'"uU d ^* appeared, that by a previous concert between Donally the principal and Vaughan, and a person named Barrett, Donally ac- andfound'^hiin companied three other men who went to rob Mr. Poole's guilty only of house, Vaughan and Barrett watching in a passage on the stealing in the • • 1 /» 1 ^ ^ i ^i <> t-v n house, they opposite Side ot the street ; and the purpose 01 Donally, could not hnd Vauahan, and Barrett clearly being: to procure a burglary the accessory ® .,, , , , ^ r . guilty as ac- to be commited by the three other men, and afterwards to cessory to the apprehend and convict them, in order to tjet shares of the " xnid felony rr ' o and bur- reward. Mr. Poole's house was robbed ; the three men that'thev ^^^^^ accompanied Donally were almost immediately appre- oughttohave bended by Vaughan and Barrett, and had been tried at a accessory, as former sessions at the Old Bailey for burglary ; but were they had nc- convicted only of stealing: in the dwelling house to the gatived the ^ .« . x- tvt t^ T , burglary. amount of 40^. in consequence 01 Mr. Poole s evidence as to its being possible, at the time the robbery was committed, to see a person's face by the light of the day. Upon the present indictment against Donally and Vaughan the jury acquitted Donally of the burglary, but found him guilty of stealing in the dwelling house to the amount of 40^. and they found Vaughan guilty as an accessory to the " said felon// and burglary," the charge stated in the in- dictment. Upon this finding, Curwood^ after taking an objection that this could not be larceny in Donally, be- cause not done animo furatidi, further objected on behalf of the prisoner Vaughan, that as the indictment was against him as accessory to a burglary committed by Donally, and as the jury had acquitted the principal of the burglary, the be indicted as principal and ac- he may be indicted as accessary quitted, he shall not be indicted as after; and so if he be indicted as accessory before. I Hale 626. ; yet accessory before, and acquitted, he qu. and .see Post. 362. It seems to may be indictoU as accessory after, be admitted, that if a man be in- I Hale 626. dieted as principal and acquitted, CHAP. II,] Of Accessories before the Fact. 41 charge against the accessory must necessarily fail. That the offence of an accessory, though distinct, is yet derivative from that of the principal, and may be considered as the shadow of a substance. That by the reversal of an at- tainder against a principal the attainder against the accessory, which depends upon the attainder of the principal is, ipso facto, utterly defeated and annulled. (?i) And that though the charge against the accessory in this indictment, of which the jury had found him guilty, is as accessory to the " said fdoni/ and burglary," yet that the word felony, as thus used, is only descriptive of the character of the burglary, and by no means applies to any other or different offence. That in an indictment against an accessory to a murder, the charge would be laid against him as accessory to the " said " felony and murder," but would not import two crimes, or any other crime than that which the law denominates mur- der. That upon the whole, therefore, the charge against Vaughan could only be considered as a charge of being ac- cessory to a supposed burg/art/ by Donally ; and that as the jury had negatived such burglary, they ought consequently to have acquitted Vaughan. (o) It is to be observed that the legislature, in statutes made Descriptioa from time to time concerning accessories before the fact, ^^ /"essories . ^ ' berore the has not confined itself to any certain mode of expression ; fact in dift'er- but has rather chosen to make use of a variety of words all ^'^* statutes. terminating in the same general idea. Thus some statutes make use of the word accessories, singly, without any words descriptive of the offence : (p) others have the words (n) Lord Sanchar's case, 9 Co. 1 1 9. (o) Donally and Vaughan (case of) Old Bailey, Sept. Sess. 1816. Mr, Baron Graham respited the judgment, and the objections were argued in the following Michael- mas term in the Exchequer Cham- ber by Curwood for the prisoners, and Bolland for the crown. The opinion of the judges has not as yet been formally communicated ; but it is understood to be unanimous in favour of the objection on behalf of Vaughan, and in the proportion of 10 to 2 in favour of the objection on behalf of Donally. E.v relat. Curwood, Easter Term, 1817. (;/»)3lEliz.c,12.s.5.2iJac.I.c.6. 42 Of Accessories before the Fact. [boor i. abetment, procurement, lielping, maintaining, and coun- selling ; ((yr) or aiders, abettors, procurers, and counsel- lors. (/ ) One describes the otl'ence by the words conjniand, counsel or hire ; (5) another calls the offenders procurers or accessories. (/) One having made use of the words comfort, aid, abet, assist, counsel, hire, or conimand, imme- diately afterwards in describing the same offence in another case uses the words counsel, hire, or couimand only, {u) One statute calls them counsellors and contrivers of fe- lonies; (co) and many others make use of the terms coun- sellors, aiders, and abettors, or barely aiders and abettors. Upon these different modes of expression, all plainly de- scriptive of the same offence, INIr. Justice Foster thinks it may safely be concluded that in the construction of statutes which oust clergy in the case of parlicipcs criminis, we are not to be governed by the bare souiul, but by the true legal in)port of the words ; and also that every person who comes within the description of these statutes, various as they are in point of expression, is in the judgment of the legisla- ture an accessory before the fact; unless he is present at the fact, and in tlsat case he is undoubtedly a principal, (x) Accpssorirs Whoever procures a felony to be committed, though it vt-iiiioii ot'^ a Jje by the intervention of a third person, is an accessory third person, before the fact; for there is nothing in the notion of com- manding, hiring, counselling, aiding, or abetting, which niay ( ;} iV 4 V\'. & M. c. 9. t:uit;iirioiiiit lo the words of the (u-) 1 Aunc st. '2. f. 9. Htatuteand descriptive of the same (.r) That in, u priiicipjl in the first odeiicc, he says tliat he laU.es that decree if the actual perpetrator, case to be j^ood law, thou<;h he or a iirincijval in tiie sr;as held CHAP. II.] Of Accessories before the Fact. 43 not be effected by the intervention of a third person without any direct immediate connection between the first mover and the actor. It is a principle in law which can never be controverted, that he who piocurcs a felony to be done is a felon. So that if A. bid his servant hire somebody, no matter whom, to murder B. and furnish him with money for that purpose, and the servant procure C. a person whom A. never saw nor heard of to do it, A. who is manifestly the first mover or contriver of the murder is an accessory before the fact. (?/) And a nobleman was found guilty of murder by his peers upon evidence which satisfied them that he had contributed to the murder by the intervention of his lady and of two other persons who were themselves no more than accessories, without any sort of proof that he had ever conversed with the person who was the only prin- cipal in the murder, or had corresponded with him directly by letter or message, (z) In fngh (reason there are no accessories but all are prin- in ^hat cipal?, on account of the heiuousness of the crime, (a) *^'"""f'» ^''^re ,, . . may be accefc- ijut in pelit treason, murder, and felonies in general, there sorlcs. may be accessories, except only in those offences which by jtidgment of law are sudden and unpremeditated, as man- slaughter and the like ; which therefore cannot have any accessories before the fact, {b) In petit larceny there can be no accessories either before or after the fact, although it be felony, because it is not such as judgment of death ought by law to be passed upon it ; but procurers and counsellors are principals as in trespass, (c) In forgert/ it is laid down (.;/) See the case of Macdauiel, {a) 2 Hawk. P. C. c. 29. s. 9. 5. Kgan, and Berry. Post. 125. 1 Hale 613. Post. ']41. 4 Blue. 2 Hawk. P. C. c. 29. s. 1. 10. vSt. Com. .35. Tri. 417 (iol. edit.) 19 Howell's St. {b) 4 Blac. Com. 36. 1 Hale 615. Tri. 746. 2 Hawk. P. C. c. 29. s. 94. (=) The case of the Earl of So- (c) 2 East. P. C. 74.i. 1 Hale racrset indicted as an accessory be- 530, 616. 2 Inst. 183. 12 Rep. «1. fore the fact to the murder of Sir Evans's case, Post. 73. It appears Thomas Ovcrbury, 1 St. Tri. 335. however that in Keddeards case, 44 Of Accessories before the Fact, [book i. generally in the books that all are principals, and that whatever would make a man accessory before in felony would make him a principal in forgery; {d) but it is con- ceived that this must be understood of forgery at common law, and where it is considered only as a misdemeanor, (e) And where three persons agreed to utter a forged banknote, and one uttered it at Gosport, and the other two by pre- vious concert waited at Portsmouth ; the two latter were held to be accessories; and having been tried and convicted as principals were recommended for a pardon, {f) In crimes under the degree of felon ij there can be no accessories, but all persons concerned therein, if guilty at all, are princi- pals. (0-) 111 fi'lonics created by statute. It should be observed as to felonies created by acts of parliament, that regularly if an act of parliament enact an offence to be felony, though it mention nothing of acces- sories before or after, yet virtually and consequentially those that counsel or conmiand the offence are accessories before the fact, and those who knowingly receive the of- fender are accessories after. (Ji) E. 11, Ann. (De Grey's MS.) Powell J. said It was a vulgar error to think that petit larceny or any fe- lony, capital or not, might not have accessories after the fact. Serj. Forslers MS. cited 2 East. P. C. 743. But the principle as stated in the text seems well esta- blished, and in the case of Evans, (Foster 73), Mr. J. Foster expressly says " Evans ought not to have " been put upon his trial ; for the " acts which make receivers of *' stolen goods knowingly acces- " sories to the felony, must be un- *' derstood to make them acces- •' sories in such cases only where " by law an accessory may be, and " there can be no accessory to " petty larceny." (d) Bothe's case, Moor 666. 1 Sid. 312. 2 Hawk. c. 29. s. 2. and authorities cited in 2 East. P. C 973. (e) 2 East. P. C. 973. And see post, Book 4. Chap, on Forgery. And see Morris's case, 2 Leach 1096 note (a). (/) Soares, Atkinson and Brigh- ton (case of) MS. S. C. 2 East. P. C. 974. (gr) 4 Blac. Com. 36. 1 Hale 613. (/i) 1 Hale 013, 614, 704. 3 Inst. 59. CHAP. II. 3 Of Accessories before the Fact. 45 It is a maxim that accessorius sequitur naturam siii princi- Accessorius T • t t e- 1 M /> sequitur na- palis ; (/) and therefore an accessory cannot be guilty of a turam sui higher crime than his principal. So that if a servant in- P'^'^^ipalis. stigates a stranger to kill his master, this being murder in the stranger as principal, of course tlie servant is accessory only to the crime of murder ; though had he been present and assisting he would have been guilty as principal of petty treason and the stranger of murder, {k) But a statute ex- cluding accessories from the benefit of clergy does not thereby exclude the principals ; nor does a statute exclud- ing the principals thereby exclude the accessories. (/) And certain accessories after the fact, namely receivers of stolen goods, are in some instances punished with more severity than the principal offenders, {m) It has been occasionally much considered how far an ac- How far an cessory is involved in the guilt of the principal when the i'mpTicated' principal does not act in conformity with the plans and in- when the pnn- c ii -ITT- , 1 , • ■ cipal varies structions of the accessory. With regard to this, it appears from the that if the principal totally and substantialh/ varies from the ^^™^ "S ^^^ . . . . ^ instigation, terms of the instigation, if being solicited to commit a fe- lony of one kind, he wilfully and knowingly commit a fe- lony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. («) Thus if A. command B. to burn C.'s house, and he in so doing commits a robbery; now A. though accessory to the burning is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature, (o) But if the principal complies in substance with the instigation of the accessory, varying only in circumstance of time or place, or in the manner of execution, the accessory will be in- volved in his guilt : as if A. command B. to murder C. by poison, and B. does it by a sword or other weapon, or by (i) 3 Inst. 139. c. 30. s. 1. and 2 Geo. III. c. 28— Qc) 4 Biac. Com. 36. U years' transportation. (/) 2 Hawk, P. C. c. 33. s. 26. (n) Post. 369. (m) 4 Geo. I. c. U. 29 Geo. II. (o) 1 Hale 617. 4 Blac. Com. 37. 1 46 Of Accessories before the Fact. [book. i. nny other mean?, A. is accessory to this murder ; for the minder of C. was the object principally in contemplation, and that is eflectcd. (p) So where Ihe principal goes beyond the terms of the solicitation, if in the event the felony com- mitted was a probable consequence of what was ordered or advised, the person giving- such orders or advice will be an accessory to that felony. As if A. advise B. to rob C, and in robbing him B. kills him, either upon resistance made, or to conceal the fact, or upon any other motive operating at the time of the robbery : or if A. solicit B. to burn the house of C, and B. does it accordingly, and the flames takinir hold of the house of D., that likewise is burnt. In these cases A. is accessory to B. botli in the murder of C. and in the burning of the house of D. The advice, solicita- tion, or orders, were pursued in substance, and ^^ere ex- tremely flagitious on the part of A. ; and the events, though possibly falling out beyond his original intention, were, in the ordinary course of things, the probable consequences of what B. did under t!io influence and at the instigation ofA.(r/) A.l)piiij;roun- But the more difficult questions arise where the principal srllod lo iiiur- , niislake commits a different crime Worn that to which he der B. inur- -^ '^ ders C. was solicited by the accessory. It has been said, that if A. orders B. to kill C, and he by mistake kills 1)., or aiming a blow at C. misses him and kills D., A. will not be acces- sory to this murder, because it diflers in the person. (/) And in support of this position Saunders' case {s) is cited; who with the intention of destroying his wife, by the advice of one Archer, mixed poison in a roasted apple, and gave it her to eat ; and the wife having eaten a small part of it, and having given the remainder to their child, Saunders (making only a taint attempt to save the child whonj he loved and would not have destroyed) stood by and saw it eat the (p) Post. 309, .170. y Hawk. (r) 1 Ilalc 617. 3 Inst. 51. P. C. c. 2'J. s. 'JO. (s) riowd. 175. 1 Hale 431, (7) Fosl. 370. CHAP. II. J Of Accessories before the Fact. 47 poison, of which it soon afterwards died. And it was held, that though Saunders was clearly guilty of the murder of the child, yet Archer was not accessary to that murder. But Mr. Justice Foster thinks, that this case of Saunders does not support the position (which he calls a merciful opinion) to its full extent; and he proposes the following case as worthy of consideration. " B. is an utter stranger " to the person of C, A. tiierefore takes upon him to de- " scribe him by his stature, dress, age, comple.\ion, «&;c. " and acquaints B. when and where he may probably be " met with. B. is punctual at the time and place, and D., " a person possibly in the opinion of B. answering the de- " scription, unhappily comes by and is murdered, upon a " strong belief on the part of B. that this is the man marked " out for destruction. Here is a lamentable mistake ; but " who is answerable for it? B. undoubtedly is; the malice " on his part egreditur personam. And may not the same be '^ said on the part of A.? The pit which he, with a mur- " derous intention dug for C, D. through his guilty fell into " and perished. For B. not knowing the person of C, had " no other guide to lead him to his prey than the descrip- " tion A. gave of him. B. in following this guide fell into " a mistake, which it is great odds any man in his circum- " stances might have fallen into. I therefore, as at present " advised, conceive that A. was answerable for the conse- '• quence of the flagitious orders he gave, since that conse- " quence appears, in the ordinary course of things, to have *' been highly probable." (0 Mr. Justice Foster then proposes the following cnV^na, Criteria ia as explaining the grounds upon which the several cases fall- """^^ '^^^^' ing under this head will be found to turn. " Did the prin- " cipal commit the felony he stands charged with under the " influence of the flagitious advice ; and was the event, in the " ordinary course of things, a probable consequence of that " felony ? or did he, following the suggestions of his own {£) Post. 370, 371. 48 Of Accessories after the Fact [boor i. " wicked heart, >\ ilfully and knowingly commit a felony of *' another kind, or upon a different subject." (a?) Accessory re- A. commands B. to kill C, but before the execution pents and .i p , r» t-» counter- thereoi repents and countermands B., yet B. proceeds in mands the the execution thereof: A. is not accessory, for his consent principal. . •' ' continues not, and he gave timely countermand to B. : but if A. had repented, but B. had not been actually coun- termanded before the fact committed, A. had been acces- sory, (.r) Of accessories IV. An acccssori/ (ifler the fact^ h 3. ^eY?>ow who, know- ing a felony to have been committed by another, receives, relieves, comforls, or assists the felon. (3/) And it seems to have been agreed, that any assistance given to one known to be a felon, in order to hinder his being apprehended or tried, or suffering the punishment to which he is condemned, is a sufficient receipt to make a man an accessory of this description : as where one assists a felon with a horse to ride away, or with monej or victuals to support him in his escape, or where one harbours and conceals in his house a felon under pursuit, by reason whereof the pursuers cannot find him ; and much more where one harbours in his house and openly protects such a felon, by reason whereof the pursuers dare not take him. {z) Also whoever rescues a felon from an arrest for the felony, or voluntarily and in- tentionally suffers him to escape, is an accessory to the fe- lony : (fl) and it has been said, that those are in like manner guilty who oppose the apprehending of a felon. (6) It is agreed by all the books, that a man may be an accessory after the fact, by receiving one who was aji accessory before {w) Fo.Hl. 372. (a) 2 Hawk. P. C. c. 29. s. 27. (x) 1 Hale 617. 1 Hale 619. but not the merely {y) 1 Hale 618. 4 Blac. Com. .'J7. suflerin^ him to escape, where it (2)2 Hawk. P. C. c. 29. s. 26. is a hare omission. 1 Hale 619. 1 Hale 618, 619. 4 lilac. Com. J8. 2 Hawk. P. C. c. 29. s. 29. 5 Ann. c. 31. ». 3. (6) 2 Hawk. P. C. c. 29. s. 27. c«AP. II.] Of Accessories after the Fact. 49 as well as by receiving a principal, (r) And it has been holden, that a man may make himself an accessory after the fact to a larceny of his own goods, or to a robbery on himself, by harbouring or concealing the thief, or assisting in his escape, (d) Where an act of parliament enacts an offence to be fe- in ofTences lony, though it mentions nothing; of accessories, yet vir- <^5<^^tfd by •" ° * ' -^ . statute, tually and consequentially those that knowingly receive the offender are accessories after, (e) It has, however, been said, that if the act of parliament that makes the felony in express terms, comprehend accessories before, and make no mention of accessories ofei^, it seems there can be no ac- cessories after ; the expression of procurers, counsellorvS, abet- tors, all which import accessories before, making it evident that the legislature did not intend to include accessories after, whose offence is of a lower degree than that of accessories before, (f) But by others it is considered to be settled law, that in all cases where a statute makes any offence treason, or felony, it involves the receiver of the offender in the same guilt with himself, in the same manner as in treason or felony at common law, unless there be an express pro- vision to the contrary, (g) And although it be generally true, that an act of parliament creating a felony renders consequentially accessories before and after within the same penalty, yet the special penning of the act sometimes varies the case : thus, the statute 3. Hen. VII. c. 2. for taking away women, makes the taking away, the procuring and abetting, and also the wittingly receiving, all equally felonies and excluded of clergy. So that acts of parliament may diver- sify the offences of accessory or principal according to their various penning, and have done so in many cases. (A) There is no doubt but that it is necessary for a receiver to The (c) 2 Hawk. P. C. c. 29. s. 1. (/) 1 Hale 614. (<0 Fost. 123. Cromp. Just. 41 b. (g) 2 Hawk. P. C. c. 29. s. 14. pi. 4 and 5. (h) 1 Hale 614, 615. (e) I Hale 613, VOL. I. E accessorr 50 Of Acccssoi^ies aflvr the Fact. [book i. must know of have had notice, either express or implied, of a telonv the felony , . , .... , . • committed, Iiaving been committed, in order to make hiin an accessory andthcfelony by receivincr the felon ; (/) and it is also acreed, that the must be com- *' " ' ^ ^ ' _ plete. felony innst be complete at the time of the assistance given, else it makes not the assistant an accessory. So that if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delin- quent ; this does not make him accessory to the homicide, for till death ensues there is no felony committed. (A) Feme covert. The law has such a regard to the duty, love, and tender- ness, which a wife owes to her husband, that it does not make her an accessory to felony, by any receipt whatever which she maj give to him ; considering that she ought not to dis- cover her husband. (/) Prosecutions against acccs- .sories after the fact at common law not frequent. It is not thought necessary to discuss further the general principles of law relating to accessories after the fact, since prosecutions against such persons grounded on the common law are seldom instituted at the present time ; nor do they appear to have been frequent for many years past, nor to have had any great etlect. (t7i) AVith respect to receiver's of stolen goods, who by the 3 and 4 AV. and M. c. 9. and by the 5 Anne, c. 31, are made accessories after the fact, it is intended to treat of their oflence in a subsequent chapter, (w) It may be observed, however, that the statute 5 Anne, c. 31. s. 5. enacts, that if any person shall receive, liarbour, or conceal, any burglars, felons, or thieves, knowing them to be so, he shall bo taken as an accessory to the felony, (o) And in the case of horse-stealing, a statute of Elizabeth (p) has (0 2 Hawk. P. C. c. 29. s. 32. the receipt of bis wife. 1 Hale (*) 2 Hawk. c. 20. s. 35. -I Ulac. C21. Com. .'J8. (»') lost. :n'2. (0 2 Hawk. c. 20. s. :M. 1 Hale (n) Post, Book IV. Chap. XIII. 621. a?ile, p. 2H. Ihit this applies to on fieceiving stolen Goods. no other relation besides that of a (o) fid. 2 liasl. P. C. 744. as to ■wife to her husband : and the the construction of this statute, husband may be an accessory for (p) 31 Eliz. c. 12. s. 5. CHAP. II. ] Of the Proceedings against Accessories. 51 taken away clergy as well from the accessory after as before the fact. But this statute extends only to such persons as were in judgment of law accessories at the time the act was made, namely, accessories at common law ; not to such as are made accessories by subsequent statutes ; and therefore a person knowingly receiving a stolen horse, who is made an accessory by later statutes, is not ousted, (q) The principal and accessory may be indicted in the same Of the pro- indictment and tried tO£^ether, which is the best and most '^^'^'^'"S* ^ ag.inst acces- usual course : (r) and the accessory shall not, without his sories. own consent, be brought to trial, till the guilt of the prin- cipal is legally ascertained by conviction or outlawry, unless they are tried together, (s) This, however, must be under- stood, with the exception of those accessories after the fact, commonly called receivers of stolen goods, who, by the enact- ments of several statutes, (/) may be proceeded against by indictment for a misdemeanor, though the principal may not have been convicted ; as will be shewn more at length in a subsequent chapter, (w) Where the proceedings are against the accessory only, the name of the principal should be stated in the indictment, if it is known ; and where it (q) Fost. 373. citing MSS. Tracy guilty. But it seems agreed, that and Denton. if the principal plead a plea in har, (r) 1 Hale 623. Fost. 365. Donally or abatement, or a former acquit- aud Vaughan (case of) Old Bailey, tal, the accessory shall not be Sept. 1816, ante, p. 40. It seems forced to answer till that plea be to be settled at this day, that if the determined ; for if it be found for principal and accessory appear to- the principal the accessory is dis- gcther, and the principal plead the charged: if against the principal, general issue, the accessory shall yethe shall afterwards plead over to be put to plead also, and that the felony, and may be acquitted, if he likewise plead the gene- l^Hawk. P. C.c.29.s.47. 1 Hale 624- ral issue, both may be tried by (s) 1 Hale 623. 2 Hawk. c. 29. one inquest; but that the principal s. 45. Fost. 360. must be first convicted, and that (f) 1 Amie, sess. 2. c. 9. s. 2. 5 the jury shall be charged, that if Anne, c. 31. s. 6. 22 Geo. III. c. 58. they find the principal not guilty, (w) Fost, Book IV. Chap. Xlll. ihey shall fiiid the accessory not on Receiving stolen Goods. e2 52 Of the Proceedings against Accessories, [boor i. was stated in an indictment ajj^'^inst an accessory to a felony, that the felony was committed by a person to the jurors un- known, and it appeared that the principal felon was a wit- ness before the grand jury, it was held that the indictment could not be supported, (w) A man may Formerly if a man had been indicted as accessory in the he arrdisiu ^^^^q felony to several persons, he could not have been ar- IS iiccessorv to such of the i-aigned till all the principals were convicted and attainted; are convicted, but as the law now stands, if a man be indicted as accessory to two or more, and the jury find him accessory to one, it is a good verdict, and judgment may pass upon him. (x) And therefore the Court in their discretion may arraign him as accessory to such of the principals as are convicted ; and if he be found guilty as accessory to them or any of them, judgment shall pass upon him. (j/) An acquittal in such case would not formerly have discharged him as accessory to the others ; (s) but by the statute 43 Geo. III. c. 1 13. s. b, it is provided that no person shall be tried more than once for the same offence of being accessory before the fact. Former ac- If A. be indicted as principal, and B. as accessory, and Hba"tl afresh ^^^^^ be acquitted, or if B. only be acquitted, yet B. may be indictment. indicted as principal in the same offence, and his former ac- quittal is no bar. (a) But it seems to be agreed, that if A. be indicted as principal and acquitted, he cannot be afterwards indicted as accessory before the fact, (h) If, however, a man be indicted as principal and acquitted, he may be indicted a? (u)) Rex V. Walker, 3 Campb. 361. 864. So in an indictment for hir- (z) 2 Hawk. P. C. c. 29. s. 46. cenY,thou{;h the goods may be laid (a) 1 Hale 625. Gordon Wini- to be the property of persons un- fred and Thomas (case oO, 1 Leach known, such an allegation is im- 515. S. C. 1 East. P. C. 35. proper if the owner be really {b) 1 Hale 626. 2 Hale 244. But known. 2 East. P. C. 651.781. /'ost, Mr. Justice Foster says, that he Book IV. Chap. IV. on Larceny. knows not upon what grounds, as (x) Post. 361. 9 Co. 119. in consideration of law the offences {y) 1 Hale 624. 2 Hawk. P.O. of principal and accessory are quite r. 29. S.46. Plowd. 98, 99. Fost. different. See Post. 361, 362. (HAP. II.] Of the Proceedings against Accessories. 53 accessory after the fact ; and so if he be indicted as acces- sory before the fact and acquitted, he may be indicted as ac- cessory after the fact, (c) Anciently an accessory could not be tried, unless the Accessory principal were attainted : so that if the principal stood mute ^jjj,.e*tije^ of malice, or challenged peremptorily above the le^al num- principal of- • ^ , ,• 1 1- L fender has ber of jurors, or refused to answer directly to the charge, |,een ctmvict- the accessory could not have been put upon his trial, (d) ed,&c thou;^h But the statute 1 Anne, stat. 2. c. 9. provides a remedy for this defect, and enacts, that " if any principal offender shall " be convicted of any felony, or shall stand mute, or pe- " remptorily challenge above the number of twenty persons " returned to serve of the jury, it shall and may be lawful " to proceed against any accessory, either before or after •' the fact, in the same manner as if such principal felon had " been attainted thereof, notwithstanding any such principal " felon shall be admitted to the benefit of his clergy, par- " doned, or otherwise delivered before attainder ; and every " such accessory shall suffer the same punishment, if he or " she be convicted, or shall stand mute, or peremptorily " challenge above the number of twenty persons returned " to serve of the jury, as he or she should have suffered if " the principal had been attainted." Upon this statute it has been held that it is sufficient, in an indictment for felony against a receiver of stolen goods, to state that the princi- pal was " tried and duly convicted,^'* without going on to shew that judgment was passed upon him, or how he was delivered, (e) And where an indictment for receiving stolen goods averred that the principal felon had been duli/ convicted^ upon an objection that the record which was pro- (f) 1 Hale 626. while be prevailed upon to plead, (ee 1 Hale 625. 40. And see in Lord Sanchar's But by the reversil of an attainder ra.se, 9Co 1 19, that if the principal against a [irincipal, the atLiinder i(i erroneously attainted yel Ihe against the accessory, which de- accessory shall be attainted ; for pends upon the .ittainder ot the the attainder against the principal principal, \s ipso J ado utterly de- stands till it is reversed. And by feated and annulled. Lord San- Lawrence J. in Holmes v. Walsh, chars case, 9 Co. 1 19. Post. 300. 7 T. R. 465, " The judgment upon CHAP. II. 3 Of the Proceedings against Accessories. ^5 charged, the accessory may avail himself of this, and ought to be acquitted, (g) For though it is not necessary upon such trial on the part of the prosecution to enter into a de- tail of the evidence on wiiich the conviction was founded^ and the record of the conviction is deemed sufficient evi- dence against the accessory to put him upon his defence ; yet the presumption raised by the record that every thing in the former proceeding was rightly and properly trans- acted must, it is conceived, give way to facts manifestly and clearly proved ; and that as against the accessory the con- viction of the principal will not be conclusive ; being as to him res inter alios acta, {h) This was the opinion of Mr. Justice Foster : and upon this opinion the court, in a case at the Old Bai/ej/, permitted the counsel for a prisoner indicted as an accessory to controvert the propriety of the conviction of the principal by viva voce testimony, and to shew that the act done by the principal did not amount to a felon)/, and was only a breach of trust. (/) And in a later case in the same court it was also admitted that the record of the conviction of the principal was not conclusive evi- dence of the felony against the accessory, and that he has a right to controvert the propriety of such conviction. (A) But how far an accessory can avail himself in point of fact, by shewing that the principal was totally innocent, is a question of more difficulty, and should be handled with great caution ; because facts for the most part depend upon the credit of witnesses: and when the strength and hin^-e of a cause happen to be disclosed, as they may be, by one trial, daily experience convinces us that witnesses for very bad purposes nuiy be too easily procured. Upon this point, however, Mr. Justice Foster cites some authorities, which he apprehends to be strong, to shew that the accessory may {g) Fost. 365. a note to Smith's case, 1 Leach 290. (h) Ibid. Cor. Gould J. who is considered to [f) Smith's case, 1 Leach 288. have been a very accurate crown (A) Prosser's case, mentioned in lawyer. S6 Of the Proceedings against Accessories, [book i. insist upon the innocence of the principal ; and then gives his own opinion. He says " if it shall manifestly appear, in " the course of the accessory's trial, that in point of fact " the principal was innocent, common justice seems to re- " quire that the accessory should be acquitted. A. is con- " victed upon circumstantial evidence, strong as that sort " of evidence can be, of the murder of B. ; C. is afterwards " indicted as accessory to this uiurder ; and it conies out " upon the trial, by incontestible evidence, that B. is still " living. (Lord Hale somewhere mentions a case of this " kind) Is C. to be convicted or acquitted ? The case is " too plain to admit of a doubt. Or suppose B. to have " been in fact murdered, and that it should come out in " evidence, to the satisfaction of the court and jury, that the " witne-pps against A. were mistaken in his person, (a case " of this kind I have known) and that A. was not nor could " possibly have been present at the murder." (/) In -what Where a person is feloniouslv stricken or poisoned in one county tfiey * ' shall be tried, county, and dies thereof in another county, the accessory may be indicted in the county where the death shall happen, (m) And where a murder or felony was committed in one county, and the person was accessory in another county, the accessory may be indicted in the county where he was accessory. And the judges of assize, or two of them, of the county where the offence of the accessory shall have been committed, on suit to them made, shall write to the keeper of the records where the principal shall have been convicted to certify them whether such principal be attainted, convicted, or otherwise dis- charged, which he shall certify under his seal, (n) (/) Fost 367, 368, and see 3 Esp. coropetcnt to the defendant to R. 134 (in the case of Cook v. prove the principal innocent. Field) where it was stated by Bear- (m) 2 & 3 Ed. VI. c. 24. s. 2, 3. croft, and assented to by Lord (n) 2 & 3 Ed. VI. c. 24. s. 4. Lord Kenyon, that where the principal Sanchar's case, 9 Co. 117, where ha« been convicted, it is ncvcrfhc- several qnestious were moved upon lets oa the trial of the accessory this statute. CHAP. II.] Of the Proceedings against Accessories. 57 In the case of accessories to any felony before the fact, whether the pri.'icipal felony be committed within the body of any county or upon the high seas, and whether the pro- curing, &f . or abetting, or otherwise becoming accessories before the fact be committed within the body of any county or upon the high seas, the offence of such accessories may be tried (in case the principal felony was committed within the body of any county) by the course of the common law, either within the county where the principal teiony was committed, or in the county where the offence of becoming accessory before the fact was committed ; and in case the principal felony was committed upon the high seas, then the offence of becoming accessory before the fact may be tried in such court, &c. as is directed by the statute 28 Hen. VIII. c. 15, for trying felonies committed upon the high seas, (o) The 33 Hen. VIII. c. 23, intituled " An act to proceed *' by commission of oyer and terminer against such persons " as shall confess treason, &c. without remanding the same " to be tried in the shire where the offence was commit- " ted,'' (p) gives certain powers for making commissions of oi/er and terminer for the speedy trial of persons examined before the king's council, or three of them, upon any mur- ders or other offences therein mentioned under such cir- cumstances and in such cases as in the said act are men- tioned; but no provision is therein made for the trial of ac- cessories before the fact in murder : it is therefore provided by the statute 43 Geo. III. c. 113. s. 6. that the powers and authorities of the former statute shall be extended to the offence of procuring, &c. or otherwise becoming an acces- sory before the fact to any murder, (q) (o) 43 Geo. III. c. 113. s. 5. (g) By s. 7, this act is not to ex- (/») 1 East's P. C. 369. tend to Ireland. 58 CHAPTER THE THIRD. Of Indictable Offences. wFFENCES which may be made the subject of indictment, and are below the crime of treason, may be divided into two classes, felonies and misdemeanors. lelony de- The term felony has long been used to signify the actual ^"*^*^" crime committed ; and not, as it did originally, the penal consequence of forfeiture occasioned by the crime: and the only adequate definition of it is stated by an excellent writer to be this, namely, an offence which occasions a total forfeiture of either lands or goods, or both, at the common law ; and to which capital or other punishment may he su- peradded according to the degree of guilt. («) Capital punishment does by no means enter into the true definition of felony ; but the idea of felony is so generally connected with that of capital punishment, that it is hard to separate them, and to this usage the interpretations of the law have long conformed. Therefore if a statute makes any new oflence felony, the law implies that it shall be punished with death as well as with forfeiture, unless the offender prays the benefit of clergy, which all felons are entitled once to have, unless the same is expressly taken away by statute. (A) What words AV^ith regard to felonies created bj/ slatittc, it seems clear that not only those crimes which arc made felonies in ex- III a stilt II tc rr(;atc a fe- lon v. (a) 4 Blar. Com. 95. Et vide (b) 4 Blac. Com. 98. 1 Hawk. C. 'if) s. I CHAP. III.] Of Indictable Offences. 59 pre^s words, but also all those which are decreed to have or undergo juds;ment of life and member by any statute be- come felonies thereby, whether the word " /(fomf be omitted or mentioned, (c) And where a statute declares that the offender siiall, under the particular circumstances, be deemed to have fdomonsly committed the act, it makes the offence a lelony, and imposes all the common and ordi- nary consequences attending a felony, {d) But an offence shall never be made felony by the construction of any doubtful and aml)io;uous words of a statute ; and therefore, if it be prohibited under " pain of forfeiting all that a man " has," or of " forfeiting- body and goods," or of being " at the king's will for body, land, and goods," it shall amount to no more than a high misdemeanor, (r) And tlyough a statute make the doing of an act felonious, yet if a subsequent statute make it ytennl only, the latter statute is considered as a virtual repeal of the former, so far as relates to the punishment of the offence. (/') And it should also be observed, that where a statute makes a second of- fence felony, or subject to a heavier punishment than the first, it is always implied that such second offence ought to be committed after a conviction for the first; fro)n whence it follows, that if it be not so laid in the indictment it shall be punished but as the first offence : for the gentler method shall first be tried, which perhaps may prove effectual, (g) Where a statute makes an offence felony which was before only a misdemeanor, an indictment will not lie for it as a misdemeanor. (//) The word misdemeanor, in its usual acceptation, is ap- Misdomca- plied to all those crimes and offences for which the law has '"?■■** ricscrib not provided a particular name; and they may be punished, according to the degree of the offence, by fine or imprison- (e) 1 Hawk. P. C. c. 40. s. 2. (f) 1 Hawk. P. C. c. 10. .s. 5. (d) By Bajley J. in Johnsons (g-) 1 Hawk. P. C. c. 40, s. 4. rase, 3 M. and S. 536. (/,) Rex v. Cross. 1 Lord Rayni. (e) 1 Hawk, P. C. c, 40. s, 3. Til. ;} Salk, 19.S. 6^ Of Indictable Offences. [book i. ment, or both. (?) A misdemeanor is, in trutli, any crijiie less than a felony ; and the word is generally used in contra- distinction to felony ; misdemeanors comprehending all in- dictable oftences which do not amount to felony, as perjury, battery, libels, conspiracies, and public nuisances. (A) Mis- demeanors have been sometimes termed misprisions : indeed, the word misprision, in its larger sense, is used to signify every considerable misdemeanor which has not a certain name given to it in the law ; and it is said that a misprision is contained in every treason or felony whatsoever, and that one who is guilty of felony or treason may be proceeded against for a misprision only, if the king please. (/) But generally misprision of felon ij is taken for a concealment of felony, or a procuring the concealment thereof, whether it be felony by the common law, or by statute ; {m) and si- lently to observe the commission of a felony, without using any endeavours to apprehend the offender, is a misprision ; a man being bound to discover the crime of another to a magistrate with all possible expedition, (w) If this offence were accompanied with some degree of maintenance given to the felon, the party committing it might be liable as an accessory after the fact, (o) Indictable It is clear that all felonies., and all kinds o{ inferior crimes o{ a. puhlic tiaturCy as misprisions, and all other contempts, all disturbances of the peace, oppressions, misbehaviour by public officers, and all other misdemeanors whatsoever of a public evil example against the common law, may be in- dicted, (p) And it seems to be an established principle, that (i) 3 Burn. Just. l\L Misdemea- (m) 3 Inst. 140. 1 Hale 371 to nor, citing Barlow's Justice, tit. 375. Misdem. (p) 1 Hawk. P. C. c. 59. ». 6. The (k) 4 Black. Com. 5. note 2. 3 concealment of treasure trove is Burn. Just. tit. Misdemeanor. misprision of felony. 4 Blac. Com. it) 1 Hawk. c. 20. 8. 2. and c. 50. 121. 3 Inst. 133. 9. 1,2. Burn. Just, tit Felony. (p) 2 Hawk. P. C. r. 25. s. 4. As (m) 1 Hawk. P. C. c. 59. s. 2. to misbehaviour by public officers, Post, Book II. Chap. XIV, see post, Book II. Chap. XV. commit crimes. CHAP. III.] Of Indictable Offences. 61 whatever openly outrages decency, and is injurious to public morals, is a misdemeanor at common law. ( j i indictable. remedy, an indictment will not lie. (r) Tiie true rule has been laid down thus ; that where the offence was punishable before the statute prescribing a particular method of punish- ing it, then such particular remedy is cinnidatixe, and does not take away the former remedy ; but where the statute only enacts, " that the doing any act, not punishable before, " shall for the future be punishable in such and such a par- " ticular manner," there the particular method prescribed by the act must be specifically pursued, and not the common law method of indictment. (5) The mention of other me- (OT)Rext. Sainfbury,4T.R.457. 2 Salk. 460. («) Rex r. Davis, Say. 133. (q) Rex v. Smith . nd others, (p) Rci t'. Boyal, 2 Burr. B32. Dougl. 441. And an indictment for Rex V. Balme, Cowp. 648. cited in such otlence need not, and ought the note* to 2 Hawk. P. C. c. 25. not, to conclude contra J'ormam 8. 4. AiuJ, generally speaking, the statuli. Court of K. B. cannot he ousted (r) Rex v. Wright, 1 Burr. 543. of its jurisdiction but by express Rex v. Douse. 1 Lord Raym. 672. word*, or by necessary implication. (») By Lord Mansfield, in Rex i'. By Ashurst J. in Catc» v. Knight, Robinson, 2 Burr. 805. Rex v. 3 T. R. 445. Boyall, 2 Burr. 832. See alsoHart- 0>) 2 Hawk. P. C. c. 25. ». 4. ley v. Hooker, Cowp. 524. ReX Rex V. Wigg, Lord Raym. UGJ. i-. Balme, Cowj). 030. €HAP III.] Of Indictable OJfences. 67 thods of proceeding impliedly excludes that of indictment. (0 "^riius it has been held, (?/) and seems now to be settled, (to) that where a statute making a new offence not prohibited by the common law appoints a particular manner of proceeding against the offender, as by commitment or action of debt or information, without mentioning an indictment, no indict- ment can be maintained. Accordingly it was held not to be an indictable offence to keep an alehouse without a licence, because a particular punishment, namely, that the party be committed by two justices, was provided by the statute, (.r) And an indictment for assaulting and beating a custom-house officer in the execution of his office was quashed, because the statute 3 Car. I. c. 3. appointed a particular mode of punishment for that offence, (t/) So an indictment for kill- ing a hare was quashed, on the ground that it was not in- dictable ; the statute 5 Anne, c. 14. having appointed a sum- mary mode of proceeding before justices. (~) In one case, where no appropriation of the penalty, nor mode of recover- ing it, was pointed out by the statute, the Court held that it could not be recovered by indictment; but was in the nature of a debt to the crown, and suable for in a Court of revenue only. (a) Amongst other decisions as to cases which cannot be made Cases not the subject of indictment, it appears to have been ruled indictable. that an indictment will not lie for setting a person on the footway in a street to distribute handbills whereby the foot- way was impeded and obstructed ; (b) nor for throwing down (0 2 Hawk. c. 25. s. 4. (m) Glass's case, 3 Salk. 350. (u>) 2 Hawk. c. 25. s. 4. (j) Anon. 3 Salk. 25. S. P. Wat- son's case, 1 ^alk. 45. and Rex V. Edwards, 3 Salk. 27. Aiid see Faulkner's case, 1 Saund. 248. and Mr. Serj. Williams's note (3.) at page 250. e. (j) Anon. 2 Lord Rayra. 991. r ^ 3 Salk. 189, Rex v. James, cited in Rex v. Buck, 1 Stra. 679. (::) Rex v. Buck, 1 Stra. 679. {a) Rex V. Malland, 2 Stra. 828. a case upon the 12th Geo. I. c. 25. which imposes a penalty of 20s. per thousand for burning place bricks and stock bricks together. (t) Rex V. Sermon, 1 Burr. 516. But it was held by Lord Ellcubo- 9 6S Of Indictable Offences. [boor i. skins into a public way, by which a personal injury is acci- dentally occasioned ; (c) nor for acting, not being- qualified, as a justice of peace; (d) nor for selling short measure ; (e) nor for excluding commoners by inclosing ; (f) nor for an attempt to defraud, if neither by false tokens or conspi- racy; (g) nor for secreting another ;(/?) nor for bringing a rough that every unauthorised ob- struction of a highway, to the an- noyance of the king's subjects, is an indictable offence in Rex v. Cross, 3 Canipb. 227. where it was held to be an indictable offence for stage coaches to stand plying for passengers in the public streets. (c) Rexu. Gill, 1 Stra. 190. (rf) Castle's case, Cro. Jac. 643. (f) Rex V. Osborn, 3 Burr. 1697 : but selling bi/ false measure is in- dictable, fhid. (J) Willoughby's case, Cro. Eliz. 90. (g-) Rex V. Channell, 2 Stra. 793. Indictment against a miller for tak- ing and detaining part of the corn sent to him ; and Rex v. Bryan, 2 Stra. 866. Anon. 6 Mod. 105. Rex V. Wheatlcy, 2 Burr. 1 125. Rex v. Wilders, cited 2 Burr. 1128. and Rex It. Haynes, 4 M. & S. 214. This last ca.se was an indictment against a miller, for receiving good barley to srrind at his mill, and deliverins a mixture of oat and l)arley meal, difTcrcnl from the produce of the barley, and which was mu.sty and unwholesome. On the part of the prosecution, a note in I Hawk. P. C. c. 71. s. 1. referring to I Sess. Ca. 217. was cited, where it is laid down, " tlial changing corn l)y a *' miller, and returning bad corn " instead of it, is punishable by iu- " dictment ; for, being in the way " of trade, it is deemed an offence " against the public ;" but it was held, that the indictment would not lie. Lord Ellenborough, in giving judgment, said, that if the allegation had been that the miller delivered tlie mixture as an article for the food of man, it might pos- sibly have susUiinedthe indictment, but that he could not say that its being musty and unwholesome ne- cessarily and ex vi termini import ed that it was for the food of man ; and it was not stated that it was to be used for the sustentiition of man, but only that it was a mixture of oat and barley meal. His Lordship then proceeds: "as to the other " poii\t, that this is not an indict- " able ofl'ence, because it respects " a matter transacted in the course " of trade, and where no tokens " were exhibited by which the parly " acquired any greater degree of " credit, if the case had been that " this n\iller was owner of a soke- " mill, to which the inhabitants of " the vicinage were bound to re- " .sort, in order to get their corn " ground, and I hat the miller, abus- " ing the confidence of this his si- " tnalion, had made it a colour for " practising a fraud, this might " have presented a dillerenl as- " peel ; but as it now is, it seems to CHAP. III.] Of Indictable Offences. m bastard child into a parish ; (0 nor for entertaining idle and vagrant persons in the defendant's house ; (A) nor for keep- ing- a house to receive women with child, and deliver them.(/) And cases o( non-feazance and particular wrong done to ano- ther are not in general the subject of indictment: but it was the opinion of a very able judge, that circumstances may exist of mere non-fcazance towards a child of tender years (such as the neglect or refusal of a master to provide suffi- cient food and sustenance for such a child, being his servant and under his dominion and controul), which may amount to an indictable oftence. {m) It has been held, that where a mayor of a city, being a justice, made an order that a company in the city should admit one to be a freeman of that corporation, and the mas- " be no more than the case of a " common tradesman, who is guilty " of a fraud in a matter of trade or " dealing, such as is adverted to in " Rex V. Wheatley, and the other " cases, as not being indictable." And see also Rex v. Bower, Cowp. 323, as to the point that for an im- position, which a man's own pru- dence ought to guard him against an indictment, does not lie, but he is left to his civil remedy. But in Rex V. Dixon, 4 Campb. 12. it was held, that a baker who sells bread containing alum, in a shape which renders it noxious, is guilty of an indictable ofTt-nce, if he ordered the alum to be introduced into the bread, although he gave directions for mixing it up in a manner which would have rendered it harmless. (ft) Rex V. Chaundler, 2 Lord Raym. 1368 : an indictment for se- creting A., who was with child by the defendant, to hinder her evi- dence, and to elude the execution of the law for the crime aforesaid, (i) Rex V. Warne, 1 Stra. 644, it appearing that the parish could not be burthened, the child being born out of it. But see a precedent of an indictment for a misdemeanor at common law, in lodaing an in- mate, who was delivered of a bas- tard child, which became charge- able to the liberty. 2 Chit. Crim. Law, 7 00. And see also id. 699. and 4 Wentw. 353. Cro. Circ. Comp. (7th ed.) 648, precedents of indict- ments for misdemeanors at com- mon law, in bringing such persons into parishes in which they had no settlements, and in which they sliortl) died, whereby the parish- ioners were put to expence. . (A-) Rex V. Langley, 1 Lord Raym, 790. (/) Rex V. Macdonald, 3 Burr, 1G46. im) Ridley's case, 9 Campb. 030. 70 Of Indictable Offences. [rook i. ter of the company being served with the order, refused to obey it, such refusal was not the subject of indictment, (w) And an indictment will not lie for not curing a person of a disease according to promise, for it is not a public offence, and no more in effect than a ground for an action on the case, (o) To keep an open shop in a city, not being free of the city, contrary to the immemorial custom there, has been held not to be indictable, (p) With regard to trespasses, it has been held that a mere act of trespass (such as entering a yard and digging the ground, and erecting a shed or cutting a stable,) committed by one person, unaccompanied by any circumstances consti- tuting a breach of the peace, is not indictable ; and the Court quashed such indictment on motion, (q) And an indictment against one person for pulling off the thatch of a man's house, who was in the peaceable possession of it, was also quashed on motion, (r) But where the indictment stated the entering a dwelling-house, and vi et nrmis and with strong hand turning out the prosecutor, the Court refused to quash it. (s) And an indictment will lie for tak- ing goods forcibly, if such taking be proved to be a breach of the peace: (0 and though such goods are the prosecutor's own property, yet, if he take them in that manner, he wiU be guilty. (?0 («) Rex V. Atkinson, 3 Salk. 188. (o) Rex V. Bradford, 1 Lord RayiTi. 3G6. 3 Saik. 189. In an anon, ca.se, 2 Salk. .522, it appears to have bocn hrld, that if a pawn- broker refuses, upon tender of the money, to deliver the goods pledg- ed, he may be indicted. \in\ Rex «. Jones, 1 Salk. 379. is rnnlra. (p) Rex r. George, 3 Salk. ISR. Nor is it an indictable ofTence to exercise trade in a borough con- trary to the bye-law.s of that bf>- rough. Rex r. Sharj)lesj», 4 T. H. 777. (q) Rex V. Storr, 3 Burr. 1699. (r) Rex V. Alkins, 3 Hurr. 1706. (s) Rex I'. Storr, 3 Hurr. 1699. (0 Anon. 3 Salk. 187, (m) /hid. BOOK THE SECOND. OF OFFKNCES PRINCIPALLY AFFECTING THE GOVERNMENT, THE PUBLIC PEACE, OK THE PUBLIC RIGHTS. CHAPTER THE FIRST. Of counterfeiting or impairing Coin. — '■Of Importing into the Kingdom counterfeit or light Money,- — And of Ex- porting counterfeit Money. SECT. I. OF COUNTERFEITING COIN. X HE legislature has thought fit to make provision against the counterfeiting of the following descriptions of coin, namely: — I. The king's money, properly so called. — II. Foreign gold, silver, or copper coin. — And, III. The copper money of this realm. I. The first of these, the king's money, is protected by Of counter- enactments, which place the offence of counterfeiting: it in f^.'*^",'? *"^ ' t o king s money, the highest class of crimes, upon the ground that the royal majesty of the crown is affected by such offence in a great prerogative of government ; the coining and legitimation of money, and the giving it its current value, being the un- questionable prerogatives of the crown, {a) The statute 25 Edw. III. st. 5. c. 2. declares it to be high treason " if a man counterfeit the king's money. '^ (a) 1 Hale 188. 1 East. P. C, 14S, 7S Of Counterfdting the King's Moyicj/. [book ii. What is the kins' s money. It appears that the coin or money of this kingdom consists properly of gold or silver only, with a certain alloy, con- stituting what is called sterlifig, coined and issued by the king's authority ; and that the statute of Edward the Third, in mentioning " the king's money'" generally, refers to such money ; which is supposed also to be referred to by any other statute naming " money" generally. (6) The weight, alloy, impression, and denomination, of money made in this kingdom are generally settled by indenture between the king and the master of the mint : but the recent statute, 56 Geo. III. c. 68. has provided, with respect to the new silver coinage, that the bullion shall be coined into silver coins of a standard and fineness of eleven ounces two penny- weights of fine silver, and eighteen pennyweights of alloy in the pound troy, and in weight after the rate of sixty-six shillings to every pound troy, whether the same be coined in crowns, half crowns, shillings, or sixpences, or pieces of a lower denomination. A proclamation has in some cases been made as a more solemn manner of giving the coin cur- rency ; but the proclamation in general cases is certainly Dot necessary, and in prosecutions for coining need not be proved, (c) And it is not necessary in such prosecutions to produce the indentures; though it may be of use in case of anv new coin with a new impression, not yet familiar to the people, to produce either the indentures, or one of the offi- cers of the mint cognizant of the fact, or the stamps used, or the like evidence. But in general, whether the coin, upon a question of counterfeiting or impairins: it, be the king's money or not, is a mere question of fact which may be found upon evidence of common usage or notoriety, {d) It should (6) 1 East. P. C. 147. And sec 1 Hale, chap. 17, 18, 19, and 20. (c) 1 Ea«t P. C. 149, where see lome cases in which proclamation by the writ of proclaniation under the great seal, or a remembrance thereof, is considered to be neces- sary to prove u coin current ; and it is also stated, that by the act of the 37th Geo. III. c. 126. s. 1. rela- tive to a copper coinage, the king'» proclamation is made necessary, and seems, therefore, to be requir- ed in proof of any indictment upon that sLitule. id) \ East. P.C. 149. But in the CHAP. I. § I.] Of Counterfeiting the King's Momy. '73 be observed, that any coin, once legally made and issued by the king's authority, continues to be the current coin of the kingdom until recalled, notwithstanding any change in the authority by which it was constituted, (e) Some verbal difference is observable in the wording of several of the statutes on the subject of the coin since the Revolution. The statute 8 and 9 W. III. c. 26. speaks of the gold and silver coin " of this kingdom," or " current within this kingdom." The statute 15 Geo. II. c. 28. in one part expresses by name " guineas and half guineas," and " shillings and sixpences," and is consequently con- fined to those identical coins. In another part it speaks of counterfeit money generally. The statute 11 Geo. III. c. 40. as to the copper coin, and the statute 37 Geo. III. c. 126. s. 2. as to gold and silver coin, describe each as the coin of " this realm," following the words of the more ancient sta- tutes. No stress can be laid upon such verbal differences between statutes passed in pari materia : the construction which the reason of the thing points out must be such as the words are capable of receiving without violence to their proper or accepted legal signification. (/) Besides the counterfeiting of the king's money within the Marking- the statute 25 Edw. III. st. 5. c. 2. which has been already men- ^^=^^ of coin, tioned, the offence of high treason may also be committed by marking on the edges of any of the current or diminished coin of this kingdom, or counterfeit coin resembling the coin of this kingdom, with letters or grainings, or other marks or figures, like those on the edges of money coined in his Majesty's mint. This provision is by stat. S and 9 case of old coin which has gra- proclamation; and long disuse dually fallen into disuse, though may. it is conceived, be evidence still the legal coin of the king, of it. It has also been effected by there can be no general notoriety act of Parliament, as by 9 W. Ill, of the fact. c. 2. and 6 Geo. II. c. 26. (e) 1 East. P. C. 14S. where it is (/) 1 East. P. C. 157. said also, that this recal may be by 74 Of Counlcrfciling the Kind's Money, [boor ii. W. Til. c. 2Q.' s. 3. (o-) which enacts, that " if any person " (other than the persons employed in his Majesty's mint or *' mints, or such as shall have authority from the Lords " Commissioners of the Treasury, or Lord Hij;h Treasurer " of England for the time being,) (/?) shall mark on the edges *' any the current coin of this kingdom ; or if any person " whatsoever shall mark on the edges any of the diminished " coin of this kingdom, or any counterfeit coin resembling " the coin of this kingdom, with letters, or grainings, or " other marks or figures like unto those on the edges of " money coined in his Majesty's mint; every such offence <' shall be adjudged high treason ; and the offenders therein, *'^ their counsellors, procurers, aiders, and abettors, being " thereof convicted or attainted, shall suffer death, &c." (?) "Making shil- lings or six- pences to re- semble gui- neas or Yialf guineas, and making halt- pence or tar- things resem- ble siiillings or sixpences. 3Iaki)7g shillings or sixpences to resemble guineas or half guineas^ and making halfpence or farthings to resemble shil- lings or sixpences, amount also to the crime of high treason. The statute 15 Geo. IL c. 28. s. 1. provides, " that if any " person shall wash, gild, or colour any of the lawful silver " coin called a shilling or a sixpence, or any counterfeit or " false shilling or sixpence, or add to or alter the impres- " sion, or any part of the impression, of either side of such (g) Made perpetual by 7 Ann. c. 25. (/») This exception seems utme- cessary, and would have been im- plied by law on behalf of persons 80 employed by his Majesty's au- thority. But yet it was holden about Hilary Term IM W. III. by all the Judges, that in an indict- ment on that act, it ought to be averred, that the |)arty was not employed in the Mini, or autlio- rized by the treasurer, &.c. ; lie- cause the exception of such jHTsons is within the enacting clause; and the want of such an authority is part of the description of the of- fence itself. This question was moved by Mr. Justice Turton, who had convicted one upon thisslatntc at York, upon an indictment which had not such an averment ; and for this reason it was holden bad, aiul that the prisoner «)ught to be tried again, which was done at the Lent Assi/es nO'i, before l^>^us J. when tlie j)risoner was attjiiiited and exe- cuted. I Kast. P. C. 166, 167. (I) By 7 Ann. c. 23. s. 2. the pro- .seculion is to be commenced iu six months after the ofl'eucc. CHAP. I. §1. 3 Of Counter f citing the King's Money. 75 " lawful or counterfeit shilling or sixpence, with intent to " make such shilling resemble, or look like, or pass for a " piece of lawful gold coin called a guinea, or with intent " to make such sixpence resemble, or look like, or pass for a " a piece of lawful gold coin called a half guinea ; or shall " file or anywise alter, wash, or colour, any of the brass " monies called halfpennies or farthings, or add to or alter " the impression, or any part of the impression, of either " side of a halfpenny or farthing, with intent to make an " halfpenny resemble, or look like, or pass for a lawful shil- " ling, or with intent to make a farthing resemble, or look " like, or pass for a lawful sixpence; such offenders, their *' counsellors, aiders, abettors, and procurers, shall be guilty " of high treason." (A) There are other acts which are only preparatory to and Gilding or in the progress of actually counterfeiting the coin which are oVblanL or made high treason by the fourth section of the statute 8 & 9 S'^ding silver W. III. c. 26, which provides that " if any person shall " colour^ gild^ or case over with gold or silver, or with any " wash or materials producing the colour of gold or silver, " any coin resembling any of the current coin of this king- " dom, or any round blanks of base metal, or of coarse " gold or coarse silver, of a fit size and figure to be coined " into counterfeit milled money resembling any the gold or " silver coin of this kingdom, or if any person shall gild over " anj/ silver blanks of a fit size and figure to be coined into (k) But the fourth section pro- vides, that the blood shall not be corrupted. By the fifth section, offenders are to be indicted, ar- raigned, tried, and convicted, by such like evidence, and in such manner, as were then used and al- lowed against any offenders for counterfeiting the lawful coin; pro- vided that there shall be no prose- cutioa for any of the offences made treason or felony by that act, un- less such prosecution be com- menced within six months next after the offence committed. The eighth section provides, that the offender shall be pardoned in case (being out of prison) he discovers two or more offenders of the same kind mentioned in the act, so as they shall be thereof couvicted. 76 Of Cou7iterfeitwg Foreign Coin. [book ii, " pieces resembling tlie current gold coin of this kingdom,' all such offenders, their counsellors, procurers, aiders, and abettors, shall be guilty of high treason." (/) The statute 56 Geo. III. c. 68. s. 17, relating to the new silxer coinage enacts that all and every act and acts in force immediately before the passing of that act respecting the coin of this realm, or the clipping, diminishing, or counter- feiting of the same, or respecting any other matters relating thereto, and all provisions, proceedings, penalties, for- feitures, and punishments therein contained or directed, not expressly repealed by that act, and not repugnant or con- tradictory to the enactments and provisions of that act, shall be and continue in full force and effect ; and shall be ap- plied and put in execution with respect to the silver coin to be coined in pursuance of the directions of that act as fully and effectually to all intents and purposes whatsoever, as if the same were repeated and re-enacted in that act. These statutes of 25 Edw. III. 8 & 9 W. III. 15 Geo. II. and 56 Geo. III. c. 68, relate only to the coin of the realm usually called, in the sense Avhich has been before given, the king's money. We come now to the counterfeiting of foreign coin. Of counter- H- The counterfeiting oi foreign coin cither of gold, feitiiif^ fo- silver, or copper, is made highly penal by several statutes. reign irold, . , •/ i* • silver, or cop- Counterleiting such gold or stiver loreign coin as is current per coin. j^^j.^ ^ygg made treason for the first time by the statute 4 lien. VII. c. 18. That statute was repealed by 1 INIar. c. 1. but its provisions were revived by 1 Mar. st. 2. c. 6. which enacts that " if any person or persons falsely forge or " counterfeit any such kind of coin of gold or silver, as is (0 No corruption of l)lo<)(I. Pro- s. .'U. p. iMG. il was held llial tlie secutions are to be commenced intunnation and prore(Mlin«^ before wilhin three months after the of- a ma'jistralc were the comnience- fence committed, »• 9. Bui in mcnt of the jiroHeculioii, and «ot VVilhice's case. 1 East. P. C'. c. 1. the preferrinjj; the indict mcnt. CHAP. I. § I.] Of Counterfeiting Foreign Coin. 77 *' not the proper coin of this realm, and is or shall be CKr- *' rent within this realm by the consent of the crown, they " and their counsellors, procurers, aiders, and abettors, shall " on conviction be adjudged guilty of high treason.'''' (m) The statute 14 Eliz. c. 3, enacts that " if any person " falsely forge or counterfeit any kind of coin of gold or " silver of other realms as is not the proper coin of this " realm, nor permitted to he current within this realm ; such " offence shall be adjudged misprision of high treason ; and " the offenders, their procurers, aiders, (n) and abettors, " being convict, shall be imprisoned, and forfeit such lands " goods and chattels as in case of misprision of treason." Both these statutes are to be understood of the counterfeit- ing of such foreign coin as is for the most part gold or silver : (o) and the offence described in the statute of Eliza- beth was only punishable at common law as a misde- meanor, (p) The statute 37 Geo. III. c. 126, recites the great increase of the practice of counterfeiting gold or silver coin tiot cur- rent here, and enacts " that if any person or persons shall " hereafter make, coin, or counterfeit, any kind of coin not " the proper coin of this realm, nor permitted to be current " within the same, but resembling or made with intent to " resemble or look like any gold or silver coin of any fo- " reign state, &c. or to pass as such foreign coin ; such per- " son or persons offending therein shall be deemed guilty of "ye/o;?y, and may be transported for any term of years not " exceeding seven." By the words " not permitted to be " current within the realm," must be understood not per- (m) The consent of the crown (n) By " aiders" is meant such must be notified under the great as aid in the fact, and not aiders seal by proclamation, and a writ of the offender after the fact, annexed thereto-, the statute 17 1 Hale 376. Rich. II. c. 1. having provided that (o) 1 Hale 210, 311, 328. foreign coin shall not run in pay- (p) 1 East. F. C. ch. 4. s. 10. ment in England. p- 160. 78 Of Counterfeiting Foreign Coin, [book ii. mlttcd to be current by proclamation under the great seal, (q) The statute 43 Geo. III. c. 139, s. 3, relates to the coun- terfeiting of foreign coin o^ copper, or of other metal of less value than silver, not current here, and enacts " That if any " person shall within any part of the united kingdom make, " coin, or counterfeit, any kind of coin not the proper coin " of this realm, nor ordered by the royal proclamation of " his Majesty, his heirs, or successors, to be deemed and " taken as current money of this realm, or any part thereof, " but resembling or made with intent to resemble any cop- " per coin, or any other coin made of any metal or mixed " metals of less value than the silver coin of any foreign " prince, state, or country, respectively, or to pass as such " foreign coin, then every person so offending shall be " deemed and taken to be guilty of a misdemeanor and " J)reach of the peace ; and being thereof convicted accord- " ing to law, shall for the frst offence be imprisoned for any " time not exceeding one year ; and for the second offence " be transported to any of his Majesty's colonies or planta- " tions for the term of seven years." The act further pro- vides that persons against whom any bill of indictment shall be found shall not be entitled to traverse the same to any subsequent assizes or sessions, but shall be tried upon the bill being found, unless there shall be good cause why the trial should be postponed. (;) And a provision is also made for the certificate of a former conviction being suffi- cient evidence of that fact in cases where persons are tried for second offences, (s) (jq) 1 East. p. C. ch. 4. s. 10. viction before a justice of peace, p. 161, and cli. 10. s. 3. and ti. The lor cvci) such piece of coin. And sixth section of the 31 Geo. 111. the proci-edin-js before the justice c. 12G, makes persons having in are not to be quashed for want of their custody more than five pieces form, or removed by certiorari- of such counterfeit fon-ign coin (r) S. 4. liable to a penalty not exceeding («) S. 5. By the sixth section of iS.'i, nor less than 40s. upon con- tJie act persons having more than CHAP. I. § I.] Of Counterfeiting the Copper Money. 79» III. The statute 15 Geo. IT. c. 28. s. G, reciting that the of counter- coining or counterfeiting the copper money of this Jcingdom ^litms; copper was only a misdemeanor^ and the punishment often very small, enacts that any person making, coining, or counter- feiting, any brass or copper money commonly called a hfdf- penny or a farthings his aiders, abettors, and procurers, shall suffer two years' imprisonment, and find sureties for good behaviour for two years more. (/) But the 11 Geo. III. c. 40. s. 1, makes the offence /f/owy, enacting " that if any person shall make, coin, or counterfeit, any of " the copper monies of this realm commonly called a half- " penny or a farthing.^ such offender, his counsellors, aiders, " abettors, and procurers, shall be adjudged guilty of fe- " lony." But clergy is not taken away, and the punishment under this statute appears to be only a year's imprison- ment ; which punishment is founded on the general statute of 18 Eliz. c. 7. s. 3. (m) The statute 37 Geo. III. c. 126, enacts that the provi- sions of the 15 Geo. II. c. 28, relating to the copper monies of the realm commonly called a halfpenny and a farthing, and also the statute 11 Geo. III. c. 40, and all other acts concerning the copper monies of the realm com- monly called a halfpenny and a farthing, or any other cop- per money of the realm, shall extend " to all such pieces of " copper money as shall be coined and issued by order of " his Majesty, his heirs, and successors, and as shall by his " or their royal proclamation be ordered to be deemed and five pieces of such counterfeit fo- (I) If offenders being out of pri- reign coin in their possession are son impeach two others so that they liable to a penalty not exceeding shall be convicted, the oflfenders so 40s. nor less than 10s. upon con- impeaching shall be pardoned, s. 8. viction before a justice of the {ii) Rex i'. West and others, peace. And by s. 8. no proceeding 1 East. P. C. c. 4. s. 11. p. 162. The touching the conviction of any of- stat. 18 Eliz. c 7. s. 3, provides fender before any justice of the that upon allowance of clergy the peace shall be quashed for want of offenders may be imprisoned for form, or removed by certiorari' any lime not exceeding a year. 80 Of Counterfeiting Coin. [book ii. '' taken as current money of this realm," in the same man- ner as if such pieces had been particularly mentioned and described in such acts respectively. From the manner in which the King's proclamation is here made necessary to the currency of the coin, it seems to be required in proof of any indictment upon this statute, {w) It is stated as a question whether under this statute it is not optional to prosecute either for a misdemeanor as the offence is made by the statute 13 Geo. II. ; or for a felony as it is made by that of the II Geo. Ill, ; since the provi- sions of both statutes are extended to any new copper coinage. But yet it is observed, that such an option, with- out varying circumstances, is unusual, and incongruous with the general rule of law, that the misdemeanor is merged in the felony, (x) The offence With respect to the offence of counterfeiting the coin in of counter- general it may be observed, that not only all such as conn- coin may be terfeit the king's coin without his authority, but even such as committed by a^e employed by him in the mint, come within the statutes, officers in the mint. if for their own lucre they make the money of baser alloy, or lighter than by their indentures they are authorized and bound to do : for they can only justify their coining at all under such an authority ; and if they have not pursued that authority, it is the same as if they had none. But it is not any mistake in weight or alloy that will make them guilty of high treason ; the act must be wilful, corrupt, and frau- dulent, for it must be laid and proved to be done trai- torously, (y) What will be a The monies charged to be counterfeited must resemble the sufficient ^ ^^^ /fico/itf eohi ;(z) but this resemblance is a matter of counterlcil- j > ^ ^ ing. fact of wliich the jury are to judge upon the evidence before (w) 1 East. P. C. c. 4. s. 2. p. 149. c. 17, 8. 55. 3 Inst. 16, 17. 4 Blac. (x) 1 East. P. C. c. 4. 9. n . p. 1 62. Com. 84. Cy) 1 East P. C. c. 4. H. 15, p. (s) i Hawk. P. C c 17. s. 81. 166. 1 Hale 213. 1 llawk. P. C. i fciiAp. i.§l.] Of Counterftiting Coin. 81 them ; the rule being, that the resemblance need not be per- fect, but such as may in circulation ordinarily impose U|)on the world, {a) Thus a counterfeiting with some small varia- tion in the inscription, effigies, or arms, done probably with intent to evade tiie law, is yet within it ; and so is the coun- terfeiting in a different metal, if in appearance it be made to resemble the true coin. (6) It is qilit^ clear that there will be a sufficient counterfeit- Round bknki ins: within the statutes, where the counterfeit money is made ' ^^^'^^ '"^f ^ ' •' worn smooth to resemble coin, the impression on which has been zcotii by circula- aioai/ hij time. In one case thie shillings produced in evi- dence against the prisoner were quite Smooth, without the smallest vestige of either head or tail, and witliout any re- semblance of the shillings in circulation, except their colour, size, and shape; and the master of the mint proved that they were bad, but that they were very like those shillings the impression on which had beeri worn away by time, and might very probably be taken by persons having less skill than himself tbr good shillings. And the Court were of opinion that a blank that is smoothed, and made like a piece of legal coin, the impression of which is worn out, and yet sufiered to remain in circulation, is sufficiently counter- feited to the similitude of the current coin of this realm to bring: the counterfeiters and coiners of such blanks within the statute ; these blanks having some reasonable likeness to that coin which has been defaced by tinie, and yet passes in circulation, (c) In a subsequent case the point received the more solemn consideration of the twelve judges, the counsel for the prisoners having objected upon the fact of no impression of any sort or kind being discernible upon the shillings produced in eviden(!e, that they were not coun- terfeited to the likeness and similitude of the good and Icgcd coin of the realm. But the judges were of opinion, that it (a) 1 Hale 178. 184. 211. 215. ley's case. Old Bailey, Dec. 1778. (&) 1 East.P.C. C.4. s. 13.p. 164, (c) Wilson's case, Old Bailey« citing 1 MS. Sum. 50. aud Ridge- i7S3, 1 Leach 235. VOL. I. ft 82 Of Counterfeiting Coin. [boor ii. was a question of fact wliethcr the counterfeit monies were of the likeness and similitude of the lawful current silver coin called a shilling. And the jury having so found it, the want of an impression was immaterial ; because, from the impression being generally worn out or defaced, it was noto- rious that the currency of the genuine coin of that denomi- nation was not tliereby affected ; the counterfeit therefore was perfect for circulation, and possibly might deceive the more readily from having no appearance of an impression : and in the deception the oifence consists, (d) Where the But where the imitation of the real coin has not proceeded false coin is so g^ f^^ ^g to fabricate a false coin sufiicientlv perfect to bfe impenect as • t^ not to bep::ss- circulated, the offence of counterfeiting will not, it seems, be fence of conn- complete. Thus where the prisoner had forged the impres- terfciting will gion of a half guinea on a piece of gold, which was previously plete. hammered, but was not round, nor would pass in the condi- tion it then was, upon reference to the judges it was held that the crime of counterfeiting was incomplete. (f) And where the prisoners were convicted upon a count in the indictment framed upon the statute 2o Edw. 111. c. 2. and upon the evidence it appeared that no one piece of the base metal found upon the prisoners was in such a state as to make it passable, the conviction Mas held to be wrong. ( f) ■\s lo what Besides the offence of counterfeiting to tlie resemblance ^>illbi;ar(>- nhich has been already mentioned, the statutes extend to lourin^^within . i i i /• i thesbitutcM the offence o\ colour my; any false coin or fdanks ol base &9VV.3.c.'2G. jj^ctal : and it has been made a question upon the statute (d) Welsh, I'atiiek and John, grounds of their decision are not (case of) 1 Leach 354- I Cast. 1'. slaled in the report. And qu. if C. c. 4. s. 1:J. p. 104. the case Mas not disposed of upon (e) Varley's c:u>e, 1 I.e.ach 70. 1 a defect in the indictment. Bc- Kast. ?. C. c. 4. s. l;{. J). 164. 2 sides tlie count on the 25th Edw. HIac. Uep. 682- ill. c. 1'. there was another count (J) Harris and Minion, (case of) upon the bth and 9lh W. ill. c. 26. 1 Leach IJ."). The case was re- s. 4. ferrcd to the judf^es, but the (HAP. !.§].] Of Counterfelling Coin. 83 S and 9 W. III. c. 26. s. 4. what will amount to a colour- ing. In an indictment upon this statute (he jury found the prisoners guilty upon very clear and satisfactory evidence; but it appeared that the colour of silver was produced by melting a small portion of good silver with a large portion of base metal, and throwing it, after it had been cut into round blanks, into aquafortis, which has the ciFect of draw- ing to the surface whatever silver there may be in the com- position, and giving the metal the colour and appearance of real silver. A doubt therefore arose, whether this process of extracting the latent silver by the pov.er oi' the wrsh from the body to the surface of the blank was colouring witli " a wash and materials" within the meaning of the statute ; or whether the legislature did not intend such a colouring only as is produced by some external application on the surface of the blank. But the judges thought that this process of extracting the latent silver from the body to the surface of the base metal by the power of aqua fori is was a colouring within the words of the statute : (g) and they also thought that it might be charged as a colouring with silver; for the effect of the aqua fortis is to corrode the base metal, and leave the silver only on the superficies; and so the copper is coloured or cased with silver. (//) And though it be necessary that the blanks should be rubbed after they are taken out of the wash, in order to give them the appearance of silver, the preparing and steeping them in the wasli will be a colouring within tiie statute. A case was reserved for the opinion of the judges upon the following facts. The prisoner was apprehended in the very act of steeping round blanks composed of brass and silver in aquafortis: none of them were in a finished state ; but many were taken out of the liquor, and others were found dry. These blanks exhibited the appearance of lead, and some of them had the impression of a shilling, and bj/ rubbing (fir) Lavey and Parkcv. (case of) (h) S. C. I East. P. C. C. 4. «. 14. 1 Leach 153, p. 166. q2 9t Of Counterfeiting Coin. — Accessories, [boox it. them they would be made perfectly to resemble silver coin, but in their then state the jury found that none of them would pass current. The question was, whether the offence was completed, inasmuch as the colour of silver had not been pro- duced on any of the blanks. There was some ditference of opinion amongst the judjjes. One judge said, he understood the words " colour, &c." to mean producing on the piece of metal the colour of silver, which was not done here ; for, without rubbing, the money coined wotild not pass : and another observed, that the word in (he statute was " pro- ducing'' in the present tense, and not materials tchich mould produce. But the other judges (/) thought the conviction rio-ht. They considered that the offence was complete when the piece was coloured ; for it M'as then coloured with mate- rials which produce the coloar of silver ; and that it was not necessary that the piece so coloured should be current, for the colouring of Wanks was an offence within the clause. And it was observed, that a contrary construction would prevent any conviction until awash was discovered, which would in the fust instance produce a perfect bright shilling or sixpence. (A) Counterfeit- ^^ should be observed, that if there be a counterfeiting in iiiji, complete f,-aud of the king, the offence witiiin the respective statutes is without ullcr- , , ^ "" • X. . i„„. complete before any uttering, or attempt to utter. (/) Of ■ ■ \ There appears to have l>een a difference of opinion with and accesso- resoect to rtcchns of such as counterfeit money, whether they are guilty of more tlian misprision of treason. (;») (i) Absent Perri/n, B. and BuJ- a person knowing of a treason, but Icr, J. no pnrty or consentcr to it, does (A-) Case's case. 1 East. P. C. c. 4. not rcAeal it by a I'xir and full dis- s. 14. p. 165, lOG. 1 Leach 154. closure in convenient time to the note (a). king, or his privy counsel, or to (/) 3 Inst. 61. 1 Hfilc 215. 228. sonic ni:igislratc or person having 1 Hawk. c. 17. s. 55. 1 East. P. C. authority to take the examination, c, 4. ». IS. p. lf)5. The punishment for misprision of (m) iMispri»ion of treason i< where high treasou is the loss of the pro- neii CHAP. I. § 1 .] Of Counterfeiting Coin. — Accessories. sri ]uord Hale says, that though the more probable opinion may be tlrdt such receivers are traitors, yet the more merciful opinion is against such a construction ; (7O and a case ap- pears to have been ruled upon this milder ground, (o) But the case did not pass without doubt; and the more strict con- struction is stated to have been adopted by the best modern authorities, in which it was considered to result necessarily from the general rule of law, that whatever will make a man accessory before or after in felony will make him a principal in treason; and that the stat. 25 Edw. Hi. having declared tiiese offences to be high treason, the consequence follows of course, (/j) With respect to the light in which accomplices or receivers are considered in those olfenccs concerning the coin which amount only to felony, it is set- tled that they follow the general rule applicable to felony. Two agree to counterfeit, and one does it in consequence of that agreement; they are both guilty. One counterfeits, and another by agreement before-hand afterwards puts it off; the latter is a principal : so if he put it off afterwards, knowing that the other coined it ; for that makes him an aider : so if he furnished the coiner with tools, or materials for coining, {q) Procurers, who are named in the statutes 1 Mary, stat. 2. c. 6. and 14 Eliz. c. S. are not mentioned in the statutes 57 Geo. ni. c. 126. but the offence being made felony at- fits of lands during life, forfeiture of goods, and imprisonment during life ; but misprision of pettj- trea- son is only punishable by fine and imprisonment, as in case of mispri- sion of felony. 1 Hale 214. 371. 3, 4, 5. 3 Inst. 24. 4 Blac. Com. 120. 1 East. P. C. c. 3. (n) 1 Hale 237. (0) Conier's case, Dy. 296. a. (p) 1 East. P. C. c. 2. s. 35. p. 95, •where it is also stated as greatly strengthening this construction, that otherwise the receipt of a common felon would be a hisrhcr offence than the receipt of a traitor of this kind, which appears to be incongruous. But Mr. East says, that having contented himself with stating how the question stands. (which he does at some length) he shall forbear to advance any direct opinion of liis own. (9) 1 East. P. C. r. 4. t. 31. p. 186. 86 Of Counterfeiting Coin. — Evidence, [boor ir. laches to it all the incidents of felony at common law, and consequently may have accessories. But it is questioned if they are liable to transportation, or to any other punishment than is autlioriscd by the general act of the ISth Eliz. c. 7. s. 3. (r) Evidence. With respect to the evidence in cases which amount to treason, it appears that there is not the same necessity for two witnesses to prove the treason as in the hio;her species of that offence ; but the offenders may be indicted, tried, convicted, or attainted by such like evidence, and in such manner and form as felons in general ; except that they are entitled to a peremptory challenge of thirty-five, (s) Coining tools In many instances of offences relating to the counterfeit- atid base nio- . -iii-i^ i i-i •• r nevLobepro- mg coin, the legislature have made special provisions tor due d in evi- securing tl^.e base coin, and also the tools of the offenders, in order that they may be produced in evidence, and afterwards be disposed of in a proper manner. By the 8 and 9 VV. HI. c. 26. s. 5. coining tools may be seized and carried to some justice of the peace, secured by him in order to be pro- duced in evidence, and afterwards destroyed ; and counterfeit or diminished money produced in any court of justice, in evi- dence, or otherwise, is directed to be cut in pieces in open court, or in the presence of some justice of the peace, and thentobe clelivered to such persons to whom the same of right shall appertain. The 1 1 Ceo. II. c. 40. s. 3. provides, that any justice of the peace, on conjplaint that any person is or has been concerned in counterfeiting copper monies, may, by warrant, cause the house, Sec. of such person to be searched for coining tools; and if any such be found, the person dis- covering the same is rrfjuired to seize them, and carry them to some justice of the [)eaco of tlie county, city, or phicc, where the same shall be seized, wht) is directed to cause tlie same to be secureil and produced in evidence; and direc- (r) 1 East. I'. C. c. 4. s. 10. p. («) I Kast. I'. C r. 1. s. ;{l. p. If.l. Sec .IS to the slat. 18 Eliz. 187. aiilCj p. 79, note (u). CHAP. I. § 1 .] Of Counterfeiting Coin. — Evidence. 87 tions are also given for defacing and destroying such tools. Provisions of a similar kind are made by the 37 Geo. III. c. 126. s. 7. with respect to searching for counterfeit gold or silver foreign coin, or for tools, implements, or materials for coining such coin, and securing the same, and producing them in evidence, and afterwards destroying or otherwise disposing of them. And the 43 Geo. III. c. 139. s. 7. au- thorises searching for counterfeit foreign coin of copper or metal of less value than silver, and the tools or imple- ments for coining the same. (0 (/) The legislature has made other provisions for the suppres- sion of base coin, or coin inferior in value, where there is no crimi- nal cliarge imputed to the person who may hnppen to tender it. By the Stat. 9 and 1 W. III. c. 2 1 . s. 1 . any person to whom any silver mo- ney, and by stat. 13 Geo. III. c. 71. 9. 1 . any person to whom any gold money shall be tendered, which shall be diminished otherwise than by reasonable wearing, or which, from the appearance of it, he shall suspect to be counterfeited, may cut, break, or deface the same : but if the same shall afterwards appear to have been lawful money, the per- son who cut, &c. shall take the same at the rate it was coined for ; and every question respecting the validity of such coin shall be finally determined by the chief magistrate of the place. The 56 Geo. III. c. 68. s. 7. also enacts, that after the pe- riod to be mentioned in a procla- mation, any persons are required to cut, &c. any piece or pieces of old silver coin of this realm, cur- rent at any time before the passing of that act, which shall be tendered to them in payment, and which shall be of less value than the de- nomination thereof shall import, and the person tendering the same shall bear the loss : but if any such piece so cut, &c. shall appear to be of the full value which its denomi- nation shall import, the person who shall cut, &c. is required to take the same at the rate it was coined for ; and disputes about the value are to be determined by the mayor, &c. or other chief officer of any city, &c. where such tender shall be made ; or if the tender be made out of any city, &c. then by some justice of the peace of the county inhabiting or being near the place where the tender shall be ii^ade. 88 Of Impairing Coin. [bociv n. SECT. II. OF niPAiniNG COIN. Clipping, BV the statute 5 Ellz. c. II. s. 2. clippings icashingy ro^undi!'.^ or roiivdwg^ orfJit/g, for '' wicked lucre or gain's sake, of any filing. « oF the proper monies or coins of this realm, or the domi- " nions thereof, at this present, or that hereafter at any time " shall be the lawful monies or coins of this realm, or of the " dominions thereof, or of any other realm and by procla-- " mation allowed and suffered io be current here, shall be *' taken, deemed, and adjudged treai^on ; and the offenders " therein, their counsellors, consenters, and aiders, shall be " taken, deemed, and adjudged as offenders in treason ; and *' being thereof lawfully convicted or attainted, shall suffev " pains of death." (u) Of impniring. But there were methods of falsifying, impairing, dimi- dimiaisning, nishino:, and lighteniufj the coin, which were not compre- falsitjing, .... scaling, or bended in this act of Elizabeth. A subsequent statute, 18 lig emng. EJiz. c. I. was therefore passed, which enacts, " that if any <' person shall for wicked lucre or gain's sake, (w) by any <' art, ways, or means whatsoever, inwair^ diminish, falsify/, " scahy or tighten, the proper monies or coins of this realm, " or any the dominions thereof, or the monies or coins of *' any other realms, allowed and suffered to be current at " the time of the offence committed within this realm of Enir- " land, or any the dominions of the same, by proclamation, (u) And sec 1 Hale 2 16,220,207, lucre, and must l)c so Inid in the 318. By thvere repeated and re-enacted in that act." With a view of more effectually preventing the clipping, ilavino- clip- diminishinc', or impairins; the current coin of the kingdom, P''>S*' "Itc. io ^ ' ^ " ' posseii»ion. the statute () and 7 W. 111. c. 17. s. 4. enacts, " that if any *' person whatsoever shall buy or sell, and (s) knowingly *' have in his custody or possession any clippings or filings " of the current coin of this kingdom, he shall, for every *' such offence, forfeit the said clippings or filings, and also " the sum of five hundred pounds, one moiety to his Ma- (x) The same provisions are (s) It is so in the statute ; but made, as in the last statute, as to qu. whether it should not be " or" forfeiture and corruption of blood, instead of "■and." The same qu. s. 1,2. is stated ia the marjia of 1 East. (y) 1 East. P. C. c. 4. s. £0. P. C 174. p. 174, I Hale 221, 222. 90 Of Impairing Coin. [book II. " jesty, and the other to the informer, (o) and shall be also " branded in the right cheek with a hot iron with the letter " R. ; and until payment of the said five hundred pounds, " shall suffer imprisonment." The eighth section of the statute makes provisions for breaking open houses and searching for bullion : and the person in whose possession bullion is found, not proving it to be lawful silver, and that the same was not before the melting thereof coin, nor clip- pings, shall be committed to prison ; and in case, on an Melting coin, indictment against such offender for melting the current silver coin of the realn), he shall not prove, by the oath of one witness at the least, the bullion so found to be lawful silver, and that the same was not the current coin of the realm, nor clippings thereof, he shall be found guilty and imprisoned for six months. Provisions concerning nulling down coin are made by other statutes. By the 17 Edw. IV. c. 1. no person shall melt down any money of gold or silver sufficient to run in payment, upon pain of forfeiture of the value: and by 13 and 14 Car. IT. c. 31. melting down any current silver money of the realm is to be punished with forfeiture of the same, and double the value; and if done by a freeman of a town, with disfranchisement ; if by any other person, with six months' imprisonment. And if money, false or clipped, be found in the hands of any that is sus- picious, he may be imprisoned till he hath found his warrant per stalulum de moneld. (b) Evidence. It was agreed by all the judges, that one witness was suf- ficient in clipping as well as counterfeiting the coin ; though it appeared that the opinion and practice had once been otherwise in the case of clipping, (c) (a) To be recovered as directed in the act. (J)) :i liisi. 18. (c) 1 East. P. C. c. 2. i. G4. p. 12f . CHAP. I. §3. J Of Importing Counlerfeit Money. 91 SECT. III. OF IMPORTING INTO THE KINGDOM COUNTERFEIT OR LIGHT MONEY. THE statute 25 Eciw. III. st. 5. c. 2. enacts, that " if a Importing *' man bring false money into this realm, counlerfeit to the money of " moncij of England, as the money called Lnshburg, or l^"?;l:i»d. " other like (o the said money of England, knowing the " money to be false, to merchandise or make payment, in " deceit of our said lord the king and his people," it shall be high treason. By the statute 1 and 2 Ph. and M. c. 11. it is enacted, importing fo that " if any person shall bring from parts beyond the sea '"'^'J?" ^^J''" " into this realm, or into any of the dominions of the same, " ani/ false or counterfeit coin or money being current x^itliin " this realm as aforesaid, knowing the same coin or money to be " false and counterfeit, to the intent to utter or make payment ^' with the same within this realm, or any the dominions of " the same, by merchandizing or otherwise ; such offenders, " their counsellors, procurers, aiders, and abettors, shall, " on conviction or attainder, be deemed traitors." The words, current within this realm, refer to gold and silver coin of foreign realms, current here by the sufferance and consent of the crown, which must be by proclamation, or by writ under the great seal. And the money, the bringing in of which is prohibited by these statutes, must be brought from some foreign place out of the king's dominions into some place within the same, (rf) It may be observed also, that these acts are confined to the importer, and do not ex- tend to a receiver at second hand ; and such importer must also be averred and proved to have known that the money was counterfeit, (e) It seems to be the better opinion, that it is not necessary id) 1 East. P. C. c. 4. s. 1, 4, 5, 6, c. 17. s. 86. S3. 1 East. P. C. c. 4 •21,22. s. 22. p. 176. (e) 1 Hale 227,228.317. 1 Hawk. rent. 92 Of Im])oriin£:; Counterfeit Money, [boor ii. that ?uch false money be actually paid away or merchan- dized witji, for the words of the statute ^5 Edw. III. are to *' merchandize or make payment, &c." which only import an intention \o do so, and are fully satisfied whether the act in- tended be performed or not : ( /") and it is clear, that brino;ing over money counterfeited accordinjr to the similitude of fo- reign coin, is treason within 1 and 2 Ph. and M. c. \\. (g) Importing The 37 Geo. IIT. c. 125. recites, tliat the practice of gold or sil- hrinijins: into the realm, and uUerine; within the same, fnhc ver lorcign n r> ' r^ ^ -./ coiu uDt cur- nnd connterftil foreign scold and silver cow, and particularly pieces of gold coin commonly called louis d'or, and pieces of silver coin commonly called dollars, had of late greatly increa=;ed, and that it wa^ expedient that provision should be made more effectually to prevent the same ; and then enacts, that " if any person or persons shaH bring into " this realm any such false or counterfeit coin as aforesaid, (namely, the coin described in sect. 2. as " any kind of coin *' not the proper coin of this realm, nor permitted to be " current within the same") resembling, or made with in- " tent to resemble, or look like any gold or silver coin of " any foreign prince, state, or country, or to pass as such *' foreign coin, knowing the same to be false or countcr- *' feit, to the. intent to utter the same within this realm, or ** witinn any dominions of the same; every such person *' shall be deemed guilty of felony, and may be transported " for any term of years not exceeding seven." Accessories before arc not mentioned in this statute : tjiere mav however be such accessories, as they are incident to every felony ; but it is doubted whether they are liable to the punishment of transportation, {a) li'rom the words of the statute, an (/) 1 Hawk. c. 17. s. 80. But done, rot it mny also be evinced Lord Coke .iiul Lord Il.ile sccin to by Ji varu'ly of circumstances, of haTc thoiiglit difl'iTcnIly. 3 lust. whicb the jury are to judge. At 18. 1 Hale 229. But seel East. any rate Ruch intent must be avcr- P. C. c. 4. 8. 22. p. 17.5, 17r>. where red in the indictment, it is said, th.it though the bcf^l trial (g) 1 Hawk. c. 17. 8. 89. and proof of an intent be, by the act [hi) Sec ante, b6, note (^r), and 'J9, coin. CHAP. I. §3.] Of Importing Light Siher Coin. 93 importation ^ith intent to idler irs clearly sufficient, without any actual uttering. Tiie intent must be collected from circumstances ; and though an actual uttering may be the best evidence of such intent, it is said to be safest that the indictment should follow the words of the statute. (/) It seems that tiiis statute does not provide for the case of a pierson collecting the base money therein mentioned, from the venders of it in this country, with intent to utter it within the realm, or the dominions of the realm, (/c) Considerable quantities of old silver coin of the realm, of importing' or coin purportins: to be such, below the standard of the »i?hi silver mint in weight, were formerly imported, to the public de- triment at that time ; in consequence of which the l4 Geo. Ill, c. 42, prohibited the bringing into the kingdom any such coin, and provided that if any silver coin being or purporting to be the coin of this realm, exceeding in amount the sum of five pounds, should be found by any officer of his Majesty's customs on board any ship, &c. or in the custody of any person coming directly from the water side ; or upon the information of one or more persons, in any house or other place on search there made in the man- ner directed by a statute of 14 Car. II., the officer might seize the same ; and if upon examination it should appear to be of the standard weight, it should be restored ; but if it should be less in weight than the standard of the mint, that is to say, at and after the rate of sixty-two shillings to every pound troy, it should be forfeited. This act was re- vived and made perpetual by SO Geo. III. c. 75 : but the recent act 56 Geo. III. c. 68. s. 2, enacts that so much of the 14 Geo. III. c. 42, as enacts that any silver coin of the realm less in weight than after the rate of sixty-two shillings for every pound troy shall be forfeited, and of any act or acts for reviving or continuing or making perpetual the provi- sions of the said act, in this respect, shall from the passing of that act be repealed. note (u), and 1 East. P. C, c. 4. s. (i) 1 East. P. C. c, 4. 8. 23. p. 176 23. p. 176. (k) 1 £ast. P. C. c. 4. s. 23. p. 177. 94 Of Exporting Counterfeit Moncjj, [book ii. SECT. IV. OF EXPORTING COUNTERFEIT MONEY. Of scndin- THE statute 58 Geo. III. c. 67. s. 1, enacts that " All coin, lie. out '' copper coin whatsoever, not beinj^ the legal copper coin of the kinjr- « ot" this kingdom, and all counterfeit ffold or silver coin, dora for the , ,.'.., ,i • , , purpose of its " made to the similitude or resemblance, or intended to re- beiiii; iniporl- a semble, any "old or silver coin either of this kinsfdom or cd into the ' . o s British to- " of any other country, which shall under any pretence, \nieric'" o " name, or description whatsoever, be exported or shipped, the VVest •' or laden or put on board any ship, vessel, or boat, for the " purpose of being- exported from this kingdom to the island "of Martinique in the West Indies, or any of his Majesty's " islands or colonies, in the West Indies, or America, shall " be forfeited," &c. And the second section enacts that " every person who shall so export, or ship, lay, or put on '' board any ship, vessel, or boat, in order to be so exported, " or cause to be shipped, &c. or shall have in their custody, ' " in order to be so exported, any such coin as aforesaid, " shall forfeit £200, and double the value of such coin to " be recovered by bill, suit, action, or information, in any '• court of record at Westminster." SECT. V. OF THE JUDGMENT IN CASES OF TREASON RESPECTIN(» THE COIN. IN all cases of treason respecting the coin whether newly created such or not, and so in petty treason, the judgment is only to be drawn on a hurdle and lianged ; tor that was the judgment before the statute 25 Ed. HI. st. b. c. i^, and Mas not intended to be altered thereby : and these being all oflfences in pari materia, and auxiliary to the original law, have the same judgment. (/) (/) I East P. C. c. 2. 8. 70. p. 138, 95 CHAPTER THE SECOND. or Of Frauds relating to Bullion, and of counierfeitin Bullion. SECT. I. OF FRAUDS RELATING TO BULLION. JjULLION signifies properly either gold or silver in the mass ; but is sometimes used to denote those metals in any state other than that of authenticated coin ; comprising- in this latter sense gold and silver wares and manufactures. Many statutes have been passed for the prevention of frauds with respect to such bullion by creating offences in making, Making gold working, putting to sale, exchanging, selling, or exporting, sil\er any gold or silver manufactures of less fineness than the the true alloy, standards respectively fixed at the time by the several acts. But it is not intended to make any particular mention of those statutes ; («) the punishments inflicted by them being in general certain penalties and forfeitures, or, in default of payment, commitment to the house of correction. It should be observed, however, that the statute 28 Ed. I. st. 3. c. 20, is still in force, which prohibits any goldsmith from making any vessel or other thing of gold or silver, except it be of good and true alloy, namely, gold not worse than the touch of Paris, and silver of sterling alloy or better ; and pro- vides that all silver vessels shall be assayed by the wardens of the goldsmiths' company, and marked with the leopard's head. The punishment of a goldsmith so offending against this act is imprisonment and ransom at the king's pleasure ; and, ag the statute is a prohibitory law, the proper remedy («) See them collected in I East. P. C. c. 4. s. 32. p. 1S8 to 194. Oo Of Frauds relating to Bullion. []book ik under it is by indictment. (^0 Though the description of the offence in this statute is not so larti^e as in the subsequent etatutes, it has been held that it is not repealed by any of the subsequent statutes ai^ainst the same offence, but that they only add accumulative penalties, (c) But the know- ins^ly exposing to sale and selling wrought gold under the sterling alloy for gold of the true standard, though indict- able in g-o/f/,vm ////.?, is a private imposition only in a common person^ and the paity injured is left to his civil remedy, (d) Fraudulently It is conceived also that oHcnders fraudulently affixing d iMiig: public and authentic marks on "oods of a value inferior to marks in- ^ ^^ diciable at such tokens are liable to suffer at common law upon an in- dictment for a cheat. Joseph Fabian, a working goldsmithj was indicted tor falsifving plate, by putting in too much alloy, and then corrupting one of the assay master's ser- vants to help him to the proper marks, with which he stamped his plate, and sold it to the goldsmiths; and being convicted, he was fined ,iMOO, and adjudged to stand three times in the pillory: and was also forejudged of his trade that he should not use that trade again as a master work- man. This judgment must have been at common law. (e) The offences of counterfeiting^ the assay marks on bullion or plate, or transposing such marks from one piece o^" manu- facture to another, will be mentioned in a subsequent part of the work. uf frauds in It was provided by the stat. J J Car. 11. c. 7. s. 12, thai the cxporta- gj^.. pj^rson miiiht export any forei"n coin or jjullion duly lioa. free, first making an entry thereof at the custom-house : but under colour of this re^idation it was found that English money or wrought plate had boon melted down into the (b) By Lord Mansfield in Rex v. ( or instrument, used for or about tlie coining of " monies, there, or any useful part of such tools or in- " strumenls," sucii oflenders, their counsellors, procurers, And recciv- aiders or abettors, as also all and every person and persons ing hiding, knowinalv receivinir, hidin. copy of the staliMe for marking." In the oc- fctaliitc!), and Mr. I'-ast has so co- tavo edition of tlie statutes, by pied the Mord (I F.ast. T. ('. c. J. Viikcriuf^, tlie word is 7nflrA-/ng-, aJ s. 10. p. 1C7> adding in the margin in the text. ^on. CHAP. III.] Coining Tnstrumenis. . 101 This statute was only temporary, but afterwards made Prosecution perpetual by 7 Atni. c. 25. s. I. and by the second section monih,^'^ of that statute the prosecution of such as ofiend by making or mendinuf, or beginning or proceeding- to make or mend any coining tool, or instrument therein prohibited, may be commenced within six monlhs after such offence committed. The act of W. III. provided that no prosecution should be made for any offence against that act, unless such prosecu- tion should be commenced within three months (c) after such otfence committed. Several points have arisen as to the tools or instruments which are to be considered as within the words of the statute 8 & 9 W. HI. In one case the prisoner was indicted for having in his Havinj^ pos- custodi/ a press for coinage without any lawful authority, &c. "^J.^"!,!^.'!-' "^ '"* One of the questions raised was, whether a press for coinage coinai:;i', or a was one of the tools or instruments within that clause of the withm h & 9 act on which the indictment was founded : and a majority of ^^- '^^ c. 26. the judges held that it was. (d) In another case the prisoner was indicted for hazing in his custodj/ and possession^ without any lawful or sufficient excuse, one mould made of lead^ on which was made and impressed the figure, stamp, resemblance, and similitude of one of the sides or flats of a shillino-, viz. the head side of a shilling: and the prisoner being convicted, it was submitted to the judges, whether the mould found in the prisoner's custody was comprised under the general words " other tool or instrument before mentioned ^^^ so as to make the unlawful custody of it high treason ; and also whe- ther, if it were so comprised, it should not have been laid (c) Vide VVillace's case, ante, p. clal verdict, which ou2;ht to have "76, note(/) and/)0sM09, notc(/i). been done, was much censured ('"g' in ' _ possession, lazo. An indictment, which was framed as for a misde- with intent to meanor at common law, charged that the defendant, without niisriemeinor nny lawful authority, had in his custody and possession two at common iron stamps, each of which would niake and impress the figure, resemblance, and similitude of one of the sceptres impressed upon the current gold coin of this kingdom, called half guineas, with intent to make the impression of sceptres on divers pieces of silver coin of this realm, called sixpences, and to colour such pieces of the colour of gold, and fraudu- lently to utter them to his Majesty's subjects as lawful half guineas, against the peace, &c. Lord Hardwicke, at the assizes, doubted whether the bare possession was unlawful, unless made use of, or unless made criminal by statute : but upon the indictment being removed into the Court of l^^ing's Bench by certiorari, (A) Page, Probyn, and Lee, justices, held, that the bare having such instruments in possession, w ith the intent charged, was a misdemeanor. (/) It seems that the degree of similitude to the real coin The tool or which the tools or instruments must be capable of impress- ^^^^^ ^^^^^ ^^,^^ ing in order to bring the case within the statute 8 and 9 an exact le- W. ITT. c. 2fi. must be governed by considerations similar the coin. to those which have been stated with respect to the counter- feit coin itself (»/) Whether the instrument in question be calculated to impress the figure, stamp, resemblance, or similitude of the coin current is a question for the jury: (i) Ridgelay's case, 1 East. P. C. (0 Rex v. Sutton, Rep. temp. c. 4. s. 18. p. 172. Hardw. 370. Ante, Book I. Ch. .1. (fc) The defendant was brought p. 63. up by Habeas Corpus, and com- (m) Ante, p. 80. et tequ. mitted to Newgate. 106 Of making, ^c. Coining histrujtients. [book. ii. and it is clear, that the offence is not confined to an exact imitation of the original and proper effigies of the coin. («) Seizin^r tools. The 8 and 9 W. III. c. 26. s. 5. enacts, that " if any. &c. to pro- a puncheon, die, stamp, edi'er, cutting engine, press, flask, dence. " or other tool, instrument, or engine, used or designee! for " coining or counterfeiting gold or silver money, or any " part of such tool or engine, shall be hid or concealed in " any place, or found in the house, custody, or possession of " any person, not then employed in the coining of money in " some of his Majesty's mints, nor having the same by some " lawful authority, then any person discovering the same " may seize and carry them forthwith to some justice of " peace of the county or place, to be produced in evidence " at the trial of the offender ;" and further provides, that they shall afterwards be defaced and destroyed by order of the Court. (n) I East. P. C. c. 4. 9. !3. p. 171. 107 CHAPTER THE FOURTH. Of receiving,, uttering^ or tendering counterfeit Coin, XN some cases the putting off counterfeit money may in some case* amount to freaw^i ; as if A. counterfeit the gold or silver *'''-'^*<^"- coin current, and by agreement before that counterfeiting B. is to take off and vend the counterfeit money, B. is an aider and abettor to such counterfeiting, and consequently a principal traitor within the law. (a) And in the case of the copper coin, B. acting a similar part will be an acces- sory before the fact to the felony, within the statute il Geo. IH. c. 40. (6) And if B., knowing that A. hath coun- terfeited money, put off this false money for hint alter the fact, without any such agreement precedent to the counter- feiting, he seems to be as a receiver of A. because he main*- tains him. And if B. know that A. counterfeited the mo- ney, and conceal his knowledge, though he neitlier receive, maintain, nor abet A. he will be guilty of misprision of treason. (c) If A. counterfeit money, and B. knowing the money to cheat and be counterfeit vent the same for his own benefit, B. is nei- misdemeanor. ther guilty of treason, nor misprision of treason. But he may be proceeded against under the provisions of the 15 Geo. H. c. 28. which will be presently noticed, before which statute he was only liable to be punished as for a cheat and misdemeanor, (rf) And upon tiie principles which have (a) 1 Hale 214. common law in uttering a counter- (ft) 1 East. P. C. c. 4. 8. 26. p. 178. felt half guinea, Cro. Cifc. Comp. (c)l Hale 214. S15. (,7th Ed.) Starkie 466. 2 Chit (d) I East. P. C. c. 4. s. 26. p. 179. Crim, Law, 116. See also a prece- 1 Hale 214. See precedents of in- dent of an indictment for a misde- dictments for a misdemeaoor at meaaor at common law. asuinst a 108 df receiving, pai/ing, putiing-off, S^c. [book il. Statutes. been mentioned in a former part of this work, (e) the un- lawful procuring of counterfeit coin with intent to circulate it, though no act of uttering be proved, is a misdemeanor; and the possession of counterfeit coin unaccounted for was held to be evidence of an unlawful procurement with intent to circulate. (/) But the uttering and tendering in pay- ment counterfeit copper money has been held not to be an indictable offence, (g) But the receiving, uttering, or tendering in payment coun- terfeit money, have been made the subject of legislative provision by several statutes. I. By the 8 and 9 W. 111. c. 26. 11 Geo. III. c. 40. and 15 Geo. II. c. 28. relating to the coin of the realm; and, II. By the 37 Geo. III. e. 126. relating to foreign coin. man for uttering a counterfeit six- pence, and having another found in his custody, Cro. Circ. Conip. 315. (7th Ed.) 2 Chit. Crim. Law, 117. The uttering of false money, knowins it to be false, is mentioned as a misdemeanor in the recital to the 15 Geo. 11. c. 28. s. 'i. There is also a precedent tor a misdemea- nor at common law, in uttering, and causing to be uttered, guineas particularly suspicious circum- stances ; the coin being newly finished, all of it appearing to be of the same make, and not to have been in circulation. The margi- nal note to Parker's case, 1 Leach 41. states, that " having the pos- " session of counterfeit money, " with intention to pay it away as " and for good money, is an iu- " dictable offence at common law."' filed and diminished as good gui- This may perhaps be law in certain neas. Cro. Circ. Comp. 317. ^7th Ed.) and 2 Chit. Crim. Law, 116, and also a precedent for a misde- meanor at common law in selling counterfeit Dutch guilders. Cru. Circ Comp. 313. (7th Ed.) si Chit. Crim. Law, 119, 1«0. instances of such possession : but qit. it the point sUted in the mar- ginal note was actually decided in Parker's case. ii;) Cirwan's case, Oxford Sum. Assiz. 1794, MS. Jud. 1 Fast. P. C. c. 4. s. 28. p. 182. The defendant {e) Ante, Book I. Chap. ill. p. 01, was indicted for " uiilawfullv ut- 63. (/) Stewart's case, Hodmin. Sum. As». 1814, before Gibbs, C.J. re- served by him and decided by the judges in Mich. T- 1814. M.S. The possession in this case was under leriiig and tendering in payment " to J. H. ten counterfeit half- " pence, knowing them to be " counterfeit."' Upon reference to the Judges, this was held not to be an indictable offence. CHAP. IV. §1.] Counterfeit Coin of the Realm. 109 SECT. I. OF RECEIVING, PAYING, PUTTING-OFF, &C. COUNTER- FEIT COIN OF THE REALM. I. The Statute 8 and 9 W. III. c. 26. s. 6. enacts, that 8 & 9 W. iii. " if any person shall take, receive, pay, or put off, any coun- (madeperpe- " terfeit milled money, or anv milled money whatsoever, nn- tualby 7Ann. ^ •' . . £.1 c. 25. s. 3.)as " lawfully diminished and not cut in pieces, at or tor a lower to receiving, " rate or value than the same bv its denomination doth or P''»y'"g' or puttiiig-off, " shall import, or was coined or counterfeited for, he shall &c. " be guilty of felony." The seventh section saves the cor- ruption of blood ; and by section 9. no prosecution is to be made for any offence ag^ainst this act, unless it be com- menced within three months after the offence committed, (h) The act was at first only temporary, but was made perpe- tual by 7 Ann. c. 25. s. 3. Under this statute there must be an actual passing or get- What shall be ting rid of the money, and not merely an attempt to do so. a p!/m«^'^-o^* In a case at the Old Bailey, in the year 1784, a question counterfeit 1 .I.- • X ' Ti. J • -1 .lu i money within was raised upon this point, it appeared in evidence that s & 9 W. ill. the prisoner had carried a large quantity of counterfeit shil- ^- 26. lings to the house of a Mrs. Levey, which she agreed to receive from him, and which he agreed to put oft" to her at the rate of twenty-nine shillings for every guinea. In pur- suance of this bargain, the prisoner laid a heap of counter- feit shillings on a table, and Mrs. Levey proceeded lo count them out at the rate beforementioned : and had counted out three parcels, containing eighty-seven counterfeit shillings,for which she was to pay the prisoner three guineas ; but before she had paid hira, and while the counterfeit money lay there (A) But the proceedings before a Blanr, J. Stafford Sum. Ass. 1S12, magistrate, and «ot the preferring in Barker's case, who was indicted the indictment, will be considered under this statute, for putting oflf as the commencement of the pro- counterfeit milled money. The secution, as in Willace's case, ante, prisoner had been in gaol upwardi 76, note (/). S. P. ruled by Le of three months before the assizM. 110 Ofrecei'i)ing, paying, puiting-off, ^c. [book ii. exposed upon the table, the ofBcers of justice entered the room and apprehended them. Mrs. Levey was admitted as a witness for the crown ; and swore that she liad bought the three parcels of shillings, and was going to pay the prisoner three guineas for them at the moment they were detected. This was ruled not to be a completion of the offence charged, and the prisoner was acquitted. (?) Thr meaning of miVed mo- vev within this statute. A case has also been decided upon the meaning of " milled monexf^ in this statute. The prisoner was indicted for putting off to one J. P. nine pieces of false and coun- terfeit milled money and coin, each counterfeited to the like- #iess of a piece of legal and current milled money and silver coin of the realm, called a shilling, at a lower rate aad value than the same did by the denomination import, and were counterfeited for; i. e. at so much, &c. The fact of know- ingly putting off the shillings at a lower value than ac- cording to their denomination, was fully proved; but there was no appearance of milling on them ; and it was proved, bv officers from the Mint, that this money never had been milled, nor any attempt made to counterfeit on them the milling which is always put on the shillings coined at the Tower. Upon this the prisoner's counsel contended, that the evidence did not prove the offence as described in the statute, or charged in the indictment, but directly the con*, trary, as it proved that the money illegally put off was not milled. The case was reserved for the opinion of the judges; who thought that the expression " milled money^* could not have any reference whatever to the edging which is put on real and lawful coin, and wiiich is properly termed "■rai)n77fr. That the monev-coin at the Mint in the Tower is milled money before it is edged, that is, before those marks, which had been falsely imagined to constitute milled money, are put Jipon it ; for that all current money is passed through a mill or press to make the plate out of which it is cut of a proper thickness; and that from thi» (0 WooldridRPd caso, I Leach 307. 1 Rant. P. C. c 4. «. 27. p. UP. CHAP. IV. § 1.] Counterfeit Coin of the Realm. Ill process it receives its denomination o^ milled money, and not, as generally but erroneously iraaajined, from the grainings on its edges. The judges, therefore, thought it unnecessary that the counterfeit money should appear to have been milled : for considering milled money as one word, (as if written with a hyphen,) and descriptive of the money now current, if the counterfeit resemble the money which, if ge- nuine, would have been milled, it is enough, {k) It is necessan\ in order to bring a case within this sta- The money , , 7 iU xu "i"'t he vent- lute, that the money be vented at a lower value than the ed at a lower coin imports, and that it should be so stated in the indict- ^alue, &c. ment. (/) And if the names of the persons to whom the Names of per- money was put off can be ascertained, they ought to be men- pu"''off to b™ tinned, and laid severally in the indictment ; but if they stated. cannot he ascertained, the same rule will apply as prevails in the case of stealing the property of persons unknown, {m) If the indictment be for putting off diminished money at a The indict- ■^ ^ , j; J- ™cnt must lower rate, it must be averred that it was unlawfully di- charge that minished. (n) And it has been held, that an indictment ^^^ '"^"^y ^ ' ' was unlaw- upon this statute was bad, for omitting to state that the fully dimi- niahed. (k) Bunning's case, Old Bailey, citing a case from MS. Tracy, of a 1794. 2 Leach 624. 1 East. P. C. woman who was indicted at the Old c: 4. s. 27. p. 180. The case of Bailey, 1702, for putting off ten Hannah Dorrington, and the case pieces of counterfeit gilt money of Jacobs and Lazarus, were consi- like guineas, to divers persons un- dered by the judges at the same known ; Holt, C. J. said, that the time, and being precisely similar, names of the persons ought to be were disposed of by the like reso- mentioned and laid severally ; yet lution. It seems that milled mo- he tried the prisoner, and she was ney was so called to distinguish it convicted. Probably the names of from hammered money, which was the persons to whom the money prohibited by 9 W. III. c. 2. Mr. was put off could not be ascer- Eastsays (p. 180. note (a")) that he tained. had been informed that there had (n) 5 T. R. 217. note (a) to the been no hammered money since case of Tooke v- HoUingworlh. *he time of Car. II. The coin might be diminished by (0 1 East. P. C. c. 4. s. 27. p. 180. reasonable wearing. (m) 1 East. P. C. c. 4. s. 27. p. 1 80. 112 Of receiving, paying, putting-off, S^c. [boor ii. And it should be stated that the money was " not cut in pieces." 11 Geo. III. c. 40. s. 2. re- ceiving, pay- ing, or put- ting oft" coun- terfeit copper coin. Punishment. counterfeit money was " not cut in pieces,''' as those words are a material part of the description of the offence, (o) This statute, mentioning " counterfeit monei/'' generally, has been considered as confined to gold or silver coin : (;>) but with respect to copper coij^ it is enacted by 1 1 Geo. Ill, c. 40. s. 2. that if any person " shall buy, sell, take, receive, " pay, or put off, any counterfeit copper coin, not melted " down or cut in pieces, at or for a lower rate or value than " the same by its denomination imports, or was coi4nterfc.ited " for, he shall be adjudged guilty pf felony." The punishment under these statutes pf 8 aqd 9 W. HI- and 11 Geo. 111. was originally burning in the hand, and imprisonment not exceeding a year, under the statute 18 Eliz. c. 7. s. 3. : (r/) but the punishment of burning in the hand is abolished by 19 Geo. 111. c. 74. s. 3. (r) and in lieu thereof the offender is subjected to a moderate fine or whips ping, i>t the discretion of the Court, (s) The statute 8 and 9 W. 111. relating only to the putting off counterfeit money at a lower rate or value than that im- ported by its denomination, the offence o^ uttering such mo- ney in the course of traffic was puiiisjiable only as a misde- meanor, until, from its becoming very frequent, it wa» th©U"ht proper to subject it to more severe puni.^hment. 15 Geo. II. c. The statute 1.5 Geo. II. c. S^8. s. 2, enacts " that if any 28. s. 2. as to u person shall utfer or tender in paryment any false or coun- temSg'"-m " tcrfeit money, knowing the same to be false or counterfeit, payment u jq g^y person or persons," and shall be thereof convicted, money'*'' he shall suffer six months imprisonment, and find sureties {(?) Pahncr'K case, 1 Leach 102. (p) 1 East. P. Co. 4. 8. 1,9,27. (7) 1 East. P.C. c. 4. s. 27. citing Rex tj. West and others, Old Bailey, Sept. 17H0. 1 MS. Sum. 91. p«)rary, hut continued by scTcral acts, and afterwards made perpe- tual by 39 (Jco. ill. c. 45. (») See this statute more at large, post. Book VI. Chap. 4. on Punish- (r) This act was originally tern- mcnls. CHAP. IV. §1.] Of Vlteriv^ Counterfeit Coin, S^C: 113 for good behaviour for six months further ; and on convic- tion for a second offence sliall sntfer two years imprison- ment, and find sureties for two years more ; and on con- viction for a third offence shall be adjudi;ed irnilty of felony without i)enefit of clergy. The statute furtiirr provides by the third section " that if any person shall utter or tender " in payment iwy false or counterfeit money, knowin*^ the "same to be false or coutjterfeit, to any person or persons; '• and shall either the same day, or within the space of ten '• days then next, utter or tender in payment any more or " other False or counterfeit money, knowing the same to be " false or counterfeit, to the same person or personi=, or to " any other person or persons; or sliall at the time of such " uttering" or tendering have about him or her, in his or her " custody, one or more piece or pieces of counterfeit money " besides what was so uttered or tendered ; then such per- *' son so utterina: or tenderino- the same shall be deemed " and taken to bo a common ultcrcr of false money ; and " being thereof convicted shall sufter a year's imprisonment, " and firid sureties for his or her good behaviour for two years " more, to be computed from the end of the said year; and " if any person having been once so convicted as a common " utterer of false money, shall afterwards again utter or " tender in payment any false or counterfeit money to any " person or persons knowing the same to be false or coun- " terfeit, then such person, being thereof convicted, sliall " for such second oftence be adjudged guilty of felony with- " out benefit of clergy." (0 This statute like that of the 8 & 9 W. III. c. 26, men- This statute .. . i r .. 11 • f* 1 4 ii ij rfocs not in- tionmg counterfeit money, generally, is confined to the gold duje copper and silver coin of the realm. (//) In a case where the de- •^"'"• fendant was indicted lor '' unlawluily uttering and tcndor- (0 By section 4 of this statuli-. gudly of any of the said ofTcaccs, corruption of blood is savod, and so as they be thereof convicted, by s. 8, any otTender out of prison shall bo pardoned, discovering two or more persons («) Ante, p. ^G. VOL. I. I 114 Of Ultering or Tendering In Poyment [book ii. " ing in payment to I. H. ten counterfeit halfpence, know- " ing them to be counterfeit ;" and this was laid in one count against the form of the statute, and in another gene- rally ; and the defendant was convicted on the general count, it being admitted at the trial that there was no statute ap- plicable to iTie fact ; upon reference to all the judges they held the conviction wrong, it not being an indictable of- fence, (zy) The statute The words of the statute " utter or tender in payment" jwill apply to ^^^ -^^ ^j^^ disjunctive, and will tiieretbre applj to an uttering passii.g coun- of counterfeit money, though it be not tendered in paynient, ht-^the Tdck^ ^^^ passed by the common trick called ringing the changes, of ringing the as in the following case. The prosecutor having bargained * ' with the prisoner, a Jew, who was selling fruit about the streets, to have five apricots for six-pence, gave him a good shilling to change. The prisoner put the shilling into his mouth, as if to bite it in order to try its goodness ; and re- turning a shilling to the prosecutor, told him it was a bad one. The prosecutor gave him another good shilling which he also aflected to bite; and then returned another shilling, saying it was not a good one. The prosecutor gave him another good shilling, with which he practised this trick a third time; the shillings returned by him being in every instance bad. The court held that the words of the statute were suHicient to include this case; wwA {\vAi uttering anA tendering in payment were two distinct and independant acts, (.r; \\ here the in- ^ome points liave arisen as to the form of the indictment dicimcnt upon this statute of 15 Geo. II. c. i?8. In one case the in- utVmngs on dictmcnt charged tlie prisoner in the first count with having t.;c hiiriu- flav, ^j^ ^^e I5th Ueccmbcr, 39 Geo. III. uttered to one G. S. f.rh in ;i dii- . . i ■ i fticnt count, counterfeit half-crown, knowing it to be so, and in the sc (u)) Cirwaa's case, Oxford Sum. note (a). Axs. 1794, M^5. J'i'l- ' ''"i*"'- ''• f'- {^^ Franks's case, 2 Leach 64. r. -1. 5. 2'i, p. IS'i. iJ Leach 8^1, a CHAP. IV. § 1 .] Counterfeit Coin of the Realm. \ \ ^ o tond count with having on the said 1.5tli December, Sec. thecourican- uttered another counterfeit half-crown to the same person : '-"^ I"*^" J .1 • • , . . .„ no'jiice the and the prisoner was convicted on both counts. The ques- sweater tion was raised whether, the uttering the counterfeit money P""''*'^'"*:"* . " -'or the tlurrt twice on the same day being stated in two counts, the court section of tii« could pronounce the greater punishment inflicted by the ^*^*^^^' third section of the statute, or must give only the smaller punishment inflicted by the second section ; and, upon re- ference to the judges, they held that this indictment was not suflicient to subject the prisoner to the larger penalty, as for uttering two pieces of counterfeit coin on the same day, there being no distinct averment of that fact. (?/) But But where where two utterings are charged in one count of the in- *^^" "<^erintp J. , on a certain dictment, on a certain day therein named, the day will be day named held to be material, and the fact of an uttering twice on the hrone'lJunt, same day to be sufficiently averred. As whers the indict- *l»e fact will ' ment charged that the prisoner on the Uth of Februaru, aJerr^d'"'^'' &c. uttered base coin to W. C. ; and that on the said Wh February, &c. he uttered to J. 1^. other base coin, it was held sufficient to warrant the higher punishment of the third section of the statute ; the utterings on the face of the indictment appearing to be on the same day. And the judges held at a conference upon this case, that though when i\-\^ day is not material, the fact may be proved on a day diflferent from the day laid, yet where the day is not indifterent, the precise time laid must be proved : and that in this case it must be taken that it was proved that the de- fendant uttered counterfeit coin at two different times of the same day. (c) (.y) Tandy's case, % Leach 833. each of the counts. And see 1 East. P. C. c. 4. s. 29. p. 1S2, 183. Smith's case, 2 Leach 836. Eyre, C. J. Buller, J. and Heath, J. (a) Martins case, Derij/ Lent were absent when this opinion was Ass. 1801, cor. Graham B. do- K'ven, viz. Hil. T. 1799. The cidcd upon by the Judges in judges also thought it advisable June in the same year. 2 Leach to give judgment of imprisonment 923. 1 Ei»t. V. C. Addend, xviii. for sj.\ months singly, and not on I 2 116 Of Uttering or Tendering in Pai/inait [nooK li. The indict- ment need not state t^at the oft'ender %vas a com- mon utterer of false mo- ney to war- rant the greater pu- nishment of the third sec- tion of the statute. When the former of these cases uas considered by the judges, it appears that some doubt >vas entertained whether a count in an indictment, charging two utterings on the same day, should not, in order to bring an offender within the third section, conclude with an averment that the of- fender was a common utterer of false money ^ as that clause declares him to be. But this point was disposed of in a case, which occurred shortly afterwards, where the prisoner was indicted for uttering false money knowingly, and having about him at the time of such uttering other false money ; without any averment that he was a common utterer of false money. Upon conviction judgment was respited to take the opinion of the judges tipon the question, whether, in order to bring the case within the third section, the indict- ment sliould not have concluded with a distinct averment that the defendant was a common utterer of false money, or wliethcr tliat were not the necessary conclusion of law from the facts stated. And the judges, upon search of prece- dents for many years back, finding that judgment had been given for the greater punishment upon indictments drawn in this form, although some were to be found containing the averment in question, held that such averment, though it would not hurt, was not necessary in order to warrant the greater punishment, (a) In an indict- ment for a second of- fence against the 15 (;. II. r. y.S s. S. it is not neces- sary to slate that the Court on the former tri li, did nd- judgt; the de- Consistently with this determination it was held in a sub- sequent case not to be necessary in an indictment for a second offence against this statute, to state that the court before which the former trial was had, did a(ijiidii;c the de- frndant to be a eommon vtlerrr. The indictment ciiarired that the defendant was before that time /;/ due form of law tried and rowr/^frr/ at (he Guildford Quarter Sessions, on a certain indictment against him for uttering false and coun- (n) Smith's ras(>, Mnirtslonr Smn. 1 Kast. P. C. r. 4. .s. 29. ^^. 183. Ass. 1700, cor. HuMer, J. decided The same judgment was given on upon by the Jud;;es, Hil. T. ISOO. another case of Hcnjamin Levi, 2 Lcitch s.j8. 2 Hos. and Pul. \'2'i- reserved at the same time. V . 1 cii A P. I V. § 1 .] CounLerftit Coin of the Realm. 1 1 7 terfeit coin, knowing- it to be such ; having about him at fendant to be the time, in his custody and possession, other false and coun- a,<;«""""'i • ' ' uttercr. terteit money ; and that it was thereupon adjudg;ed by the Court that he should be imprisoned for a year, and until he found sureties for his f;ood behaviour for two years more ; and then averred, that having been so convicted as a common ■ulterer of false monei/^ he afterwards uttered other false and counterfeit money. The objection taken in arrest of judo- xuent, and which was reserved for the oninion of the iud^^es. was this, that in stating- the original record and judgment of the Court of Quarter Sessions, it is not stated tliat the Court did ui/Judge the defendant (o be a common ulterer, but only that they considered and adjudged the prisoner to be imprisoned twelve months, and to find surety for his good behaviour for two years more. But the judges held that it was not necessary that the Court should adjudge the de- fendant to be a common utterer, though the statute says he shall be deemed and taken to be a common utterer ; that being a conclusion of law : and it being sufficient for the Court before which a defendant is convicted of an offence ■within the statute, to adjudge hiju to suffer the punishment inflicted by law on the oti'ence. {b) By the fifth section of the 15 Geo. II. c. !^8, it is pro- Trial and vided that offenders shall be indicted, arraigned, tried, and ^'•"^•^"*^'-'- convicted, by such like evidence, and iji such manner as counterfeitors of the coin ; with a proviso that the prose- cution be commenced within six months next after the of- fence committed. For the purpose of proving the act cliarged in the In- Evidence of dictment to be done hnowingJj/, it is the practice to receive f.'V^^ '^""'^'^ proof of more than one uttering comuu"tled by the party about the same time, though only one utterins: be char"-ed in the indictment. This is ia conformity with the practice (i) Michael's case. Old Bailey, P. C. AJdeitd. xix, Feb. 1802. 2 Leach 938. 1 East. 118 Of Utterhig or Tendering in Payment [boor ir. upon indictments for dispoj^ing of and putting away forged bank note?, knowing them to be forged ; (c) upon one of which the counsel for the prisoner*, objecting to such evi- dence, contended that it would not be allowed upon an indictment lor uttering bad money ; and stated that the proof in such case was always exclusively confined to the particular uttering charged in the indictment. But Mr. Baron Thomson said, that he by no means agreed in the conclusion of the prisoner's counsel, that the prosecutor could not give evidence of another uttering on the same day to prove the gi/iltjy knon/edge. " Such other uttering (he observes) " cannot he punished until it has become the *' subject of a distinct and separate charge ; but it affords *• strong evidence of the knowledge of the prisoner that the " money he uttered was bad. If a man utter a bad shilling, " and fifty other bad shillings are found upon him, this *' would bring him within the description of a common " utterer ; but if the indictment do not contain that charge, " yet these circumstances may be given in evidence on any " other charge of uttering, to shew that he uttered thfe " money, with a knowledge of its being bad." (d) (c) Whiley and Hainos (case of) 2 Leach 983. 1 New. R. 92- Tat- tershalls case cited in Whiley and Haines. And see Balls case,! Campb. .^25, -where upon an inditlnieut at LcKCs Sum. Assi'/es 1^07, agiinst the prisoner for knowingly ulter- jng a forjied bank note, the note in question was proved to have been uttered by the prisoner on the Hlh uf Junt^ ; and evidence was thjn l^iven of his havinj; uttered ano- tlier forged note of the same inanu- lacture on the I'Oth March prc- t edirij; i and that there had been paid into the Bank of Kn^biid various forged notes dated be- tween Dec, iSOGand March 1807, all of the same manufacture, and havinjij different indorsements upon them in the hand-writing of the prisoner : but it did not appear at what times the Bank of England had received these notes. The in- dorsements, however, in the hand- writing of" the prisoner were con- sidered as evidence of such notes having been in his possession. Upon reference to the judges, they were all of opinion that the evidence as given in this case was properly ad- n.itlcd. And sec Phill. on Evid. 1.37. (d) Whiley and Haines (case of) 2 Icach 983. CHAP. IV. §2.] Foreign Countcrftit Coin, 119 By the ninth section of the 15 Geo. II. c. 28, it is enacted jj, prosecu- that " if any person be convicted of utterincars; and if '' the same person shall afterwards ofiend a third time, in ''• iittcrinp;, or tendering in payment, or giving in exchange, " or paNing or putting otV, any sncii false or counterfeit " coin as aforesaid, knowing the same to be false or coun- " terfoit, and shall be convicted of such third oflencr, he or " she shall be adjudged to be guilty of felony without benefit " of clergy." Evidence of former coa- victioii hy means of a eertificale. A certificate of a former conviction is made sufficient evi- dence upon the trial of an oflender for a further otVence. The fifth section of the statute enacts, that if any person shall be convicted of uttering or tendering any such false or counterfeit coin as aforesaid, and shall afterwards be guilty of the like oftVnce in any other county, city, or place, the clerk of tlie assize, or clerk of the peace for the county, city, or place, w here such former conviction shall have been had, shall, at the request of the prosecutor, or any other on his Majesty's lu'half, certify tlie same by a transcript, in few words, containing the effect and tenor of such con> iction ; for winch certificate two :-hillings and sixpence, and no more, shall be paid ; and such certificate being pioduced in court shall be sullicicnt proof of such former convic- tion. CHAP. IV. §^^] Foj'Cign Coimferfclt Coin. 121 Havini;- In custotlv a «Trpatcr number than five pieces of Persons hav- ^ „ . ' . , , 1 , , iiig in custody counterfeit foreign coin, whether current here or not, makes ai,yve a ccr- the party liable to punishment by proceedins's before a jus- taiu number • ' ■ ' "^ ot pieces of tice of the peace. The sixth section of the statute enacts, couniertcit that " if any person or persons shall have in their custody, lllay'^" prJ,"' " without lawful excuse, any greater number than five ceeded " pieces of false or counterfeit coin, of any kind or kinds, aina«nstraie.* *' resembling, or made with intent to resemble or look like, " any gold or silver coin or coins of any foreign prince, " state, or country, or to pass as such foreign coin ; every " such person, being thereof convicted upon oath before one " justice of tlie peace, shall forfeit all such false and coun- " terfeit coin, which sliall be cut in pieces by order of such " justice; and shall for every such offence forfeit a sum not " exceeding five pounds, nor less than forty shillings, for " every such piece of false or counterfeit coin which shall " be found in the custody of such person ; one moiety to " the informer, the other to the poor of the parish where " the offence was committed ; aiid in default of payment " forthwith sliall be committed to the common gaol or house " of correction, there to be kept to hard labour for three " calendar months, or until such penalty be paid." I'OO CHAPTER THE FIFTH. Of receiving or pai/ing for the current Coin any more or iess tluin its lawful value. 5 and 6 Edw. X HE statute 5 and C Edw. VI. c. 19, reciting that divert VI. c. 19. . ... covetous persons of (heir own authorities, and notwithstand- ing- a statute of 23 Edw. III. st. 2. c. 12. had of late taken upon them to make exchanges, as well of coined gold as of coined silver, receivinj^ and paying therefon» more than the current value as it had been declared by the king's pro- clamation ; enacted, that if any person should exchange any coined gold, silver, or money, giving, receiving, or paying any more in value, benefit, profit, or advantage for it than the same was or should be declared by the king's proclama- tion to be current for. within this realm and the king's other dominion.*;, that then all the said coined gold, silver, and money so exchanged should be forfeited, and the offenders be imprisoned for a year, and fined at the king's pleasure. F.xchanplnr It was objected in two recent cases, that tlic exchanging •ruineas for rruineas fur hank notes, taking the guineas in such ex- bank notes » ^ } .r> r> not within this change at a higher value than they were current for by the statu c. king's proclamation, was not an otfence within this statute : and, after solemn arguments at several times before the judges, the point was decided in favour of the objection, (a) In consequence of this decision several statutes were passed upon the subject which it will be proper to notice. 51 Ceo. ill. The 51st Ceo. III. c. 127. s. 1. enacted that no person c. I'zi. aid ghould receive or pay for any current gold coin any more in (a) The King ngaiiisl Dc Yongc, Wri-;hl, cited M East. 404. 14 East. 402. and the King ngiinst CHAP, v.] Of hvying and selling the Current Coin. 123 value, benefit, profit, or advanta«re, than the lawful value of 52 Geo. III. c oO 3S to rC" such coin, whether such value, benefit, profit or advantage, cciving or should be paid, made, or taken in lawful money, or in bank ^'^^f^PJ notes or bank tokens, or by any other means: and it furtlier more than its enacted, (6) that no person sliould receive or pay any notes ^','J^."hJr^^' or bills of the bank of England for less than the amount ex- money or 1-1 1 i. banknotes, pressed therein, except discount, on notes or btils not expressed to be payable on demand ; and made the offence in each of these cases a misdemeanor. This act was to be in force only to the 25th March 1812; but the 52d Geo. Ill- c. 50. reciting that it was expedient that it should be conti- nued and amended, and extended to Ireland, enacts, that no person shall receive or pay for any current gold coin any more in value, benefit, profit, or advantage than the true value according to its denomination, whether such value, benefit, profit, or advantage be paid, made, or taken in law- ful money, or if paid or taken in Great Britain, in any bank of England notes, bills, or tokens, or if paid or taken in Ire- land, in any bank of Ireland notes, bills, or tokens, or by any or all such means, or by any other means, device, shift, or contri- vance whatsoever. And that offenders shall be guilty of a mis- demeanor, and suffer six months imprisonment, and find sure- ties for one year more ; and for a second offence shall suffer Second and a year's imprisonment, and find sureties for one year more ; ^W'^^^r'^ and for every subsequent offence shall be imprisoned for two years. This statute also enacts, (c) that no person shall And also as to receive or pay in Great Britain any bank of England notes p^^YTn^"4nk or bills, or in Ireland any bank of Ireland notes or bills, for notes lor less less than the amount expressed therein, except discount on amount ex- such notes or bills as shall not be e.\ pressed to be payable F'^^^d therein. on demand : and makes the offender guilty of a misdemeanor, and subject to a fine of double the amount of the sum of money specified in such bill or note, and made payable thereby, and to imprisonment for two months. The ele- venth section of the act provided that it should only be in force until three months after the commencement of the next (*) S. «. (c) S. 3. 124 Of buying and selling ike Current Coin, [book ii. session of parliament : but it was continued by the 53d Geo. III. c. 5. to the 25th March 1814, and further conti- nued by the 54th Geo. HI. c. 52. during the continuance of any act imposing- any restriction on the bank of England \vith respect to payments in cash, (rf) 66 Geo. III. A further provision is made upon thissubject by the 56th to recen\ns''' ^'^O' ^^^- c- G8. s. 13. as to receiving the current gold coin or payiii;;- tor fg,. j^qj-^ or less than its value according to its denomination. S^ofc oTloss The statute enacts, that " no person shall by any means, than its value, u ^jevice, shift, or contrivance whatsoever, receive or pay its dcnomiiia- " for any gold coin lawfully current within the united king- •'*'°- " dom of Great Britain and Ireland any more or less in " value, benefit, profit, or advantage than the true lawful " value which such gold coin doth or shall by its donomina- " tion import ; nor shall utter or receive any piece or " pieces of gold coin of this realm at any greater or higher " rate or value, nor at any less or lower rate or value than " the same shall be current for in payment according to the " rates and values declared and set upon them pursuant to " law." And the statute further enacts, that every person ofleuding sliall Ije guilty of a misdemeanor, shall suffer imprisonment for six calendar months, and shall Hud sure- Second ties for one year more; and that for a second ojfc/iec the ottcnce. olfender shall suffer a year's imprisonment, and find sure- Subsrqu.rit ties for one year more; and for every subse(ji(eut ojjcnce *'^"'*^'" shall be imiiiisoued ft)r the term of two years. Both FAidcnccof the 52d Geo. 111. c. 50. and the 5Gth Geo. III. c. 08. former coil- contain a clause by which it is enacted, that if any person vicfiou bv a . <. • • i i • ccrtiJicati-. shall be convicted of receiving or paying any gold com con- trary to the act, and shall afterwards be guilty of the like otVcuce, the clerk of assize, or clerk of the peace for the countv, city, or place where such conviction was so had, shall, at the request of the prosecutor, or any other person (d) The 4-Uli Geo. III. c. l.iin- and continued by ollu-r acts, i.s fur- poiintr restrictions on payment-. ther continM<-d by .''iCi Geo. 111. c- JO. of cash by the bank of Kn^land, to the 3th July lbl8. CHAP, v.] Of buying and selling the Current Coin. 125 en his Majesty's behalf, certify such conviction ; for which certificate two shillings and sixpence, and no more, siiall be paid ; and that such certificate being produced in Court shall be sufficient proof of the former conviction. The 52 Ceo. III. c. 50. al?o provides, that on any prose- Not necessary Gution or trial of any offender for any offence against that ^jj^j^^. '^^. ' act, or the 51 Geo. III. c. 127. it shad npt be necessary to received or 11 1-11 1 -J.- p*'*! f""" ^f^y prove, that the money, notes, bills, tokens, securities, war- ooldcoin,to rants, or orders for pavnient of money, received or paid for ^^ S^^'^ ™*^" any gold coin, are respectively good current money, or good, valid, and effectual notes, bills, Sec. or that they are respectively of the value they on the face of them import; but that they shall be deemed and taken to be good, valid, and effectual respectively, and of the respective values which on the face of them they import, until the contrary shall be proved to the satisfaction of the judge, justice, or court, before whom the offender shall be prosecuted or tried: and that it shall not be necessary to prove that the gold Nor the gold coin received or purchased is the current gold coin of this *^**'" received * "^ or purchased realm, but that the same shall be deemed and taken so to to be current be, if paid or received as such, until the contrary thereof ^^ *^°'°' shall be proved to the satisfaction of the judge, justice, or court, before whom the offender shall be prosecuted or tried. The 56 Geo. III. c. 68. s. 16. also enacts, that on any pro- secution or trial for any offence against that act, it shall not be necessary to prove that the gold coin received or paid, ^ or uttered contrary to tliat act, is the current gold coin of the realm, but that the same shall be deemed and taken so to be, if received or paid, or uttered as such, until the con- trary thereof shall be proved to the satisfaction of the judge, justice, or court, before whom such offender shall be prose- cuted or tried. The 56 Geo. III. c. 68. s. 15. enacts, that no person indictments ajjainst whom any bill of indictment shall be found at any "*** '? ^^*' r< J .' versed. assizes or sessions of the peace, for any otfcnce against that act, shall be entitled to traverse the same to any sub- 126 OfbuT/in^ and selling the Current Coin, [book n. sequent assizes or sessions; but that the court, at which such bill of indictment shall be found, shall forthwith pro- ceed to trv the person or persons against whom the same shall be found, unless he, she, or thev sliall shew good cause, to be allowed by the court, why his, her, or their trial should be postponed. The 52 Geo. III. c. 50. s. 3. contains a similar provision as to indictments for offences against that act, or against the statute 51 Geo. III. c. 127. 127 CHAPTER THE SIXTH. Of servings or procuring others to serve, Foreign States. JtliNTERING into the service of any foreign state with- Serving fo- out the consent of the kins:, or contracting with it any other ^^.'S" states, a ° • rnisderaeaaor en<;agement which subjects the party to an influence or con- atcommou troul inconsistent with the allegiance due to our own sove- * reign, is, at common law, a high misdemeanor, and punish- able accordingly, (a) Indeed it is considered as so high an offence to prefer the interest of a foreign state to that of our own, that any act is criminal which may but incline a man to do so ; as to receive a pension from a foreign prince with- out the leave of the king, (b) But with respect to serving, or procuring others to serve, 3 Jac. I. c. 4. foreign states, provisions have been made by several sta- s[8. ^sto subjects CO* tutes. TheS Jac. I. c. 4. s. 18. enacts, that "every sub- ingoutolth* " ject of this realm that shall go or pass out of this realm to '"*'^'"' !° " serve any foreign prince, state, or potentate, or shall pass felony. " over the seas, and shall voluntarily serve any such foreio-n '• prince, state, or potentate, not having before his going " taken the oath of obedience, (c) shall be a felon." The nineteenth section of the statute enacts, that " if any o-en- *• tlenian or person of higher degree, or any person which " hath borne, or shall bear any office, or place of captain, " lieutenant, or any other place, charge, or office, in camp, " army, or company of soldiers, or conductor of soldiers, (fi) 1 East. P. C. c. 2. s. 23. p. 81. act, but it has been since taken A Blac. Com. 122. away by 1 W. and M. sess. 1. c. 8. ({«) 1 Hawk. P. C. c. 22. s. 3. -t 9. 2. and new oaths of allegiance Bl. Com. 121. 3 Inst. 144. andiupr.-inacyenjoiQediailsroom. , or potentate, i:<; a soldier^ with- *• out hi*^ Majesty's licence under his sign manual; every " such otTender shall, on conviction, be guilty of felony with- '• out benefit of clergy." ])oubts aro^e upon this act, whe- ther the procuring persons to go beyond the seas or em- bark, with the intent of being enlisted into foreign .service when abroad, witliout actually giving tliem any enlisting (rf) 3 lost. SO. I East. P. C. r . 2. (e) 3 In-st. 80. 3 .Jar. I. c. 4. s. M. «. S.-^. p. 82. CHAP. VI.] To serve Foreign States. 129 money at the time of their being hired or procured, was within its meaning and intention : whereupon it was enact- ed by the 29 Geo. II. c. 17. s. 4. " that if any subject hath Thou-h no " engaged, contracted, or agreed, or shall engage, &c. ney be il'd'^" " within Great Britain or Ireland to ffo beyond seas, or em- or received, ti , , .,, . , , ,. , ,. , .. 29Gco. II. c. bark with an intent and in order to enlist and enter him- n. 8. 4. " self to serve as a soldier in any foreign service, though no *' enlisting money he actually paid to or received hy him ; or " if any person hath hired, retained, engaged, or procured, " or shall hire, &c. any subject of his Majesty, his heirs " or successors, though no enlisting money hath been or " shall be actually paid to or received by him, to agree to " go beyond the seas, or embark with an intent and in order " to be enlisted to serve any foreign prince, &c. as a soldier, *' without leave or licence of his Majesty, his heirs or suc- " cessors, had and obtained for that purpose, every such *' offender shall be adjudged guilty of felony, without benefit " of clergy." The 29 Geo. II. c. 17. also enacts. (/) " that if any sub- 29 Geo. II. c. " ject of Great Britain shall take or accept of any railitarv ^^■^' ^\^'^' •^ term*'' tlie " commission, or otherwise enter into the military service of French king's " the French king as a commissioned or non-commissioned ^^''J'*^^ ^^'th- ^ out leave, &c. " officer, without leave or licence of his Majesty, his heirs felony with- " or successors, first had or obtained for that purpose, **" ^ ^^^'^' " under the sign manual of his Majesty, his heirs or suc- " cessors : every such person so offending shall be adjudged " guilty of felony and suffer death, as in cases of felony " without benefit of clergy." (o) The third section of the 9 Geo. II. c. SO. with respect to By 9 Geo. II. cases within that act, provides, that if the person so enlisted pers^ons ^" or enticed to go beyond seas, in order to be enlisted as a discovering non-commissioned officer or private soldier, shall, upon oath tit?thein to" to a magistrate, discover the person by whom he was so p" *^ ^^ *^"" i ./ listed, : ;irp m- deoiuified. (/) Sec. 1, ruption of blood, loss of dower, or (g) Attainder is not to work cor- disherison of heirs, s. 7. VOL. I. K ISO Of serving, or procuring othej's, ^c. [book ii. enlisted or enticed, within fourteen davs after sucli enlisting or agreement to go beyond seas, so that he may be appre- hended and convicted, such person, so discovering-, shall be indemnified. Trial mav be Oflences committed against the statute 9 Geo. If, c. SO. I'y in EiMaiid. ^"^^ ^^ Cico. II. c. 17. out of the realm, may be alleged to be committed, and may be laid, inquired of, and tried, in any county in England, (h) risobeilience It may be observed, thougli not strictly applicable to the cominanlh to subject of this chapter, that disobedience to the king's letter fpiiini. or to to a subject commanding him to return from beyond the stay at home, * ^i i • > -x /• ^ j- or to refuse seas, or to the kmg s writ ot we exeat regno, commanding to assist the a subject to stay at home, is a hiijh misprision and con- king m coim- . .,.., \. , m <. cilorwar. tempt. (0 Audit is also a high offence to refuse to assist the king for the good of the public, cither in councils, by advice, if called upon, or in his wars by personal service for defence of the realm against a rebellion or invasion : (/.) under which class may be ranked the neglecting to join the posse co)nitati(s, or p')wer of the county, being thereunto required by the sheriff or justices, according to the statute 2 Hen. V. c. 8. which is a duty incumbent upon all that are fifteen years of age under the degree of nobility, and able to travel. (/) {h) 9 Goo. II. c. .10. ». 2. 2'J hiil:i:idi.sh;ill be seised till he doo» Geo. II. c. 17. 8. 6. return. 1 Hawk. P. C. c. 22. s. 4. (I) 4 Blac. Com. 122. And if llic (A) 1 Hawk. P. C. c. 22. s. 2. gubjecl neglects to return from be- (J) 1 Blac. Com. 122. Lamb, yond the seas, when commanded, Eir. .'ilj. 131 CHAPTER THE SEVENTH. Of seducing Soldiers to desert or mulinj/. In consequence of the attempts of evil disposed persons 37 Geo. III. by the publication of written or printed papers, and by j^j soldiers' malicious and advised speaking, to seduce soldiers and or sailors fe- sailors from their duty and allegiance to his Majesty, the benefit of 37 Geo. HI. c. 70. was passed, enacting " that any person clergy. " who shall maliciously and advisedly endeavour to seduce " any person or persons serving in his Majesty's forces by " sea or land, from his or their duty and allegiance to his " Majesty, or to incite or stir up any such person or " persons to commit any act of mutiny, or to make, or " endeavour to make, any mutinous assembly, or to com- " mit any traitorous or mutinous practice v/hatsoever, " shall, on being legally convicted of such offence, be ad- *' judged guilty of felony, and shall suffer death as in cases " of felony without benefit of clergy." The third section of the act provides, that any person tried, acquitted, or con- victed, of any offence against this act shall not be liable to be prosecuted again for the same offence or fact, as high treason, or misprision of high treason ; and that nothing in the act contained shall prevent the trial of any person who has not been tried for an offence against this act, from being tried for the same as high treason, or misprision of high treason. And it is provided by the second section, that any offence against this act, whether committed on the high seas or in England, may be prosecuted and tried before any court of oyer and terminer, or gaol delivery, for any county Trial in England, as if the said offence had been therein com- iuitted, 132 Of seducing Soldiers. [book ii. indictment. It has been decided, that an indictment upon this statute need not set out t/ie 7neam used for seducing the soldier from his duty and allegiance ; and that it need not aver that the prisoner JaiciD the person endeavoured to be seduced to be a soldier. It seems also that a double act, namely, that the prisoner endeavoured to incite a soldier to commit mutiny, and also to commit traitorous and mutinous practices, may be charged in one count of the indictment, (a) This act of the 37 Geo. III. c. 70. was only temporary ; but after having been continued from time to time by dif- ferent statutes, was recently made perpetual (together with an act upon the same subject, passed at the same time in the parliament of Ireland,) by the 57 Geo. III. c. 7. By the statute I Geo. I. c. 47. persons persuading or pro- curing soldiers to desert are subjected to a penalty, and under certain circumstances to imprisonmejit : and the late mutiny act, 57 Geo. III. c. 12., contains a clause of a de- scription nearly similar, but increasing the penalty and the punishment. 1 Geo. I. c. The statute 1 Geo. I. c. 47. enacts, that if any person ' t. persons pother than enlisted soldiers, against whom it is stated suf- &c. soldiers ficient remedy was already provided by law,) shall, in Great liablf-^io IK- Britain, Ireland, Jersey, or Guernsey, persuade or procure nalty and im- any soldier to desert, he shall forfeit 40/. to be recovered by any informer; and if he has not property to that amount, or from the heinous circumstances of the crime it shall be thought proper, the court before whom he is convicted shall 57f;po. III. imprison him, not exceeding six months. Section 149 of c. 12. 8. 1 \0. tjjc 57 Geo. III. r. I'i. provides, that if any person shall, in any part of his majesty's dominions, directly or indirectly persuade or procure any soldier or soldiers in the service of liis Majesty, his heirs or siiccessors, to desert or leave such (fl) Fullers case, 2 Leach 7!)n. Bos. and Pu I. ISO. I East. P. C. c. 2. 8, 33. p. yv. \ CHAP, vil] Of seducing Soldiers. \SS service, every such person so offending and being lawfully convicted, shall, for every such offence, forfeit to his Majesty, his heirs or successors, or to any other person or persons who shall sue for the same, 100/. ; and if he has not goods, chattels, lands, or tenements, to that value, or if from the circumstances and heinousness of the crime it shall appear to the court, before which the convic- tion shall be made, that such forfeiture is not a suffi- cient punishment, such court may commit the offender to prison for any time not exceeding twelve months. The punishment of the pillory is also added to the imprisonment by the same section; but a prior act, 56 Geo. III. c. 138. enacts, that from the passing of that act judgment shall not be given and awarded against any person convicted of any offence, that such person do stand in or upon the pillory, except for the offences of perjury and subornation of perjury, any law, statute, or usage, to the contrary notwithstanding. The statute 1 Geo. I. c. 47. also added the punishment of the pillory ; and upon an information filed in the Court of King's Bench upon that s^atute, prior to the 56 Geo. III. c. 13S. and tried at the assizes, it was held that it was ne- cessary, if the court awarded imprisonment in addition to the 40/. penalty, to award the pillory also, (b) It was also decided in the same case, that the court of King's Bench was the proper court to award the punishment upon such information, and that it ought not to be awarded at the as- sizes where tlie trial and conviction took place, (c) With respect to the consequences to the party deserting, Consequences it may be observed, that desertion in time of war was made '^^^^^^^'■^'of^ J ^ to the parlj a capital crime by 18 Hen. VI. c. 19. enforced by 2 and 3 dcscrtiug. Edw. VI. c. 2. s. 6. repealed as to the felony by 1 M. sess. 1. c. 1. revived by 4 and 5 Ph. and M. c. 3. s. 9. and extended to mariners and gunners by 5 Eliz. c. 5. s. 27. But these statutes are now fallen into disuse, as well on account of the manner of retaining soldiers therein referred to being (b) The King against Read, IG (c) Id. Ibid, East. 404. 134 Of seducing Soldiers. [boor it. no longer adopted, as because, sinc^ the annual acts for pu- nishing mutiny and desertion, a more compendious and con- venient system of military coercion has obtained, (cf) The mutiny act, 57 Geo. 111. c. 12. reciting, that no man can be forejudged of life or limb, or subjected, in time of peace, to any kind of punishment within this realm by martial law, or in any other manner than by the judgment of his peers, and according to the known and established laws of the realm ; yet that nevertheless it being requisite for retaining the forces in their duty, that an exact discipline be observed, and that soldiers who shall mutiny, or stir up sedition, or desert, be brought to more exemplary and speedy punishment than the usual forms of law will allow, enacts, that if any officer or soldier shall, during the continuance of the act, commit any of the offences therein enumerated, amongst which is desertion, the offender shall suffer death, or such other pu- nishment as shall be awarded by a court martial. (rf) 1 East. P. C. c. 2. 8. 34. p. 93. 135 CHAPTER THE EIGHTH. Of Piraci/. In treating shortly of this oIFcnce, we may consider, T. Of Piracy at common law, and by statutes. H. Of the places in which tlie offence maybe committed. IH. Of the court by which it maybe tried. SECT. I. OF PIRACY AT COiMMON LAW, AND BY STATUTES. THE offence of piracy by common law consists in com- Piracyatcom- mittiHg- those acts of robbery and depredation upon the high ^""^ seas, which if committed upon land would have amounted to felony there, (a) But it is no felony at common law, and it was only punishable by the civil law before tlie sta- tute ?S Hen. VHI. c. 15. ; and this statute, though it n.akes the offence capital, and provides for the trial of it according to the course of the common law, by the king's special com- mission, does not make it a felony ; therefore a pardon of all felonies g-enerallv does not extend to it, (6) The offence of piracy is also provided against by the en- piiacy by actments of several statutes. The 1 1 and 12 W. IH. c. 7. ^*:'*"*f- „, 1 1 and 12 «. s. 8. enacts, that "if any of his Majesty's natural born ill. c. T.s. s. '• subjects, or denizens of this kingdom, shall commit any ^^^*^^ ^xxnler " piracy or robbery, or any act of hostility against others the commis- (a) 1 Hawk. r. C. c. 37. s. 4. 4 lion of blood, at least where tlie Blac. Com. 72. 2 East. P. C. c 17- conviction is before the Admiralty ». 3. p. 796. jurisdiction; though the contrary (b) 1 Hawk. P. C. c. 37. s. 13. 3 is holdL-n by considerable autho- Inst. 112. 2 East. P. C. c. 17. s. 3. rity upon attainder before com- p, 796. where it is said that tlic of- missioucrs, under the statute of ftnce does not extend to corrnp- Hen. VIII. 136 Of Piracy— hij Statutes. [book. ii. sion of a fo- '^ his Majesty's subjects upon the sea, under colour of any a'IVs Ge " commission from any foreign prince or state, or pretence 11. c. 30. as to " of authority from any person whatsoever, such offender and uiiTted uoder " offenders shall be deemed, adj udged, and taken to be pirates, an eneniys « felons, and robbers;" and being duly convicted thereof, ac- suffer such pains of death, and loss of lands, goods, and chat- tels, as pirates, &c. upon the seas ought to suffer. And the 18 Geo. II. c. 50. enacts, " that all persons being natural " born subjects or denizens of his Majesty, who during any " war shall commit any hostilities upon the sea, or in any *' haven, river, creek, or place, where the admiral or admirals " have power, authority, or jurisdiction, against his Majesty's *' subjects, by virtue or under colour of any commission from " any of his Majesty's enemies, or shall be any other ways " adherent, or giving aid or comfort to his Majesty's enemies " upon the sea, or in any haven, river, creek, or place, where " the admiral or admirals have power, authority, orjurisdic- " tion, may be tried as pirates, felons, and robbers in the said " court of Admiralty, on ship-board, or upon the land, in the " same manner as persons guilty of piracy, felony, and rob- *' bery, are by the said act (c) directed to be tried ; and such *^ persons being upon such trial convicted thereof, shall suffer *' such pains of death, loss of lands, &c. as any other pirates, " felons, and robbers, ought by virtue of the statute 11 and « V2 W. 111. c. 7. or any other act, to suffer." {(/) Commander, The ninth section of the statute 11 and 12 W. ITT. c. 7. rumiiii" away enacts, that " if any commander or master ol any ship, or wiihiliipor (c g„y geanian or mariner, shall, in any place where the ad- cargo, &<•. or 1 1 1 • • 1- • 1 yieldinj^ vo- " niiral hath jurisdiction, betray his trust, and turn pirate, (c) 1) and 12 W. III. c. 7. hi^h treason. Bill !>> sec. .'{. the act (d) Section 2. cont.iins a proviso is not to prevent any oflender who that any p Eaht. sec a Hawk. c. 9. s. U. as to the P. C. c. 17. ». 10. p. b03. jurisdiction of tli« coroner in of {q) 4 Inst. 137. feuco* on the sca-shorc. 2 CHAP. VIII. §2.] Offence mui) be Commlllcd. 145 " that such parts of the rivers, arms, or creeks, are deemed " to be within the bodies of counties, zoliere persons can see " Jro7n one side to the oilier. Lord Hale, in his treatise De " jure maris, says, that the arm or branch of the sea whic!i ** lies within the fauces terra', where a man may reasonably '^ discerti between shore and shore, is, or at least may be, " within the body of a county. Hawkins however con- " siders the line more accurately confined, by other autho- " rities, to such parts of the sea whore a man, standing on " the one side of the land, may see zoliat is done on the other ; " and the reason assigned by Lord Coke in the Admiralty *• case (5) in support of the county coroner's jurisdiction, 'Mvhere.a man is killed in such places, because that the " county may well hnozc it, seems rather to support the more " limited construction. But at least, where there is any " doubt, the jurisdiction of the common law ought to be " preferred." (/) The question, whettier the fact was comrwitted on the sea, or within the body of a county, is of main importance. For ifit turn out that the ffoods were taken anvwhere within the body of a county, the commissioners under the statute of Hen. VHI. can have no jurisdiction to inquire of it; and if it should appear tliat the goods were taken at sea and after- wards brought on shore, the offender cannot be indicted as for a larceny in that county into which they were carried; because the original felony was not a takin"^ of which the common law takes cognizance, {u) It was decided, that where A., standing on the s1«ore of a Shoofmo- harbour, fired a loaded musket at a revenue cutter, whicli lroni|lieIan(i, and killing on had struck upon a sand bank in the sea, about one hundred the se;u yards from the shore, by which firing a person Avas mali- ciously killed on board the vessel, it waspiracj'; for the («) 13 Co. 52. (a) 2 East. P. C. c. 17. s. 12. p. {t) 2 East. P. C. c. 17. s. 10. 805. 3 lust. \U. p. 803, 804. VOL. I. L 146 Of Piracy. — Place where Committed, [book. n. offence was committed where the death happened, and not at the place from Avbence the cause of death proceeded, (a?) And if a man be struck upon the high sea, and die upon the shore after the reflux of the water, the ad'niiral, by vir- tue of his commission, has no cognizance of the offence, (x) And as it was doubtful whether it could be tried at common law, it is provided by statute that the offender may be in- dicted in the county where the party died. {}/) Concurrent In a late case at the Admiralty session, of a murder com- . urisdiction fitted in a part of Milford Haven, where it was about three ol Ih ' com- ^ moil law and miles over, about seven or eight miles from the mouth of Mifford lia-^ the river or open sea, and about sixteen miles below any Ten, &c. bridges over the river, a question was made whether the place where the murder was committed was to be considered as within the limits to which commissions granted under the statute 28 Hen. VHI. c. J5. do by law extend. Upon refer- ence to the judges they were unanimously of opinion that the trial was properly had. And it is said that during the discussion of the point the construction of this statute by Lord Hale(3) was much prefen€d to the doctrine of Lord Coke;(cf) and that most, if not all, of the judges, seemed to think that the common law has a concurrent jurisdiction with the Admiralty in this haven, and in all other havens, creeks, and rivers, in this realm, {b) iys) 1 Hawk. 1'. C. c.'M. s. 17. the admiral jurisdiction to inquire Coombcs"."} cafcc, 1 Leach, .^88. 1 of the death of a man, and of a East. 1'. C. c. r>. s. 131. p 307. ni;iyhemdone in groat ships hover- (x) 2 Hale 17, 20. 1 liast. P. C. ing in the main stream of great c, 5. s. 131. p. 365, 368. rivers, beneath the bridges of the {if) 2 Geo. II. c. 21. same rivers ni;;h to the sea, and in (s) 2 Hale 10, 17. none other places of the same ri- (a) 3 Inst. 111. 1 Inst. 134. vers-, which juri.sdiction is only (t) liruce's case, 2 Leach 1093. concurrent with, and not in exclu- It should be observed thnl this was sion of, the common law. 1 East a case of murder. Sec aute, 141. P. C. 36S(. The italute l.> Kirh. II. c. 3. givoK CHAP. VIII. §3.] Of Piracy. — Covrt hj/ which Tried. 147 SECT. III. OF THE COURT BY WHICH THli: j^FFENGli Of PIRACY MAY BE TKI^ THE offence of piracy was formerly cognizable only by the Admiralty courts, which proceeded without a jury, in a method much conformed to the civil law. But it being inconsistent with the liberties of the nation that any man's life should be taken away, unless by the judgment of his peers or the common law of the land, the statute 28 Hen. VIII. c. 15. established a new jurisdiction. By that statute it was enacted, that this offence should be tried by commis- sioners nominated by the lord chancellor, the indictment being first found by a grand jury of twelve men, and after- wards tried by another jury as at common law; and that the course of proceedings should be according to the law of the land. Amongst the commissioners there are always some of the common law judges; (c) and by the Admiralty court thus constituted the offence of piracy, and other ma- rine offences, are now tried. But the statute 28 Hen. VIII. merely altered the mode of trial in the Admiralty court ; and its jurisdiction still continues to rest on the same foundations as it did before that act. It is regulated by the civil law, etper consiicliidinrs marinas grounded on the law of nations, which may possibly give to that court a jurisdiction that our common law has not. ((/) The statute 32 Geo. II. c. 25. s. 20. for the more Times for speedy bringing of offenders to justice, &c. enacts, that ^'^''•"'S*^''* a session of oyer and terminer and gaol delivery for the 32 Geo. II. trial of offences committed upon the high seas, within *^' ^^" '' '^^' the jurisdiction of the Admiralty of England, shall be holden twice at least in every year; viz. in 31arch and (c) GenccAlly tixc. 4 Blac. Gom. (rf) By Mansfield, C. J, Rex »•. 269. Depardo, 1 Taunt. 29. l2 14S Of Piracy. — Court by which Tried, [book u. October, at the Old Bailey ; (except when the sessions of oyer and terminer and gaol delivery for London and Middlesex shall be there holden) or in such other places in England as the lord high admiral, &c. shall, in writ- ing under his hand, directed to the judge of the court of Admiralty, appoint. 149 CHAPTER THE NINTH, Of neglecting Quarantine, and of spreading contagious Disorders. SECT. I. OF MEGLECTING QUARAiNTINE. J- HE performance of quarantine, or forty days' probation when ships arrive from countries infected v/ith conta«jious disorders, is of the highest importance, as it affects the pub- lic health of the nation, and has been enforced from time to time by various legislative enactments. The 45th (ieo. HI. c. 10. is the principal statute upon the subject now in exist- ence, the ninth section of which repeals all other acts relat- ing to quarantine, excepting as to arrears of duty, and as to offences then committed against them. This statute first makes certain regulations with respect 45 Geo. Ill, to the building of a lazaret on Chetney-hill, in Kent, and X^^^^ \\^^' providing floating lazarets in the mean time; and imposing ships, he. . . , ,. ^u c 11 v,hicli shall certam duties upon the owners ot vessels and cargoes per- be liai,k> to forming quarantine. It then proceeds to enact, {a) that all qi^arautiue. ships and vessels coming from, or having touched at, any place from whence his Majesty, by the advice of his privy council, shall have adjudged and declared it proiiable that the plague, or any other infectious disense or di^temrer highly dangerous to the health of his Majesty's subjects, may be brought ; and all ships, vessels, and boat?, receiving any person, goods, (Src. baggage, wearing apparel, bojks, lettersj or any other articles whatever, from or out of any (a) S. 10. 150 Of S^eglecti?!!}^ Q2iarn7ilme. [book i<. ships or vessels so coniine; from, or having; touched at, such infected phice as aforesaid (whether such persons, goods, &:t. or other articles, shall have come or been brought in such ships or vessels, or such persons shall have gone, or articles have been put on board the same, either before or after the arrival of such ships or vessels at any port or place in Gnat BriUiiny or the islands of Guernse?/, Jose^, Alder- ne?/, Sark, or Man, and whether such ships or vessels were or were not bound to any port or place in Great Britain, or the islands aforesaid.) and all persons, goods, &c. and other articles whatever on board of any such ships or vessels so coming from, or having touched at, such infected place as aforesaid, or on board of any such receiving ships, vessels, or boats as aforesaid, shall be, and be considered to be, liable to quarantine within the meaning of this act, and of any order of council concerning quarantine and the preven- tion of infection, from the time of the departure of such ships or vessels from such infected place, or from th(> time when such persons, goods, &c. or other articles, shall have been received on board. And further it enacts, that all such ships, «&:c. and all persons, Tas well pilots as others,) (6) goods, &c. and other ar'icles as aforesaid, shall, upon their arrival, be obliged to pfrforvi quarantine in such place for such tinie and in such mariner as shall be directed by any order in council notified by proclamation, or published in the London Gazette. Aiut that until they shall have per- formed and shall be duly discliarged from such quarantine, no such person, goods, &c. or other articles, shall come or be brought on shore, or go or be put on board any other (ft) In a cas(^ which occurred soainrn, and passengers, and did upon a t|uariii)ti!ie act, now re- not reach the casc-or a pilot. But ju'.iled (2'j Cico. II. c. 6.) it was it vas also hi Id lliat a pilot. di<- lield, th;it a pilot, who went on obc) ing orders of council made ia bo ird a .'•hip uiider quarantine, and pursuance ol" that statute, might ()uitl'-d her before liie quanmlinc be punished at common law by •-.xpired. wax not within the penal- int'oriiution. Rex v. Harris, 9 lies of tlie fifth r-ction of the art. Leach 551. \ T. R. 202. wliich ff'latcd only to the captain, 3 CHAP.ix. §1.] Of Neglecting Quarantine. 151 ship, vessel, or boat, in order to come or be brought on shore, unless in such manner and by such licence as shall be directed or permitted by an order in council. And it is further provided, that all ships, &c. so liable to quarantine, and all persons, (as well pilots as others,) goods, &c. and other articles, and all commanders, &c. of any such ships, vessels, or boats, liable to quarantine, shall be subject to this act, or any order of council concerning quarantine and the prevention of infection. The statute proceeds to make various regulations as to siffnals to be used, and other matters for enforcing the ob- servance of quarantine ; and creates different offences, somef of which being of the degree of capital felonies, require to be particularly noticed. By section 19, in case any ship or vessel shall come from, 4j Geo. III. or shall have touched at, any infected place, or shall have CommaniUrs, any person on board actuallv infected, and the commander, ^^c- "ot dis- , ". , /> 1 1 tlosnijr iufec- master, or other person, having charge ot such ship or ves- tion. or omit- sel. knowing: that the place from whence he came, or at f'"? ^" ''"'st ~ ' . the |>roj)cr which he had touched, was infected, or knowing some per- «ipi:,i, guilty son on board to be actually infected, sliall refuse or omit to ^^*j^'J",'J-^ disclose the same upon such examination as is mentioned clergy. in the act, or shall wilfully omit to hoist the signal therein directed, to denote that his ship or vessel is liable to the performance of quarantine at the times and on the occasions therein directed with respect to the same, such commander, &c. shall be adjudged guilty of felony, and suffer death with- out benefit of clergy. The 25d section, reciting that disobedience or refractory ^^ q^^ jj^ behaviour in persons under quarantine, or in other persons f^- >o. s. ys. ^ ' .... Persons re- who may have had any intercourse or communication with fnsii i; cr them, may be attended with very great danger to his Ma- ^^^'^^f,'^;fj,^'' jesty's subjects ; enacts, that every person liable to perform la/arct.&c. quarantine, and every person having had any intercourse or p^^^Jj^fro^Ti communication with a person liable to perform quarantine, the same. 152 Of Xcglccting Qjuirantine. [book il. jjuillyoffe- wllfullv refus^iiip; or neglecting; to repair forthwith, -when lonv without . " , ,. , , i i .i n- »• j *„ clcr-Y. recjuired and directed so to do by the olhcer mentioned in the act, to the lazaret, ship, or vessel, or place duly ap- pointed in that behalf, and also every person having been placed ill the said lazaret, Sec. and actually escaping out of the same before quarantine duly performed, shall be ad- judged guilty of felony, and suiler death without benefit of clergy. 45 Geo. III. The 26th section enacts, that if any officer of the customs, Officers ^&c ^^ ^^^^^^ officer, or person, to whom it shall appertain to perniiitiiig execute any order concerning quarantine, or the prevention A;Tto'' section 27 it is enacted that if any person not infected c. 10. s. 27. nor liable to perforni quarantine shall enter the said lazaret, terin" the la- &C' v^hilst any in tecled person shall be therein, such per- zaret. &c. gon so entering shall perform (luarantine there ; and in case iimsl ncrlorni . i i quu.u.iiiK', such person shall actually escape out ol the lazaret, ivc. and it they ^vhere he ouiiht to have performed ciuarautine, before he escape with- ^ ' ^ oi.L pertoim- shall have fully p rformed the same, he shall be adjudged " ultv «^rVe- S"'^') of felony, and sullbr death >\itliout benefit of clergy, loiiy vitlioiil cler"*v • . "•' The 3Ist section enacts, that if any person shall clan- 45 Geo. III. , . , 1 11 1 1- I c. 10. s. .SI. destmely convey, or shall secrete or conceal, tor the purpose tlandestiiwly ^j- convevinff any letters, goods, wares, or merchandize, or « oiivovmg <»r .... xccrcling in other articles therein mentioned, from any ship or vebsel ell AP. IX. § 1 .] Of Neglecting Quarantine. 1 53 actually performing quarantine, or from the lazaret or other order to con- place, where such goods, warts, merchandize, or other ar- f^j,° ^ ^,^^^^^ tides, shall be performing quarantine, every such person so o'" from a la- offending shall be adjudged guilty of felony, and suffer lony without death without benefit of clergy. t^lergy. An offence, of a less penal nature, is created by a former 45 Geo. III. section of the statute, (c) which, with respect to any person persons quit- cominff in any ship or vessel liable to perform quarantine, t'og a"y ship .. . • , , , • . liaf^'e to per- or any pilot or other person going on board the same, eitlier form quaran- before or after its arrival, at any port or place in Great *'"^ before _ "^ ' such ship IS Britain, or the islands mentioned in the act, (d) who shall, regularly dis- either before or after such arrival, quit such ship or vessel, cn:<''ged toi be ' ^ ' ' imprisonea, ^ by going on shore in any port or place in Great Britain or and forfeit the said islands, or by going on board any other ship, ves- sel, or boat, with intent to go on shore as aforesaid, before such ship or vessel, so liable to quarantine, shall be regu- larly discharged from the performance thereof, enacts that every such pilot or other person, so quitting such ship or vessel so liable to quarantine, shall for every such offence suffer imprisonment for the space of two months, and forfeit the sum of two hundred pounds. It is enacted that no attainder of felony by virtue of this No corruption fill act shall work any corruption of blood, or forfeiture of goods fyrfj;i"ui.j. ^"^ or lands, (e) And it is also enacted that the publication in the London Publication Gazette of any order in council, or of any order by three '' ,"' ."■'''irtue and in jnirsuancc of the rciriilalions and liireclior.s of an order in council. The refusal to make a true discovery, or giv- ing a false ansv.cr wlien not ques- tioned upon oath, subjects the commander, &c. lo a penalty of aC'JOO. And by h. .S7, where in pur- suance of the act any examinations or answers shall be taken or made upon oath, the person, authorized and required to lake such exami- nations and answers, may admin- ister oaths ; and persons swearing falsely shall be deemed guilty of perjury : which enactment is fur- ther enforced by 46 Geo. HI. c. 98. s. 10. With respect to tlie ap- pointment of supcrintendants of quarantine, it is enacted by 50 Geo. III. c. 20, that they and their assistants may be appointed by any instruments signed by four com- missioners of the customs, and sealed witli tiie seal of their ofllcc And by the .">1 Geo. III. c. 40, every thing required by the 4.^ Geo. III. c. 10, to be (lone I»y the superin- tendant of (piarantine or his as- sistant, may, in case of the absence or sickness of nndi siiprriiilcndant or assistant, he done by the prinri- CHAP. IX. §1.] Of Neglecting Quarantine. 155 also that where any vessel shall have been direclofl to per- Theliaving form quarantine by the superintendant of quarantine, or his J'^cn (lircctcd assistant ; or, where there is no superintendant or assistant, quarantine \* by the principal officer of the customs at any port or place, tliauhc'ves'sci or other officer of the customs authorized to act as men- ^as liable to . quarantine, tioned m the statute ; the havinj^ been so directed to per- unless the de- form quarantine shall be jariven and received as evidence [•■'"'^""♦^ '^hew ^ . "^ . . the contrary, that such vessel was liable to quarantine, unless satisfactory proof be produced by the defendant to shew that the vessel did not come from, or touch at, any such place or places, as is or are stated in the said answers, or that such vessel, although directed to perform quarantine, was not liable to the performance thereof. And it further enacts, that where Where any any vessel shall in fact have been put under quarantine by fvf^^thave'b '" the superintendant, &c. and shall actually be performing put under the same, such vessel shall, in any prosecution, &c. for any and'^1;halT'be offence against this act, or anv other act hereafter passed iwrforming the same, it concerning quarantine, or against any orders of council as shall be deem- aforesaid, be deemed liable to quarantine, without provinff ^^ liable ^ ' r n without proof m what manner or from what circumstances such vessel be- of the ii\aiiner came liable to the performance thereof. becamehable Section 42 enacts, that all offences contrary to or in vio- Places where lation of that act, or any other act thereafter to be passed, ^'''^* *^* *'"'^"' ■^ r 5 ces may be or of any orders of his Majesty in council, then or there- had. after to be made, concerning quarantine and the prevention of infection, and notified by proclamation, or pul)llshed in the London Gazette; or of any orders made by three or more of tlie privy council as mentioned in the act, whether the said offence shall be committed within the bodv of anv county, or upon the high seas, or elsewliere, shall and may be tried and determined in any county m ithin England or Scotland, or in the proper courts of the isles of Gitcrnsej/, Jersej/, Aldernej/, Sark, or Maiu pal officer of the customs at the act in that behalf by four or morr; place, or by such officer of the of the commissioners of the cu»- custouis as shall be authorized to tomii. 156 Of Neglecting Quarantine. [book ii. Smaller of- The smaller offences against this act, in general, make the icrwf's tor t»hicb DO spe- P^'"*) liable to some specific penalty or punishment ; but it cihc penalty {§ enacted that all offences not being; felonv, and every IS provided , . . i r. -i i may be ditcr- offence or disobedience to any order of council made for the iTiiiied by two better carryins: the act into execution, tor which no specific justices, who •' f , .' . ^ may fine or penalty, forfeiture, or puinshment, is provided by the act, ijirison. shall be tried and determined by two justices of the peace of the county, &c. where such offence or disobedience shall happen : and upon conviction the party shall be liable to such forfeiture and penalty, not exceeding fifty pounds for any one offence, or to such imprisonment not exceeding three months for any one offence, as shall in the discretion of the two justices be judged proper, (h) Persons going By a subsequent statute 4G Geo. III. c. 98. s. 7, reciting liniiLsofqua- the danger of communication with vessels performing qua- rantine su- rantine, and that it is greatly increased by persons not being tions coiilnirv . • i • i • i . to order in " prevented irom going withm the stations allotted tor the founcil to performance of quarantine, it is enacted that his Majesty lorleit £500. *^ . ' . ' . . may, by order in council notified by proclamation or pub- lished in the London Gazette, prohibit all persons, vessels, Sec. from going \vithin the limits of any station assigned for the perforn-.ance of C[uarantine ; and that the party offend- ing shall for every such offence forfeit five hundred pounds. (/i) 45 Geo. III. c. 10. s. J8. A in the text as to the jurisdiction of former act concerning quarantine two justices-, and it was held upon 26 Geo. 11. c. 6, enacted that all that statute that disobedience of persons going on board ships com- such an order of council was an ing from infected places, should indictable otVcuce, and punishable obey such orders as the king in as a misdemeanor al common law. council should make, but did not \\c\ i<. Harris, 4 T. 11. 20:^. award any particular punishnicMit, 2 Leach 549. HOT contain any clause like that CHAP. IX. §2.] Of Spreading Contagious Disorders. 157 SECT. 11. OF SPREADING CONTAGIOUS DISORDERS. WITH the same regard to the public health, upon which Persons in- the statutes relating to quarantine have proceeded, the le- the^nla^u gislature appears to have acted in former times, in making go'm^ abroad persons guilty of felony who, being infected with the plague, others. * went abroad and into company, with infectious sores upon them, after being commanded by the magistrates to stay at home. (0 The statute which contained this enactment, after being continued some time, is now expired ; but Lord Hale puts the question, whether if a person infected with the plague should go abroad with intent to infect another, and another be thereby infected and die, it would not be murder by the common law. (A) And he seems to consider it as clear, that though where no such intent appears it cannot be murder, jet if by the conversation of stich a person another i-Iiuuld be infected, it would be a great misde- meanor. (0 In a late case in the court of King's Bench, relating to It isanindict- the smail-pox infection, it was held that the exposing in the unlawt'dh-" public highway, with a full knowledge of the fact, a person a'^d injurious- infected with a contagious disorder is a common nuisance, ^hild infected and as such the subject of an indictment. The defendant with the small was indicted for carrying her child, while infected with the public \\\^\\- small-pox, along; a public hiffhwav, in which persons were "^^' '" which ^ r o > 7 r persons are passing, and near to the habitations of the king's subjects ; passing, and and having suffered judgment to go by default, it was moved hab^titious^of on her behalf, in arrest of judgment, that it was consistent the kings with the indictment that the child might have caught the *" ^ disease, and that it was not shewn that the act was unlaw- ful, as the mother might have carried it through the street, in order to procure medical advice ; and that the indict- ment ought to have alleged, that there was some sore up., i (i) 2 (vulgo 1) Jac. T. c. 31. s. 7. • (fe) 1 Hale 432. I Hale 432, 695. 3 inst. 90. {i) Id. ibid. 158 Of Spreading Contagious Disordei^s. [book ii. the child at the time when it was so carried. It was also ui'o-ed, that the only offences against the public health of M hich Hawkins speaks, are spreading the plague and neg- lecting quarantine ; (?/?) and that it appeared that Lord Hardwicke thought the building of a house for the recep- tion of patients inoculated with the small-pox was not a public nuisance, and mentioned that upon an indictment of that kind there had been an acquittal, (n) But Lord El- lenborough, C. J. said that if there had been any such ne- cessity as supposed for the conduct of the defendant, it might have been given in evidence as matter of defence ; but there was no such evidence ; and as the indictment alleged that the act was done un/awfuflj/. and injuriously, it precluded the presumption that (here was any such neces- sity. Le Blanc, J. in passing sentence observed, that al- though the court had not found upon its records an) pro- secution for this specific offence, yet there could be no doubt in point of law, that if any one unlawfully, inju- riously, and with full knowledge of the fact, exposes in a public highway a person infected with a contagious disorder, it is a cojiinon nuisance to all the subjects, and indictable as such. That the court did not pronounce that every person who inoculated for this disease was guilty of an offence, provided it was done in a proper manner, and the patient was kept from the society of others, so as not to endanger a communication of the disease. But no person, having a disorder of this description upon him, ought to be publicly exposed, to the endangering the health and lives of the rest of the subjects, (o) » And it is aUo In a subsequent case in the same court, the indictment an indirtahle airainst an apothecary ibr unlawfully and injuriously oflFence in an " '^ *' ■' it apothecary, inoculating children with the small-pox, and while they (m) 1 Hawk. P. C. c. 52, 5.'{. house near the chnnh in a town : (n) Anon. .1 Atk. 750. In 2 Chitt. and the Cro. Circ. A. 363, is rc- f rim. Law 656, there is an indict- fcrred to. roent a;;:iii.st an apothecary for (o) Rev r. Vantandillo, 4M.and kf-rpinp a common inoculating S. 73. CHAP. IX. § S.] Of Spreading Contagions Disorders. 1 59 were sick of it, unlawfuUt/ and injuriously/ causing them to afier having be carried along the public street. The defendant was "hiiX^,^ u found guilty : but it was moved in arrest of judgment, that |;our, or And nny por- " creek thereof, be so aiding and assisting ; or if any person atashi r shall maliciously shoot at or upon any ship, vessel, or boat l>":»t; " belonging to his Majesty's navy, or in the service of the " customs or excise within the limits of any port, harbour, " or creek of Great Britain, or within the isle of jl/c/;;, or " \vitliin the limits of any J>ort, harbour, or creek thereof, " or in any port of the British or Irish channels, or on the " high seas, within one hundred leagues of the coast of nil any pfr- " Great Britain or Ireland ; or it any person shall either on oil hliooiiii}; titudes of men, enacts, that where any officer shall be by any armed, person, armed with club or any manner of weapon, forcibly hindered, affronted, abused, beaten, or wounded as afore- said, either on board any ship or vessel, or upon the land or water, in the due execution of his office, the person so re- sisting, &c. the officer or his deputy, or such as shall act in their aid or assistance, shall be committed till the quarter sessions ; and at the quarter sessions the justices are empow- (s) Hutchiusou"s case, 1 Leach that act. felony in any peison who 342. The 45th Geo. III. c. 121. shall comraitthe offence, s. 1 1 . makes the assaulting, resist- (/) That punishment being taken ing, hindering. &c. by force and away by the 52d Geo. III. c. 14.^. violence any officer, ice. in the except in cases within that act. execution of the powers gi\eQ by Jnte, p. 161. 170 Ofresisti??^ and evading the Bevemie Laws, [book ii. ered to punish the offender by a fine not exceeding 100/. and the offender is to I'eniain in prison till discharged by order of the Exchequer both of the line and imprisonment, or discover the person that set him on work. eC.eo.l. c.'21. s. 34. Per- sons armed and tuimiltu- «)usl) assoni- bliusj to the number of eiffht. aiidhm- dcrinc;;, ,S;c. officers, to be transported. By the Gth Ceo. I. c. 21. s. j4. it is enacted, that if any officer of the customs be forcibly hindered, wounded, or beaten, in the due execution of his office, by any persons armed with club or any manner of weapon, tumultuously assembled in the day or night, to the number of eight or more persons, all and every such person or persons so for- cibly hindering, &c. or such as shall act in their aid or assistance, shall be transported for any term not exceeding seven years, (u) 8Geo. I.e. IS. 8. 6. Persons passing with foreign goods landed with- out entry within 20 miles of the coast, being five in com- pany, or arm- ed or disguis- ed, and hin- dering, &c. offic<'rs in seizing run goods, guilty of felony, and to he trans- ported for neven years. By the 8th Geo. 1. c. 18. s. G. all persons who shall be found passing (knowingly and willingly) with any foreign goods or commodities landed without due entry and pay- ment of the duties within twenty miles of the coast, and shall be more than five persons in company, or shall carry any offensive arms or weapons, or wear any disguise, or shall forcibly hinder or resist any of the officers of the cus- toms or excise in seizing or securing run goods, shall be deemed and taken to be runners of foreign goods within the meaning of this act, and shall be adjudged guilty of felony, and transported for seven years, (w) (m) And such olTeuders returning from transportation hdore Ihe ex- piration ofthc term are made guilty of felony wilhoul clergy, s. .'J.'i. Section .SO pr()\id«s, that if any of- fend tlirw or niorc, Villages, and in other parts oi the kingdom, carrying iire assc-mbled to arms or other otFensive weapons, to the irreat terror of his ''f" J*'9'"S =>'"' ' ' " assisting III Majesty's subjects, and the hindrance of officers, &c. in the (■l;iiides- order to be aiding and assisting in the clandestine running, ^^ of ""of ' • • • 1 I landing, or carrying away prohibited and uncustomed goods, »"« armed, and to rescue the same after seizure ; and that officers and iiended by the tlieir assistants had been wounded, and some of them raur- warrant of a Justice : and dered, in the execution of their offices, and great quantities upon convic- of goods rescued ; for preventing thereof enacts, that upon *^"/" 'V^ j" ^'^ information upon oath before a justice of the peace, that any s"'lty "ffe- persons to the number of three or more, are or have been transported assembled for any of the purposes aforesaid, and are or tbr seven have been armed with fire arms, or other offensive arms or weapons; (a:) such justice shall grant his warrant to the constables, &c. requiring them to take to their assistance as many of his Majesty's subjects as may be thought necessary for apprehending the persons against whom such information shall be given. The act then proceeds to empower such justice to commit the offenders to gaol ; and then enacts, that such persons, upon due proof of their being assembled and armed as aforesaid, in order to be aiding and assisting in the clandestine running, landing, rescuing, or carrying away prohibited or uncustomed goods, upon conviction shall be adjudged guilty of felony, and be transported for seven years. (2/) discover his accomplices, so as two 40/. for every such offender, over or more be convicted, he shall and above what he may be entitled have a reward of 40/. for every of- to on account of the said run fender convicted, if the value of goods, so as the value of the said the run goods exceed iO/. and he run goods exceeds 150/. shall be acquitted. And by the (x) Ante, p. Ifi7. eighth section any other person (.y) The same section provides, discovering any one offender in that persons returning before the three months, so as he be con- expiration of the terra shall suffer victed, shall have in like manner as felons, without benefit of clergj'- for seven ■years 172 Of resisting and evading the Revenue Laws, [book ii. 9 Geo. II. c. Section 13. of the same statute, reciting that the laws had sons, to thc^"^ hitherto proved insufilcient for preventing the carrying pro- numberoftwo hibited and uncustomed goods through the country with an or more, pass- .' , .^ i, i ^ ^l i r injr with armed force, enacts, that all persons who, to the number of horses, carts ^^^.^ ^j, ,^,Q^g [„ company, shall be found passing within five &c. laden with ^ • i i • -^i tea. &c. and miles from the sea coast, or from any navigabie river, with armed or dis- ^^, ^^^^^ j^^^.^^ ^^ horses, or with any cart or carriage gmsed.orior- • . cibly hinder- whereon there shall be laden or put more than six pounds cefs^shalUe ^f tea, or brandy or other spirits exceeding the quantity of taken as run- five sallons, not havino- paid the duties, and not having a gS^^thin" permit, or any other foreign goods or commodities above sGeo.I.c. 18. the value of SO/, landed without due entry and payment of andbeingcon- ,.,,,, «• • , \ victed shall be the duties, and shall carry any offensive arms or weapons, (;:; guilty offe- ^^ ^.^.^^ ^^y disffuise when passing with such goods, or shall lony, and .' r> i o transported forcibly hinder, obstruct, assault, oppose, or resist, any officers in seizing or securing any sort of prohibited, uncus- tomed, or run goods, or other the execution of their office, shall be taken to be runners of foreign goods within the statute 8 Geo. I. c. 18. although no proof shall be given that such tea, brandy, &c. were run or had not been duly entered, and paid the duties ; the proof of such entry and payment, and of the manner in which the persons found with such goods, &c. came by them, being to lie Avholly on such per- sons. The section then enacts, that such offenders being convicted, shall be adjudged guilty of felony, and transported for seven years, (a) Section 1 1 gives a reward of 50/. so found, and all weapons and to persons maimed in apprehend- arms, and all the furniture of their ing such offenders, and .')0/. to the horses, cattle, and carriages, and exenilors of persons killed in ap- the chests and other packages, shall prehending them. Hy the Iwelilh be forfeited. The l.")th section section ollenders discovering two enacts, that if any officer .shall be or more acconiplices three months wounded by such otlen i • i mitted till the any of the said goods, after the same shall have been seized quarter ses- y^ gyj,|^ officer, or shall attempt or endeavour so to do ; or sions. . after such seizure shall cut, stave, break, or otherwise destroy or damage any casks, vessels, boxes, or package wherein the same respectively shall have been contained; the officers of the customs and excise, and all persons acting in their aid, may arrest such offender, and convey him before a justice of peace near the place ; and the justice may commit Jiim to the next county gaol until the next quarter sessions, to be tried as afterwards directed, (r) 19 Geo. MI. c. With respect to the trial of tliese offences at the quarter 69 s 12 As lothctrialand Sessions, the twelfth .section of the statute enacts, that the (c) By section II, the ollirers cute; and the commissioners of who convey the oflVnder before the customs and excise are directed to justice arc, in case he sli;tll be com- order the charges of pro.seculion to milted, to enter iiilo a recogni- be paid out of any money in the zance in the sura of 40/. to appear hands of the receiver general of al the (juarler sessions and prose- the customs and excise. CHAP. X.] Ofresisling and evading the Revenue Laws. 1 75 justices at the quarter sessions may try and determine them ; pii'ifihmciitof II • <> 1 • 1111111 • i 1 £» oUVndcrs so and that if the persons committed shall be duly convicted ot comniittcd any offence aij-ainst this act, the justices may, in lieu of any '^'" tl>L\ opposing, ^ ^ ' "=* _ , . ^ &c. officers, from on board any ship, boat, or vessel within the limits of may becom- any of the ports of this kingdom, or within four leagues ^!j()i*^.ind i, . from the coasts, shall be hindered, opposed, obstructed, or ingconvicted, assaulted in the execution of his oflSce, either in the day time tenced^tohard or night ; the offender, and all such as shall act in his aid, labour, or , 1 1 ,> . . p . ,. , coiiiiuitted to may be conveyed before a justice of peace residing near the Hu; house of place: and the justice mav commit such person to the next ^orreclion for ^ '' " . . three years, county gaol, there to remain until the next court of oyer and terminer, great session or gaol delivery, or until such person shall be delivered by due course of law. It is fur- ther enacted, that in case an indictment is found against such person, he shall plead to it without having time to tra- verse, as is usual in cases of misdemeanors ; and being duly convicted, shall be sentenced to hard labour on the river Thames, or other navigable river in England, for any term not exceeding three years, according to the statute 19 Geo. (n» may enter tales to the baihng, h\ jiisliccs ol' lands, and extinguish .signaLs by the ji'-ace, .4 pciuons a[»|nehend(d tire, tiJic. fur uti'cuces ugaitul this ucl, or CHAP, x.] Of resisting and evading the Revenue Laws. 1 8 1 upon this statute at the quarter sessions, thou!;h the 34th preferred at section mentions only a commitment " until the next court sesl;?",r-*'and " of oyer and terminer, f^reat session, or gaol delivery," and '^'^^ '^e re- does not name the quarter sessions. And it was also de- the court of cided, that if the indictment be removed into the court of ^'^- ;""' •'"' defendant he King's Bench, and the defendant be tried and convicted be- tried and con- fore a judge at Nisi Prius, the court of King's Bench is to ptfut the^"' award the sentence, (r) court of K.B. shall .iward sentence. The 48 Geo. Til. c. 84. s. 9. enacts, that all persons being 48 Geo. iii. subjects of his Majesty, who shall voluntarily and without p' ^.^' **• ^ •^ .J J 5 J Persons on an licence or other sufficient lawful authority, and without any enemy .s coast, sufficient excuse, proceed and sail in any ship, vessel, or enemy's pl-o- boat, to any road or harbour upon the coast of any of his taction, hav- Majesty's enemies, or shall be found in any ship, &c. lying or^intendin«- on the coast, or in any road or harbour of any country be- J" *^^*^ ".^. '' . .J board spirits, longing to his Majesty's enemies, without any such licence, tea, tobacco, or authority, or sufficient excuse as aforesaid, or under the of felon^" d protection of any batteries or other force on such coasts, or liable to trans- under the protection of any vessel belonging to his Majesty's enemies, having on board, or having had on board on such voyage, or being in such harbour or uj)on such coast, or under the protection of such batteries, with intent to take on board any spirits, tea, tobacco, or snuff, shall be deemed guilty of felony, and be liable to be transported for any term not exceeding seven years. And such offence may be alleged, laid, inquired of, and Trial in anv tried, in any county, shire, or stewartry, of this realm, (s) count}, &c. The powers and authorities of rev^enue officers, and per- Powers of of- sons assisting them to act against persons obstructing them f*^'^" Mhi-*^'^ in the execution of their duties, are declared and enacted by them, to use several statutes. By the 9th Geo. II. c. 35. s. 35. if any {jjrce.'and to person passing as mentioned in the act(/) with prohibited or arrest otfend- ers. (r) Rex V. Cock, 4 M. and S. 71. (t) S. 13. Sec ante, p 172. («) S, 10. 182 Of resisting and evading the Revenue Laws, [book ii. uncustomed goods, and armed, shall hinder or resist any officer who in the execution of his duty shall endeavour or offer to search for or seize any such goods from any person so passing and armed, by beating, maiming, or wounding him, or any person acting in his assistance, all officers and all persons called to their assistance, who are so resisted, may oppose force to force, and endeavour, by the same methods that are violently used against them, and by which their lives are endangered, to defend themselves, and exe- cute the duty of their office, (u) The 19th Geo. III. c. 69. s. 8. enacts, that officers, and persons acting in their assist- ance, may arrest and detain all persons who shall be found aiding or assisting in unshipping to be laid on land any tea, foreign brandy, or other foreign spirituous liquors, or any goods or merchandize whatever (the customs and other duties not being first paid or secured) which were or might be prohibited to be imported ; and shall forthwith convey such persons before a magistrate residing near the place where the offence shall be committed. And the next sec- tion of the statute empowers the officers and their assistants to proceed in the same manner where any persons to the number of two or more in company shall be found passing in any part of the kingdom with a horse, cart, or carriage, whereon there shall be laden or put more than six pounds of tea, or foreign brandy, or other foreign spirituous liquors exceeding the quantity of five gallons, not having paid the duties, nor having a permit, and shall carry any offensive arms or weapons, or wear any disguise. They may arrest and detain any person or persons so passing, and convey them before a justice of the peace, {w) Powrrsof the It should be observed, that by the 45th Geo. III. c. 121. officers of cus- (u) And Ihc scclion fiirlhcr pro- rt-cjuiri'il lo adiiiil llu'in lo liail. vidcs, that in any proceed inj^s (ii>) And in each case the justice against such officers and their as- may commit to the next county Bintunts for acts done by them in gaol until the next quarter 9C8- Buch case they may plead tlie gc- sions. S. 8, 9. neral issue-, and inagislrutes arc CHAP, x] Of resisting and evading the Revenue Laws. 183 s. 16. the powers of the officers of customs and excise under toms Andex- that act, or any act then in force, for the protection of the ^'septcnded ' •' ' * to otliCfTS 01 revenues of customs and excise or prevention of smuggling, ihc urray, were extende'l to all commissioned officers of the army, Y■^n^:^ lui'litia navy, or marines. And by the 47th Geo. II T. sess. 2. c. 66. &<■• '»"ri to ... certain war- s. 16. the powers in that act, or any other act, in relation to rant and non- the making of any seizures by any officers of the army, or to commissioned y • _ , . officeis. the arresting or detaining any man liable to be arrested or detained under any act for the prevention of smuggling, are extended to all officers of the militia while embodied, or of the volunteers or other military forces while on service, and subject to any act for the punishment of mutiny and desertion. The 30th section of the same statute empowers any warrant or other non-commissioned officer, not being below the rank of a Serjeant in the army, who shall be approved of by the commanding officer for the time being of his regi- ment, as proper and qualified for the service, to patrole with any number of soldiers under his command, for the purpose of preventing illicit practices on the revenue, and to seize, without having any deputation or commission from the commissioners of customs or excise, any vessel, or boat, cart, carriage, or cattle, or any goods, «&c. subject to for- feiture by that or any other act then in force for any offence against the revenue of customs or excise : provided that such warrant or non-commissioned officer, on the making of any such seizure, shall bring the same, or cause it to be brought, without loss of time or unnecessary delay, to the nearest custom-house ; and shall in all respects, in regard to the prosecution or delivery of any such seizure, conform to the rules and restrictions to which the officers of customs and excise were then subject in case of such seizures. And doubts being entertained whether such non-commissioned officers were empowered to arrest and detain persons liable to be arrested and detained under the laws in force for the prevention of smuggling, the 48th Geo. III. c. 84. s. 8. enacts, that all the powers, &c. contained in any act for the prevention of smuggling in relation to the stopping, arrest- ing, and detaining persons liable to be stopped under the 1 184 Of resisting and evading the Revenue Laws, [boorii. recited act, (47 Geo. 111. sess. 2. c. 66.) or any other act passed for the prevention of sraiifjgling, shall extend to the warrant and non-commissioned officers approved by the commanding officer to patrole for the purpose of prevent- ing illicit practices on the revenue, under the said recited act. Commanders of vessels. &c. may require other vessels, liable to sei- zure or exa- mination, to brill;; to; and if they do not, (a sifjnal gun being first fired,) may shoot at thera. The commanders of vessels of the navy, and vessels em- ployed for the prevention of smuggling, are also empowered to force other vessels liable to seizure or examination to bring to, when required, by the serious proceeding of firing at them. This power was formerly given by the 24th Geo. III. c. 47. s. 23. and was extended by the 47th Geo. III. sess. 2. c. 66. s. 32. to vessels seizable under that act, or any acts then in force, or any subsequent act in relation to the customs or excise, or for the prevention of smuggling ; and is again given with some little variation in the recent sta- tute, 56 Geo. III. c. J04. s. 8. By this last statute it is provided, that in case any ship or vessel, liable to seizure or examination by that or any other act of parliament in force, shall not bring to, on being required so to do, or being chased by any ship or vessel in his Majesty's navy, having the proper pendant and ensign of his Majesty's ships hoisted, or by any ship or vessel employed in the prevention of smuggling under the authority of the commissioners of the treasury, the commissioners of the admiralty, or the commissioners of the customs or excise, having a pendant and ensign hoisted of such description as his Majesty, by order in council, or by proclamation under the great seal, shall, from time to time, in that behalf order and direct, the captain, master, or other person having the charge or com- mand of such ship or vessel in the navy, or employed as aforesaid, (first causing a gun to be fired as a signal,) may shoot at, or into, such sljip or vessel so liable as aforesaid. And such captain, &c. and every person acting in his aid and assistance, is thereby indemnified and discliarged from any penalties or actions ; and if any person shall be wounded or killed by means of such firing, and the captain, &c. be CHAP, x.] Of resisting and evading the Revenue Laws. 1 85 prosecuted or brought before any justices, or persons having competent authority, such justices and persons are required to admit them to bail. In a case where the indictment stated that the prosecutors Evidence of were excise officers, and the goods seized uncustomed goods, exclseofficers', a question was made as to the necessary evidence to support ^"'^ gooCiS j.\. . T^T • , . , , being uacus- those averments. JNo evidence was given, but what was to tomed. be collected from the testimony of the prosecutors them- selves ; and it was submitted to the court, that being facts positively alleged, they ought to be directly and sub- stantially proved. In answer to the first point, the statute II Geo. I. c. 30. s. 32. was produced, by which it is en- acted, that if any question shall arise, whether any person be an officer of the excise or customs, proof that such person was reputed to be, and had acted in, and in fact exercised such office without producing the particular commission, &c. by which he was appointed, shall be good evidence, unless the contrary be made to appear. As to the second point, it was admitted that reasonable proof ought to be given of their being uncustomed goods; and that the circumstances under which they were seized were sufficient for the jury to exercise their judgments upon with respect to the fact, (j?) In another case it was said by BuUer, J. that though excise and custom-house officers fall under a different consideration from peace officers, justices of the peace, constables, &c. yet even in their cases evidence was admitted, both in cri- minal and civil suits, to shew that the party was a reputed officer, prior to the 11 Geo. I. c. 30. s. 32. (?/) With respect to the proof of duties having been paid, it is enacted by 12 Geo. I. c. 28. s. 8. that if any foreign goods shall be seized for non-payment of duties, or any other cause of forfeiture, and any dispute shall arise, whether the customs or duties have been paid, or they have been lawfully imported, or le- (x) Shelley's case, 1 Leach 340. 366. And see post. Look VII. On note (a). Evidence, i^) Berryman v. Wise, i T. R. 1S6 Of resisting and evading the Revenue Laws, [book ii. As to excise officer havin, a warraut. gallv compounded for, or condemned, or concerning the place from Avhence they were brought, the proof thereof shall lie on the owner or claimer of such goods, and not on the officer by whom they were seized. In a case upon the 24 Geo. III. c. 47. s. 15. one of the objections taken was, that as by the statutes 23 Geo. II. c. 21. s. 34. and 5 Geo. III. c. 43. s. 20. excise of- ficers are directed to procure a warrant previous to their entering any place whatsoever, for the purpose of seizing soap hid or concealed, the prosecutor should have had a warrant in this case: and that not having been cloathed with the authority required, he was not obstructed " in the due execution" of his duty. But three of the judges {z) are reported to have expressed themselves very clearly of opi- nion that this point could not be supported, {a) Place of trial for offences against the re- venue laws. For the better and more impartial trial of any indictment or information tor any assault committed upon any of the officers of the customs and excise, the 9 Geo. II. c. 35. s. 26. enacts, that such offence shall be tried in any county in Eng- land, in such manner and form as if the offence had been therein committed. But upon this clause it has been de- cided, that it extends only to revenue officers qitd officers : and a defendant having been found guilty, on an indictment, of a. common assault on the prosecutor, who was an excise officer, the court of King's Bench arrested the judgment, though the prosecutor was described to be an excise officer, the offence being laid in Surrey, and the venire in Middle- sex. (6) The 19 Geo. 11. c. 34. s. 5. contains a similar enactment as to any ottence made felony by that act, or any other act relating to the revenues of customs or excise. By the 24 Geo. III. c. 47. s. 15. offences against that act com- mitted in England or Wales, or Berwick upon Tweed, or (») Lord Konyon, Ch J. Eyre, 189. 2 Leach 805. ante, p. 177. C. J. and Macdoaald, Ch. U. note (/) and {it). (a) Brady's case, 1 lios. and Pui. {o) ttcxi'.Cart>n-ight,4T.R,490. CHAP. X,] Ofi-eslsting and evading the Revenue Laws. ^^7 within the limits of any of the ports thereof, may be tried in any county of England or Wales, as if the fact had been committed within such county. And by the 43 Geo. III. c. 159. for the better and more impartial trial of any indict- ment or information for any of the ofteiices made felony by the acts recited in that statute, (c) it is enacted, that every such offence shall be tried in any county in England, in such manner and form as if the fact had been therein com- mitted, (d) By the 45 Geo. III. c. 121. s. 12. every offence made felony by that act committed within any port, har- bour, creek, haven, or roadstead, of the islands of Guernsey, Jersey, Alderney, or Sark, shall be tried in the said islands; and every offence committed elsewhere out of the united kingdom may be tried in any county of the united king- dom ; and every offence committed within England, Scot' land, or Ireland, respectively, may be tried within any county of that part of the kingdom in which such offence shall have been committed, in such manner and form as if the offence had been committed in the county in which the same shall be tried. And offences against the 48 Geo. III. c. 84. s. 9. may be tried in any county of this realm, (e) By the 48 Geo. III. c. 84. s. 8. reciting that by the 47 Geo. III. sess. 2. c. 66. s. 44. justices of the peace are em- powered to take cognizance of offences and forfeitures com- mitted or arising on the high seas, and without the limits of any county, city, &c. and that it was expedient that like power should be given to the court of King's Bench, and to justices of oyer and terminer and gaol delivery respectively, it is enacted, that in all cases in which the court of King's Bench, or any justice of oyer and terminer or gaol delivery, are empowered to take cognizance of any assault, or ob- (c) 19 Geo. II. c. 34. 26 Geo. II. to provide, that no attainder for c. 32. 32 Geo. II. c. 10. 4 Geo. III. any of the oflFences made felony by c. 12. 11 Geo. III. c. 51. 19 Geo, the said recited ads shall make III. c. 69. 28 Geo. III. c. 23. 36 corruption of blood, loss of dower, Geo. III. c. 40. or forfeiture of lands, &c. (d) S. 2. The section proceeds (e) By section 10. of the statute 1 8S Ofresistiyig and evading the Revenue Laws, [book ii. struction of any ofiicer of the customs or excise, army, navy, or marines, or of any felony, or other offence against, or of any forfeiture incurred under, any acts then in force, or thereafter to be made relating to the revenue of customs or excise, it shall be lawful for the said court of King's Bench, or justice of oyer and terminer or gaol delivery respec- tively, to take cognizance of such assault or obstructions, felonies, olVences, or forleitures, as if the same had been committed or incurred on land within the respective juris- dictions of the said court or justices. The 52 Geo. 111. c. 143. section 1 1. enacts, that every offence against that section, which shall be committed within any port, harbour, creek, haven, or roadstead, of Guertisey, Jersey^Aldernet/^ SarJc, or 3Ian, respectively, shall be tried in the said islands ; and every such offence committed elsewhere out of the united king- dom shall be tried in any county of the united kingdom ; and every such offence committed within England, Scotland, or Ireland, respectively, shall be tried within such part of the said united kingdom in which such offence shall have been respectively committed ; but in any county or shire of such part of the said united kingdom, in such manner and form as if the offence had been committed in the county ov ghire in which the same shall be tried. 189 CHAPTER THE ELEVENTH. Of Hindering the Exportation of Corn, or Preventing its Circulation within the Kingdom. X HE 11 Geo. II. c. 22. s. 1. recites that persons had as- of hindering sembled in ffreat numbers, committed sreat violences, and theexporta- * ' ° ; tion oi corn done many injuries, with intent to hinder the exportation of by violence. corn, whereby many of his Majesty's subjects had been de- terred from buying corn and grain, and following their lawful business therein, to their great loss and damage, as well as to the great damage and prejudice of the farmers and landholders of this kingdom, and of the nation in general. It then enacts, " that if any person or persons " shall wilfully and maliciously beat, wound, or use any " other violence to or upon any person or persons, with " intent to deter or hinder him or them from buying of corn " or grain in any market, or other place within this king- " dom ; or shall unlawfully stop or seize upon any waggon, " cart, or other carriage, or horse loaded with wheat, flour, " meal, malt, or other grain, in or on the way to or from " any city, market-town, or sea-port, of this kingdom ; and " wilfully and maliciously break, cut, separate, or destroy, " the same or any part thereof, or the harness of the horses " drawing the same ; or shall unlawfully take off, drive " away, kill, or wound, any of such horses ; or unlawfully " beat or wound the driver or drivers of such waggon, cart, " or other carriage, or horse, so loaded in order to stop the " same ; or shall by cutting of the sacks, or otherwise, " scatter or throw abroad such wheat, flour, meal, malt, or " other grain ; or shall take or carry away, spoil or dauiage, " the same, or any part thereof;" such offenders being i-n- victed before two justices of the peace of the county, &c. 190 Of Hindering the Exportation of Corn, [boor ii. in which the offence is committed, or before the justices of the peace in open sessions, (who are thereby authorized and empowered summarily and finally to hear and determine the same.) shall be sent to the common gaol, or to the house of correction, there to be kept to hard labour for any time not exceeding three months, nor less than one month ; and shall by the same justices be also ordered to be once pub- licly whipped by the master or keeper of the gaol or house of correction in such city, market-town, or sea-port, in or near to which such offence shall be committed, at the mar- ket-cross or market-place there, between the hours of eleven and two o'clock. Persons com- mitting these offences a se- cond time, or destroying granaries or the corn therein, or entering any vessel, &c. and spoiling grain intend- ed for expor- tation, guilty of felony. By the second section of this statute, " if any person oi " persons so convicted, shall commit any of the offences " aforesaid a second time ; or if any person or persons shall " wilfully and maliciously pull, throw down, or otherwise '' destroy, any storehouse or granary, or other place where *^ corn shall be then kept in order to be exported ; or shall " unlawfully enter any such storehouse, granary, or other " place, and take and carry away any corn, flour, meal, or ** grain therefrom ; or shall throw abroad, or spoil the same, " or any part thereof; or shall unlawfully enter on board " any ship, barge, bout, or vessel, and shall wilfully and " maliciously take and carry away, cast or throw out there- " from, or otherwise spoil or damage, any meal, flour, wheat, " or grain, therein intended for exportation ;" every such offender being convicted, shall be adjudged guilty of felony, and transported for seven years ; and if such oflTender shall return before the expiration of the seven years, he or she shall suffer death as a felon without benefit of clergy, (a) (a) Section 3, provides thai at- fence hy any other law or stiitute. iainder hIkiU not work corruption Sections 5, 0,7, and H. relate to of hluod, loss of dower, or disin- actions l>y persons against the hun- heriLance "■ and hy s(;ctiuii 4 no drcd f«>r clamages done to their person, who shall he punished for properties by ollVailcrs against the any offence by virtue of this act, act. shall be punished for the luiue of- CHAP. XI.] Of Preventing the circulation of Corn, S^c. 191 The statute 36 Geo. III. c. 9. s. 1. recites that persons Persons using had assembled themselves in great numbers, and committed jg^j.^ oihers great violences, with intent to hinder the passage of corn f'"""' ''"jing , . „ 1^1 1 I xi • *^^''" within and grain trom place to place, whereby the necessary cir- the kin"-dora. culation of corn and grain within the kingrdom mijsht be ""^ stopping ^ . ^"y corn* prevented : and then enacts " that if any person or persons breaking " shall wilfully and maliciously beat, wound, or use any ^i^rfyhlgconi " other violence to or upon any person or persons with or taking off " intent to deter or hinder him or them from buying of corn beatin"- the " or grain in any market, or other place within this king- 'ain, shall be then kept ; or shall unlawfully enter same, or en- « any such storehouse, granary, or other place, and take tering any u j a i ix • shin, bart'e, ^"" carry away any corn. Hour, meal, malt, or gram, 6:c. and tak- « therefrom ; or shall throw abroad or spoil the same or mg therefrom or spoilino- " any part thereof; or shall unlawfully enter on board any ^''Tt'^^ff " ship, barge, boat, or vessel, and wilfully and maliciously lony," and to " take and carry away, cast, or throw out therefrom, or ^e rausport- « otherwise spoil or damage, any corn, flour, meal, malt, or " grain therein ;" every person so offending, and being con- victed, shall be adjudged guilty of felony, and be trans- ported for seven years; and if such offender shall return into this kingdom before the expiration of the seven years, he or she shall suffer death as a felon without benefit of clergy. The section further provides that attainder shall not work corruption of blood, loss of dower, or disin- heritance of heirs. And by the sixth section it is provided that nothinjj contained in the act shall abridffe or take away any provision already made by the law of the realm, for the suppression or punishment of any offence whatso- ever, mentioned or described in this act; and it is provided also, that no person who shall be punished by virtue of this act, shall be punished for the same offence by virtue of any other Jaw or statute whatsoever, (h) (b) Sections 3, 4, and 5. relate of persons, by ufTcndcrs agaius* to proceedings against tlie hundred this act. for damages done to the properties 193 CHAPTER THE TWELFTH. Of Seducing Artificers. xN the early part of the last century, it was found that foreigners, and subjects confederating with foreigners, had enticed artificers and manufacturers to leave the kingdom, by contracting to give them greater wages and advantages than they could reasonably expect to gain here ; and by making them large promises, and using other arts to in- veigle and draw them away : and it was apprehended that by such practices many great and profitable branches of the trades and manufactures of the kingdom might be trans- planted into foreign countries. An act of parliament was therefore passed to prevent this evil. The 5 Geo. I. c. 27. s. 1. enacts that " if any person 5 Geo. I.e. 27. ^' shall contract w ith, entice, endeavour to persuade, or so- sediicinff arii- " licit, any manufacturer or artificer of or in wool, iron, ficers lo go to "steel, brass, or any other metal, clock-maker, watch- tries," shall be " maker, or any other artificer or manufacturer of Great *J"'-d and im- . . prisoned ; and " Britain, to go out of this kingdom into any foreign coun- for a second " try out of bis Majesty's dominions," such offender being |,'J?7Jj^^y'^^'^ convicted upon indictment or information in any of tlie fined and im- courts at Westminster, or at the Assizes, or general gaol {"^.p^^."'^'^ ^^ delivery or Quarter Sessions for the county, &c. where months. such offence shall be committed, shall be fined i?lOO for the first offence, according to tlie discretion of the court, and shall be imprisoned for three months, and until sucli fine Ghall bo paid : and if any person having been once con- victed, shall ofl^end again, and be convicted a second time of the like offence, he shall be fined at the discretion of the VOL. I. o 194 Of Seducing Artijicers. [book ii. Artificers not returning when warned by the am- bassador, &c. jncap;'.ble of taking l<'ga- cies or lands, &c. and to be deemed aliens. court, and be imprisoned for twelve months, and until such fine shall be paid. («) The third section of this statute makes any artificer who shall go into a foreign country, there to exercise his trade, or shall be there exercising his trade, and shall not return within six months after warning given him by the ambas- sador, &c. and from thenceforth continually inhabit within the realm, incapable of taking any legacy, or being an exe- cutor or administrator, and incapable of taking any lands. It also imposes forfeiture of all lands, goods, and chattels ; and enacts that the offender shall be deemed an alien out of his Majesty's protection. It is said to have been decided upon this statute, that if a defendant be convicted on one information for having se- duced four different artificers, yet the court can only inflict one penalty, (b) 23 Geo. II. c. Notwithstanding the penalties of this act, artificers in 13. s. 1. Any the woollen and other manufactures were seduced into fo- (a) By section 2, prosecutions must be begun within 12 mouths after the oflfepce committed. The 4th section enacts that upon com- plaint on oath, that any person is endeavouring to seduce any such artificer out of the dominions, or that any such artificer has con- tracted, or is prcpiiring to go, a justice of peace; may issur his war- rant to apprehend the person com- plained of; and the justice may bind the person chargi-d to appear at the next assizes, &c. with rea- sonable sureties ; and in case the person shall refuse or neglect to give such security, the justice may commit for the assizes or quarter sessions at his election. This sec- tion further provides that in case any artificer be convicted upon any indictment, of any promise or con- tract, or preparation, to go be- yond the seas, such person shall give such security not to depart as the court shall think reasonable, and be imprisoned till such secu- rity be given. Offenders in Scot- land are to be prosecuted in the court of justiciary or circuits there. (A) I Hawk. P. C. c. 87. s. 6. Rex V. Metcalfe, 4 Burr. 2026. r HAP. XII.] Of Seducing Artijicers. J95 reign parts; and it was found necessary to make some fur- person cntic- thcr provision on the subject. The 23 Geo. li. c. 13. was '"ff''^*^- '"»- XI r 1 .1 /. . « . nutacturersto theretore passed, the first section of which enacts, that « if s» lo foreign " any person shall contract with, entice, persuade, or en- Sl'V/t^^fined " deavour to persuade, solicit, or seduce, any nianuiacturer, f^^oo, and be " workman, or (c) artificer, of or in wool, mohair, cotton or SSrand " silk ; or of or in any manufactures made up of wool, mo- "P°" ^"^ ^^' u^ • II. -11 n .1 .. . , condorsubse- hair, cotton or silk ; or any of the said materials mixed quent convic- " one with another ', or of or in iron, steel, brass, or anv r ^." *^^" ^"^' ,, ^. ^ . , , , ^ feit;€1000, other metal ; or any clock-maker, watch-maker ; or any and be impri- " other manufacturer, (c?) workman, or artificer, of or in any years'* *^* " other of the manufactures of Great Britain or Ireland, " of what nature or kind soever, to go out of this kingdom, " or out of the kingdom of Ireland, into any foreign coun- " try not within the dominions of, or belonging to, the " crown of Great Britain,'' (e) such offender being con- victed upon any indictment or information in the court of King's Bench, or by indictment at the Assizes, or gaol de- livery for the county, &c. wherein the offence shall be com- (c) In a case upon this statute it rally to be out of the kino-'s was moved in arrest of judnjraent, dominions, which is notoriously that the words in the indictment otherwise ; that the court will take were in the copulative " workman notice that some parts of America " and artificer;" whereas in the are within the dominions of the statute they are in the disjunctive crown ; and that it ought to have " or ;" but this point was aban- stated to what country in America doned on shewing cause. Rex v. the manufacturer was enticed. But Myddleton, 6 T. R. 740. the court held that there was no {d) It was also objected in the ground for the objection, and said, same case of Rex v. Myddleton, " It is alleged in the indictment, that the manufacture mentioned " and found by the jury, that the in the indictment, was not one of " defendant contracted with the those enumerated in the statute; " manufacturer to go to a foreign but this was also abandoned, the " country called America, not statute saying " or any other ma- " being within the dominions of ** nufacturer, &c.^' " the crown. Non constat but {e) In Rex v. Myddleton, ano- " that there may be some place ther objection on the motion in " called America besides the con- arrest of judgment was, that the " tinent of America." 6 T. R. indictment charged America gene- 740. o2 196 Of Seducins^ Ariifcei's. [book. ii. niittcd \n England, or by indictment in the court of justi- ciary, or any of the circuit courts in Scotland, or by indict- ment or information in the court of King's Bench at Dublin^ shall for every artificer, workman, or manufacturer, con- tracted with, enticed, &c. forfeit the sum of five hundred pounds, and shall also suffer imprisonment for twelve calen- dar montlis, and until such forfeiture be paid. And any person so again offending shall, upon every second or other subsequent conviction, forfeit for every person so contracted with, enticed, &c. the sum of one thousand pounds, and shall also suffer imprisonment for two years, and until such forfeiture be paid. The second section of the statute pro- vides, that prosecutions shall be commenced within twelve calendar months next after the offence committed, (f) Where a defendant had been convicted upon the 5 Geo. I. c. 27. and the 23 Geo. II. c. 13. the sentence of the court Avas that he should be fined £500, and be imprisoned twelve niontlis ; and Lord Mansfield said that the latter act seemed to be a repeal of the former, and that it was made to supply the deficiencies of the former. And Mr. J. Aston observed, that by the latter act there is no discretion left in the court ; the punishment directed iit it being- peremptory, (g) 22 060.111. It was afterwards thought necessary to make further n '^' *■ ,■- enactments, in order to prevent artificers and others em- Pcrsons entic- ' ' ing or cndca- ployed in the business of printing calicoes, cottons, mus- voiiriiijj to s<'- ,. , ,. . . , 111 1 ill, 1- ciurt any iirii- ^"^^) •'"" linens, With woooon blocks and metal plates, from ficer or work- departing or being seduced to depart out of the kingdom, rd in printing The statute 22 Geo. III. c. 00. s. I. enacts that " it any «aliio(s, A;c. a pp^son shall contract with, entice, persuade, or endeavour or m making ' . J)locks, &c. " to scdure or encourage, any artificer or workman con- lorsurli ina- « cgnjcd or employed, or who shall have worked at or been inMactory, to i .' j go beyond thr " employed in printing calicoes, cottons, muslins, or linens (/) This statute s. 3. ct srqti. and iilcnitils used in tlie woollen rontain- or preparini^ any blocks, plates, Rcas,sh;ill for- " engines, tools, or utensils, for such nianutactory to go out ],(. imprisonptl " of Great Britain to any part beyond the seas;" and shall ior 12 month*: be convicted upon indictment or information in the court of King's Bench, or by indictment at the assizes or general gaol delivery for the county or place wherein the offence shall be committed, or the offender reside, or by indictment in the court of justiciary, or any of the circuit courts in Scotland ,- such person shall, for every artificer so contracted with, enticed, persuaded, encouraged, or seduced, or at- tempted so to be, forfeit ^^'.^OO, and be committed to the common gaol for twelve calendar months, and until such forfeiture shall be paid. And incase of a subsequent of- And for a sub- fence of the same kind, tlie person so again offending shall, fe[}"^"si,"|i upon the like conviction, forfeit for every person so con- forfeit .-ciono , . , . , 1 , 1 11 and be iii!:;ri- tracted with, enticed, persuaded, encouraged, or seduced, ^^^^^,,^^ ^„.J or attempted so to be, £10G0; and shall be committed for ye^'s- two years, and until such forfeiture be paid. (Ii) The second section provides that prosecutions shall be com- menced within twelve months next after the offence shall be com.mitted. The statute also imposes penalties upon the exportation of the blocks, plates, engines, tools, or utensils, used in these manufactories ; and contains regulations for preventing such practices. The 25 Geo. III. c. G7. which contains many enactments es Geo. Ili.c- infiictins: penalties, and in some cases imprisonment, upon ''^' \ .' or? I ' r sons seducing persons engaged in the exportation of tools and utensils workmen iu made use of in the iron and steel manufactures, also makes st^^j^i u,a„u. provision for preventihg artificers and others enoajed in factories to go n , • 1 , T beyond tlie those manufactures from being seduced to depart out of seas, shall for- the kingdom. The sixth section enacts " that if any per- |*-'l ^^'?'' =""! 's * * be imprisoned for 1 "J mouths. (h) One moiety of the forfeitures person Tilio shall sue and prosecute inflicted by this act is to go to the for the same, kinj, and the cUicr laoicty to the 19S Of Seducing Artificers. [boor II " son shall contract with, entice, persuade, or endeavour to " seduce or encourage, any artificer or workman concerned " or employed, or who shall have worked at or been em- " ployed in the iron or steel manufactures in this kingdom, " or in making or preparing any tools or utensils for such " manufactory, to go out of Great Britain to any parts be- " yond the seas (except to Ireland) ;" and shall be con- victed upon indictment or information in the court of King's Bench, or by indictment at the assizes, or general gaol de- livery, or quarter sessions for the county or place wherein the offence shall be committed, or the offender reside ; or by indictment in the court of justiciary, or any of the circuit courts in Scotland, as the case may be ; such person shall for every artificer so contracted with, enticed, persuaded, encouraged, or seduced, or attempted so to be, forfeit the sum of i?500, and be committed to gaol for twelve calendar And for a sub- months, and until such forfeiture shall be paid. And in sequent of- ^^^g^ ^j.- ^ subsequent offence of the same kind, the person fence shall ^ , ... forfeit £1000, SO again offending shall, upon the like conviction, forfeit for and ^ "^^^ every person so contracted with, enticed, persuaded, en- couraged, or seduced, or attempted so to be, the sum of j[,MOOO, and be committed to gaol for two years, and until such forfeiture shall be paid. (/) The seventh section pro- vides, that prosecutions shall be commenced within twelve calendar months next after the offence committed. prisonc two years. Persons se- ducing col- liers to be punished as persons seduc- in^ manufac- turers. By the 39 Geo. III. c. 56. s. 8. " all persons seducing " or attempting to seduce colliers, or others aforesaid, (/r) " from the kingdom of Great Britain, shall be punished in " the same marmer as persons seducing, or attempting to " seduce, manufacturers or other artisans are punishable " by law." (t) One moiety of the penalties spectivcly, after deducting the and forfeitures mentioned in this charges of prosecution from the act is to go to the king, and the whole. other moiety to such oflicer or of- (Ic) Other persons mentioned in ficers of the customs as shall sue the act, employed in the collieries, and prosecute for the same re- CHAP. XII.] Of Seducing Artificers. 199 It may be here observed, though it does not immediately Seducinj? a /. 1 • I 1 i xi x- i_ servant or ap- relate to the subject of this chapter, that the question has preutice. been raised, whether to seduce an apprentice or servant away from his master is an indictable oflence : and it ap- pears to have been decided that it is not ; on the ground that it is not an act of a public nature, but a mere private injury, the proper subject for an action. (/) (/) Regin. v. Daniel, 6 Mod. 182. S. C. 2 Lord Raym. 1116. Rex Vo R«ffin. V. CoUingwood 6 Mod. 289. Higgins, 2 East. R. 7, 8, 13, too CHAPTER THE THIRTEENTH. 0/ administering or taking unhiafid oaths. The S7 Geo. III. c. 123. s. J. recites, that wicked and evil disposed persons had attempted to seduce his Majesty's forces and subjects from their duty and allegiance, and to incite them to acts of mutiny and sedition ; and had endea- voured to give effect to their wicked and traitorous proceed- ings, by imposing upon the persons whonj they had attempted to seduce the pretended obligation of oaths unlawfully ad- ministered. From this preamble it appears as if the statute were mainly directed against combinations for purposes of meeting and sedition ; but in the enacting part, after deal- ing with olVences of that description, it goes on in much more extensive terms, and embraces other more gene- ral objects. It enacts, '• that any person or persons who »•. Vi'3. s. 1. " shall in any manner or form whatsoever administer, or unhwinr""" " <^'^"^*^ *^ ^^ administered, or be aiding or assisting at, or oaUi«i felony, a present at, and consenting to, the adnnnistering or taking tnnsporta- ^ " of any oath or engagement, purporting or intended to bind t'o»- " the person taking the same, to engage in any mutinous or " seditious purpose; or to disturb the public peace; or to " be of any association, society, or confederacy, formed for " any such purpose ; or to obey the orders or commands of *• any committee or body of men not lawfully constituted, *' or of any leader or commander, or other person not having " aulhorily by law for that purpose ; or not to inform or " vive evidence against any associate, confederate, or other " person ; or not to reveal or discover any unlawful combi- " nation or confederacy ; or not to reveal or discover any .n Cico. 111. 3 CHAP. XIII.] Of administering or iakhiginilawfulOaths. 201 t '• illegal act done or to be done ; or not to reveal or discover '• any illegal oath or engagement which may have been ad- " ministered or tendered to, or taken by such person or " persons, or to or by any other person or persons, or the " import of any such oath or engagement;" shall on con- viction be adjudged guilty of felony, and be transported for any term not exceeding seven years; "and every person Taking such " who shall take any such oath or engagement, not being pu„ish^i)*lc^by " compelled thereto, shall, on conviction, be adjudged guilty trausporta- " of felony, and may be transported lor any term not ex- *' ceeding seven years." In a case in the court of King's Bench upon this statute, This statute is , , , , 1 ,• 1 1 • • . • iiot confined a question was made, v,'hetner the unlawtul administering to oaths admi- of an oath by an associated body of men to a person, pur- nistered tor seditious or porting to bind him not to reveal or discover an unlawful mutinouspur- combinatioa or conspiracy of persons, nor any illegal act P"**^'- done by them, (a) was within this statute; the object of the association being a conspiracy to raise wages and make re- gulations in a certain trade, and not to stir up mutiny or sedition. It was contended, that the words of the statute, however large in themselves, must be confined to the objects stated in the preamble, and could not have been intended to reach a case where it was plain that the fact arose entirely « out of a private dispute between persons engaged in the same trade: and was confined in its object to that alone: and that the general words therefore must be construed with relation to the antecedent offences, which are confined in their objects to mutiny and sedition. But the court, though they did not upon the particular circumstances feel them- selves called upon to give an express decision, appear to have entertained no doubt but that the case was v.ithin the statute, (b) {a) The oath M'as, " You shall " vulgc any of tlieir secrets ; so " be true to every journeyman " help vou God.'' '■ shearman, and uot to hurt any (b) Rex v. Marks, 3 East. 157. " of them, aud you shall uot di- Lawrence, J. said, " It is true, that 202 Of administenng or [book ii. 52 Geo. III. A recent statute has been passed, to render the foregoing \dmfuistel-- ^ct more effectual in respect to oaths of a particular nature. in^ unlawful The 52 Geo. III. c. 104. s. 1. enacts, " that every person Su^cases*^fe- " who shall in any manner or form whatsoever administer, lony without « ^^ c^nse to be administered, or be aiding or assisting at clefv. '' " the administering of any oath or engagement, purporting " or intending to bind the person taking the same to commit " any treason or murder, or any felony punishable by law " with death," shall, on conviction, be adjudged guilty of felony, and sufter death as a felon without benefit of clergy : Taking such « and every person who shall take any such oath or en- ^Jj^iVj;|°"ir- "gagement, not being compelled thereto," shall, on tatiou for life, conviction, be adjudged guilty of felony, and be trans- ported for life, or for such term of years as the court shall adjudge. Persons tak- But persons taking the oaths mentioned in either of these ing oaths by , compulsion, must make a full disclosure of the fact, coriipulsion "'"■ j i ^ .... must disclose ^^d the circumstances attending it, within a limited time, inl^Et'^d in order to be justified or excused. The second section of time. ti^e 37 Qeo. III. c. 123. enacts, " that compulsion shall not "justify or excuse any person taking such oath or engage- " ment, unless he or she shall, within four daj/s after the " takino- thereof, if not prevented by actual force or sick- " ness, and then within four days after the hindrance pro- " duced by such force or sickness shall cease, declare the " same too-ether with the whole of what he or slie sliall " know touching the same, and the person or persons by " whom and in whose presence, and when and where, such " oath or engagement was administered or taken, by inform- " ation on oath before one of his Majesty's justices of the " the preamble and the first part " to go beyond 1 he preamble; the " of the cnactiiifi clause, are con- " remedy often exti-nds beyond " fined in their objects to cases of " the particular act or mischief " mutiny and sedition: but it is " which first suggested the ncces- " nothing unusual in acts of Par- " sily of the law." " liamcDl, for the enacting part CHAP. XIII. ] Taking unlaicif id Oaths. ^03 " peace, or one of his Majesty's principal secretaries of " state, or his Majest'ys privy council; or in case the " person taking- such oath or engagement shall be in actual " service in his Majesty's forces by sea or land, then by " such information on oath as aforesaid, or by information " to his commanding officer." The statute 52 Geo. III. c. 104. s. 2. contains a similar enactment as to the oaths or engagements within that act, except that the words ^^ fourteen days''' are substituted for " four days." By the fifth section of the 37 Geo. III. any engagement What shall be or obligation whatsoever in the nature of an oath, and by ^^^^;^ the sixth section of the 52 Geo. III. any engagement or obligation whatsoever in the nature of an oath purporting or intending to bind the person taking the same to commit any treason or murder or any felony punishable by law with death, shall be deemed an oath within the intent and mean- ing of those acts, in whatever form or manner the same shall be administered or taken ; and whether the same shall be ac- tually administered by any person or persons to any other person or persons, or taken by any person or persons without any administration thereof by any other person or persons. With respect to persons aiding and assisting at the ad- Persons aid- ministerinff or taking these unlawful oaths, the third section »ng and assist- o o ' ^ ^ ^ ing are to be of the 37 Geo. III. enacts, that persons aiding and assisting deemed prin- at, or present and consenting to, the administering or taking 'P* "' of any oath or engagement before-mentioned in that act; and persons causing any such oath or engagement to be administered or taken, though not present at the administer- ing or taking thereof, shall be deemed principal offenders, and tried as such ; although the person or persons who ac- tually administered such oath or engagement, if any such there shall be, shall not have been tried or convicted. A similar enactment is contained in the fourth section of the 52 Geo. III. with respect to persons aiding and assisting at the administering of any oath or engagement mentioned in 204: • Of admuiistcrinu; or [book ii. that act ; and persons cansing any such oatli or engagement to be administered, though not present at the administering thereof: sucIj persons are to be deemed principal offenders, and, on conviction, to be adjudged guilty of felony, and to suffer death without benefit of clergy, although the person or persons who actually administered the oath or engage- ment, if any such there shall be, shnll not have been tried or convicted. In the indict- Botli tlie statutes provide that it shall not be necessary to ficTcnt\o set ^^^ ^°^"^'* '" ^^'^ indictment the words of the oath or engage- ibrih the pur- ment; and that it shall be sufficient to set forth the purport u"'thorcn- "^ ^uch oath or engagement, or some material part there- fjgcmcni. of.(c) Upon an indictment on the S7th Ceo. III. the fourth count charged, tliat the defendants administered to J.il. an oath " intended to bind him not to inform or give " evidence against any member of a certain society formed '• to disturb the public peace for any act or expression of " his or their's, done or made collectively or individually in " or out of that or other similar societies, in pursuance of " the spirit of that obligation ;" and the eighth count stated the oath to be " intended to bind the said J. H. not to give " evidence against any associate in certain associations and '■ societies of persons formed for seditious purposes :" and the other counts stated the objects of the oath administered, and the objects of the society, differently and more generally, ndaptcd to several prohibitory parts of the statute. Uj)on objection taken at tlie trial to the generality of the state- ments in the indictment. Lord Alvanley was of opinion, tiiat tlie act intended that it should be sufficient to allege and prove what the object of the oath and engagement was, with- out stating any words at all ; and that the offence being described in the words of the act, was well described : but that supposing the objection made to the generality of the counts was good, which he did not admit, yet that in the u) :;- Ci-o. 111. c. 12??. s. 4. 52 Geo. III. c. 101. s. 5. CHAP. XIII.] Taking unl(ro:fid Oaths. 207) fourth and eighth a material part of the oath or en2;ageinent was set forth according to the clause of the act. The point was submitted to the judges, who, without giving any opi- nion against the otlicr counts, all agreed that at any rate the fourth and eighth counts were good, (d) Where tlie witness, swearing to the words spoken by way Evidence.-, of oath by the prisoner when he administered it, said that he ^.J^^Vry I o mo- held a paper in his hand at the time when he administered duce a pupcr the oath, from which paper it was supposed that he read the iJ^"*^^^^.).^^ words ; it was held, that parole evidence of what he in fact that the oath ^. . . , . • 1 • X- i J was read, said was sufiicient, without giving him notice to produce such paper, (e) And where the oath on the face of it did And parole not purport to be for a seditious purpose, though it was tr^veif to^^ objected that no parole evidence could be given to shew explain the , ,, ..... -, ,.^. nature of the that the '- brotherhood' mentioned in it was of a seditious ^ath. nature, it was held that declarations made at the time by the party administering such an oath were admissible to prove the real object of it. (/) Both the statutes, 37 Geo. III. and 62 Geo. III. provide, place of trial, that offences committed on the high seas, or out of the realm, or in England, shall be tried before any court of oyer and terminer or gaol delivery for any county in England in such manner and form as if such offence had been therein com- mitted; and that offences committed in Seotland shall be tried either before the justiciary court at Edinburgh, or in any of the circuit courts in that part of the united king- dom, ig) It is also provided by both tliese statutes that any person Persons tried who shall be tried and acquitted or convicted of any offence JJ^^j.-'^^ jj^" (rf) Rex V. Moors and others, 6 (e) Rex v. Moors and others, 6 E^st. 419. note (b). The defend- East. 421. ants were tried at Lancaster sum- (/) Id. Ibid. mer assizes, 1801, and the opinion (^) 37 Geo. III. c 123. s. 6. &2 of the judges was given in Michael- Goo. III. c. 104. s. 7. mas term, 1801. 20fi Of adminisiering or [book ii. the same fact against the acts, shall not be liable to be prosecuted again son *^ ^*^^' ^"^^' *^^ same offence or fact as high treason, or misprision of But persons higji treason. And further, that nothing in the acts con- offending tained shall be construed to extend to prevent any person afjainst these . acts may be guilty of any onence against the acts, and who shall not be tried for high ^^.j^j j-^j. ^j^g g^nie as an offence against the acts, from being treason, it not " ... . tried under tried for the same as high treason, or misprision of high treason, in such manner as if those acts had not been made. (/«) the acts. 57 Geo III ^y ^ statute, very recently passed, the 57th Geo. III. c. 19. s. 25. c. 19. s. 25, it is enacted, that all societies or clubs, the ing unlawful members whereof shall be required or admitted to take any oaths, &c. to Qath or enffaeement, which shall be an unlawful engagement lawfiU combi- within the S7th Geo. III. c. 123. or the 52d Geo. III. nations and c. 104. or to take any oath not required or authorized by confederacies. j \ law ; and every society or club, the members whereof, or any of them, shall take, or in any manner bind themselves by any such oath or engagement on becoming, or in order to become, or in consequence of being a member or mem- bers of such society or club ; and every society or club, the members or any member whereof shall be required or admitted to take, subscribe, or assent to any test or declara- tion not required or authorized by law, in whatever manner or form such taking or assenting shall be performed, whe- ther bywords, signs, or otherwise, either on becoming, or in order to become, or in consequence of being a member or members of any such society or club; shall be deemed and taken to be unlawful combinations and confrdcracies within the meaning of the 39th Geo. III. c. 79. and may be prose- cuted, proceeded against, and punished, according to the provisions of the said act. (i) (h) .37 Geo. III. c. 123. 8. 7. 52 meetings or societies for charitable Geo. ill. c. 104. 8. H. jmrposes. S. 26. By ». 39. the act (i) This statute is not to extend to is not to extend to Ireland: and freemasons' lodges, nor to any de- s. 10. provides for its being repealed claralion ap|)ro\ed by two justices, or altered during the present scs- nor to Quakers' meetings, uor to sion. CHAP. XIII.] Taking unlawful Oaths, 20? 'V^'^ith respect to the administering or taking unlawful Admini»ter- oaths in Ireland, a late statute, 50 Geo. III. c. 102. has ^ng "n>''i7'"» ' ' oaths 111 /re- enacted, " that any person or persons who shall administer, /««//rtloiiy " or cause to be administered, tender, or cause to be ten- at,on' for \'iTe " dered, or be present aiding and assisting at the adminis- " tering or tenuering, or who shall by threats, promises, '' persuasions, or other undue means, cause, procure, or " induce, to be taken by any person or persons in Ireland, *' upon a book or otherwise, any oath or engage ment im- " porting :o bind the person or persons taking the same to " be of any association, brotherhood, committee, society, " or confederacy whatsoever, in reality formed, or to be *' formed, for seditious purposes, or to disturb the public *' peace, or to injure the persons or property of any person *' or persons whatsoever, or to compel any person or per- *' sons whatsoever, to do, or omit, or refuse to do, any act " or acts whatsoever, under whatever name, description, " or pretence, such association, brotherhood, committee, " society, or confederacy, shall assume, or pretend to be " formed or constituted, or any oath or engagement im- " porting to bind the person taking the same to oDey the " orders, or rules, or commands, of any committee or other " body of men not lawfully constituted, or of any captain, *' leader or commander, (not appointed by or under the " authority of his Majesty, his heirs and successors,) or to " assemble at the desire and command of any such captain, " leader, commander, or committee, or of any person or per- " sons not having lawful authority, or not to inform or give " evidence against any brother, associate, confederate, or " other person, or not to reveal or discover his or her " having taken any illegal oath, or not to reveal or dis- " cover any illegal act done or to be done, or not to dis- " cover any illegal oath or engagement which may be ad- " ministered or tendered to him or her, or the import *' thereof, whether such oath shall be afterwards so admi- '' nistered or tendered, or not, or whether he or she " shall take such oath, or enter into such engagement or " not, being by due course of law convicted thereof, shall 1 20S Of administering or takings <.^c. [book ii. And taking; Kiuh oath in Ireland, trans- portation for seven years. '• be adjudged guilty of felony, and be transported for life; " and every person who shall /crAr, in Irelmid, any such " oath or engagement, importing so to bind liim or her as " aforesaid, and being by due course of law tliereof con- " victed, shall be adjudged guilty of felony, and be '^ transported for seven years." Persons com- pelled by ne- cessity are ex- cused if they disclose T^hat they know in a limited time. Aiders to he deemed prin- cipal oft'en- ders- Purporl of the oath sufficient in the indict- ment. This statute further enacts, that a person compelled by inevitable necessity to commit any of these otfences, shall be excused and justified upon proof of such necessity, if within ten days (not being prevented by actual force or sickness, and then within seven days after such actual force or sick- ness shall cease to disable him,) he disclose to a justice of peace, by information on oath, the whole of what he knows touching his compulsion. (A) Persons aiding at the admi- nistering or tendering the oath or engagement, and persons causing the oath or engagement to be administered or ten- dered, though not present, are to be deemed principal of- fenders, and tried as such, though the person who actually administered such oath or engagement shall not have been tried or convicted. (/) And the statute also provides, that it shall be sufficient to set forth in the indictment the pur- port or object of such oath or engagement. (?//) (fr) S. 2. And the section provides also, that ao person shall he ex- cluded from the defence of inevit- able necessity, who shall be tried for an offence within ten davs from the commission of it, or of seven days from the time when the force or sickness shall cease. (/) S.3. (m) ;i:. 4. ^01) CHAPTER THE FOURTEENTH. Of Misprision of Felon i/, and of compounding Offences. JoY misprision of felony, is generally understood the co;z- of misprision cealment of felony^ or a procuring such concealment, whe- ^"^^^it offo- ther it be felony by the common law or by statute. («) lony. Thus, silently to observe the commission of a felony with- out using any endeavour to apprehend the offender, is a mis- prision; (6) for a man is bound to discover the crime of ano- ther to a magistrate with all possible expedition, (c) But there must be knowledge merely without any assent ; for if a man assent to a felony, he will be either principal or ac- cessory, {d) The punishment of this offence in an ofhcer is imposed by the statute of Westminster, 3 Edw. I. c. 9. Mhich enacts, that " if the sheriff, coroner, or any other " bailiff within a franchise, or without, for reward, or for " prayer, or for fear, or for any manner of affinity, conceal, " consent, or procure to conceal, the felonies done in their " liberties ; or otherwise will not attach nor arrest such *' felons (there as they may), or otherwise will not do their " oflice, for favour borne to such misdoers, and be attainted " thereof, they shall have one year's imprisonment, and after " make a grievous fine at tlie king's pleasure, if they have " wherewith ; and if they have not whereof, they shall have " imprisonment of three years." The punishment in the case of a common person, is imprisonment for a less discre- tionary time ; and in both cases fine and ransom at the (a) 1 Hawk. P. C. c. 59. s. 2. 3 P. C. c. 39. s. 2. note (1). Inst. 139. (f) 3 Inst. 140. (*) 1 Hale 374, 375. 1 Hawk. (d) 4 Blac. Com. 121. VOL. I. P SIO Of Compounding Offences. [book ii. king's pleasure, (e) By the 3 Hen. VII. c. 1. the justices of every shire may take an inquest to inquire of the conceal- ments of other inquests, of such matters and offences as are to be inquired and presented before justices of the peace, whereof complaint shall be made by bill ; and if such concealment be found of any inquest within a year after the concealment, every person of the inquest is to be amerced for the concealment by discretion of the justices. Ofcompound- Of a similar nature to this offence of misprision of felony, or'theft-bo"e. ^^ ^^^ offence of compounding of felony^ mentioned in the books by the more ancient appellation of theft-bote^ which is where the party robbed not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute. (/) It is said to have been anciently pu- nishable as felony ; but is now punished only with fine and imprisonment, unless it be accompanied with some degree of maintenance given to the felon, which makes the party an accessory after the fact, {g) But the barely taking again one's own goods which have been stolen, is no offence at all unless some favour be shewn to the thief, (h) It may be observed, that to take any reward for helping a person to stolen goods is made felony by 4 Geo. I. c. 11. ; and to advertise a reward for the return of things stolen, incurs a forfeiture of lifty pounds by 25 Geo. 11. c. 36. Componndinf; An agreement to put an end to a misdemeanor has been considered to be illegal, as impeding the course of public nors. (e) 4 Blac. Com. 1'21. where ills ' justice, voluntas rcf^is in curid said, " which plenourc of the kin;; " non in camerA.'"' " niUHl he observed, oiire for all, (f) I iluwk. P. C. C. 59. ». 5. 4 " not to signify any extra judieiai HIac. Com. I.i3. " will of the sovereign, but such (f;) 1 Hawk. P. C. c. 59. 8. 6. 2 " as is declared by his representa- Hale 100. " lives, the judges in his courts of (h) 1 Hawk. P. C. c. 59. 9. 7. CHAP. XIV.] Of Compounding Offences. 21 J justice; {i) but it is sometimes done after conviction with the sanction of tlie court, in cases where the offence prin- cipally and more immediately affects an individual, the de- fendant being permitted to speak with the prosecutor before any judgment is pronounced, and a trivial punishment being- inflicted if the prosecutor declares himself satisfied, (k) And where, in a case of an indictment for ill treating a parish apprentice, a security for the fair expences of the prosecution had been given by the defendant after conviction, upon an understanding that the court would abate the period of his imprisonment, the security was held to be good, upon the ground that it was given with the sanction of the court, and to be considered as part of the punishment suffered by the defendant in expiation of his offence, in addition to the im- prisonment inflicted on him. (/) The compounding of informations on penal statutes is a Ofcompound- misdemeanor against public justice, by contributing to make Uonson^nen l the laws odious to the people, {m) Therefore, in order to statutes, discourage malicious informers, and to provide that offences when once discovered shall be duly prosecuted, it was en- acted by the statute 18 Eliz. c. 5. s. 4. that if any informer, by colour or pretence of process, or without process upon colour or pretence of any manner of offence against any penal la\V, make any composition, or take any money, re- ward, or promise of reward, without the order oi* consent of the court, he shall stand two hours in the pillory, («) (j) Collins t'. Blantern, 2 Wils. court, is invalid. 1 Chit. Crim, 341-9. Eilgcombe v. Rodd aud Law, 4. others, 5 East. 298. 302. {in) 4 Blac. Com. 136. (k) 4 Blac. Com. 363, 364. (n) This part of the punishment (/) Bceley v. Wingfield, 11 East. cannot now, by 36 Geo. 111. c. 138. 46. But in general any contract or be inflicted. But section 2. of that security made in consideration of statute empowers the court to pass dropping a criminal prosecution, such sentence of fine or imprison- suppressing evidence, soliciting a ment, or of both, in lieu of the pardon, or compounding any pub- sentence of pillory, as to tlie court lie offence, without leave of the shall seem proper. p2 212 Of Compounding Offences. [boorii. be for ever disabled to sue on any popular or penal statute, and shall forfeit ten pounds. This severe statute extends even to penal actions, where the Mhole penalty is given to the prosecutor, (o) In a case where it was held that tlireatening by letter or otherwise, to put in motion a prosecution by a public officer to recover penalties for selling Fryer's Balsam without a stamp, (p) for the purpose of obtaining money to stay the prosecution, (not being such a threat as a firm and prudent man might not be expected to resist,) was not in itself an indictable oft'ence at common law, though it was alleged that money was obtained, it seems to have been considered that such an offence would be indictable under the foregoing section of this statute of Elizabeth. () Rex I'. Bembridge, M. 24th {d) 1 Ha^vk. P. C c. 66. 1. 1, 214 Of Offences by Persons [boor ii. Oppression by T\ie oppression and tyrannical ]iartlality of judges, jus- puWicofficers. ^j^gg^ and other magistrates in the administration, and under colour of their offices, may be punished by impeachment in parliament, or by information or indictment, according to the rank of the offenders, and the circumstances of the offence, (e) Thus if a justice of peace abuses the authority reposed in him by law, in order to gratify his malice, or promote his private interests or ambition, he may be pu- nished by indictment or information. But the court of King's Bench have expressly declared, that though a justice of peace should act illegally, yet if he has acted honestly and candidly, without oppression, malice, revenge, or any bad view or ill intention whatsoever, the court will never punish him by the extraordinary course of an information, but will leave the party complaining to the ordinary method of prosecution by action or indictment. (/) And where a justice has committed an involuntary error without any cor- rupt motive or intention, it has been questioned whether it is an indictable offence ; on the ground that the act in that case is either null and void, or the justice is answerable in damages for all its consequences. (o) But in a case where two sets of magistrates, having a concurrent jurisdiction, one set of them appointed a meeting to grant ale licences, and, after such appointment, the other set of magistrates appointed a meeting for the same purpose on a subsequent day, and, having met, granted a licence whicl: had been re- fused by the first set, it was held that the proceedings of the magistrates appointing the second nioetiiig wore illegal, and the subject of an indictn.ent. Lord Kcnyon, C. J., said (e) 4 Blue. Com. UJ. A judf^'c \i not indictable for nn error in jiidf^ment; but this rule extends only to judges in courtu of rerord, and not to niiniiteri:)! oilicers. Rex V. Loggen :ind another, 1 Str. 74. (/) Rex t'. Palmer and others, 2 Burr. 1162. 1 Blac. Com. 3.54. note (17), where it is siiid that in no case will the court grant an in- formation unless an application for it be made within the second term after the otlencc committed, and n. (0 Rex r. Coniplon, Culd. '^Hi. Ue.\ V. Tarrant, and Rex v. Her- bert, 1 East. P. Co. n. s. 11. p. 461. (.s) Rex i>. Commings, 1 Bott. 332. PI. 372. Rex v. Robinson, 2 Burr. 799. Rex v. Jones, 1 Bott. 337. PI. 379. From these autho- rities it appears lliat snch proceed- ing may be iiad in some cases where a particular punishmcal is CHAP. XV.] In Office. — Negligence. 217 ation, as it is an extraordinary remedy, the court of King's Bench will not suffer it to be applied to the punishment of ordinary offences, and has long come to a resolution not to grant informations against overseers for procuring a pau- per's marriage with a view to burthen another parish. (0 It has been already stated, that an officer neglecting the Negligence by duties of his office is guilty of an indictable offence, (u) In l^^^^*^ ^ some cases also the offence will amount to a forfeiture of his office, if it be a beneficial one;(zw) for by the implied condition that the grantee of an office shall execute it dili- gently and faithfully it appears to be clear that he will be liable to a forfeiture of it, not only for doing a thing directly contrary to its design, but also for neglecting to attend his duty at all usual, proper, and convenient, times and places, whereby any damage shall accrue to those by or for whom he was made an officer, (x) A coroner neglecting the duties of his office is indictable : (i/) and by statute 3 Edw. I. c. 9. the sheriff, coroner, or any other bailiff concealing felonies, or not arresting felons, or otherwise not doing their duty, are to be imprisoned for a year, and fined at the king's plea- sure, (z) And an indictment lies at common law against created by statute, and a specific (K. 3.) and the Earl of Shrewsbury's method of recovering the penalty case, 9 Co. 50. is pointed out. But as to this see (^) See precedents of indict- ante. Book 1. Chap. 111. p. 6.5, 66. meuts against coroners for refus- (0 Rex V. Slaughter, Cald. 246. ing to take inquisitions, or for note (a). And perhaps this oftence not returning inquisitions accord- would not be punishable at all if ing to evidence, 2 Chit. Crim. Law, the woman settled in the defend- 255. Cro. Circ. Comp. (8th ed.) 170. ant's parish previous to the mar- (7th ed.) 303, 304. riage is with child by the man to (z) Ante, p. 209, 210. And by whom the defendants procure her 3 Hen. VII. c. 1. if any coroner be to be married. 2 Nolan 232. remiss and make not inquisition (u) Ante, p. 213. upon the view of the body dead, (w) 4 Blac. Com. 140. and certify not, as ordained in th« (x) 1 Hawk. P. C. c. 66. s. 1. statute, he shall, for every default, And see further as to forfeiture of forfeit to the king a hundred shil- offices, Com. Dig. Officer, (K. 2.) liofs. 218 Of Offences hy Persons [book ii. all subordinate officers for neglect, as well as misconduct, in the discharge of their official duties. A constable is there- fore indictable for neglecting the duties required of him by common law or by statute: {a) and when a statute requires him to do what without requiring had been his duty, it is not imposing a new duty, and he is indictable at common law for the neglect. (/>) And an overseer of the poor is indictable for the wilful neglect of his duty. Tlius over- seers have been held to be indictable for not providing for the poor; (c) for refusing to account within four days after the appointment of new overseers, under 43 Eliz. c. 2. ; {d) for not making a rate to reimburse constables under 14 Car. IT. c. II. ; (e) and for not receiving a pauper sent to them by order of two justices; { f) or disobeying any other order of justices, where the justices have competent juris- diction, (g") Justices at By the 33d Geo. III. c. 55. two justices, at a petty or mav^fine*co"n- ^P^^ial sessions of the peace, upon complaint on oath of any stables, &c. neglect of duty or disobedience of any warrant or order of duty. ° any justice of the peace, by any constable, overseer of the poor, or other peace or parish officer, such constable, over- seer, or other officer, having been duly summoned, may impose, upon conviction, any reasonable fine or fines not (d) Regin. v. Wyat, 1 Salk. .'i80. Crowthcr's case, Cro. Eliz. 654 ; Indictment against a constable lor refusing to make hue and cry after notice of a burglary. (A) Regin. r. Wyat, 1 Salk. m\. ((•) y Nolan '2;il Tawncy's case, 1 Bott V.V.\. Rex V. V\ inship and another, Cald. 11. (d) Rex V. Cominings, 5 Mod. 179. 2 Nol. 232, wbere it is ol)- gcrved in the note (2) I bat this case occurred prior to 17 Geo. II. c. 38. «•) Re.x V. Barlow, '2 Salk. 600. I Bott. 332. The objection was, that the word used in the act is " may," which does not require it as a duty. Uiit the court held the word " may" to be imperative, and the same as " shall." By 18 Geo. in. c. 19. constables are now to be paid for parisli business out of the poor's rale. (f) Rex V. Davis and another, 1 Bott 338. PI. 409. Say. 163. S. C. (ff) 2 Nol. 373. Rex v. Boys, Say. 143. But otherwi.se where the justices have no jurisdiction. Rex V. Smith, I Bott 403. PI. 526. CHAP. XV.] In Office. — Frauds. 219 exceedin*^ the sum of forty shillins^s, as a punishment for such neglect of duty or disobedience. The absence or misconduct of the chief officers of corpo- chief officers rations at the time of elections, whereby the completion of ot corpora- ' • ' . lions absent- the election of oth.er chief officers may be prevented, is \n^ ihem- punishable by the provisions of 1 1 Geo. 1. c. 4. The sixth y^. ^'i^j^prin^ section of the statute enact?;, " that if any mayor, bailiff the elections " or bailiffs, or other chief officer or officers of any city, ^^^.^ ^^y ^^ " borough, or town corporate, shall volujitarily absent him- imprisoned. " self or themselves from, or knowingly and designedly " prevent or hinder the election of any other mayor, bailiff, " or other chief officer in the same city, borough, or town " corporate, upon the day, or within the time appointed by " charter or ancient usage for such election ;" such offender being convicted shall, for every offence, be imprisoned for six months, and be for ever disabled from exercising any office belonging to the same city, borough, or corporation. This voluntary absence from the election of a chief officer must be such an absence whereby the mischief complained of in the preamble of the statute, namely, the preventing the completion of the election of a chief officer, may possibly be occasioned. It has been decided, therefore, that a chief officer voluntarily absenting himself upon the charier day of election of his successor is not indictable, unless his pre- sence as such chief officer be necessmy by the constitution of the corporation to constitute a legal corporate assembly for such purpose. (/() Public officers may also be indicted for frauds committed Frauds by in their otncial capacities. 1 hus m a case where two per- cers. sons were indicted for enabling others to pass their accounts with the pay office in such a way as to enable them to de- fraud the government, though it was objected that it was only a private matter of account and not indictable, the court held otherwise, as it related to the public reve- (*) Rex V. Corry, 3 East. 372. §20 Of Offences hy Persons [book ii. nue. (0 And if an overseer of the poor receive from the putative father of a bastard child born within the parish a sum of money as a composition with the parish for the main- tenance of the child, he is liable to an indictment for fraudu- lently omitting to give credit for this sum in his accounts w ith the parish, (k) It was objected in this case, that the defendant was not bound to bring this sum to account, the contract being illegal, (/) that the whole might have been recovered back, and that the defendant himself would have been personally answerable for it to the putative father ; that the money, therefore, was not the money of the parish, and that the parish was neither defrauded nor dam- nified by its being omitted in the overseer's accounts. But Lord EUenborough was of opinion, that though the defend- ant would have been liable to the putative father for so much of the money as was not expended upon the mainte- nance of the child and the lying-in of the mother, yet having taken the money as overseer for the benefit of the parish, he was bound to bring it to account, and that he was guilty of an indictable oflence by attempting to put it into his own pocket. Bj officers, By the Sfith Geo. III. c. 63. which was passed to regulate nerar'eukeu- ^^^^ general penitentiary for convicts at JMUlbank^ provision tiary at Mill- is made for the punishment of the governor and the other officers and servants of that establishment, in case of any fraudulent or improper charges in their accounts. The twelfth section enacts, (after stating the mode of examina- tion to be adopted,) that in case there shall appear in anj such accounts any false entry knowingly or wilfully made, or any fraudulent omission, or any other fraud whatsoever, or any collusion between the officers and servants, or be- tween the oflicers and servants and any other persons in any matter relative thereto, the committee may dismiss such officers or servants, and, if they see lit, cause indictments to (i) Rex V. Bembridgc and ano- 268. thcr, cited 6 East. 136. (0 See Townsou v. Wilson, 1 (k) Rex r. Martin, 2 Campb. Canipb. 396. CHAP. XV.] In Office. — Exlortion. 221 be preferred against the officers, servants, or other persons so oifending at the next quarter or other general session of the peace for the county wherein the penitentiary is situated, or for any adjoining county; and in case the persons in« dieted are found guilty, they are to be punished by fine and imprisonment, or either of them, at the discretion of the court. It may be observed, that where a duty is thrown on a body consisting of several persons, each is individually liable for a breach of duty, as well for acts of commission as for omission ; and where a public officer is charged with a breach of duty, which duty arises from certain acts within the limits of his office, it is not necessary to state that he had notice of those acts ; for he is presumed from his situation to know them.(7;i) Exiortio7i in a large sense signifies any oppression under Extortion by colour of right; but in a more strict sense signifies the un- public offi- lawful taking by any officer, by colour of his office, of any money or thing of value that is not due to him, or more than is due, or before it is due. («) By the statute of Westm. 1. (3 Edw. I.) c. 26. which is only in affirmance of the common law, it is declared and enacted to be extortion for any sheriff* or other minister of the king, whose office any way concerns the administration or execution of justice, or the common good of the subject, to take any reward whatsoever, except what he received from the king. This statute extends to escheators, coroners, bailiffs, gaolers, and other inferior officers of the king, whose offices were insti- tuted before the making of the act. (o) Justices of the peace, whose office was instituted after the act, are bound by their oath of office to take nothing for their office of justice of the peace to be done, but of the king, and fees (m) Rexr.Holland, 5T.R. 607. (o) 2 Inst. 209. 2 Burn. Just (n) 4 Blac. Cora. 141. 1 Hawk. tit. Extortion, p. 841, P. C,c. 68. 8. 1. cers. 222 Of Offences hy 'Persons [book ii. accustomed, and costs limited by statute. And generally no public officer may take any other fees or rewards for doing any thing relating to his ollice than some statute in force gives him, or else as have been anciently and accustomably taken; and if he do otherwise he is guilty of extortion. (p) And it should be observed, that all prescriptions which have been contrary to the statute and to the common law, in affirmance of which it was made, have been always holden to be void ; as where the clerk of the market claimed cer- tain fees as due time out of mind, for the examination of weights and measures; and this was adjudged to be void. iq) The staled But the stated and known fees allowed by the courts of fees of courts :yg|jpg y^ their respective officers, for their labour and trou- of justice may J ' ' be insisted ble, are not restrained by the common law, or by the statute upon. ^^ Westm. 1. c. 26. and therefore such fees may be legally demanded and insisted upon without any danger of extor- tion, (r) And it seems that an officer who takes a reward, which is voluntarily given to him, and which has been usual in certain cases, for the more diligent or expeditious performance of his duty, cannot be said to be guilty of extor- tion; for without such a premium it would be impossible in many cases to have the laws executed with vigour and suc- cess, (s) But it has been always holden, that a promise to pay an officer money for the doing of a thing which the law will not suffer him to take any thing for, is merely void, however freely and voluntarily it may appear to have been made. (/) Cases of ex- It has been held to be extortion to oblige the executor of tortion ^ ^"ii ^^ prove it in the bishops' court, and to take fees {p) Dalt. r. 41. •^ liitrns Just. Abr. 108. /;V. Extortion. til. Kxtortion, p. 341. (») S Bac. Abr. lOH. lit. Extor- (q) 1 Hawk. P. C. c. 68. ». 2. '.i lion. ^J Inst. '210. :i Inst. 149. Bfic. Abr. 108. til. Extortion. Co. Lit. 3(iH. (r) 1 Hawk. P. C. c. OH. s. .S. 2 (<) 3 Bac. Abr. 108. lit. Extor- Inst. 210. Co. Lit. 368. 3 Bac. lion. CHAP. XV.] In Office. — Extortion. 223 thereon, when the defendants knew that it had been proved before in the prerogative court, {ii) And it is extortion in a churchwarden to obtain a silver cup or other valuable thing, by colour of his office, {w) And a coroner is guilty of this offence, who refuses to take the view of a dead body until his fees are paid, (x) So if an under sheriff obtain his fees by refusing to execute process till they are paid, {y) or take a bond for his fee before execution is sued out, (2) it will be extortion. And it will be the same offence in a sheriff's officer to bargain for money to be paid him by A. to accept A. and B. as bail for C, whom he has arre.<5ted : (a) or to arrest a man in order to obtain a release from him : (6) and also in a gaoler to obtain money from his prisoner by colour of his office, (f ) In the case of a miller, where the custom has ascertained the toll, if the miller takes more than the custom warrants, it is extortion : {d) and the same if a ferry-man take more than is due by custom for the use of his ferry, (e) And it was held that if the farmer of a market erects so many stalls, as not to leave sufficient room for the market people to stand and sell their wares, so that for want of room they are forced to hire the stalls of the farmer, the taking money for the use of the stalls in such case is extortion, {f) In a recent case it was decided, that the question of ex- (u) Rex V. Loggen and another, and that the sherift^s fee is not due 1 Str. 73. until execution. (w) Roy V. Eyres, 1 Sid. 307. {a) Stotcsbury v. Smith, 2 Burr. (j) 3 Inst. 149. 924. (y) Hescott's case, 1 Salk. 330. (p) Williams v. Lyons, 8 Mod, The court said that the plaintiff 189. might bring an action against him (c) Rex v. Broughton. Trem. for not doing his duty, or might P. C. HI. Stark. 588. pay him his fees, and then indict (rf) Rex v. Burdett, 1 Lord him for extortion. Ray m. 149. («) Empson v. Balhurst, Hutt. (e) Rex «. Roberts, 4 Mod. 101. 53, where it is said that an obliga- (/) Rex v. Burdett, 1 Lord tion made by extortion is aguinst Raym. 149. common law, for it is as robbery : 221 Of Offences by Persons [book ii. emption from toll could not be tried on an indictment against a turnpike-keeper for extortion in taking the toll, the general ri£jlit to demand toll not having been denied, nor the ground of exemption notified, at the time when the toll was taken, (g) The 33 Geo. III. c. 52. s. 62. enacts that the demand- ing or receiving any sum of money, or other valuable thing, as a gift or present, or under colour thereof, whether it be for the use of the party receiving the same, or for or pre- tended to be for the use of the East India company, or of any other person whatsoever, by any British subject holding or exercising any office or emploYnipnt under his Majesty, or the company in the East Indies, shall be deemed to be extortion and a misdemeanor at law, and punished as such. The offender is also to forfeit to the king the present so received, or its full value ; but the court may order such present to be restored to the party who gave it, or may order it, or any part of it, or of any fine which they shall set upon the otfender, to be paid to the prosecutor or in- former. Two prrsons Two persons may be indicted jointly for extortion where raay be in- jjq fgg ^yjj^ j^g . and there are no accessories in this offence, for cxiorUoii, 1" a case where the indictment was against the chancellor, and there arc j^,^j ^^^^ affainst the register of a bishop, it was objected that no accesso- ° , ^ , i • • ries. the offices of the defendants were distuict, that what might be extortion in one might not be so in the other, and that therefore the indictment ought not to be joint. But by Parker C.J. this would be an exception if they were in- dicted for taking more than they ought; but it is only against them tor contriving to get money where none is due : and this is an entire charge. For there are no ac- cessories in extortion ; but he that is assisting is as guilty as the extortioner, as he that is party to a riot is answerable for the act of others. Ji) (g-) Rex f. Hamlyn, * Campb. (h) Rex v. I.ogsi" 'iml another, 379. 1 Sir. 75. Qu. WhcUier Ihis was CHAP. XV.] In Office. — Extortion. 2^25 It is said, that an indictment for extortion may be laid in Trial. any county by the 31 Eliz. c. 5. s. 4. ; (/) but this posifion has been questioned, {k) It may be tried and dttermined by justices of the peace at their sessions by virtue of the term *' extortions" in their commission. (/) The indict- ment must state a sum which the defendant received; but iVot matcrinl it is not material to prove the exact sum as laid in the in- *" prove th« . . . . exact sum diclment ; so that if a man be indicted for taking; extorsively laid. twenty shillings, and there be proof but of one shilliuii, it will be sufiicient. (»/) And the extorsive agreeraent is not the offence, but the taking- ; for a pardon after the agreement, and before the taking, does not pardon the ex- tortion. («) The offence of extortion is punishable at common law by Punishment fine and imprisonment ; and also by a removal from the office in the execution of w hich it was committed ; (o) and there is a further additional punishnient by the statute of Westm. 1. c. -^6. by which it is enacted " that no sheriff " nor other king's officer shall take any reward to do his " office, but shall be paid of tliat which they take of the " king; and that he who so doth shall yield twice as much, *' and shall be punished at the king's pleasure." (p) And an action lies to recover this double value, (y) not an hulictmcnt for a conspiracy to defraud, and not for extortion. But as to the rule that several per- sons may he jointly indicted for extortion, see Ilex v. Atkinson and anotlier, Lord Raym. 1248. 1 Salk. 382. (»■) 1 Hawk. P. C. c. 68. s. 6. note (3); 2 iiurns Just. 344, Extor- tion. Stark. Crim. Plead. 585, note (k). (A-) 2 Hawk. P. C. c. 26. s. 50. 2 Chit. Crim. Law. 294, iu the note. (/) Rex i>. Loggen and another, VOL. I. Q 1 Stra. 73. (wt) Rex V. Burdelt, 1 Lord Raym. 149; and see Rex v. Gill- ham, 6 T. R. 267. («) By Holt, C. J. in R^x r. Burdett. 1 Lord Raym. 149. (o) 1 Hawk. P. C. c. 68. s. 5. 3 Bac. Ahr. 109. ExtorUon. (p) By the " kings pleasure" is meant by the kings justices before whom the cause depends, and at their discretion. 2 Inst. 210. {q) 3 Com. Dig. 323. 9.2G Of Rpfusal to Execute Offices, [boor ii. Refustl to execute of- fices. The refusal of persons to execute ministerial oflfices to 1 which they arc duly appointed, and from the execution of >vhich they have no proper e^round of exemption, sfeems in general to be an indictable oflence. Thus it has been held to be indictable for a constable, after he has been duly chosen, to refuse to execute the office, (?) or to refuse to take the oath for that purpose. (5) So a person is indicta- ble for refusing" to take upon himself the office of overseer of the poor. (0 For though the statute 43 Eliz. c. 5. says onl\ that certain persons therein described shall be over- seers, and gives no express indictment for a refusal of office ; yet upon the principles of common law, which are that every man shall be indicted for disobeying a statute, the refusal to serve when duly appointed is indictable, (u) But there should bo previous notice of the apj)ointment ; and the indictment should shew that the defendant was bound to undertake the office by setting forth how he was elected, (w) And if an indictment for refusing to serve the office of con- stable on being thereto chosen by a corporation do not set forth the prescription of the corporation so to choose, it is bad ; for a corporation has no power of common right to choose a constable, (.r) (r) Rex V. Lowe, 2 Stra. 92. Rex V. Chappie, 3 C;im|tb. 91. (s) Rex V. llarpur, 5 Mod. 96. Fletcher v. Ingram, 5 Mod. 127. (0 Rex V. Jones, 2 Stra. 1 1 »5. S. C. 7 Mod. 410. 1 Bott. 338. («) Rex V. Jones, I Bott. 338. (7^) Bexr. llarpur, 5 Mod. 9C. (x) Rex I'. Bernard, 2 Salk. 52. 1 Lord Rayia. 9-i. 097 CHAPTER THE SIXTEENTH. Of BuT/ing and Selling OJJices. CONX'ERNTNG the sale of offices of a public nature, \i has been well observed, that nothiuii^ can be more palpably preiudicial to the i^ood of the pulilic, than to have places of the highest cor.cernmcnt, on the due execution whereof the happiness of both king and people depends, disposed of, not to those who are most able to execute them, but to those who are most able to pay for them ; nor can any thing be a greater discouragement to industry and virtue than to see those places of trust and honour, which ought to be the re- wards of persons who by their industry and diligence have qualified themselves for them, conferred on those who have no other recommendation but that of being the highest bidders; neither can any thing be a greater temptation to oflicers to abuse their power by bribery and extortion, and other acts of injustice, than the consideration of the great expence they were at in gaining their places, and the ne- cessity of sometimes straining a point to niake their bargain answer their expectations, {a) The buying and selling of such ofiices has therefore been Offence at considered as an offence malum in se, and indictable at com- '-""^"'"" nion law. (b) In a late case of an indictment for a conspi- racy to obtain money, by procuring from the lords of the treasury the appointment of a person to an oiRce in the customs, it was proposed to argue on behalf of one of the (a) 1 Hawk. T'. C. c. 67. s. 3. (b) Stockwell v. North, Noy 102. 5 Bac. Abr. 191, OJJices and Off!- Moor7Sl.S. C. Q 2 22S Of Buying and Selling Offices, [book ii. defrndanfs, that the indictment was bad on the face of it, as it was not a misdemeanor at common law to sell or to pur- chase an ottire like that of coast waiter. But Lord Ellen- borough, C. J. said that if that were to be made a question it must be debated on a motion in arrest of judgment, or on a writ of error: but that, after reading the case of Rex t. ^'aughan,(c) it would be verj difficult to argue that the oflTence charged in the indictment was not a misdemeanor. And CJrose, J. afterwards, in passing sentence, said that theie could be no doubt but that the oflence charged was clearly a misdemeanor at common law. ( a id) Rex I'. Polliuan and others, bribe to procure the reversion of 2 Campb. 229. the office of clerk of the supreme (e) 4 linrr. 24P4. A criminal court of the island of J.imaica. information was granted aj^ainst (/) Rex r. Beale cited in Rex n thr dcfeiuiant for oflerinj; the duke Gibbs, 1 iiast. R. 183. of GrafloD, iLcu liriil lord of lti« CHAP. XVI.] Of Buying and Selling Offices. 229 " customers, comptrollers, or any other officer or minister " of the king-, shall be firnily sworn that they shall not er- *' dain, name, or make, any of the abovementioned ofticers " for any j^ift or brocage, favour or affection ; nor that none " which |}ursueth by himself, or by other, privily or openly, " to be in any manner of office, shall be put info the same " office, or in any other, but that they make all such of- " ficers and ministers of the best and mo«t lawful men, and *' sufficient to their estimation and knowledge." (g) The 4 Hen. IV. c. 5. ordained " that no sheriff" sliall let 4 Hen. IV. c. " his bailiwick to farm to any man for the time that he occu-» " pieth such office." But a principal statute relating to this subject is the 5^6 Ed. VI. 5 & 6 Edw. VI. c. 16. which, for the avoiding corruption g„,J,*'sHUne:" which might thereafter happen iu the officers, in places, offices rcLit- wherein there is requisite to be had the true administration „,f. .stration of iustice or services of trust, and to the intent that persons ofjusiice. &c. worthy and meet to be advancea should therealier be the oflice, and preferred, enacts, that if any person bargain or sell any .^^ d"*''''^'! to , have such office, or deputation of office, or take any money or profit office. directly or indirectly, or any promise, &c. bond, or any assurance, to receive any money, &c. for any office or de- putation of oflice, or to the intent that any person should have, exercise, or enjoy, any office, or the deputation of any office, which office or any part or parcel thereof shall in any wise concern the administration or execution of justice, or the receipt, controlment, or payment, of the king's treasure, rent, revenue, &c. or any the king's customs, or the keep- ing the king's towns, castles, &c. used for defence, or which shall concern any clerkship iii any court of record where justice is ministered ; the offender shall not only forfeit all his right to such office or deputation of office, but also shall be adjudged a person disabled to have, occupy, or enjoy, (g) For the exposition of this field* trial, fi .St. Ttx. ^47. ic. statute see the earl of Maccles- Howeirg St. Tri. 7G7 230 Of Bui/in g and Selling Offices, [book ii. such oflice or deputation. The statute further enacts that such harTains, sales, bonds, asjeements, &c. shall be void ; (h) and provides tliat the act «hall not extend to any office whereof any person shall be seised of any estate of inherit- ance, nor to any office of the keeping of any park, house, manor, carden, chase or forest, (i) It provides also that all judgments ijiven or things done by offi^nders, after the of- fence and before the offender shall be removed from the exercise of the office or deputation, shall be good and suffi- cient in law. And further that the act shall not extend to be prejudicial or hurtful to any of the chief justices of the Kino's Bench or Common Pleas, or to any of the justices of assize ; but that they may do concerning any offices to be granted by them as they might have done before the mak- ing of this act. (A) Cases decided It has been held that the offices of chancellor, registrar, t'utc" ^'^ ^ ' and commissary, in ecclesiastical courts, are within the meaning of this statute ; (/) also the place of coffi?rer ; (w) and that of surveyor of the customs ; (ji) and the place of customer of a port; (o) and the offices of collector and su- pervisor of the excise ; (p) and in a writ of error on a judg- ment in Ireland, it was held clearly that the offices of clerk of the crown, and clerk of the peace, were within the sta- tute, {q) But offices in fee have been held to be out of the statute ; (r) and the sale of a bailiwick of a hundred is not within it, for such an office does not concern tlic adminis- (;0 S. 3. (w") 2 And. 55, 107. (i) S. 4. io) 1 If. Blac. 327. Qi) S. 5. ip) Law V. L:iw, Cas. temp. Talb. (0 12 Co. 78. .-^Inst. 14S. Cro, 140. ."i P. Wins. 391. S. C. Jac. 200. 1 Hawk. P. C. r. 67. {q) Macrnrly v. VVukford, Trin. f. 4. 9 Ceo. II. H. I{. 5 JJ.ic. Ahr. 195. (w) !?ir Arthur Infjram's case, Offices and Officers (V). It was also % Buht. 01. S. ('. Co. Lit. 2.14, held in this case, th.it the sta- where it is said that the kinj; could tule did not extend to Ireland. not dispense wilii this statute hy But see ;>fls/. 49 Geo. III. c. 126. any w#n f'/'.v.rfln/c, and Cro. Jac. 3H,j, (r) Lllis i.-. Uuddlc, 2 Lev. 131. I». C. is cit*.d. CHAP. XYi.] Of BuT/ing cmcl Selling Offices. 231 tration of justice, nor is it an office of trust, (s) It has also been adjudired that a seat in the sixclerk's olhce is not within the statute, being a ministerial ofiice only ; (0 and it was held that it did not extend to military officers, (;/) nor to the purser of aship, (ris) but this last decision was doubted ; (x) and in a later case it was said by Lord Mans- field, that if the lords of the Admiralty were to take money for their warrant to appoint a person to be a purser, it would be criminal in the corrupter and corrupted, (y) It was decided also, that this statute did not extend to the plantations, (s) But with respect to military and naval commissions, and the different places in the public depart- ments of o-overnment, the colonies or plantations, or in the appointment of the East India company, alterations have been made by a recent statute which will be presently men- tioned. One who makes a contract for an office contrary to the Aa ofTender purport of this statute, is so far disabled to hold the same, ^t'^tute can that he cannot at anytime during his life be restored to a nevor ulier- „,,,.., ,. . , wards bold capacity of holdnig it by any grant or dispensation what- l\^^. office. ever. («) With regard to the deputalion of an office, it is held that What dcputa- (s) Godbolt's case, 4 Leon. 33. (s) Blankard v. Galdy, 4 Mod. 4 Mod. 223. S. C. cited. 222, 2 Salk. 41 1. 2 Lord Raym. {i) Sparrow v. Reynold, Pasch. 1245. S. C. cited 2 Mod. 45. S. P. 26 Car. II. C. B. 5 Bac. Abr. 195. undetprmined ; and see 5 Bac. Offices and Officers (P). Abr. 195. Offices and Officers (F). («) 1 Veni. 98. But if the office, though in the (le) 2 Vern. 308. Ca. temp. plantations, had been granted un- Talb. 40. der the great »cal of England, the [x) See 1 H. Elac. 326. where it sale of it would have btea held is said by Lord Loughborough, criminal at common law. See the C. J. that the case in 2 Vern. is judgment of Lord Mansfield in contrary to an evident principle Rex i-. Vaughan, 4 Burr- 2500. of law. (a) Hob. 7 5. Co. Lit 234. Cro. {y) Turdy v. Stacey, 5 Burr. Car. 361. Cro. Jac. 3«6. Ca. 2698. temp. Talb. lo;. 3 232 Of Buying and Sell hi g Offices, [booru. tiou of an Avlicrc an oftice is within the statute, and the salary is cer- otHce is within . ., , ... , i ^ .• • " i the statute. tain, it the principal make a deputation rej-ervinij a lesi sum out of the salary, it is good : ^o. if the profits be un- certain, arising from fees, if tlie principal make a deputation, rrser\ ing a certain sum out of the fees and profits of the office, it is good : for in these cases the deputy is not to paj unless the profits arise to so much ; and though a deputy by his constitution is in place of his principal, yet he has no right to his fees, they still continuing to be the principals ; so that, as to him, it is only reserving a part of his own, and giving away the rest to another. But where the re- servation or agreement is not to pay out of the profits, but to pay generally a certain sum, it must be paid at all events ; and a bond for performance of such agreement is void by the statute, (b) 49 Geo HI. But this statute has been much extended by the 49 tend^the 5 & ^^"- ^'^- ^- ^~^- '^^'^'d^, a^er reciting it, enacts, " that all 6 Edw. VI. f. " tlie provisions therein contained shall extend to Scotland and^ireLm" " ^nd Ireland, and to all offices in the gift of the crown, or to public of- a of any office appointed by the crown; and all commissions lices in this , . ., , .,. , n i i i country and Civil, naval, or military ; and to all places and employ- in the colo- a ^lents, and to all deputations to any such offices, com- nies, and to ' ■ offices under " missions, places, or employments, in the respective de- the East 1 company. the Eastlndia ^ p-rtments or offices, or under the appointment or super- " intendance and coiitronl of tlie lord high treasurer, or '• commissioners of the treasury, the secretary of state, the *' loids commissioners for executing the office of lord high " admiral, t'le master general and principal officers of his '' r^Iajesty's ordnance, the commander in chief, the secre- *' tary at war, the paymaster general of his Majesty's " forces, the commi.--sioners for the affairs of Judia, the " commissioners of the excise, the treasurer of the navy, " the coinmisioners of the navy, the commissioners for vic- (ft) 5 Bar. Abr. 10:>. Offircn 231. C.odolphiu i'. Tudor, Comb. mnd OffucrH (!'). I Hawk. 1'. C. :jr)6. S. P. «. 07. ». 5. Salk. iOS. (i Mod. enAP. XVI.] Of Buying and Sdlin^ Offices. 223 " tuallino^, the commisijionprp of transport?, the commissary " general, the storekeeper genl.lgulo- " mise, agreement, covenant, contract, bond or assurance ; ",':^f.^^'n ' o ' ' ' Warns lor oi- " or shall by any way, device, or means, contract or agree lices,guiii) of " to receive or have any money, tee, gratuity, loan or mo- " ney, reward or profit, directly or indirectly ; and also if " any person or persons shall purchase, or bargain for the " purchase of, or give or pay any money, fee, gratuity, loan " of monev, reward or profit, or make or enter into any pro- " mise, agreement, covenant, contract, bond or assurance to " give or pay any money, fee, gratuity, loan of money, re- " ward, or profit ; or shall by any ways, means, or device, " contract or agree to give or pay any money, fee, gratuity, " loan of money, reward or profit, directly or indirectly, for " any office, commission, place, or employment, specified " or d'?scribed in the said recited act (5 and 6 Edw. VI. c. (f) By the 33 Geo. III. c. 52. s. concerning the trust and duty of 66. it was enacted that the making any olHce or cinpioyment under or entering into, or being a party the crown, or the East India com- to any corrupt bargain or contract, pany, by any British subject there for the giving up or obtaining, or resident, should be deemed a mi»- in any other manner touching or demeai:or. §3i Of Bui/ing and Selling Offices, [bookii. " 16.) or this act, or within the true intent or meaning of " the said act, or this act, or for any doputalion tlioreto, or " for any part, parcel, or participation of the profits there- " of, or for anv appointment or nomination thereto, or re- " sijjnation thereof, or for the consent or consents, or voice '•' or voices, of any person or persons to any such appoint- '' ment, nomination, or resignation; then and in every *' such case, every such person, and also every person who " shall wilfully and knowingly aid, abet, or assist, such per- " son therein, shall be deemed and adjudged guilty of a *' misdemeanor." 40 Geo. Til. The fourth section enacts, " that if any person or persons Persons re- "shall receive, have, or take, any money, fee, reward, or ceivingor u profit, directly or indirectlv, or take anj promise, agree- pa vine inoney " , forsoliciiinf; " ment, covenant, contract, bond, or assurance, or by any or obtjimiifj a ^^.^^ means, or device, contract or agree to receive or have offices, and . t ■> o i /■ any ncgocia- " any money, lee, gratuity, loan of money, reward or proht, leXXro- " directly or indirectly, for any interest, solicitation, peti- ciations relal- « (ion, request, recommendation, or negociation what- 'J|finJ^,^f'.['' " ever, made or to be made, or pretended to be made, or misdemeanor, u xmdor any pretence of making, or causing or procuring to " be made, any interest., so/ieitation, petition, rer/uesf, recom- " mendntio}?, or riecroeiation, in or about or in any wise " touching, concerning, or relating to, any nomination, ap- " pointment, or deputation to, or resignation of, any such "office, commission, place, or employment, as aforesaid, or " under any pretence for using or having used any interest, " solicitation, petition, request, recommendation, or nego- " ciation, in or about any such nomination, appointment, " deputation, or resignation, or for the obtaining or having " obtained the consent or consents, or voice or voices, of " any person or persons as aforesaid to such nomination, " appointment, deputation, or resignation ; and also if any " person or persons shall give or pay, or cause or procure " to be given or paid, any money, fee, gratuity, loan of " money, reward or jjrolit, or make, or cause, or procure " to be made, any promise, agreement, covenant, contract, CHAP. XVI. J Of Buying and Selling Offices. Sa.J " bond, or assurance, or by any way, means, or device, " contract or as;ree, or give or pay, or cause or pro- " cure to be given or paid, any money, fee, gratuity, loan " of money, reward, or profit, for any solicitation, petition, " request, recommendation, or negociation whatever, made " or to be made, tliat shall in any wise touch, concern, or *' relate to, any nomination, appointment, or deputation '' to, or resignation of, any such office, commission, place, or " employment as aforesaid, or for the obtaining or having " obtained, directly or indirectly, the consent or consents, " or voice or voices, of any person or persons as aforesaid, " to any such nomination, appointment, deputation, or re- " signation ; and also if any person or persons shall, for or in " expectation of gain, fee, gratuity, loan of money, reward, " or profit, solicit, recommend, or negociate, in any manner " for any person or persons, in any matter that shall in any " wise touch, concern, or relate to, any such nomination, " appointment, deputation, or resignation aforesaid, or for " the obtaining, directly or indirectly, the consent or con- " sents, or voice or voices, of any person or persons to any " such nomination, appointment, or deputation, or resigna- " tion aforesaid, then and in every such case every such " person, and also every person who shall wilfully and " knowingly aid, abet, or assist, such person therein, shall " be deemed and adjudged guilty of a misdemeanor." By the fifth section of the act, if any person shall open or 49 Geo, III. keep any house or place for the soliciting or negociating Kep^,-„^ g),^ any business relating to vacancies in offices, &c. in or under place for bu- any public department, or to tne sale or purchase of such ^^ ^^^^.^ iraffic offices, or apnointment to them, or resignation, transfer, or >» offices, a ' ' ' nusneiueanor. exchange of them, such offender, and every person aiding or assisting therein, is guilty of a misdemeanor. And by the i:50. penalty , ,. . ,v 1 o oiiadvertis- sixth section any person advertising any olhce, place, &c. or j^,, ^^ the name of any person as broker, &c. or printing any ad- vertisement or proposal for such purposes, is liable to a pe- nalty of 50/. 1^36 Of Buying and Selling Offices, [book n. Exceptions There are, however, several exceptions from the provi- froin this st»- . . , . , , , ^ . . tute of certain ^lons or this statute. It does not extend to commissions or offices, and appointments in the band o? srent/emen vensioners, or in his also of com- jl . . , , , , missions iji his ^lajestv s veoman guard, or in the marshalsea, or the court ]yi:>.)«?sty * of the kiiiff's palace at Westminster ; or to purchases and lorces at the o i i prices reju- exchanf;es of commissions in his Majesty's forces, at the re- m It / ^^°^' o"''^^*^^ prices ; or to any thing done in relation thereto, bv agents. authorised reaimental agents not advertising and not receiv- ing money, &c in that behalf, (d) But officers receiving or paying, or agreeing to pay, more than the regulated prices, or paying agents for negociating, on conviction by a court martial, are to forleit their commissions and be cashiered, (e) But persons And it is provided also, that every person who shall sell selling com- j^jj, commission in his Majesty's forces, and not continue to missions for . . i i n • i • more than the hold any commission, and shall upon or m relation to such regulated g^j^ receive, directly or indirectly, any money, &c. beyond prices, are ' •' . . " * jjiiiliy of mis- the regulated price of the commission sold, and every per- demeanor. ^^^ ^^.|^^ ^j^^jj ^jj ^^ assist sucli person therein, shall be guilty of a misdemeanor. Further ex- This act contains further exceptions ; and provides, that cepiionsas to j^. gj^^jj not extend to any office excepted from the 5 and 6 oinces except- •' ' ed from 5 and Edw. VI. c. 16. or to any office which was legally saleable le^and as to before the passing of this act, and in the gift of any person offices legally by virtue of any office of which such person is or shall be possessed under any patent or appoiiitmpnt for his life ; or to render invalid, or in any manner to afl'oct, any promise, covenant, trust, &c. entered into or declared before the pass- ins of this act, and which then was valid in law or equity. (/) (rf) 4!) (ico. III. c. 126. 8. 7. and And the commission is to he the 53 Geo. ill. c. 54. excepts sold, and half the produce, not purchases, &c. of any commissions exceeding 500/. to be paid to the or appoinlmcnU in the battle-axe informer, and lh« r«'mainder t« guards in Ireland. go to the king. («) 49 Geo. III. c. 1'26. s. 8. (/) /. CHAP. XVI.] Of Buying and S Ming Offices. 231 With respect to deputations to oflices, it is enacted, tliat Dcpiiiaiions. the act shall not extend to prevent or make void any depu- ^l^jj^'"" tation to any oUice, in any case in which it is lawful to ap- point a deputy, or any a out of or profits of any olhce, to any person who snail have held the fees to such ofhce, in any co-iimission, or appointment of any person ^»y P^^^on succeeding to such office, and agreements, &c. for securing holding' tii« such reservations, charges, or payments, are also excepted : "^''^*^- provided that the amount of the reservations, &c. and the circunistances and reasons under which theyshallhave been permitted, shall be stated in the commission or instrument of appointment of the successor, {h) The statute contains an enactment, that when the right, Right of ap- estate, or interest, of any person shall be forfeited under ^"/"nJ^rll^ited any of its provisions, or the provisions of the 5 and 6 vests in the Edw. VI. c. 16. the right of such appointment shall vest in "' and belong to the king. (/) Offences against this act, or the 5 and 6 Edw. VI. c. 16. Trial of of- by any governor, lieutenant-governor, or person having '''"^^<^^*_coiu- the chief command, civil or military, in his Majesty's domi- abroad, iiions, colonies, or plantations, or his secretary, may be prosecuted and determined in the court of King's Bench at JJ'eslDiinsler, in the same manner as any crime, &c. com- mitted by any person holding a public employment abroad, may be prosecuted under the provisions of the 42 Geo. 111. c. 83. (/.) (§•) 49 Geo. III. c. 126. s. 10. And of the chancery in Ireland, till after fee ante, 231, 232. the death, &c. of the present pos- (h) Id. S. 11. The twelfth section sessors. contains an exception as to the (/) Id. S. 2. masters, six clerks, and cxam'uicrs, (fr) Id. S. 14. 238 Punishment of misdeinea- nors ill Scot- land. Of Buijins and Selling Offices. [book ii. It is enacted also, that any person who shall commit in 5co//aw(/ any misdemeanor against this act, shall be liable to be punished by fine and imprisonment, or by the one or the other of such punishments, as the jud}pjj,(>ry jp elections of members to serve in parliament still away the com- mon law remains a crime at common law ; that the legislature never thecourlof meant to take away the common law crime, but to add a Kinp'ft Bench penal action ; and that this appe;irs hy the words in the proceed by in- statute " or being otherujse lawfully convicted thercof."(o) formation. And a conviction upon an information granted by the court of King's Bench is just the same as if the party had been (o) Uex V. I'ltland aiiotlu r. :i Burr. 1335. 5^. C. 1 Blac. R. 380. CHAP. XVII.] Of Bribery. 24 convicted upon an indictment, (p) But as the oflender will be equally liable to the penalties of the statute, (r/) that court will not interpose by information until the two years are expired, in ordinary cases ; though there may possibly be particular cases, founded on particular reasons, where it may be right to grant informations before the expiration of the time limited for commencing the prosecution on the sta- tute, (r) And in one case where the defendant had been convicted of bribery, and the time for bringing- the penal action was not expired, the court permitted him to enter into a recognizance to appear at the expiration of that time, {s) Where a friend of the candidate gave an elector five Construclioa guineas to vote, and took from him a note for that sum, but " e s a u e. at the same time gave a counter note to deliver up the first note when the elector had voted, it was held to be an abso- lute gift and bribery within the act, although the elector voted for the opposite party. (0 And laying a wat^er with the voter that he does not vote for a particular candidate is also bribery within the act.(i<) In an action upon this sta- (p) Rex V. Pitt and another, 3 do so on the ground that the de- Burr. 1339. fendant had made a discovery of {q) Coombe v. Pitt, 1 Blac. R. another person offending against 524. the statute, who had been con- (r) Rex r. Pitt and another, 3 victed on his (the defendant's) evi- Burr. 1340. dence. Pugh i>. Curgenven, 3 Wils. (s) Rex V. Heydon, 3 Burr. 1359. 35. And see the cases collected in But where that time had expired 1 Hawk. P. C. c. 67. s. 10. note (4) the court held that the circum- where see also as to the court of stance of the witness, by whose evi- King's Bench granting a new trial, dence the defendant was convicted (/) Sulston v. Norton, 3 Burr, of bribery, being under prosecu- 1235. 1 Blac. Rep. 317. tion for perjury, was no ground («) 1 Hawk. P. C. c. 67. s. 10. for postponing the judgment. Rex note (4), citing Lloft 552. and re- t'. Hajdon, 3 Burr. 1387. S. C. 1 ferring also to Allen v. Hearne, Blac. R. 404. And the court re- 1 T. R. 56. where a wager between fused to stoy judgment upon the two voters, with respect to the poslea where they were moved to event of an election, laid befor'» r2 o 244 Of Briber}/. [bo OR II. tute it has been held, that, before the time of election, any one is a candidate for uhoni a vote is asked ; and that it is not competent to the defendant to dispute a man's right of voting ^v]len he has asked hint for his vote ; it being imma- terial whether the voter bribed had a right to vote or not, if he claimed to have such right, {ic) It seems that a decla- ration upon this statute must state what the bribe was, and specify that the defendant took money or some other parti- cular species of reward : and where it stated generally " that the defendant did receive a gift or rezcard" in the disjunctive, it was held bad, and that the defect might be taken advantage of in arrest of judgment, the charge being of a criminal nature, (^r) Who shall be As to the person who shall be considered as a discoverer ror^l-r^ithVn within the eighth section of the statute, so as to be indemni- the cio^hth flpj from its penalties, it has been decided that the circum- scction of the , • i -xi • xi i- m i *• 8 G. II. c. 24. stance of a party having been, within the limited time, a so as to be in- pjai^tiff jn an action on the statute, and having prosecuted it derauilied. r ,,,i-j. to judgment, does not prove him to have been the nrst dis- coverer. Lord Mansfield, C. J. observed, that the court had not said, nor would say, that a plaintift' cannot be the discoverer ; but that the act does not mahe him so, or consi- der him as the discoverer ; and tliat as the plaintiff could not be the witness himself in the action, some other person must have been the witness ; it w as not therefore to be pre- sumed, without any evidence of it, that the plaintiff in the action was the first discoverer. (^) And where one person procured another to looke an allidavit of facts amounting to bribery, and then prosecuted a third person upon those facts to conviction and judgment, it was held that the person making the affidavit was the discoverer. (::) With respect to what shall be deemed a conxiction within this section, it the poll began, wai held to he fy) Curi^cnvrn r. Cuming, 4 illegal. Hiirr '.'.".()». (tr) Combe v. Pitt, I Rlar. U. (=) Sibiy r. Cuming, 4 Burr. 523. 2464. (x) Davy v. Baker, 4 Burr. '2471. CHAP. XVII ] Of Bribery. 245 has been held that a verdict will not be sufficient, and that there must be a judgment; but that when the judgment is obtained it will relate, for the purpose of the indemnity, to the time when the discovery was first made, (a) A recent statute, 49 Geo. HI. c. 118, reciting that the 49 Geo. Ill, giving money, «&:c. in order to procure the return of a mem- imposes pe- ber to parliament, if not given to or for the use of some naltics on per- person having a right, or claiming to have a riglit, to act as receiviii" mo- returninir ofllcer, or to vote at the election, is not bribery "^^y* *^c- to - ' 7 .( procure the within the former statute, (2 Geo. II. c. 24.) enacts, that election of a if any person shall give, or cause to be given, directly or in- ^^ribment directly, or promise, or agree to give, any money, gift, or though such reward, upon any engagement or agreement that the person j^^^ Jstn to to whom, to whose use, or on whose behalf, such gift or pro- voters. mise shall be made, shall by himself, or by any other at his request or command, procure, or endeavour to procure, the return of any person to parliament for any place, he shall, if not returned himself to parliament for such place, for every such gift or promise forfeit one thousand pounds; and if returned, and having given, or promised to give, or knowing of and consenting to such gifts or promises, shall be disabled and incapacitated to serve in that parliament for such place, and shall be as if he had never been returned or elected a member of parliament. And it enacts also, that any person who shall receive or accept of by himself, or by any other, to his use or on his behalf, any such money, gift, or reward, or any promise upon any such engagement, contract, or agreement, shall forfeit the value and amount of such money, oift, or reward, over and above the sum of five hundred pounds. (6) The third section of this statute enacts, that if any person Jjy^',."^^i^u. (a) Sutton V. Bishop, 1 Blac. R. to be paid, to or by any person, for 665. any legal expence houu fide in- (b) S. 1. The second section curred at or concerning any elcc- provides that the act shall not ex- tion, tend to any money paid, or agreed 246 Of Bribery. [book n, poses penal- shall by himself, or by any other, give or procure to be ties upon per- gjven, or promise to give or procure to be given, any office, sous giving o ' r n I or receiving place, or employment, upon any express contract or agree- offices, &c. by ^^^^^ ^j^.^^ ^ji^ ppfgo,, ^q whom, or to whose use, or on whose way of bribes » ' i i i • ii* to procure the behalf, sucli gift or promise shall be made, shall by himself, members to o^ ''.V ^".V other at his request or command, procure, or en- parliament, deavour to procure, the return of any person to parliament foranv place, such person so returned, and so having given or procured to be given, or so promised to give or procure to be given, or knowing of and consenting to such gift or promise upon any such express contract or agreement, shall be disabled and incapacitated to serve in that parliament for such place, and be deemed no member of parliament, and as if he had never been returned ; and any person who shall receive or accept of by himself or by any other, to his use or on his behalf, any such office, place, or employment, upon such express contract or agreement, shall forfeit such office, &c. and be incapacitated for holding the same, and shall forfeit live hundred pounds. And it further enacts, that any person holding any office under his Majesty, who shall give such office, appointment, or place, upon any such express contract or agreement that the person to whom, or for whose use, such office, c%c. shall have been given, shall so procure, or endeavour to procure, the return of any person to parliament, shall forfeit one thousand pounds. 49G. III.c. The fourth section of the statute enacts, that no person 118.S. i.linuis j,|j.jj| Ijp i,.j[j1^. to .,,iy forfeiture or penalty imposed by the Ac. toiwu act, unless some prosecution, action, or suit for the offence Snce"^ "^ ^'"^^ committed, shall be actually and legally commenced against such person within two years next after the offence com- mitted, and unless such person shall be arrested, summoned, or otherwise served with the writ or j^rocess within the same space ol time, so as such arrest, snniiiioiis, or service, shall not be preventfd by sucli person absconding or withdrawing out of the jurisdiction of the court ; and in case of any pro- secution, suit, or process, tlu; same shall be proceeded in and carried on without any wilful dela\. 1 247 CHAPTER THE EIGHTEENTH. V Of neglecting or delaj/ing to deliver Election Writs. The statute 53 Geo. HI. c. 89. was passed for the pur- 53 Geo. III. c 89 s 1 di- pose of eftecting the more expeditious and regular convey- rects the ance of writs for the election of members to serve in parlia- course in n ,1 which elec- ment. It enacts, that the messenger, or pursuivant ot the tionwritsshali great seal, or his deputy, shall, after the receipt of such jj^ [j/^'^j^/^^f^ writs, forthwith carry such of them as shall be directed to sender of the the sheritfs of London or Middlesex, to the respective offi- fhrfugh tC** cers of such sheriffs, and the other writs to the general post post office, office in London, and there deliver them to the postmaster general for the time being, or to such other person as the postmaster shall depute to receive the same (which depu- tation the postmaster is thereby required to make), who on receipt thereof shall give an acknowledgment in writing, expressing therein the time of delivery, and shall keep a duplicate of such acknowledgment signed by the parties respectively to whom and by whom the same shall be so delivered ; and that the postmaster or his deputy shall dis- patch all such writs free of postage by the first post or mail, after the receipt thereof, under covers directed to the pro- per officers, to whom the said writs shall be respectively directed, accompanied with proper directions to the post- master or deputy postmaster of the place, or nearest to the place where such officers shall hold their office, requiring such postmaster or deputy forthwith to carry such writs respectively to such office, and to deliver them there to the officers to whom they shall be respectively directed, or their deputies, who are required to give to such postmaster or deputy a memorandum in writing, acknowledging the re- ceipt of every such writ, and setting forth the day and the 248 Of Neglecting, ^c. to [book ii. hour the same was delivered by such postmaster or deputy, which memorandum shall also be signed by such postmaster or deputy, who are required to transmit the same by the first or second post afterwards to the postmaster general or his deputy at the general post office in London, wh© are required to make an entry thereof in a proper book for that purpose, and to file the memorandum along with the duplicate of the said acknowledgment, signed by the mes- sen"-er, to the intent that the same may be inspected or pro- duced upon all proper occasions by any person interested in such elections, (a) 63G.III.C.89. 8. '2 and J. Persons to whom sucli writs nr«' tisiially di- rected must jjive an ac- count of the The statute, after directing that all persons to whom the writs for the election of members to parliament ought to be and are usually directed, shall, within a month, send to the postmasters general an account of the places where they shall hold their offices, and so from time to time, as often as such places shall be changed, and of the post town nearest to places of their such offices ; or in case any such office shall be m London, , ' Westminster, or Souihzcarh, or within five miles thereof, shall send such account to the messenger of the great seal ; {h) proceeds to enact, that after the death of the then messenger of the great seal the allowances of mileage shall cease, except an allowance of two guineas on each writ for the election of a member on any vacancy, and of fifty pounds on the calling of a new parliament, (r ) And it further enacts, that whereas the messenger of the great seal and his deputy have from time to time received certain other fees for the conveyance and upon the delivery of these writs, such fees shall cease from the passing of the act; and that neither the messenger nor his deputy, nor any other person, shall receive or take any fee, reward, or gratuity whatsoever, for the conveyance or delivery of any such writ, (d) S. 4 and 5. ]VIiIcat;<' and otlurfecsaho- lixhed, except two {guineas on a vacancy, and .')0/. on a new parlia- ment. (a) ."iSGeo. HI. c. 80. ». I. (&) Id. «. 2 and J. (r) Id. H. 4. (d) Id. s. b. And the section fur- ther proceeds to f^ive to tlie then niessen;;er an annual allowance for CHAP. XVIII.] Deliver Election Writs. 249 The sixth section of the statute then enacts, " that every 53 G. III. c. 89. - . , . . , ,. c 8. 6. Persons " person concerned in the transmitting^ or delivery ot any acting in vio- " such writ as aforesaid who shall wilfully neglect or delay ' «tion of the • act j^uilty of a " to deliver or transmit any such writ, or accept any fee, or misdemeanor. " do any other matter or thing in violation of this act, shall " be guilty of a misdemeanor, and may upon any conviction " upon any indictment or information in his Majesty's court " of King's Bench be fined and imprisoned at the discretion " of the court for such misdemeanor." Offences committed in Scotlatid may be punished by a fine or imprisonment, as the judge before whom the offender shall be tried and convicted may direct, (c) his life of 520/. in compensation for (e) Id. s. 7. these fees. 250 CHAPTER THE NINETEENTH. OJ Dealing in Slaves. J[ I IE 51 Geo. TH. c. 23. recites that the two houses of parliament had, in the year 180G, resolved that the African slave trade being contrary to the principles of justice, hu- manity, and sound policy, they would, with all practicable expedition, take eflectual measures for its abolition ; that in conformity with such resolution, and for the reasons therein stated, that trade was, by an act passed in the forty-seventh year of his present IMajcsty, declared to be unlawful ; (//) that it had been found that divers persons not deterred by the provisions and penalties of that act still continued to (fl) 47 Geo. III. sess. 1. c. 36. and see 46 Geo. HI. c. 52. By these acts various penalties and for- feitures are imposed upon persons engaged in the slave trade ; and hy a later statul.- .'jS Geo. HI. c. llii. the time limited for prosecutions under those statutes is extended to three years after the ofTeuce com- mitted. Thf seventh section of the 51 Geo. HI. c. '2.S. provides that nothing ii> th.it act contained hhuil rcpr.il cither llw- 16 (wo. 111. c. 52. or liie 47 (ico. III. sess. I. c. :J6. in respect of the forfeitures <)f •hips, tif. therchy respectively im- p()s<(l. or the remedies therehy given for the recovery ther«'of, or in respect of any pecuniary penal- lies therehy impos.-d ; but th those acts shall be in force except so far as the 46 Geo. HI. c. 52. is altered or extended by the 47 Geo. HI. sess. I. c. 36. And the eiglith section of the 51 Geo. HI. c. 2:J. enacts that all governors, commanders-in-chief, &c. of any colonies, isic. belonging to his Majesty, or lo the Jfrican com- pany in .■Ifricu, or any African islaiul, and persons authorized by I hem, may seize vessels, Hic. and other liiings forft'lted for any of- fence agiiinsl llie 4() Geo. HI. c. 52. or the 47 Geo. HI. se.ss. 1. c. 36. or eitlier of them, which shall be found upon, or near to the coast of .'Ifricn, or in any port, Aic. thereof, or wilhin the limits of any of the .said colonies, itic. CHAP. XIX.] Of Dealing in Slav GS. 251 deal and trade in slaves upon the coast of Africa and else- where, and to carry them for sale hy sea ; that the house of commons by its resolution in 1810, expressed its indignation at such practices, and resolved speedily to take into con- sideration such measures as might tend effectually to pre- vent sucli daring violations of the law ; and that it was fit that such measures should be extended to the effectual abolition of the slave trade wheresoever it might be at- tempted to put it in practice. The statute then enacts " that if any subject or subjects 51 Geo. III. '•' of his Majesty, or if any person or persons residing or pgr^g^ns en- " being within this united kingdom, or in any of the islands, gjaged in the " colonies, dominions, forts, settlements, factories, or terri- je^lared to " tories, now or hereafter belonging thereto, or being in his be felons. " Majesty's occupation or possession, or under the govern- " ment of the East India company, shall by him or them- " selves, or by his or their factors or agents or otherwise " howsoever, carry away or remove, or aid or assist in the *' carrying away or removing as a slave or slaves, or for the " purpose of being sold, transferred, used, or dealt with, as " a slave or slaves, any person or persons whatsoever from " any part of Africa, or from any other country, territory, " or place whatsoever, either immediately or by tranship- " ment at sea or otherwise, directly or indirectly ; or shall " import or bring, or aid or assist in the importing or bring- " ing into any island, colony, country, territory, or place " whatsoever, any such persoji or persons as aforesaid, for " the purpose aforesaid ; or shall knowingly and wilfully " ship, embark, receive, detain, or confine, on board any " ship, vessel, or boat, any such person or persons as afore- " said for the purpose of his, her, or their, being so carried " away, or removed, imported, or brought, as aforesaid; or " of being sold, transferred, used, or dealt with as a slave " or slaves ; or shall knowingly and wilfully use or employ, " or permit to be used or employed, or let, or take to " freight or on hire, any ship or vessel to be used or em- " ployed in carrying away or removing, importing or bring- 252 Of Dealing In Slaves. [book ii. " ing;, or for the purpose of carrying away or removing, *' importing, or i)ringiiig, as aforesaid, any such person or " persons, as a slave or slaves, or for the purpose of his her " or their being sold, transferred, used, or dealt with, as a " slave or slaves; or shall lit out or cause to be fitted out, " or shall take the charge or command of, or navigate, or " enter and embark on board any such ship or vessel, as " master or captain, mate, supercargo, or surgeon, knowing " that such ship or vessel is actually employed, or is, in " the same voyage for which he or they shall so enter and " embark on board, intended to be employed in carrying or " removing, importing or bringing as aforesaid, any such " person or persons, as or for the purpose of his her or " their being sold, transferred, used, or dealt with, as a slav« " or slaves ; then and in every such case the person or per- " sons so oftending, and their counsellors, aiders, and abet- *' tors, shall be and are hereby declared (o be felons, and " shall be transported beyond seas for a term not exceed- " ing fourteen years ; or shall be confined and kept to " hard labour for a term not exceeding five years, nor " less than three years, at the discretion of the court be- " fore whom such offender or offenders shall be tried and " convicted." 61 G III c 23 '^^^ second section enacts, " that if any person or per- 8. 2. Persons " sons shall enter or navigate, or embark on board any such board, en- " ^'"P ®'* vessel used and employed, or meant and intended gnprd as petty " to be used and employed as aforesaid, as a petty officer, officers, ^r. or under writ- servant, or seaman, or petty oHicers, servants or seamen, in^ poliry on u j^nowins: that such is or shall be the purpose, or one of such ship, " . piiilty of a " the purposes, of the voyage ; or if any person or persons mudemeanor. a ^|,,,ii underwrite, or procure to be underwritten, any " policy of assurance upon any ship or vessel, or goods, or " the freight of any ship or vessel empio>od, or intended to " be employed, in any such voyage, knowing that such is or " shall be the purpose, or one of the purposes, of the said " voyage, he or they nevertheless shall not be deemed guilty " of a felony within the meaning of this act, but shall be CHAP. XIX.] Of Dealing in Slaves. 25'i « guilty of a misdemeanor only ; and shall be punished by " imprisonment for a term not exceeding two years." The third section declares " that such per.'^ons shall not S. 3. Suchpcr- . II • • 1 I -4. sons not ac- " be deemed to be, nor shall be punished as, accessories to cessories. « felony." The statute then provides that nothing contained in it S. 4. But . ., , . f. T» -i- u * slaves may be shall extend to any person removing from one Britisli set- removed Irom tlement, &c. in the West Indies to another, or from one one British ' 1 i- ii settlement to part of such settlement, &c. to any other part ot the same, another, &c. or for importing into any such settlement, &c. any slaves born within such settlements, &c. or any slaves lawfully im- ported or brought into the said settlements, &c. or for re- moving any slaves from one part of any foreign settlement, &c. to another part of the same foreign settlement, &c. or for transhipping and assisting at sea any slaves in any ves- sel in distress. And it provides also that the act shall not And may be extend to prevent the transportation to any foreign place of fJ^^"J|,7piact9 any slaves convicted in any British island or colony, of any if convicted . , . , 1 • I X /> X 1 i- • J of crimes. crime to which the punishment ot transportation is annexed by the law of such island or colony ; but that in such case a copy of the sentence certified by the court shall be put on board in the vessel in which any such convict shall be trans- ported. (6) All offences declared in this act to be felonies or misde- S. 6. Trial of meanors, and committed in Africa, or in any other country, *^ '"*^'' " &c. than the united kingdom, or on the high seas, or in any port, &c. where the admiral has jurisdiction, are to be en- quired of, either according to the ordinary course of law and the provisions of the 28 Hen. VIII. c. 15. ; (c) or ac- cording to the provisions of the 33 Hen. VIII. c. 23. () 3 Inst. 193. 3 Bac. Abr. 261. foreigner, bringing victuals or anv Forestalling (A). other mercliandize into the realm, (c) I Hawk. P. C. c. 80. s. 1. may sell it in gross. 3 Inst. 196. (rf) 3 Inst. 196. 3 Bac. Abr. 261. (e) 1 Hawk. P- C. c. 80, s. 3 Forestalling (A). 1 Hawk. P. C. 3 Inst. 196. 2d6 Of foreslalling, rei^rntlng, and ingrossing. [book ii. The statutes on this sub- ject now re- pealed. it has been held contrary to lau to sell corn in the sheaf; upon the supposition (hat by such means the market might be in etVect forestalled. (J') The offences of forestalling, regrating, and ingrossing were for a considerable period prohibited by statutes ; and chiefly by the 3 & 4 Edw. VI. c. 21. and 5 & 6 Edw. VI. c. 1 1 ; (g) but the beneficial tendency of such statutes was doubted, and at length by the 12 Geo. III. c. 71. they >vere repealed, (//) as being detrimental to the supply of the la- bouring and manufacturing poor of the kingdom. The offences jj {jy^ j^gen sometimes contended that forestallmg, re- are still nu- , . . ■ 1 1 1 1 1 ii nishable at gratuig, and ingrossmg, were punishable only by the pro- common law. visions of these statutes ; (0 but tliat doctrine has not been admitted, and they still continue offences at common law ; (A) though tiieir precise extent and definition at the present day may perhaps admit of some doubt. There is not much to be found in the books concerning the common law upon this subject ; and from the time of th'e 5 & 6 Edw. VI. c. 14. prosecutions for offences of this nature were probably found to be framed with more facility and certainty upon the sta- tute than upon the common law. That statute, it has been observed, is now repealed ; but as it particularly describes the ofl'ences of forestalling, regrating, and ingrossing, it iBay be of use to refer to it as containing a parliamentary exposition of the respective terms denoting the several par- ticular oflences. (/) (/) a Inst. 107. 3 Bac. .\br. '2(il. Forestallinf^ (A). (g) AllfTtd by .') Eliz. c. '>. s. l.S. 5 Eliz. c. 12. and \:i Eliz. c. 'i.'j. 8. 13. {h) The act« repealed are :i & i Edw. VI. c. 21. h 6. V> Edw. VI. .. 11. 3 Phil. & .Mar. c. .<. .'> Eliz. c. .'). l.') Car. 11. c. 8. and so nuith of 5 Ann. c. :{1. as nlatcs to butchers scllinir callle ali\e or dead, in London or Westminster, or within ten miles thereof ; and all the acts made for the better en- forcement of the same. (i) Rex V. Maynard, Cro. Car. 2r?l. Hex r. Waddinf^ton, I East, ij.'^. (k) 1 Hawk. P. C. f. HO. s. 15. (/) 1 Hawk. c. 80. K. 15. 2 Burn's Just. Forestalling, &c. p. 395, 396. iBlac.Com. 158. CHAP. XX. 3 Of forestalling, regrating, and ingrossing. 2ol The first section enacted that whosoever should buy or Parliaincnt- cause to be bought any merchandize, victual, or any other opa/^l/vwa/-" thing whatsoever, coming by land or by water toward any ^^''• marketer fair, to be sold in the same, or coming toward any city, port, haven, creek, or road, from any parts beyond the sea, to be sold ; or make any bargain, contract, or pro- mise, for the having or buying the same or any part thereof, so coming as aforesaid, before the said merchandize, vic- tuals, or other things, should be in the market, fair, city, port, haven, creek, or road, ready to be sold ; or should make any motion by word, letter, message, or otherwise, to any person, for the enhancing of the price, or dearer selling of any thing above mentioned; or else dissuade, move, or stir, any person coming to the market or fair, to abstain or forbear to bring or convey any of the things above re- hearsed to any market, fair, city, port, haven, creek, or road, to be sold as aforesaid — should be taken to be a forC' staller. {m) The second section enacted that whosoever should bv anv Oi'd regrator. means regrate, obtain, or get into his hands or possession, in a fair or market, any corn, wine, fish, butter, cheese, candles, tallow, sheep, lambs, calves, swine, pigs, geese, capons, hens, chickens, pigeons, conies, or other dead victual whatsoever, that should be brought to any fair or market to be sold, and should sell the same again in any fair or market holden or kept in the same place, or in any other fair or market within four miles thereof — should be taken to be a regrator. (w) (m) Forestalling {forestcellan or stallage, which sigaifieth iuouct forestallan) in the English Saxon paid for erecting a stall or stand signifieth properly to market be- for the selling of goods in a fiir fore the public, or to prevent the or market. 2 Burn s Jnst. :i95. public market ; and metaphorical- Forestalling, &c. ly, to intercept in general ; and («) Regrator is said to be de seemeth derived from /ore, which rived from tlie French word re is the same as before, and stalle, a gratement, for huckstery. 3 Insl standing place or department, from 195. whence sprang the ancient word VOL. I. S 258 Of Forestalling, Begrating, [book, il Of an i«- grosser. The third section enacted, that whosoever should ingross or get into his hands by buying, contracting, or promise taking, other than by demise, grant, or lease of land or tythe, any corn growing in the fields, or any other corn or grain, butter, cheese, fish, or other dead victuals whatsoever, to the intent to sell the same again, should be taken to be an tfigrosse)- (0) Common law It has been suggested, that at the present day it would pro- offence, bably be holden that no offence is committed, unless the conduct of the party manifests an intent to raise the price of precisions ; as the mere transfer of a purchase in the market where it is made, the buying articles before they arrive at a public market, or the purchasing of a large quantity of a particular article, can scarcely be regarded as in themselves necessarily injurious to the community, {p) And that many cases may occur in which a most laudable motive may exist for buying up large quantities of the same commodity, {q) It is stated also, that in one case the court were equally di- vided on the question, whether regrating is an indictable ofl'ence at common law : (r) and that it seems therefore, at all times, to be safer to charge in the indictment, that the acts complained of were done with an evil design to raise the price of the article in question. (^) ffaddington's In a case which occurred in the year 1800, and in which ham-incr tlio *^'^ defendant was charged by an information, filed against price of hops, liim by leave of the court, with divers acts conunittcd with the intent of enhancing the price of hops, the law relating (o) The vendee cannot sell a^ain (q) 2 Chit. Crim. Law, ibid, re- in gross, for then he is an ingrosser fcrriiig to the arguments, &c. in accordiii;; l<> Hi'- iialiirc . Gil)bs, I Str. 497. Rcxt>. Foster, 1 Lord Raynj. 475. (c) 1 Hawk. P. C. c. 80. ». 5. ((/) 4Blac. Com. 158. 3 Inst 181. (e) Skin. 169. (/)3 ln.sl. lai. 2 Inst. 47, 61, 4 Bac. Ab. 764. Monopoly (A) nolo (b). (e) I Hawk. r. C. c. 79. s. I. CHAP. XX.] Of Monopolies. 26j But, notwithstanding their illogalitj, monopolies had been carried to an enormous height during the reign of queen Elizabeth ; the evil was however in a great measure remedied by the statute 21 Jac. I. c. 3. which declares them to be contrary to law, and void ; (except as to patents, not ex- ceeding the grant of fourteen years, to the authors of new inventions; and except also patents concerning printing, saltpetre, gunpowder, great ordnance, and shot;) and mono- polists are punished with the forfeiture of treble damages and double costs, to those whom they attempt to disturb, (/i) It is worthy of observation, that, as our laws on the one The undue hand carefully protect the people from the arts of those who tj^g*^^]f°*f"^ would unduly raise the price of the comforts and necessaries our native of life ; so, on the other, they protect the fair trader from is"'p^"si|abie impositions, which may have the effect of unduly lowering the price of the article in which he deals. Thus, the abate- ment by undue means of the price of our native commodi- ties is punishable by fine and ransom : (/) and a case is mentioned, where certain persons came to Coteswold, and said, in deceit of the people, that there were such wars beyond the seas that wool could not pass or be carried be- yond sea ; whereby the price of wools was abated ; and pre- sentment thereof being made, the defendants, having ap- peared, were, upon their confession, put to fine and ran- som, (k) Qi) S. 4. And see further upon (») 3 Inst. 196. referring to 23 thesubjectofMonopolies, 1 Hawk. Edw. HI. c. 6. 13 Rich. H. c. 8. P. C. c. 79. 4 Bac. Ab. Mono- Inter leges Ethelstani, c. 12. poly. (fc) 8 Inst. 196. 266 CHAPTER THE TWENTY-FIRST. Of Maintenance and Champertt/^ and of Buying and Selling Pretended Titles. Maiutcnauce. Instances of laainteiiauce. I. Maintenance seems to signify an unlawful takiiio in hand or upholding of quarrels or sides, to the disturbance or hindrance of common right. This may be where a person assists another in his pretensions to lands, by taking or holding the possession of them for him by force or subtilty, or where a person stirs up quarrels and suits in relation to matters wherein he is in no way concerned; (a) or it may be where a person officiously intermeddles in a suit depending in a court of justice, and in no way belong- ing to him, by assisting either party with money, or other- wise, in the prosecution or defence of such suit, (b) Where there is no contract to have part of the thing in suit, the party so intermeddling is said to be guilty of maintenance generally; but if the party stipulate to have part of the thing in suit, his offence is called chamj)ert7/. (c) As to maintenance^ it is laid down, that whoever assists another with money to carry on his cause, as by retaining one to be of counsel for him, or otherwise bearing him out (a) Co. Lit. 368. b. 2 Inst. 208, 212, 213. 1 Hawk. P. C. c. 83. ». 1, 2. 4 Bac. Ab. 488. Mainte- nance. This kind of niaintenaucc is called in the hooks ruriilis, in dislitiction to another sort carried on in courts of jiHlit <•, ami liien!- fore called curialin. It is |)miish- ablc at the king's suit hy fine and ioiprisotuuciit, whether the mailer in dis|nilc any way depended in plea or nut ; but is said not to be actionable. (b) 1 Hawk. P. C. c. 83. s. 3. 4 Bac. Ab. 488. JUainlenancr. 4 Blac. Com 134. This kind of maintenance is called curialis. fi>ee anle, note (a). (c) Co. Lit. 368. 1 Hawk. P. C. c. 83. s. 3. CHAP. XXI.] Of Maintenance. 267 in the whole or part of the expence of the suit, may pro- perly be said to be guilty of an act of maintenance, (c?) It has been said, that no one can be guilty of maintenance in respect of any money given by him to another for the pur- poses of an intended suit, before any suit is actually com- menced ; but it should seem that this, if not strictly main- tenance, must be equally criminal at common law. (e) And a person may be as much guilty of maintenance for sup- portiiig another after judgment, as for doing it while the plea is pending, because the party grieved may be thereby discouraged from bringing a writ of error or attaint, {f) It has also been said, that he who by his friendship or fw- terest saves a person that expence in his cause which he might otherwise be put to, or gives, or but endeavours to give, any other kind of assistance to a party in the manage- ment of his suit, is guilty of maintenance, (g) And it has (d) 1 Hawk. P. C. c. 83. s. 4. and the numerous authorities cited in the margin. (e) 4Bac. Ab. 490. Maintenance, (A). 1 Hawk. P. C. c. 83. s. 12. where it is said, that if it plainly appear that the money was given merely with a design to assist in the prosecution or defence of an in- tended suit, which afterwards is actually brought, surely it cannot but be as great a misdemeanor in the nature of the thing, and equally criminal at common law, as if the money were given after the com- mencement of the suit ; though perhaps it may not in strictness come under the notion of main- tenance. (/) I Hawk. P. C. c. 83. s. 13. 4 Bac. Ab. 490. Maintenance (A). (f) Bro. tit. Maintenance, 7, 14, 17, &c. 1 Hawk. P. C. c. 83. s. 5, 6. But qu. how far this would be acted upon at the present day; and seethe judgment ofBuUer, J. in Master w. Miller, 4T. R. 340. where he says: " It is curious, and not al- " together useless, to see how the " doctrine of maintenance has " from time to time been received " in fVestminster Hall. At one " time, not only he who laid out " money to assist another in his " cause, but he that by his friend- " ship or interest saved him an " expence that he would otherwise " be put to, was held guilty of " maintenance. Nay, if he offi- " ciously gave evidence, it was " maintenance; so that he must " have had a subpetna, or sup- " pressed the trutii. That such " doctrine, repugnant to every ho- 268 Of Maintenance. [boor ii. been said also, that he wlio gives any public countenance to another in relation to such suit, will come under the like notion ; as if a person of great power and interest says pub- licly that he will spend a sum of money on one side, or that he will give a sum of money to labour the jury, whether in truth he spend anything or not ; or where such a person comes to the bar with one of the parties, and stands by him while his cause is tried, whether he says any thing or not; for such prac- tices not only tend to discourage the other party from going on with his cause, but also to intimidate juries from doing their duty, (/i) But it seems that a bare promise to maintain another is not in itself maintenance, unless it be either in respect of the power of the person who makes it, or of the public manner in which it is made. (0 And it seems clear? that a man is in no danger of being guilty of an act of main- tenance, by giving another friendly advice as to his proper remedy at law, or as to the counsellor or attorney likely to do his business most effectually, {h) When jujtifi- But tliere are many acts in the nature of maintenance, ^''**^' which become justifiable from the circumstances under which they are done. They may be justifiable, 1. in re- spect of an interest in the thing in variance ; 2. in respect of kindred or aftlntiy ; 3. in respect ofother relations, as that of lord and tenant, master and servant; 4. in respect of charity ; 5. in respect of the profession of the law. In reipert of It seems clear that not only those who have an actual in- an interest in ^ ^.^g^ j^ ^jj^ \\^\nEr in variance, as those who have a rever- tne thing in . variance. sion expectant on an estate-tail, or a lease for life or years, &c. but also those who have a bare contingency of an in- terest in the lands in question, which possibly may never come in esse, and even those who, by the act of God, have " nest fcrlinp of tlic liuman heart, Bac. Ab. 4H9. Maintenance (A). " should be hiid a.side, must be ex- (i) 1 Hawk. P. C. c. 83. s. 8. " peeled." (fc) Ibid. s. 9. 4 Bac. Ab. 489. (h) lllawk. r.C. C.83. s. 7. 4 Mainlaiancc {h). CHAP. XXI.] Of Maintenance. 269 the immediate possibility of such an interest, as heirs ap- parent, or the husbands of such heirs, tliough it be in the power of others to bar them, may lawfully maintain ano- ther in an action concerning such lands : and if a plaintiff in an action of trespass alien the lands, the alienee may produce evidence to prove that the inheritance at the time of the action, was in the plaintiff, because the title is now become his own. (0 Also he who is bound to warrant lands may lawfully maintain the tenant in the defence of his title, because he is bound to render other lands to the value of those that shall be evicted. And he who has an equitable interest in lands or goods, or even in a chose in action, as a cestui que trust, or a vendee of lands, &c., or an assignee of a bond for a good consideration, may lawfully main- tain a suit concerning the thing in which he has such an equity, {m) And wherever any persons claim a common in- terest in the same thing, as in a way, churchyard, or com- mon, &c. by the same title, they may maintain one another in a suit concerning such thing. And a man's-bail may take care to have his appearance recorded ; but, as some say, they cannot safely intermeddle further, (ti) Whoever is of kin, or godfather to either of the parties, in respect of or related by any kind of affinity still continuing, may law- J^^'^?** ^^ fully stand by at the bar and counsel him, and pray another to be of counsel for him ; but cannot lawfully lay out his money in the cause, unless he be either father, or son, or heir apparent, to the party, or husband of such an heiress, (o) Much of the law relating to the maintenance which a ^" respect of lord may give to his tenant, would hardly be applicable at of lord and the present time. It seems to have been the better opi- tenant, master * » aud servant. (0 4 Bac. Abr. 490, Maintenance (n) 1 Hawk. P. C. c. 83. s. 24, (.B). 1 Hawk. P. C. c. 83. s. 14, 25. 4 Bac. Abr. 490. Mainlen- 15, &c. ance (Q). (m) Id. Ibid, and see the judg- (o) 4 Bac. Abr. 491. 1 Hawk, ment of Buller, J. in Master v. P. C. c. 83. s. 26. Miller, 4 T. R. 340, et sequ. 270 Of Maintenance. [boor ii. nion that the lord might justify laying out his own money in defence of his tenant's title, where the lands were originally derived from the lord, but that he could not maintain the tenant in respect of lands not holden of him- self, ip) With respect to the maintenance which a master may give to his servant, it has been held that he may go along with him, or his domestic chaplain, to retain counsel ; also he may pray one to be of counsel for him, and may go with him, and stand with him, and aid him at the trial, but ought not to speak in court in favour of his cause : also it is said, that if the servant be arrested, the master may assist him with money to keep him from prison, that he may have the benefit of his service; but he cannot safely lay out money for the servant in a real action, unless he have some of his wages in his hands ; but those with the servant's consent he may safely disburse, {q) And a servant cannot lawfully lay out any of his own money to assist the master in his suit, (r) In respect of ■'^"y one may lawfully give money to a poor man to charity. enable him to carry on his suit : and any one may safely go with a foreigner, who cannot speak English, to a counsellor and inform him of his case, {s) In respect of A counsellor^ having received his fee, may lawfully set . !M!'^*i"^'^" forth his client's cause to the best advantage : but can no ol the law. "^ ' more justify giving him money to maintain his suit, or threatening a juror, than any other person. An attorney also, when specially retained, may lawfully prosecute or defend an action, and lay out his own money in the suit: but an attorney who maintains another is not justified by a (p) I Hawk. P. C. c. 83. H. 29. («) Bro. J/m«r 11. 4 Bac. Abr. (^) Bro. Ma/nl. 44, ri2. 1 Hawk. V>\. JSlainlaiuncv {^) \. I Hawk- P. C. c. «3. ». 31, .S2, .3.3. I'. C. c. 83. 8, 36, 37. (r) 1 Hawk. id. *. 34. CHAP. XXI.] Of Champerty. 271 general retaiiipr to prosecute for him in all causes. Nor can an attorney lawfully carry on a cause for another at his own expence. with a promise never to expect repayment ; and it is said to be questionable whether solicitors, who are no attornies, can, in any case, lawfully lay out their own money in another's case. (/) But no counsellor or attorney can justify using any de- ceitful practice in maintenance of a client's cause, and they will be liable to be punished for misdemeanors in this re- spect by the common law, and also by the statute Westm. 1. c. 29. (m) In the construction of this statute it has been holden that all fraud and falsehood, tending to impose upon or abuse the justice of the king's courts are within the purview of it ; as if an attorney sue out an habere facias seisinam, falsely reciting a recovery where there was none, and by colour thereof put the supposed tenant in the action out of his freehold. Also it is an offence within the statute to bring a prcecipe against a poor man having nothing in the land, on purpose to oust the true tenant, or to procure an attorney to appear for a man, and confess a judgment without any warrant ; or to plead a false plea, known to be utterly groundless, and invented merely to delay justice and to abuse the court, {x) In most of these cases the court would probably grant an attachment against the of- fender on motion, {y) II. Champerty is a species of maintenance, being a bar- Champerty, gain with a plaintiff or defendant campiim partire, to divide the land or other matter sued for between them, if they pre- vail at law ; whereupon the champertor is to carry on the (t) 2 Inst. 564. 4 Bac. Abr. 491, shall not plead again if he be a 492. Maintenance (B) 5. 1 Hawk. pleader. P. C. c. 83. S.28, 29, SO. (x) 2 Inst. 215. Dy. 362. 1 Hawk. (m) 2 Inst. 215. Bac. Abr. and P. C. c. 83. s. 33, et sequ. Hawk. id. ibid. The statute enacts (^y) 4 Bac. Abr. 492, Maintenance that the offender shall be inipri- in the margin, soned for a year and a day, and 272 Of Champerty. [boor ir. party's suit at his own expGnce.(s) Little is to be met with in modern books upon this subject; but the statutes, and resolutions upon their construction, may be shortly noticed. Westm. I.e. 25. No offi- cer, &c. shall raaintaiD pleas for lands, &c. to haTe part thereof. The statute Weslmimtcr 1. (3 Edw. I.) c. 25. enacts, that " no officers of the king, by themselves, nor bj others, shall maintain pleas, suits, or matters, hanging in the king's courts, for lands, tenements, or other things, for to have part or profit thereof, by covenant made between them ; and he that doth shall be punislied at the king's pleasure." By the courts mentioned in this statute it has been held that courts of record only are intended ; and it has also been held that under the word covenant all kinds of promises and contracts of this kind are included; that maintenance in personal actions to have part of the debt or damages, is as much within the statute as maintenance in real actions for a part of the land ; and that though a grant of rent out of other lands is not within the statute, yet the statute applies to a grant of rent out of the lands in ques- tion ; but that a grant of part of a thing in suit, made in con- sideration of a precedent debt, is not within its meaning, (a) The maintenance of a tenant or defendant is as muchwithfn the meaning of the statute as the maintenance of a demand- ant or plaintiff. And it has been holden not to be material whether he who brings a writ of champerty did in truth suffer any damage by it, or whether the plea wherein it is alleged be determined or not. {b) We«tin.2.r.49. The statute Westminster 2. (13 Edw. I.) c. 49. enacts, tha4 Certain offi- u the chancellor, treasurer, justices, nor any of the king's cer«nottore- ., , , ^ . , „ , , cciveany " council, no clerk ot the chancery, nor ot the exchequer, rhurrh, land, jj nor of anv justice or otlicr ollicer, nor any of the king's a^v. «<> lon{j :is -' •' . the thing is in " house, clerk ne lay, shall not receive any church, nor pica. {z) 4 Blac. Com. 135. (a) S«;c the authorities collected ia I Hawk. P. C. c. 84. s. J. vl nqu. \ Bar. Ah. Cbampirli/y p. .V7 1 {!>) Id. Ibid. CHAP. XXI. J Of Champerty. 273 " advowson of a cliurch, land, nor tenomont in fee, by gift, " nor by purchase, nor to farm, nor by champerty, nor *' otherwise, so long as the thing is in plea before us, or " before any of our officers ; nor shall take no reward " thereof. Ax\A he that doth contrary to this act, either " himself or by another, or make any bargain, shall be " punished at the king's pleasure, as well he that pur* " chaseth as he that doth sell." This statute extends only to the officers therein named, and not to any other per- sons, (c) But it so strictly restrains all such officers from purchasing any land, pending a plea, that they cannot be excused by a consideration of kindred or affinity, and that tliej are within the meaning of the statute by barely making such a purchase, whether they maintain the party in his suit or not; whereas such a purchase for good consideration made by any other person, of any terre-tenant, is no offence, vmless it appear that he did it to maintain the party, {d) The statute 28 Edw. I. c. 11. reciting that the king had Extended by theretofore ordained by statute that none of his ministers ^^ ^^'^- ^- c. 1 1 sliould take no pica for maintenance, by which statute othor officers were not bounden, enacts, that " the king will that no officer, nor any other (for to have part of the thing in plea) shall not take upon him the business that is in suit ; " nor none upon any such covenant shall give up his right *•' to another; and if any do, and he be attainted thereof, " the taker shall forfeit unto the king so much of his lands " and goods as doth amount to the value of the part that " he hath purchased for such maintenance. And for this " atteindre, whosoever will, shall be received to sue for the " king before the justices before whom tiie plea hangeth, " and the judgment shall be given by them. But it may " not be understood hereby, that any person shall be pro- " hibit to have counsel of pleaders, or of learned men in " the law for his fee, or of his parents or next friends." (t) 2 Inst. 484, 485. (rf) I Hawk. P. C. c. 84. s. 1?. TOL. I. T 2T4 Of Buying or Scllhig a pretended Title, [book. ii. Upon this statute it seems to be agreed that champerty in any action at law is within it ; and a purchase of land, pend- ing a suit in equity concerning it, has also been holden to be within the statute; also a lease for life or years, or a voluntary gift of land, pending a plea, is as much within the statute as a purchase for money. But neither a con- veyance executed, pending a plea, in pursuance of a prece- dent bargain, nor any surrender by a lessee to his lessor, nor any conveyance or promise thereof made by a father to his son, or by any ancestor to his heir apparent, nor a gift of land in suit, after the end of it, to a counsellor for his fee or wages, without any kind of precedent bargain relating to such gift, are within the meaning of the statute, (e) Ofbu\ipp^or IIT. Another species of maintenance appears to be the r d"d t u'^'^' offence of bi/j/ing or selling a pretended title ,- of which it is said in the books that it seems to be an high offence at com- mon law, as plainly tending to oppression, for a man to i)uy or sell at an under rate a doubtful title to lands known to be disputed, to the intent that the buyer may carry on the suit, which the seller does not think it Morth his while to do. And it seems not to be material whether the title be good or bad ; or whether the seller were in possession or not, unless the possession were lawful and uncontested. (/) Offences of this kind are also restrained by several statutes. The 1 Rich. II. c. 9. enacts, that no gift or feoffment of lands or goods in debate under legal j)roceedings, as men- tioncMl in the statute, shall be made; and that if made they fihall be holden for none and of no value, (g) And by the (e) 1 Bar. Ahr. Chanijierly, p. (/) \ B:ic. Abr. Maiiileiiaiicc, (E) 576. I Hawk. P. C. c.H\. s. 14. p. 491. 1 Ihiwk. P. C. c. 86. .s. 1. et srqii. Bill with respect to the Moore 731. Hob. 115. Plowd. foiinscllor it is said that it srciris KO. d:iiij;erou» for him to meddle with (f^) But as betw(^en the feolTor any such gift, since it cannot but and fcolVee, I'eon'menls of this kind carry with it a stronjj presumption are cfleitual. ("o. I, it, :>69. ttf thaiiipcrl}. ylubl. ^f)l. CHAP. XXI.] Of Maintenance. — Punishment. 975 13 Edw. I. c. 49. no person of the kinp^'s liouse shall buy any title whilst the thing; is in dispute, on pain of both the buyer and seller beinj^ punished at the king's pleasure. There is also a provision of the statute 32 Hen. VIII. c. 9. that no one shall buy or sell or obtain any pretended rio^ht or title to land unless the seller, his ancestors, or they by whom he claims, have been in possession of the same, or of the reversion or remainder thereof, or taken the rents or profits for one whole year before; on pain that both seller and buyer shall each forfeit the value of such land, the one half to the kin^r, and the other to him who will sue. (/') The offences of champerty and buying of titles, laid or Place of trial alleged in any declaration or information, may be laid in ^""'.cjiamperty ° "^ y J and buying oi any county, at the pleasure of the informer. (/) titles. By the common law all unlawful maintainers are not only Punishment liable to render damages in an action at the suit of the "^™a'"*^- '^ nance by com- party grieved, but may also be indicted and fined, and im- »h>u law. prisoned. Sec. and it seems that a court of record may commit a man for an act of maintenance in the face of the court, (k) Some pains and penalties are also attached to this offence By statute. by statute. The I Rich. II. c. 4. enacts, that no person whatsoever shall take or sustain any ([uarrcl by maintenance in the country or elsewhere, on grievous paiu ; that is to say, the king's counsellors and great officers, on a pain that (/() But the statute provides that For the construction of this sta- any person being in lawful posses- tute, see 1 Hawk. P. C. c. 86. s. 1. sion by taking the rents and pro- el scqu. fits, may buy or get the pretended (0 31 Eliz. c. 5. s. 4. 1 Hawk, right or title of any other person P. C. c. 84. s. 20. and c. Sft. n. IS. to the same. And it also provides, (A) 2 Roll. Abr. 114. 2 Inst. 208. that no person shall be charged Hetl. 79. 1 Hawk. P. C. c. 83. with these penalties unless sued s. 38. 4 Bac. Abr. Jfainlcnance, within a year after the offence. (C) p. 492. T 2 ^76 Of Maintenance. — Punishment, [book ii. shall be ordained by the kinj; himself, by the advice of the lords of tliis realm ; and other officers of the kinj:^, on pain to lose their offices and to be imprisoned and ransomed, &c. and all other persons, on pain of imprisonment and ransonu And by the 32 Hen. VIII. c. 9. maintenance is subjected to a forfeiture of ten pounds : one moiety to the king, and the other moiety to the informer. (/) (0 For the construction of these statutes sec 1 Hawk. P, C. c, 8$, i 40. et sequ. 217 CHAPTER THE TWENTY-SECOND. Of Eynbracerv., and dissuading n Witness from giving Evidefice. J^3IBRACERY is SLUoiher species of maintenance, and Embracery.—- consists in such practices as tend to affect the administra- fnflienciSI^^ tion of justice by improperly working upon the minds of juror*, jurors. It seems clear that any attempt whatsoever to cor- rupt or influence, or instruct a jury in the cause beforehand^ or any way to incline them to be more favorable to the one side than to the other by money, promises, letters, threats, or persuasions, except only by the strength of the evidence and the arguments of the counsel in open court, at the trial of the cause, is a proper act of embracery, whether the jurors on whom such attempt is made give any verdict or not, or whether the verdict given be true or false, (a) And it has been adjudged that the bare giving of money to another, to be distributed among jurors, is an offence of the nature of embracery, whether any of it be afterwards actually so distributed or not. It is also clear that it is as criminal in a juror as in any other person to endeavour to prevail with his companions to give a verdict for one side by any practices whatsoever, except only by arguments from the evidence which may have been produced, and exhorta- tions from the general obligations of conscience to give a true verdict. And there can be no doubt but that all frau- dulent contrivances whatsoever to secure a verdict are high offences of this nature ; as where persons by indirect means procure themselves or others to be sworn on a tales in order to serve one side. (6) (a) 1 Hawk. P. G. c. 85. s. 1. 5. Kingi>. Opie and others, 1 Sauod, 4Blac. Com. 140. 301. {b) 1 Hawk. P. C. c. 85. «. 4. The 278 Of Embracery. [book il It is said that generally the giving of money to a juror after the verdict, without any precedent contract in relation to it, is an oflence savouring of the nature of embracery : but this does not apply to the reasonable recompence usually allowed to jurors for their expences in travelling, (c) Howfarjusti- The law will not suffer a mere stranger so much as to fiable. IV- • labour a juror to appear, and act according to his con- science ; but it seems clear that a person who may justify any other act of maintenance, {d) may safely labour a juror to appear and give a verdict according to his conscience ; but that no other person can justify intermeddling so far. And no one whatsoever can justify the labouring a juror not to appear, (f) Punishment Offences of this kind subject the offender to be indicted of embracery. , 111/- 1 • " • • 1 and punished by nne and imprisonment m the same manner as all other kinds of unlawful maintenance do by the com- mon law. if) They are also restrained by statute, the 5 Edw. III. c. 10. enacting that any juror taking of the one party or the other, and being duly attainted, shall not be put in any assizes, juries, or inquests; and shall be com- manded to prison, and further ransomed at the king's will : and the 34 Edw. III. c. 8. enacting that a juror attainted of such offence shall be imprisoned for a year. A subsequent statute 38 Edw. 111. 0. V2. enacts that if any jurors, sworn in assizes and other inquests, take any thing, and be thereof attainted, every such juror shall pay ten limes as much as he hath taken. "And that all the embraccors to bring or " procure such inquest in the country, to take gain or pro- " fit, shall be punished in the same manner and form as the "jurors ; and if the juror or ei.ibraceor so attainted have *' not whereof to make grce in the manner aforesaid, he " shall iiave the im|)risonment of one year." («,'•) The sta- (c) 1 Hawk. P. C. c. 85. s. 3. (fr) Ifpon llic conslruclion of (d) Ante, 268, et scqu- these statutes, and respecting llie (e) 1 Hawk. P. C. c. 85. s. 6. arlionof rfmcv /flnfum, see 1 Hawk. (/) Jd. s. 7. 4 Bl. Com. 110. P. C. c, 83. s. W.cl scqu. And see CHAP, xxn.] Of Dissuading a Witness, S^c, 279 tute 32 Hen. VIII. c. 9. also enacts that no person shall embrace any freeholders or jurors upon pain of forfeiting £10, half to the king, and half to him that shall sue v/ithin a year. All who endeavour to stifle the truth, and prevent the due Dissuading a execution of justice, are highly punishable ; and therefore gi'vine*evi-°^ the dissuadins: or endeavouring to dissuade a witness from dence. giving evidence against a person indicted is an offence at common law, though the persuasion should not succeed, {k) also 32 Hen. VIII. c. 9. which enacts that all statutes thereto- fore made concerning niuintenance, champerty, and embracery, or any of them, then standing and being in their full strength and force, shall be put in due execution. Qi) 1 Hawk. P. C. c. 21. s. 15. Rex XI. Lawley, 2 Str. 904. See as to mere attempts to commit crimes, ante, p. 61, 62. And see an indictment for dissuading: a witness from giving evidence against a person indicted, 2 Chit. Crim. L. 235 : and an indictment for a conspiracy to prevent a wit- ness from giving evidence, Rex v. Steventon and others, 2 East. R. 362. 280 CHAPTER THE TWENTY-THIRD. Of Barratry^ and of Suing in the name of a Fictitious Plaintiff. a common mover, ex- Definition of A BARRATOR is defined to be fcarra rj. citer, or maintainer, of suits or quarrels in courts of record, or other courts, as the county court, and the like ; or in the country, by taking and keeping possession of lands in controversy, by all kinds of disturbance of the peace, or by spreading false rumours and calumnies whereby discord What person! ^j^j disquiet may grow among neighbours. («) But one act may commit . • • • -n i < the offeuce. of this description will not make any one a barrator, as it is necessary in an indictment for this ofl'ence to charge the defendant with being a common barrator, which is a term of art appropriated by law to this crime, (b) It has been holden, that a man shall not be adjudged a barrator in re- spect of any number of false actions brought by him in his own right : (c) but this is doubted, in case such actions be merely groundless and vexation^;, without any manner of colour, and brought only with a design to oppress the de- fendants, (d) An attorney cannot be deemed a barrator in respect of his maintaining another in a groundless action, to the com- (a) n«'X V. Uriyn, 2 t^aund. 308, words signifying a quarrel or con- note (1). 1 Hawk. P. C. c. 81. s. trntion. Sec the notes to 1 Bac. 1,2. Co. Lit. 'MH. 8 Rep. 3fi. Ahr. 50S, Barratry (A). Barrator is said to be a forensic (ft) 8 Co. 36. Ilex v. Hardwicke, term taken from the Normans. 1 Sid. 282. Ileg. v. IJannon, 6 The Islandic and Scandinavian Mod. 311. baralla, the Ant^lo-Norman buret, (c) Roll. Abr. 355. and the Italian baratta, are all (rf) I Hawk. P. C. c. 81. a. 3. CHAP. XXIII.] Of Barratry. 281 mencing whereof he was no way privy, (e) And it seems to have been holden that a feme covert cannot be indicted as a common barrator : {f) but this opinion is considered as questionable, {g) In an indictment for this offence it seems to be unneces- indictment sary to allege it to have been committed at any certain ?"d procced- ... '"S*' place ; because, from the nature of the crime, consisting in the repetition of several acts, it must be intended to have happened in several places ; wherefore it is said that the trial ought to be hy a jury from the body of the county, {h) As the indictment may be in a general form, stating the de- fendant to be a common barrator, without shewing any par- ticular facts, it is clearly settled that tjie prosecutor must, before the trial, give the defendant a note of the particular acts of barratry which he intends to prove against him ; and that if he omit to do so, the court will not suffer him to proceed in the trial of the indictment. (0 And the pro- secutor will be confined to his note of particulars ; and will not be at liberty to give evidence of any other acts of bar- ratry than those which are therein stated. (A) It has been adjudged that justices of peace, as such, have, Trial may be by virtue of the commission of the peace, authority to in- betore jus- quire and hear this offence, without any special commission peace, of oyer and terminer. (!) (e) 1 Hawk. P.C. c. 81.S.4. (k) Goddard r. Smith, 6 Mod- (f) 1 Bac. Abr. Baron and Feme 262. (G) in the notes, citing Roll. Hep. (/) Barnes v. Constantine, Yelv. 39. 46. Cro. Jac. 32. S. C. recoonized ig) 1 Hawk. P. C. c. 81. s. 6. in Busby t'. Watson, 2 Bkc. R. (h) Parcel's case, Cro. Eliz. 195. 1050. See Rex r. Uriyn, 2 Saund. 1 Hawk. P. C. c. 81. s. 11. 1 Bac. 308 note(l). In Hawk. P. C. c. Abr. 509, jBarra/ry (B). 81. 9. 8. there is a qutere to this (i) Rex V. Grove, 5 Mod. 18. point, as having been ruled dif- J'Anson v. Stuart, 1 T. R. per ferently in Rolles Reports, fluller, J. 282 Of suit7g in the name of a fictitious plaintiff, [boor ii. Punishment. The punishment for this offence in common persons is by fine and imprisonment, and binding them to their good behaviour ; and in persons of any profession relating to the law, a further punishment by being disabled to prac- tise for the future, {m) And it may be observed that by 12 Geo. I. c. 29. s. 4. if any person convicted of common barratry shall practise as an atttorney, solicitor, or agent, in any suit or action in England, the judge or judges of the court where such suit or action shall be brought, shall upon complaint or information examine the matter in a summary way in open court ; and if it shall appear that the person complained of has offended, shall cause such offender to be transported for seven years. («) Of suing; in In this place may be mentioned another offence of equal fiSitfoISs "^ ^ malignity and audaciousness; that of suing another in the plaintiff. name of a fictitious plaintiff; either one not in being at all, or one who is ignorant of the suit. This offence, if com- mitted in any of the king's superior courts, is left, as a high contempt, to be punished at their discretion : but in courts of a lower degree, where the crime is equally pernicious, but the authority of the judges not equally extensive, it is directed by the statute 8 Eliz. c. 2. s. 4. to be punished by six months imprisonment, and treble damages to the party injured, (o) (m) 34 Edw. HI. c. 1. 1 Hawk. {«) This act was revived and P. C. c. 8I.S. 14. 1 Bac. Abr. 509, made perpetual by'21 Geo. II. c. 3, Barratry (C) 4 Blac. Cora. 134. (o) 4 Blac. Com. 134. 283 CHAPTER THE TWENTY-FOURTH. Of Bigamj/. L HE offence of having; a plurality of wives at the same time, is more correctly denominated yjo/^g'f/wj/: but the name bigami/ havin«^been more frequently given to it in legal pro- ceedings, it may perhaps be a means of more ready reference to treat of the offence under the latter title. («) Originally this offence was considered as of ecclesiastical cognizance only; and though the statute 4 Ed. I. stat. 3. c. 5. treated it as a capital crime, (Z>) it appears still to have been left of doubtful temporal cognizance, until the statute 1 Jac. I. c. II. declared that such offence should be felon v. The first section of this statute, after reciting the mis- 2(vulgoi) chiefs of the offence, enacts, " that if any person or persons ,^^' ' ^' ', ' ' ' " A iiiojamy made " within his Majesty's dominions of England and JVales^ felony. " being married, or which hereafter shall marry, do marry i{a) Bigamy, in ils proper sigui- ficatioD, is said to mean only being twice married, aiul not having a plurality of wives at once. Ac- cording to the canonists, bigamy consisted in marrying two virgins successively, one after the death of the other; or in once marrying a widow. 4 Blac. Com. 163. note b. And see 1 Bac. Abr. 525. Bigamy in the notes. {b) This statute adopted and ex- plained a canon of the council of Lyons in 1274, in the time of Pope Gregory X. by which parsons guilty 1 of bigamy were omni privilegio cle- ricali midati el coercioni fori secu- laris addicti. But the cognizance of the plea of bigamy was declared by statute 18 Edw. II!. st. 3. c. 2. to belong to the court Christian, like that of bastardy. And by 1 Edw. VI. c. 12. s. IG. bigamy was declared to be no impediment to the claim of clergy, as it had been taken to be in consequence of the .statute 4 Edw. 1. si. 3. c. 5. See note b. to p. 163. of 4 Blac. Com. (X'ilhEd.) 284 Of Bigamij— Statute 1 Jac. /. c. 11. [book IJ. " any person or persons, the former husband or wife bein. 1 Hawk. P. C. c. 42. s. 11. (o) 1 Blar. Com. 43G. (p>:i lnst..S9. 1 Hale 091. 1 Hawk. V. C. V. 4'2. s. fi. The reason ^iveu is that the po^^er of disaj^reeinj^ to such marriaj^c is equal on both sides. Rut ill a ci\il lij>;ht a pro- mise of marriage by an adult t(» one under aije will subject thr adiill to an action for a breach of such promioe. Holt r. Ward, 'l"r. .5(;eo. ll.cited 1 East. P. C. c. 12. s. f). ]). 4HS. (7) 4 Hiac. Com. 104. 1 East. P. C.c. 12. s. 0. p. 46H, CHAP. XXIV.] Of Bigamy. — Proceedings. 289 It may be observed that if a person marryini^ ajain come within any of the three first of these exceptions, thoug^h the second marriage is not felony, yet, as before the statute, it is null and void, and the parties will be subject to the cen- sures and punishment of the ecclesiastical courts, (r) It is directed by the statute that parties offending against Proceedingi it "shall receive such and the like proceeding, trial, and J^ftg'' '"'' '^' *' execution, in such county where such person or persons ** shall be apprehended, as if the otfence had been committed " in such county where such person or persons shall be " taken or apprehended." This clause has been held to mean the place where the party is imprisoned ; C^) and as it appears from the record itself that he is brought to the bar in the custody of the sheriff", it is doubted whether it is necessary to aver in the indictment that the party was ap- prehended in the county where the venue is laid, (f) But the provision of the statute is only cumulatire^ and the party may be indicted where the second marriage was, (r) 4 Blac. Cora. 164 note (3). 826. It seeras, howerer, to be well (») Lord Digby's case, Hutt. 131. established that wh?re the juris- {t) Starkie Crim. PI. 412. note diction ef the court depends upon (J). 2 Chit. Crim. L. 719. notes, particular circumstances, excfu- But in 1 East. P. C. c. 12. s. 8. p. sive of the offence itself, it is fre- 469. it is said that where the trial quently unnecessary to aver them is in the county where the party upon the face of the indictment, was apprehended there is an aver- Thus though the common com- ment in the indictment of that mission of gaol delivery extends fact. And in a case at the Old only to prisoners in actual custody, Bailey, in 1798, the court is stated it need not be averred in the in- to have held, (upon an objection dictraent that the defendant was taken by the prisoner's counsel,) then in prison. And where the that as the warrant for the pri- crown issues a commission to try soner's apprehension had not been certain persons in custody before a produced, and as it had not been particular day, the iiidirtraent need proved that the prisoner was ai^ not allege that the defendant was prehended in the county of Mid- in custody before that day. Sec dlesex, they had no jurisdiction to Starkie 27, 28. citing Berwick* try him. Forsyth's case, 2 Leach case. Fest, 10. 18 Mod, 449. VOli. I. u 290 Of Bigamy. — First Marriage, [book ii. though he be never apprehended, and so may be outlawed; for in general where a statute creating a new felony directs that the offender may be tried in the county in which he is apprehended, but contains no negative words, he may be tried in that county in which the offence was com- mitted, (w) Of til? eri- A first marriage de fncto^ subsisting in fact at the time of the first mar- *^^ second marriage, is sufficient to bring a case within the riage- act, though such first marriage be voidable by reason of con- sanguinity, afiinity, or the like ; for it is a marriage in judg- ment of law until it is avoided. (aO But it has been ruled that though a lawful canonical marriage need not be proved, yet a marriage in fact (whether regular or not) muj^t be shewn ; (x) which it seems must be understood where there ig prima facie evidence of a lawful marriage, iy) In a case where the first marriage, which was with a Roman Catholic woman, was by a Romish priest in England, not according to the ritual ot the church of England, and the ceremony was performed in Latin, which the witnesses did not under- stand, and could not therefoie swear that the ceremony of marriage according to the church of Rome was read; it was directed that the defendant should be acquitted, (s) Willes, C. J. ^^ho tried him seemed to be of opinion that a marriage by a priest of the church of Rome was a good mar- riage, {n) if the ceremony according to that church could be proved, namely, the words of the contracting part of it. Marriafje act. The general provision of the marriage acty 26 Geo. II. 26 G. II. c. 33. ^u^ \ Hale 694. 3 ln»l. 87. (z) Lyon's case, Old Bailey, 1738. StarkieH. I East. P. C. c. 12. s. 10. p. 469. (») 8 Inst. H8. citing sorjeaiit Forsters MS. (x) By UeiiiiJori J. on the Kor- (a) To this Mr. East (id. ibid.) folk circuit, nfcrn-d lo by the subjoins a ()uapre, ;ind s;iy» that it cmirt in Morris v. Willtr, I Blac. must at least be understood of the R. fi32, marriage of persons of that cora- (y> Kcx V. Rramptun, 10 East, niunion. 287. notc(.b). CHAP. XXIV.] Marriage Act, 2G Geo. I J, c. 33. 291 c. 33. requires all marriages to be by banns or licence : and by the eighth section it is declared that all marriages solemn- ized in any other place than a church or public cliarel (un- less by special licence) or that shall be solemnized without publication of banns or licence first had and obtained, shall be null and void to all intents and purposes whatsoever. But the act does not extend to Scotland, nor to marriao-es amongst Quakers or Jews where both parties are Quakers or Jews; nor to marriages solemnized beyond the seds. (b) The first section of that act provides that all batins of S. i. As to the matrimony shall be published in the parish church, or in if baa,ll'.''" some public chapel, in which banns of matrimony have been usually published, of or belonging to such parish or chapelry wherein the persons to be married shall dwell upon three Sundays preceding the solemnization of marriage: and if the persons to be married dwell in different parishes the banns are to be published in the church or chapel of the parish or chapelry in which each shall dwell ; and where both or either dwell in an extra-parochial place (having no church or chapel wherein banns have been usually pub- lished), then the banns are to be published in the parish church or chapel adjoining; and also that in all cases where banns shall have been published the marriage shall be so- lemnized in one of the parish churches or chapels where such banns have been published, and in no other place what- soever. The eleventh section of the adt provides that all mar- S. ii. A» to riages solemnized by licence, where either of the parties, not "i'e'ei" e^ a. d^ being a widower or widow, shall be under the age of twenty- toi.sei.t of one years, which shall be had without the consent of the p'uardians. father of such of the parties so under age (if then living) first had and obtained ; or if dead, of the guardian or guar- dians of the person of the party so under age, lawfully ap- pointed, or one of them ; and in case there shall be no such (b) S. 18. u2 292 Of Bigamy—Marriage Act. [book it. guardian or guardians, then of the mother ; (if living and unmarried) or if there shall be no mother living and unmar- ried, then of a guardian or guardians of the person appointed by the court of Chancery ; shall be absolutely null and void S. 12. Of pe- to all intents and purposes whatsoever. By the twelfth tiiionin£j the gpction, in case such guardians or mother shall be non com- chancellor, " &-C. whore the "pos 7nentis, or in parts beyond the seas, or shall refuse or moThrrrrc" ot withhold their consent, the person desirous of marrying may in a siiuaiion apply bv petition to the lord chancellor, lord keeper, or rpfuset'o"con- ^o'^s commissioners of the great seal, who may proceed »enl. upon such petition in a summary way, and in case the mar- riage proposed shall appear to be proper they are judicially to declare it to be so by an order of court, and such order is to be deemed to be as effectual as if the guardians or mother S.4. Licences had consented to such marriage. By the fourth section of arc to be ^|,g act no licence is to be granted to solemnize any mar- canted to so- "^ lemnize ma- riage in any other church or chapel than those belonging to trinionyiiiihr ^j^^ parish or chapelrv within which the usual place of abode enure nor ctia- i i j i pel f.f surh of one of the persons to be married shall have been for the where one of space of four weeks immediately before the granting of such the narties licence; or where both or either of the parties dwell in an shall have re- i • i i i • i i i i i • sided for four extra-parochial place, having no church or chapel wherein Tfeeks hcforc. j^ynns have been usually published, then in the parish church or chapel belonging to some parish or chapelry ad- joining to such extra-parochial place, (r) S. 10. Proof With respect, however, to this last provision, and also to of the pariK!, ^j^^^ contained in the first section, concerning: the banns be- dwellinj^ '" . . . the parishes, iiig published in the place where the parties dwell; the marr^a?e« tenth section of the act provides, that after the solemniza- shall have tiou of a marriage by banns it shall not be necessary to g-ive been Holemn- r c ^i < i i n- /»-i ... , ized, not ne- ^"X P^oot ot the actual dwelling of the parties in the places cessary to the >vhcre thc baniis were published ; and that where the mar- validity <'f . . , ,. 1111 »iu«h mar- nage is by licence it siiall not be necessary to prove that the ""'■''fJ^- usual place of abode of one of the parties for the space of (r) But by s. 0. the arrhJ)ishop of licences to marry at any convenient Canterbury's ri};hl to ijrant special time or place is reserved. CHAP. XXIV.] Construction of the Marriage Act. 293 four weeks was in the parish or chapelry where the mar- riage was solemnized. And it enacts also, that evidence shall not be received in either of these cases to prove the contrary in any suit touching the validity of such mar- riage. The marriage act does not specify what shall be necessary A marriage is to be observed in the publication of banns: or that the banns ^^^,^ bybamis or licence shall be published in the true names of the parties; but it where the must be understood as the clear intention of the legislature riY.t^;,.*'* '"^^" that the banns shall be published in the true names, because sumtd name, 'fill it requires that notice in writing shall be delivered to the L, TheVlace "* minister of the true Christian and surnames of the parties "^'^^^"^ he is 1 u /• xi I 1- .• 11 . married by seven days belore the publication ; and unless such notice such assumed be given, he is not obliged to publish the banns. But a "^'"*^" publication in the name which the party has assumed, and by which he is known in the parish, appears to be sufficient ; and would, indeed, be the proper publication where the party is not known by his real name. Thus, where a per- son whose baptismal and surname was Abraham Langley, was married by banns by the name of George Smith, having been known in the parish where he resided and was married by that name only from his first coming into the parish till his marriage, which was about three years, the court of King's Bench held, that the marriage was valid, (rf) And in the same court it was subsequently held, that a marriage by licence, not in the party's real name, but in the name which he had assumed, because he had deserted, he being known by that name only in the place where he lodged and was married, and where he had resided sixteen weeks, was valid. Lord Ellenborough C. J. said, " If this name Lad " been assumed for the purpose of fraud in order to enable " the party to contract marriage, and to conceal himself (rf) Rcxv.Billinghiirst, 1815, 3M. court were cited, notes of which and S. 250. This was a settlement are given in the Report, 559 U» case; but the point was fully argued, 9G7. and many cases from the Consistory -9i Of BU^amy — Marriage Act. [bookh. '' from the party to whom he was about to be married, that " would have b(>pn a fraud on the marriasje act and the " ripflits of marriage, and the court would not have given " etfect to any such corrupt purpose. But where a name " has been previously assiimed, so as to have become the " name which the party has acquired by reputation, that " is, within the meaning of the marriage act, the party's true '' name." The prosocu \{ lias been sren tliat the eleventh section pf the marriage slic^ the pro- ^ct makes the consent of the father, guardians, or mother, per consent necessary to the validity of a marriage bv licence, where the ofp;MTnts,&c. . "^ . •' . o J ' ^hcre the party is a minor. And it appears to have been held that it niarriMge is jg incumbent on the party prosecutin" io shew such consent. i)y licence. r j i o Hriilgcwater's The prisoner, who was indicted for bigamy, proved that '^'^" his first marriage took place when he was a minor ; and it was then contended on his behalf that this was uo marriage unless a proper consent to it were proved. On the part of the prosecution it was said, that it lay on the prisoner to invalidate his own act, by proving that there was uo such consent. The prisoner was convicted ; but Le Blanc, J. reserved the point, taking the prisoner's own recognizance to appear at the next assizes : and the judges, without de- termining the point, agreed that he should not be called upon for judgment, (e) Kutlt-rs case. In a subsequent case it was, however, determined that if the prisoner prove (as it is conjpetont tor him to do) that his first marriage took place while he was a minor, it must be shewn, on the part of the prosecution, that such marriage, if by licence, was with the proper consent. The prisoner was indicted at the Old Bailey July Sessions J80.3, for bi- gamy in marrying Klizabcth Kield, his first wife Lydia Blarkwell being still living: and it was proved that on the I'Jth Feb. 1791, he was married to Lydia Blackwell by li- (e) BridfTewaler'H case, cor. Lc Blanc, J. 1801. MS. CHAP. XXIV ] Consent of Parents, S^c, 295 cence, and that she was living on the 8th of June last ; and that on the I4th December 1800 he married Elizabeth Field. On behalf of the prisoner it was proved that he was born on the 2nd of January 1771, and that his father was then alive : and it was then contended that the first marriage was void as it was not proved to have been by the consent of his father. Lawrence, J. told the jury that he thought the marriage was to be presumed valid, unless the prisoner proved that he had not that consent, and under his direction the prisoner was found guilty. But the point being saved for the consideration of the judges, they held the conviction bad. (J) Though illegitimate children are regarded by the law as Consent to , . « , ,1 111-1 -ii- ^'i^ marriage not having any father, yet they have been held to be withm ,„ ti,^. ^ase of the marriage act ; and a marriage by licence between two illegitimate illegitimate children, who were minors, without consent of parents or guardians, has been therefore held to be void, (g*) And formerly it was the opinion of the court of King's Bench, that the power of consent given by the act to the father and mother, was intended to include reputed parents, as being interested in their children's welfare, and bound to provide for them by the laws of nature; (A) but in a case which came before the consistorial court in London in 1799, a different doctrine was held by the very learned judge of that court, who was of opinion that the reputed parents were not enabled to consent, and that the consent could be lawfully given only by a guardian appointed by the court of chancery. (0 And in a more recent case three of the judges of the court of Kinu;'s Bench adopted the latter opinion, and after much argument and consideration certified to the master of the rolls " that ail marriages, whether of legiti- " mate or illegitimate persons, are within the general pro- (/) Butler's case, Old Bailey, {h) Rex v. Edmonton, Cald. 435. Jul>1803, considered by the judges (0 Horner r. Liddiaid, Uep. by on the 3 1st of October 1»03. AiS. Dr. Croke. (g-) Rex V. Hadnett, 1 T. R. 96. ^6 Of Bigamy — Mairiage Act. [book ii. "'* vision of the statute 26 Geo. II. c. 33. which requires all " niarriajres to be bv banns or licence : and that the consent " of the natural mother to the marriage by licence, of an " illegitimate minor, is not a sufficient consent within the " eleventh section of that act : and that consequently the " marriage in question was void by the said statute." (A) Marriages Qne point upon the construction of the marriage act was a chapel determined by the court of King's Bench, with much re- erected since luctance ; the able iudge who then presided in that court, the inarri.ij^e jo • n i act, held to seeming to discourage an attempt to try a question of such Devoid. serious consequence in a collateral way, on a settlement case ; but, after consideration, it was decided that a marriage celebrated by banns, in a chapel erected since that statute was passed, and not upon the site of any ancient church or chapel, was void, although marriages had been de facto fre- quently celebrated there ; the words of the statute " in " which chapel banns have been usually published" being held clearly to mean cliapels existing at the time it was passed. (/) But as soon as the determination of the court in this case was known, a bill was introduced into parlia- ment, which passed into a law, making valid all marriages which had been celebrated in any parish church or public chapel, erected since the passing of the 26 Geo. II. c. 3S. and consecrated, and providing that the registers of such marriages shall be received as evidence, (w) The fourth .section enacted, That the registers of marriages thereby made valid, should within twenty days after the first of August 1781, be removed to the church of tlie parish in which such chapel should be situated, or, if it should be Bituated in an extra parochial place, to the parish church next adjoining; to be kept with tlie registers of such parish. And these provisions were extended by the 41 Geo. III. (k) Priestley v. Hup;he», 1 1 Eail. House of Lords in an appeal from 1. fJrose, J diflfercd and sent a the decree in this caie. separate ccrlifuate. The qiicsljon (/) Ilex v. N«nthli( id, Dougl. 659. was afterwards brought before the (w) 21 Geo. III. c. 53. CHAP. XXIV. J Marriages in other Countries. 297 c. 77. and the 48 Geo. III. c. 127. to marriages celebrated in such chapels before the 23d August 1808 ; and the regis- ters of such marriages are in like manner to be removed to parish churches and transmitted to the bishop. It has been stated that the marriage act does not extend Marriages ia _ , , ^ . I • I 1 1 .1 / ^ Scotland and to bcotlana, nor to marriages solemn izecl beyond tUe seas ; (n) places bcvond and thouffh the point was formerly much doubted, (o) it tliescas.^ood, " ' . . . . , . „ if establislied seems now to be settled that if minors domiciled in Eng- according to land withdraw themselves into Scotland, or places beyond thorites and • -^ customs or the seas, for the purpose of evading this act, their marriage the country under such circumstances will be valid, (p) And in the ^e^e^eeig. ^^ case of a marriage in such distant place, it will be suflicient brated. to shew it to have been performed according to the rites and Ciistom of the country in which it is celebrated. In a late Marriage in case respecting the settlement of a pauper, the facts were *** I^oQ""©*^' that a soldier on service with the British army in St. Do- mingo in 179(5, being desirous of marrying the widow of another soldier who had died there in the service, the parties went to a chapel in the town, and the ceremony was there performed by a person appearing and ofiiciating as a priest ; the service being in French, but interpreted into English by a person who olliciated as clerk, and understood at the time by the pauper to be the marriage service of the church of England. This was hold sufficient evidence, after eleven years' cohabitation, that the marriage was properly cele- brated ; although the pauper (who was the woman) stated that she did not know that the person officiating was a priest. Lord Ellenborough, C. J. in delivering his opinion, consi- (n) By s. 18,*^n/e, p. 291. case of Philips v. Hunter, 2 H. (p) See Burn's Just. Marriage, Blac. 412. And in Uderton v. II- and the observations of Lord Mans- derton 2 H. Blac. 145. it was taken field in Robinson v. Bland, 1 Burr. to be clear that a marriage, cele- 1079. brated in Scotland, is such a mar- (p) Croropton v. Bearcroft, Bull, riage as would entitle the womas N. P. 113. and see the opinion of to her dower in Enjlaad. Eyre, C. J. in reasoning upon the 298 Of Bi garni/ — Marriages in other Countries, [bookii. dered the case, first, as a marriajje celebrated in a place where the law of England prevailed, (supposing, in the ab- sence ot any evidence to the contrary, that the law of Eng- land, ecclesiastical and civil, was recognized by subjects of England in a place occupied by the king's troops, who would impliedly carry that law with them,) and held that it would be a good marriage by that law ; for it would have been a good marriage in this country before the marriage act, and consequently would be so now in a foreign colony, to which that act does not extend. In the second place, he considered it upon the supposition that the law of England had not been carried to St. Domingo by the king's forces, nor was obligatory upon them in this particular ; and held that the facts stated would be evidence of a good marriage according to the law of that country, whatever it might be ; and that upon such facts every presiimption was to be made Marriacphya jn favour of the validity of the marriage. (7) In a more dissrntin^ , ^-wi 1 »-» -i • 111 traclipr in a recent case at tlie Old Hailny, a question was made whether jinvnte roora ^ niarriaffe of a Dissenter in Ireland when performed bv a III Irtlaud. .... . . dissenting ntinister in a private room was valid. It was contended on behalf of the prisoner, who was indicted for bigamy, that the marriage was illegal from the clandestine manner in which it was celebrated; and several Irish sta- tutes were cited, from which it was argued that the marriage of dissenters in Ireland ouffht at least to be in the tace of the congregation, and not in a private room. But the Re- corder is said to have been clearly of opinion that this mar- riage was valid, on the ground that as, l)el!r)re the marriage act, a marriage might have been celebrated in England in a house, and it was only made necessary, by the enactment of positive law, to celebrate it in a church, some law should be shewn requiring dissenters to be married in a church, or in the face of the congregation in Ireland, before this mar- riage could be pronounced to be illegal : Whereas one of tho Irish statutes (II (ico. II.) enacted that all marriages {q) Rex f. Brampton, 10 East. 282. CHAP. XXIV,] Marriage hy a Lunatic. — Evidence. 299 celebrated by a dissenting teacher should be good, without sa_>'ing at what place they should be celebrated, (r) It was formerly held that if an idiot contracted matri- The marriage mony, it was good and should bind him ; but modern reso- ygij '^^ '" lutions appear to have proceeded upon the more reasonable doctrine of the civil law, by determining that the marriage x of a lunatic, not being in a lucid interval, is absolutely void. And as it might be difficult to prove the exact state of the mind of the party at the actual celebration of the nuptials, the statute 15 Geo. II. c. SO. has provided that if persons found lunatics under a commission, or committed to the care of trustees by any act of parliament, marry be- fore they are declared of sound mind by the lord chancellor or the majority of such trustees, the marriage shall be totally void, {s) Upon indictments for bigamy it has been held not to be Marriage by sufficient to prove a marriage by reputation, but that either no't"siiffic?ent. some person present at the marriage must be called, or the original register, or an examined copy of it, be produced. (0 The marriage act, concerning which so much has been already said, requires that marriages shall be solemnized in the presence of two or more credible witnesses, besides the minister who shall celebrate the same, and that it shall be entered in the register: in which entry it shall be ex- pressed, that the marriage was celebrated by banns or li- cence, and with consent, as the case may be, and be signed by the minister and parties married, and attested by two witnesses, (m) It is not, however, necessary to call one of the subscribing witnesses to the register in order (r) Rex V. , Old Bailey riage was celebrated in London, Jan. Sess. 1815, cot. Sir J. Silvester according to the ceremonies of thfi Recorder. MS. The prisoner was an church of England, officer in the army ; and his first (s) 1 Biac. Com. 438, 439. marriage, upon which this question (/) Morris v. Miller, 4 Burr, was raised, took place in 1787 at 2057. Birt v. Larlow, Dougl, 162. Londonderry. The second mar- {ft} ^SQgo. U. c 33.5. 15. 300 Of Bigamy.— Evidence. [boor ii. to prove the identity of the persons married; but the refi:ister, or the copy of it, being produced, any evidence which satisfies the jury as to the identity of the parties is sufficient; as if their handwriting to the register be proved ; or that bell ringers were paid by them for ringing How far the ^^"^ ^^e wedding, or the like, (a)) How flir the acknowledg- ackuowledg- ^^„/ of the defendant upon the subject of his marriage is meiit ot the . -,/. i-^r jiti def. nd.uit is sufficient evidence of the fact may admit ot some doubt, in evideuce. ^^^ ^^^^ jj ^^,^^ held, that proof of the prisoner's cohabiting with and acknowledging himself married to a former wife then living, such assertion being backed by his producing to the witness a copy of a proceeding in a Scotch court against him and his wife for having contracted the marriage impro- perly, (the marriage, however, being still good according to that law) was sufficient evidence of the first marriage ; and upon such evidence, together with due proof of the second marriage, the prisoner was convicted. The point being reserved for tlie opinion of the judges, all of them (with the exception of Perryn B. and Duller J. who were absent) held the conviction proper. Two of them observed that this did not rest upon cohabitation and bare acknowledg- ment ; for the defendant had backed his assertion by the pro- duction of the copy of the proceeding: but some of the judges thouiiht that the acknowledgment alone would have been suflicient, and that ng God or turning the doctrines oi the Christian religion '""*■ to contempt and ridicule may be made the subject of indict- ment; audit is now fullj established, though some doubt seems formerly to have been entertained upon the subject, that such immodest and immoral publications as tend to corrupt the mind and to destroy the love of decency, mora- lity, and good order, are also offences at common law. (a) It is also a misdemeanor wantonly to defame or indeco- rously to caluuiniate that oBconomy, order, and constitution of things which make up the general system of the law and government of the country, (b) And it is especially cri- minal to degrade or calumniate the person and character of the sovereign, and the administration of his government by his oflficers and ministers of state, (c) or the administration of justice by his judges, (r/) And the same policy which prohibits seditious comments on the king's conduct and government extends on the same grounds to similar reflec- tions on the proceedings of the two houses of parliament, (e) Such publications also as tend to cause animosities between this country and any foreign state, by the personal abuse of the sovereign of such state, his ambassadors, or other public ministers, may be treated as libels. {/) With respect to (a) See the cases colleclcd in (d) Starkic on Lib. 532. Starkie on Lib. 4t5(j to 50 1. (<•) Starkic on Lib. 535. (b) Holl on Lib. 82. (/) Rex r. Peltier, Holt on Lib- (c) Rex I). Liiinbcrt and Perry, 78. Ilex r. D'Eon, 1 Blac. R- 2 Campb. .*{9H. 617. CHAP, XXV.] Of Libel, Sgc. — Mode of Expression. 303 libels upon individuals, tliey have been defined to be mali- cious defamations, expressed either in printinsr or writing, or by signs or pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt, and ridicule, (g) Upon some of these subjects a publication by slander or Of slanderoui TFords words spoken only, though not ])roperly a libel, (A) may be the subject of criminal proceeding, as will be shewn in the course of the chapter. A libel maybe as well by descriptions and circumlocu- Of the mode tions as in express terms ; therefore scandal conveyed by ^ ^^^ way of allegory or irony amounts to a libel. As where a writing, in a taunting manner, reckoning up several acts of public charity done by a person, said " You will not plai/ the Jew., nor the h^pocrite,^'' and then proceeded, in a strain of ridicule, to insinuate that what the person did was owing to his vain glory. Or where a publication, pretending to re- commend to a person the characters of several great men for his imitation, instead of taking notice of what great men are generally esteemed famous for, selected such qualities as their enemies accuse them of not possessing ; (as hv propos- ing such a one to be imitated for his courage who was known to be a great statesman but no soldier, and another to be (g) 1 Hawk. P. C. c. 73. s. 1,2, 3, said to be a technical word, deriv- 7. 4 Bac. Abr. LibeL p. 449. and ing its meaning rather from its use see as to libel by a picture, a lat» than its etymology. " There is case, Du Bost v. Beresford, 2 " no other name but that of libel Campb. 511. " applicable to tlie offence of libel- (h) A libel is termed Libellus " ling ; and we know the offence famosns seu infamatoria scriptura, " spi'cifically by that name, as we and has been usually treated of " know the offences of horsc-steal- As scandal written or expressed by " iug, forgery, &c. by tlie naiucsi symbols. Lamb. Sax. L.tW, 64. " which the law has annexed to Bract, lib. 3. c. 36. 3 Inst. 174. " them." By Lord Camden, ia 5 Co. 125. I Lord Raym. 416. Rex d. Wilkes, 2 Wils. 121. 2 Salk. 417, 416. Libel may be so* Qj- j^{J)cJ^ ^c. — Mode of Exprcsslov., [book ii. imitated for his learning who was known to be a great "general but no scholar) such a publication being as well understood to mean only to upbraid the parties with the want of these qualities as if it had doue so directly and expressly. ('/) And upon the same ground not only an alle- gory but a publication in hieroglyphics, or a rebus or ana- gram, which are still more difficult to be understood, may be a libel ; and a court, notwithstanding its obscurity and perplexity, shall be allowed to judge of its meaning, as well as other persons. (A-) And it is now well established that slanderous words must be understood by the court in the same sense as the rest of mankind would ordinarily under- stand them, (/) Formerly it was the practice to say that words were to be taken in the more lenient sense ; but that doctrine is now exploded ; they are not to be taken in the more lenient or more severe sense ; but in the sense which fairly belongs to them, and which they were intended to convey, (m) Name of the Upon the same principles it has been resolved that a person libdicd , ^ ' •*• • i * i 4* r in blanks. defamatory writing, expressing only one or two letters ol a name, in such a manner that from what goes before, and follows after, it must needs be understood to signify a par- ticular person, in the plain, obvious, and natural construc- tion of the whole, and would be nonsense if strained to any (i) 1 Hawk. P. C. c. 73. s. 4. 4 (hj) By Lord Ellcnborough, C. J. Bac. Abr. Lite!, (A) 3. p. 453. in Rex t'. Lambert and Perry, 2 (k) Holt on Libel, 235, 236. Campb. 403. And in a case of libel, (t) Woolnoth i>. Meadows, 5 East. Hex v. Wat.son and others, 2 T. R, 463. In this case the defendant 20G. Buller J. said, " Upon oeca- had said of the plaiiitifT, " that his " sions of this sort I have never " character was infamous — thai he " adopted any other rule than that " would he disjjraceful to any so- " which has been frequently rc- «< ciety— that delicacy forbad him " peated by Lord Mansfield to «' from bringing a direct charge— " juries, desiring them to read the " but it was a male child who " paper slated to be a libel as men " complained to him;" and these " of common understanding, ami words were understood to mean a " say whether in their minds it charge of unnatural practices. " conveys tlie idea imputed." CHAP- XXV.] Imputations on Bodies of Men. other meaning, is as jjroperly a libel as if it liad expressed the whole name at large ; for it brings the utmost contempt upon the law to suffer its justice to be eluded by such tri- fling evasions ; and it is a ridiculous absurdity to say that a writing which is understood by every one of the mean- est capacity cannot possibly be understood by a judge or 305 An indictment lies for general imputations on a body Indictment •111- r of men, thoujih no individuals be pointed out, because such r ! . f ^ ^ o 17 libel on a boo J writings have a tendency to inflame and disorder society, of men. and are therefore within the cognizance of the law. (o) And scandal published of three or four persons is punish- able at the complaint of one or more, or all of them, (p) It appears to have been considered that the remedies by Actions and action and indictment for libels are co-extensive, and may be f^^ Hhels'co- regarded as upon the same footing, (q) extensive. (n) 1 Hawk. P. C. c. 73. s. 5. 4 Bac. Abr. Libel (A) 3. p. 453. Mhere it is said in the marginal note that if an application is made for an in- formation in a case of this kind, some friend to the party complain- ing should, by affidavit, state the having read the libel, and under- standing and believing it to mean the party. In a late case Lord Ellenborough, C.J. held, upon ar- gument, that the declarations of spectators, while they looked at a libellous picture in an exhibition room, were evidence to shew that the figures pourtrayed were meant to represent the parties stated to be libelled. Du Bost v. Beresford, 2 Campb. 512. (0) Holt on Lib. 237. (p) Id. Ibid. In Hex v. Benfield and Sanders, 2 Burr. 980. it was VOL. I. X held, th:it an information lay against two for sing-ing a libel- lous .song on A. and B. which first abused A. and then B. And it was said that if the defendants had sung separate stanzas, the one reflecting on A, and the other on B. the ofleuce would still have been entire. A libel upon one of a body of perspns withqut naming him is a libel upon the whole, and may be so described ; and where a paper is published equally reflect- ing upon a number of people, it reflects upon all, and readers ac- cording to their different opinions may apply it so. Kcx i'. Jenour. 7 Mod. 400. (g) Starkie on Lib. 150. 165. 550. Holt on Lib. 215, 21G. Bradley r. Mcthuen, 2 Ford's MS. 78. This must be understood, however, of 306 Of Libel, &;c. — Truth no Justification, [book ii. The party It is quite clear that in an indictment or criminal prosecu- that "he^coi *'^" *"°' '' '"^^^ ^^^ P'^^^y cannot justify that its contents are tents of a Ii- true, or that the person upon whom it is made had a bad reputation. The jiround of tlie criminal proceedings is the pui'lic miscliif'f which libel?; are calculated to create, in alienating; the niinds of the people from religion and good morals, rendering them hostile to the government and ma- gistracy of the country, and where particular individuals are attacked, in causing such irritation in their minds as may induce them to commit a breach of the public peace. The law, therefore, does not permit the defendant to give the truth of the libellous matter in justification ; any attempt at which in the instances of libels against religion, morality, or the constitution, would be attended with consequences of the greatest absurdity; and, in the case of libels upon indivi- duals, might be extremely unjust, and could never afford a substantial defence to the charge. A libel against an indi- vidual may consist in the exposure of some personal de- formity, the actual existence of which would only shew the greater malice in thedefendant ; and even if it contain charges of misconduct founded in fact the publication will not be the less likely to produce a violation of the public tranquillity. It has been observed that the greater appearance of truth there may be in any malicious invective, it is so much the more provoking ; and that, in a settled state of government, the party grieved ought to complain, for every injury done to him, in the ordinary course of law, and not by any means to revenge himself by the odious proceeding of a libel. (?) cases where the lihel from iti na- 275 et seqit. But though the truth turc find Kuhjecl inOicls a private is no justification in a criminal injury, and not of those cases in prosecution, ytt in many instances whi( h the pulilir only cn.n be said it is considered as an extenuation to he aU'ccfcd hy tin- [iIkI. of tlie oll'ence ; and the court of (r) 1 Hawk. t*. C. c. 7.'j. ». 6. King's Bench has laid down this 4 Bac. Ahr. Libel (A) 5. p. 455. general rule, that it will not grant 4 Blac. Com. 150, 151. SLarkie on an information for a libel, unless Libel 556 et sequ. Holt oa Lib. the prosecutor who applies for it, 1 CHAP. XXV.] Proceedings in Courts of Justice. 307 But there are some circumstances which uill protect a But prococd- puhlication from beinjjr deemed libellous. It has been re- ""P '" :i<^""rt ' ^ ol juslicc will solved that no false or scandalous matter contained in a noibMlcemed petition to a committee of parliaii,ent, or in articles of ""'^»^*^"*- the peace exhibited to justices of peace, or in any other proceeding in a regular course of justice, will make the complaint amount to a libel ; for it would be a great dis- couragement to suitors to subject them to public prosecu- tion in respect of their applications to a court of justice, (s) Thus where a charge was, that the defendant, in a certain affidavit before the court, had said that the plaintiff, in a former affidavit against the defendant, had sworn falsely, the court held that this was not libellous ; for in every dis- pute in a court of justice, where one by affidavit charges a thing and the other denies it, the charges must be contra- dictory, and there must be affirmation of falsehood. (/) It makes an affidavit asserting di- rectly and pointedly that he is in- nocent of the charge imputed to him. This rule however may be dispensed with if the person li- belled resides abroad, or if the impulations of the libel are gene- ral and indefinite, or if it is a charge against the prosecutor for lanffuag;e which he has held in parliament. 4 Blac. Cora 151, note (6). Dougl. 271. 372. (s) I Hawk. P. C. c. 73. s, 8. 4 Bac. Abr. Ubel {A) 4. p. 454. It is holden by some th it no want of jurisdiction in the court to which the complaint sh\ll be exhibited, will make it a libel; because the mistake of the court is not impu- table to the party, but to his coai- sel: but H:iwkins siys (1 Hawk, c. 73. s. 8.) that if it manifestly appears that a prosecution is en- tirely false, malicious, and grouud- less, and commenced, not with a design to go through with it, but only to expose the defendanfi character under the shew of a legal proceeding, he cannot see any reason why such a mockery of public justice should not rather aggravate the otfence than make it cease to be one. Upon thii point Mr. Starkie, after referring to the several authorities, says, that it may be collected generally that no action can be maintained for any thing said or otherwise pub» lished, iu the course of a judicial proceeding, whether criminal or civil; though for a malicious and groundless prosecution, an action, and perhaps an indictment, raiy be supported, founded on tbe whole proceeding. Starkie on Lib. ^•^S. (0 Astley V. Youuge, 2 Burr. 817. X 2 >08 Of Libel, ^c.—Speeches in Parliament, [book ii. is also held, that no presenttnent of a grand jury can be a libel, not only because persons who are supposed to be re- turned without their own seeking, and are sworn to act impartially, shall be presumed to have proper evidence for what they do, but also because it would be of the utmost ill consequence in any way to discourage them from making their enquiries with that freedom and readiness which the public good requires, {u) And where a court-martial, after stating in their sentence the acquittal of an officer against whom a charge had been preferred, subjoined thereto a declaration of their opinion, that the charge was malicious and ground- less, and that the conduct of the prosecutor, in falsely calum- niating the accused, was highly injurious to the service, it was held that the president of the court-martial was not liable to an action for a libel for having delivered sucli sen- tence and declaration to the judge advocate ; and Mansfield C. J. in delivering his opinion said, " If it appear that the " cliarges are absolutely without foundation, is the presi- " dent of the court-martial to remain perfectly silent on *' the conduct of the prosecutor ; or can it be any offence " for him to state that the charge is groundless and mali- « cious?"(a)) AnH sppf-hes The members of the two houses of parliament, bj reason of iTiembf rs ^f their privilege, are not answerable at law for any per- of parliament .... . . . artpriviicgfid. sonal refleciions on individuals contained in speeches in their respective houses ; for policy requires that those who are by tiie constitution appointed to provide for the safety and welfare of the public should, in the execution of their high functions, be wholly uninfluenced by private consi- derations, {x) (u) 1 Hawk. p. C. c. 73. s. 8. VIII. c. 8. nirmbcrs of parliament AMac. WiT. Libel (.\) \,y.\bb. arc protected from all char^jcs (if) Jckyil V. Sir John Moore, aj^ainsl them for ,iny thing said in S^ New. 11. .S4l. cltiier house: and this is fnrlhcr (x) Holt on Lib. 190. Slarkic declared in the Bill of Right*, on l,ib. 211. Itcx v. Lord Abing- 1 W. & M. st. 2. c. 2. don, 1 Esp. R. 226. Hy \ Urn. CHAP. XXV.] Publication of Proceedings in Courts, Sgc. SO'J Thus the actual proceedings in courts of justice and in parliament are exempted from beings deemed libellous: it becomes important to enquire in the next place how far the same privilege will be extended to communications of those proceedings to the public, made with impartiality and cor- rectness. It has always been held that a publication of tl.e proceed- ^^"^ *^'' *^-e n ■ ' -,,1 11-1 pubhcatioiiot" mgs m a court ot justice will not be protected unless it be proceeding-i a true and honest statement of those proceedings. (?/) But !" '^o"''** "* ^ o v^' justice IS a!- provided it were of that character, the doctrine seems at lowaide, one time to have been that it might be made to the full ex- tent of stating what had actually taken place. (::) More recently, however, it has been said that it must not be taken for granted, that the publication of every matter which passes in a court of justice, however truly represented, is under all circumstances, and with whatever motive published, justifiable ; and that such doctrine must be taken with grains of allowance, {a) And Lord Ellenborough, C. J. said " It '' often happens that circumstances necessary, for the sake *' of public justice, to be disclosed by a witness in a judicial *' enquiry, are very distressing to the feelings of individuals " on whom they reflect : and if such circumstances were *' afterwards wantonly published, I should hesitate to say " that such unnecessary publication was not libellous, " merely because the matter had been given in evidence in " a court of justice." (i) In a subsequent case, not relat- ing directly to this point, but to the publication of proceed- ings in parliament, Bayley, J. said " It has been argued {y) Waterficld i'. the Bishop of and Grose, J. in Stiles v. Xokes, Chichester, 2 Mod. 118. Rex v. 7 East. 503. Wright, 8 T. R. 297, 29S. per Law- (i) Id. Ibid. And see Rex v. rence, J. Stiles v. Nokes, 7 East. Snlishury, 1 Lord Rayin. 341. that 493. it is indictahle to publish a scan- (s) Curry v. Walter, 1 Bos. & dalous petition to the House of Pul. 523. referred to by Lawrence, Lords, or a scandalous affidavit J. in Rex v. Wright, 8 T. R. 29S. raade in a court of justice. (a) By Lord Ellenborough, C. J. 310 Of Libel, ^c. — PuhUcaiion of [book ii. " that the proceedings of courts of justice are open to pub- " lication. Against that, as an unqualified proposition, I " enter my protest. Suppose an indictment for blasphemy, " or a trial where indecent evidence was necessarily intro- *' duced ; would every one be at liberty to poison the minds " of tiie public, by circulating that which for the purposes "of justice the court is bound to hear? I should think " not : and it is not true therefore that in all instances the " proceedings of a court of justice may be published. Again " it may be said that counsel have a right, in pursuance of " their instructions, and whilst the cause is going on, to " endeavour to produce an effect by making such observa- " tions on the credit and character of parties and their wit- " nesses, as sometimes, when tiie cause is over, perhaps they " are sorry for. But have they therefore, or any other " person who hears them, a right afterwards to publish those " observations ? 1 have no hesitation in saying that when " the occasion ceased the right also would cease, and that " it would be no justification to plead that such a publica- " tion was a transcript of the counsel's speech." (c) Publication It should be observed also, that the publication of pre- of 7> parte \\^[^^yy examinations before a magistrate taken ex parte, ex;iniiiiatioiis •' . . bi-tbreania- will not come within the principle by which the fair reports lehbclW^ of proceedings in courts of justice have been held to be privileged. Such publications have a tendency to cause great mischief by perverting the public mind, and disturbing the course of justice ; and if they contain libellous matter, will be considered as highly criminal. (J) (c) Rex t). Creevey, 1 M. & S. " must be understood with very 481. lu the same case Lord Ellen- " great limitations ; and shall never borough, C. J. laid, "As to Curry "fully assent to the unqualified " V. Walter (ante, note z) it is nut " terms allributed in the; report of •' necessary for the present purpose " that case to Eyre, C. J." •' to discuss that case ; whenever (d) Rex r. Lee and Another, 5 " it becomes necessary I shall say Esp. 123. Rex i>. Fisher and " that Die doctrine there luUi down Others, 2 Campb. 563, CHAP. XXV.] Proceedings in Parliament. 311 Thou!i;h the publication of a proceedins: in parliament How far the will, in general, be considered as privileged and protected pro'cerdiMK*" from being deemed libellous ; (e) and the printing and de- '" pirliameut . . , o • /. I TT is allowable. livering a petition to members ot a committee ot the House of Commons, being according to the order of proceedings of parliament and their committees, has been held to be justi- fiable ; (/) yet it may be doubted how far the circulation of a copy of a writing containing matter of an injurious ten- dency to the character of an individual, though published for the use of the members, is legitimate and exempted from prosecution, {g) And it is clear, that the publication of the speech of a member of parliament, if it contain matter of libel, is not protected, even though such publication be made by the member himself. Jn a case upon this subject, Lord Kenyon, C. J. observed that if the words in question had been spoken in the House of Lords, and confined to its walls, the court of King's Bench would have had no juris- diction to call a member of that house before them, to an- swer for such words as an offence ; but that the offence was the publication of them in the public papers, under the authority of the member, with his sanction, and at his ex- pence : that a member of parliament had certainly a righj- to publish his speech, but that his speech should not be made the vehicle of slander against any individual ; if it were, it would be a libel. (/() And in a more recent case it was held by the court of King's Bench, that a member of the House of Commons may be convicted upon an indict- ment for a libel, in publishing in a newspaper the report of a speech delivered by him in that house, if it contain libel- lous matter, although the publication be a correct report of such speech, and be made iu consequence of an incorrect (e) Rex V. Wright, 8 T. R. 293. (/) Lake v. Kirg, 1 Saund. 131. la this case a former case of Rex (g) See the juagment of Lord V. Williams, 2 Show. 47 1. Comb. Elleuborough, C. J. iu Rex r. Cree- 18. was animadverted upou by Lord vey, 1 M. & S. 278. Kenyon, C. J. and Grose, J. as hav- (/t) Rex v. Lord Abiugdon, 1 ing happened in the worst of times. £sp. 226. 3i'^ Of Libels, ^c. [book ii. publication having appeared in that and other news- papers. (/) Having treated generally of the publications which may be considered as libellous, it may be useful to refer to some of tlie particular points which have been holden, respecting publications : I. Against tlie Christian religion : II. Against morality : III. Against the constitution : IV. Against the king: V. Against the two houses of parliament: VI. Against the government : VII. Against the magistrates and the administration of justice : VIII. Against private individuals: and, IX. Against foreigners of distinction. Of publici- I. It has been before observed, (Ic) that blaspheming God, tions airaiiist , . ,, , , . p ^i /n • i- i- • * the Christian or turning the doctrines ot the Christian religion to con- rdigion. tempt and ridicule, is an indictable oftence. At common law, all blasphemies against (Jod, as denying His being or providence; and all contumelious reproaches of Jesus Christ; all profane scotVmg at the holy scripture, or ex- posing any part thereof to contempt or ridicule ; and also seditious words in derogation of the established religion ; are considered as oHences, tending to subvert all religion and morality, and punishable by the temporal courts with fine and imprisonment, and also infamous corporal punishment in the discretion of the court. (/) Statutes upon Some provisions Iiave also been made upon tliis subject this ttubject. by statutes. The I VaUv. VI. c. 1.(7//) enacts that persons reviling the sacrament of the Lord's supper by contemptu- ous words or otherwise, shall siiflLT imprisonment. The statute 1 Flliz. c. 2. enacts that if any 7;?////5/fr shall speak any thing in derogation of the book of common prayer he shall, if not beneticed, be imprisoned one year for the first (i) Rex r. Crcrvc'y, 1 M. & S. 1 Hawk. P. C. c. .'J. 273. ('") Hr|KVil(Ml hy 1 Mary, c. 2. (k) Anle, p. .'?02. and revived by 1 Eliz. c. 1. (0 See the cases collected in CHAP. XXV.] Against the Christian ReUgion. 313 offence, and for life the second ; and if he be beneficed, shall for the first offence be imprisoned six months, and for- feit a year's value of his benefice ; for the second, sha'l be deprived and suffer one gear's imprisonment ; and for the tliird shall in like manner be deprived and suffer imprison- ment for life. And that if any person whatsoever shall in plays, songs, or other open words, speak any thing in dero- gation, depraving, or despising of the said book, or shall forcibly prevent the reading of it, or cause any other ser- vice to be read in its stead, he shall forfeit for the first of- fence 100 marks ; for the second 400 ; and for the third, shall forfeit all his goods and chattels, and suffer imprison- ment for life. By the S Jac. I. c. 21. a person using the name of the Holy Trinity profanely, or jestingly, in any stage-play, interlude, or show, shall be liable to a qui tarn penalty of ten pounds. The 1 W. III. c. 18. s. 17. enacted that whoever should deny in his preaching or writing the doctrine of the blessed Trinity, should lose all benefit of the act for granting toleration. This section is now re- pealed by 53 Geo. III. c. 160. but while it was in existence it was considered as operating to deprive the offender of the benefit therein mentioned, leaving the punishment of the offence as for a misdemeanor at common law. (;?) By the 9 & 10 W. III. c. 3'2. if any person educated in or having made profession of the Christian religion, shall by writing, printing, teaching, or advised speaking, deny the Christian religion to be true, or the Holy Scriptures to be of Divine authority, he shall, upon the first offence, be rendered inca- pable to hold any office or place of trust ; and for the se- cond, be rendered incapable of bringing any action, being guardian, executor, legatee, or purchaser of lands, and shall suffer three years' imprisonment without bail, (o) A person (n) By Lord Kenyon in Rex v. within four months after the first Williams, 1797, Holt on Lib. 66. conviction, is to be discharged for (o) But the delinquent publicly that ouce from all disabilities, renouncing his error in open court 314 Of Libels, S^c. [booblii. offending under this statute is also still indictable at common law. {p) To rpproarh tJpon the trial of an information agrainst the defendant for the (.nristian ' " religion is to uttering expressions grossly blasphemous, Hale C. J. ob- versioii of ihe served, that such kind of wicked blasphemous words were la^' not only an offence to God and religion, but a crime against the laws, stat •, and government, and therefore punishable in the court of King's Bench. That to sa^ religion is a cheat is to dissolve all those obligations whereby civil society is preserved ; that Christianity is part of the laws of England, and therefore to reproach the Ciiristian religion is to speak in subversion of the law. {q) The Christian In a case where the defendant had been convicted for pub- of the law of ^'^"'ng several blasphemous libels, in which the miracles of the land. our Saviour were turned into ridicule and contempt, and his life and conversation calumniated, it was moved in ar- rest of judgment that this was not an offence w ithin the cog- nizance of the temporal courts at common law ; but the court would not suffer the point to be argued, saying that the Christian religion, as established in this kingdom, is part of the law ; and therefore, that whatever derided Christianity derided the law, and consequently must be an offence against the law. {r) It was also moved in arrest of judgment, that as the intent of the book was only to shew that the miracles of Jesus Christ were not to be taken in their literal sense, it could not be considered as attacking Christianity in general, but only as striking against one But though to received proof of his being the Messiah; to which the write against • i i • /^ Christiauit)i« Court said, that the attacking Christianity in the way in (;>) Barnard. 162. 2 Sir. 834. Fitz- are repealed by 53 Geo. III. c. 160. gib. 64. Ucx V. Williams 1797. (q) Hex r. Taylor, Vent. 293. S Rex V. CatoM 1812. This sUitute Keb. 607. also related to persons denying, as (r) Rex v. Woolston, Barnard, therein mentioned, rc-pectiiij^ the 102. 2 Str. 834. l-'itzgib. 64. Uoly Trinity ; but such provisions CHAP. XXV.] Against the Christian Religion. 315 which it was attacked in this publication was destroyinir the general is an very foundation of it; and that, though there were profcs- common hw, sions in the book that its design was to establish Cliristianity *^''*^ ^""''t will 1 ^i 1 • 1 • .1 . . „ . "ot meddle upon a true bottom by considering these narrations in Scrip- withdiffer- ture as emblematical and prophetical, vet that such pro fes- «^»c«^"f"pi- ' • ' uion upon sions were not to be credited, and that the rule is nUegatio controverted contra factum fion est udmiltenda. But the court also said, P*^'"**- that though to write against Christianity in general is clearly an offence at common law, they laid a stress upon the word general, and did not intend to include disputes between learned men upon particular controverted points ; and in delivering the judgment of the court Raymond, Lord C. J. said, " I would have it taken notice of that we do not med- " die with any differences of opinion, and tliat we interpose " only where the very root of Christianity itself is struck " at." (s) The doctrine of the Christian religion constituting part of The dread of the law of the land, was recognized in a later case, where ^'l "f-f "',"*, r the judgment of the Court of King's Bench was pronounced t^*^ principal ..j^, . iTii . . sanctions of upon a person convicted ot having published a very impious the kw. and blasphemous libel called Paine's Age of Reason, {t) Ashhurst J. said, that although the Almighty did not re- quire the aid of human tribunals to vindicate his precepts, it was nevertheless fit to shew our abhorrence of such wicked doctrines as were not only an offence against God, but against all law and government, from their direct tendency to dissolve all the bonds and obligations of civil society ; and that it was upon this ground that the Christian religion constituted part of the law of the land. That if the name of our Redeemer was suffered to be traduced, and his holy (s) RexD. Woolston, Fitzgib. 66. only true faith which laid any ob- {0 This libel was of the worst livith as a " libel. If on the contrary you do not see that it means " distinctly, according to your reasoning, to impute any " purposed mal-administration to his Majesty, or those act- " ing under him, but may be fairly construed as an expres- " sion of regret, that an erroneous view has been taken of " public afl'airs, I am not prepared to say that it is a libel. " There have been errors in the administration of the most " enlightened men." (p) V. The two houses of parliament are an essential part of Of publica- the constitution, and entitled to reverence and respect on thcTwolfous « account of the important public duties, which they have to ofparliament. discharge. But as they have the power of treating libels against them as breaches of their privileges, and vindicating them in the nature of contempts, more cases of such libels are to be met with in their journals, tlian in the proceed- ings of the courts of law. The common law, however, is fully capable of taking cognizance of any publications re- flecting in a libellous manner upon the members or pro- ceedings of the houses of parliament ; (q) and it seems (o) The libel was publislied in (q) As in Rex v. Rayner. 2 Bar- a newspaper ; and it had been al- nard. 293. where the defendant lowed to the defendant to have was convicted of printing a scan- read in evidence an extract from dalous libel on the lords and com- the same paper connected with the mons; and in Rex «. Owen, 25 subject of the passage charged as Geo. II. MS. Dig. L. L. 67. In Rex libellous, although disjoined from v. Stockdale, 28 Geo. III. an in* it by extraneous matter, and print- formation was filed by the Attorney ed in a different character. General for a libel upon the bouse (p) Rex V. Lambert and Perry, of commons. A prosecution wa« S Cainpb. 398. also instituted ia Rex v. Beeves, 3^2 Of Puhlications ai:;aiusl the Government, [bookii. rather to have been the inclination of parliament in modern times to direct prosccntions for such offences in the courts of common law, and to waive the exercise of their own ex- tensive privileges. In the case of the King- v. Stockdale, (r) the Attorney General in his speech to the jury, after stating the address of the House of Commons to the king, praying that his Majesty would direct the information to be filed, proceeded thus, " 1 state it as a measure which they have " taken, thinking it in tiieir wisdom, as every one must think " it, to be the fittest to bring before a jury of their coun- " try an offender against themselves, avoiding thereby, what " sometimes indeed is unavoidable, but which they wi'-h to '• avoid whenever it can be done with propriety, the acing " both as judges and accusers, which they must necessarily " have done, had they resorted to their own powers, which " are great and extensive, for the purpose of vindicating '• themselves against insnlt and contempt, but which in the " present instance they have wisely forborne to exercise, " thinking it better to leave the offender to be dealt with by " a fair and impartial jury." (s) tLr^J^ltuii ^^' '^^^ e^ieni to which the measures of the King, or the goveru- the proceedings of his government, may be fairly and legally canvassed, has been the subject of much discussion, as it is undoubtedly one of the first imporlance ; but it is not within the scope and design of this treatise to enter further upon the question, than by stating a few of the established prin- ciples and decided cases. 36 Geo. HI. in consequence of a re- " the kinp> government might go Solution of the Ijousc of commons, " on it llu" lords and commons declaring a pamphlet, published " were lopped off." The jury con- try the defcnd.iiit, to he :i lil)rl. .sidcn'd the expressions aN merely In the pamphht whii li was called inctaphoriciil, ami acquitted the " ThoUf^hts on the Knuiisli do- dcfetidrint. " vernmenl," there was this pass- (r) ^htte, note (q). dgc amongst others which the (») See 9 Ridgwi>'» S|»eecheg of Wousc deemed libellous—" That the IIou. T. Enkine, p. 208. cHAP.xxT.] Of Libel, ^c. against the Governmeni. 223 It may be observed, that the liberty of discussion wliich in many instances has been admitted on the part of the of- ficers of the crow n, would seem to l)e sufficient to answer all the purposes of the honest patriot ; — the man who would condemn only with a view to genuine and constitutional reformation. Upon a late prosecution for a libel the at- torney general, in his opening to the jury, thus expressed himself: " The right of every man to represent what he " may conceive to be an abuse or grievance in the govern- " ment of the country, if his intention in so doing be honest, * " and the statement made upon fair and open grounds, cart " never for a moment !)e questioned. I shall never think it " my duty to prosecute any person for writing, printing, and " publishing, fair and candid opinions on the system of the " government and constitution of this country, nor for " pointing out what he may honestly conceive to be griev^ " ances, nor for proposing legal means of redress." (t) In many cases which may occur the due exercise of this liberty and right of discussion will involve considerations of much difficulty, and require great nicety of discrimination ; as it may become necessary to ascertain the particular points at which the bounds of rational discussion have been ex- ceeded. The answer to the following question has how- ever been proposed as a test, by which the intrinsic ille- gality of such publications may be decided : (u) " Has the " communication a plain tendency to produce public mis- " chief by perverting the mind of t!ie subject, and creating' " a general dissatisfaction towards government ?" However innocent and allowable it may be to canvass political measures within these limits, it is quite clear that their discussion must not be made a cloak for an attack upon private character. Libels on persons employed in a public (0 Rex V. Perry and another, 371. t 1793. See 2 Ridgway's Speeches, (m) Starkie oiiLib. 525. y2 324 Of Libels, S^c. against the Government, [book. ik capacity receive an aggravation as they tend to scandalize the government by reflecting on tliose who are entrusted with the administration of public alFairs ; for they not only endanger the public peace, as all other libels do, by stirring up the parties imniediately concerned to acts of revenge, but also have a direct tendency to breed in the people a dis- like of their governors, and incline them to faction and sedi- tion, (ap) Cases. A person delivered a ticket up to the minister after ser- mon, wherein he desired him to take notice that offence* passed now without controul from the civil magistrate, and to quicken the civil magistrate to do his duty, &c. ; and this was held to be a libel, though no magistrates in particular were mentioned, and though it was not averred that the ma- gistrates sulfered those vices knowingly, (.r) Rf?. V. Tu- In a case where the defendant was prosecuted upon an information for a libel upon the government, his counsel contended that the publication was innocent and could not be considered as libellous, because it did not reflect upon particular persons. But Holt, C. J. said, " They say no- " thing is a libel but what reflects on some particular per- " son. But this is a very strange doctrine to say that it is " not a libel, reflecting on the government ; endeavouring to " possess the people (hat the government is mal-adminis* " tered by corrupt persons that are employed in such sta- " tions, either in the navy or army. To say that corrupt " officers arc appointed to administer affairs is certainly a " reflection on the government. If men sliould not be " called to account for possessing the people with an ill *■'• opinion of the government, no government can subsist; " notliing can be worse to any government than to endea- (ti)) 1 awk. P. C. c. 73. 8. 7. 4 (x) 4 Bac. Abr. Libel (A) S. p. Bac. Abr. Libel {A) 2. p. 450. Ucx 451, ». Franklin, St. Tri. '255. chin CHAP. XXV.] Of Libels, S^c. against Magistrates, 32b " voiir to procure animosities as to the management of it ; " this has always been looked upon as a crime, and no " government can be safe unless it be punished." (j/) This doctrine was recognized in a more modern case, Rex r. Cob- where the defendant was charged with publishing a libel '^^ ' upon the administration of the Irish government, and upon the public conduct and character of the lord lieutenant and lord chancellor of Ireland. Lord Ellenborough, C. J. in his address to the jury observed, " It is no new doctrine " that if a publication be calculated to alienate the affec- *' tions of the people, by bringing the government into dis* " esteem, whether the expedient be by ridicule or obloquy, " the person so conducting himself is exposed to the inflic- " tions of the law. It is a crime ; it has ever been consi- " dered as a crime, whether wrapt in one form or another. " The case of Reg. v. Tuchin, decided in the time of lord " chief justice Holt, has removed all ambiguity from this " question ; and although at the period when that case was " decided great political contentions existed, the matter " Avas not again l)rought before the judges of the court by " any application for a new trial." And afterwards his lordship said, " It has been observed, that it is the right of " the British subject to exhibit the folly or imbecility of the " members of the government. But, gentlemen, we must " confine ourselves within limits. If in so doing individual " feelings are violated, tliere the line of interdiction be* " gins, and the offence becomes the subject of penal visita- « tion."(r) VII. As nothing tends more to the disturbance of the Of publica- II- 1 ii • iU 1 • • i i* c ■ tioas against public weal than aspersions upon the administration ot jus- mao^istratei tice; contempts against the king's judges, and scandalous and the ad- " . , , . miuislratioa reflections upon their proceedings, have always been consi- of justice. (y) Reg. V. Tuchin, 1704. Holt's on Lib. 114, 115. Starkie on Lib. R. 424. 5 St. Tri. 532. 529, 530. where see in the aot« (») Rex.v.Cobbelt, 1804. Holt other c»«es referred to. 326 Of Libels, ^c. against Magistrates, [boorii. dered as highly criminal offences; and one of the earliest cases of libel appears to have been an indictment for an offence of this kind, (a) Generally, any contemptuous or contumacious words spo- ken to the judges of any courts in the execution of their offices are indictable ; and when reflecting words are spoken of the judges of the superior courts at Westminster, the speaker is indictable both at common law and under the statutes of Scandalum IVIagnatum, whether the words relate to their oflice or not. (b) Cases. Any publications reflecting upon, and calumniating, the administration of justice, are without doubt of a libellous nature; and where a libel was published in a newspaper, in the form of an advertisement, reflecting on the proceedings of a court of justice, it was characterized as a reproach to the justice of the nation, a thing insufferable, and a con- Rex t>.Watson tempt of court, (c) So an order made by a corporation and »nd others. entered in their books stating that A. (against whom a jury had found a verdict with large damages in an action for a malicious prosecution, and which verdict had been con- firmed in tlie court of Common Pleas,) was actuated by mo- tives of public justice in preferring the indictment, was held to be a libel reflecting on tlie administration of justice, for which an information should be granted against the mem- bers who had made the order. Ashhurst, J. said, that the assertion that A. was actuated by motives of public justice (a) Holt on Lib. iriS. tioii of any of the great officers and (b) Slafki«- on Lib. 53S. y/hrre nobles. But the* civil proceedin*; see the cn.scs colli'ctfd. And sec. is now almost obsolete, the nobility I Unwk. c. 21. ». 7. ct scqH. The prefcrrin<; to wave their privileges proci-ediiig by writ of scandalum in any action of slander, and to ma^fi«?Mm upon the statutes .'nUiw. stand upon the same fooling, with I. c. 31. 2 U. II. st. I. c. .'). 12 K. respect to civil remedies, as their II. c. ) I . \(, «tf a rivil, as well as of fellow subjects. a criminal n.iture, and was formerly (c) Vin. Abr. Conlcmpt (A) 44 had recourse to in rase of dcfania- Pool v. Sachcvercl 1720. fHAP.xxv.] And the Administration of JiisLtce. 327 carried with it an imputation on the public justice of the country ; for ifthosc wore his only motives, then the verdict must be wrong-. Buller, J. said, " Nothinjj^ can be of " greater importance to the welfare of the public than to " put a stop to the animadversions and censures which are " so frequently made on courts of justice in tliis country. " They can be of no service, and may be attended with the " most miscliievous consequences. Cases maj happen in " which the judge and jury may be mistaken; when they *' are, the law has aft'orded a remedy; and the party injured *' is entitled to pursue every method which the law allows " to correct the mistake. But when a person has recourse " either by a writing like the present, by publications in " prrnt, or by any other means, to calumniate the proceed- " ings of a court of justice, the obvious tendency of it is to " weaken the administration of justice, and in consequence " to sap the very foundation of the constitution itself." {d) In a late case the same doctrine was acted upon ; but it Rex v. White was at the same time clearly admitted that it would be law- ^""^ another. ful to discuss the merits of the verdict of a jury, or the deci- sions of a judge, provided it be done with candour and de- cency. An inibrmation was filed against the defendants, the proprietors and printers of a Sunday newspaper, for a libel upon Le Blanc, J. and a jury, by whom a prisoner had been tried for murder and acquitted : and it was contended on the part of the defendants tliat they had only made a fair use of their right to canvass the proceedings of a court of justice. Grose, J. said, that '•' it certainly was lawful, with " decency and candour, to discuss the propriety of the ver- *' diet of a jury, or the decisions of a judge ; and if the de- " fendauts should be thought to have done no more in this " instance, they would be entitled to an acquittal : but, on " the contrary, they had transgressed the law, and ought to *' be convicted, if the extracts from the newspaper, set out in '' the information, contained no reasoning or discussion, but (. Weltjc, '2 Cainpb. 142. a note (if anollicr proceeding by (ft) Hex v. Wrighbion, 2 Salk. inforiiiatiou againsi llic same do- 698. fendanls for a libel on Lord I'JIen- (t) 2 Str. 11 57. And see Rex v. borougli, C.J. Holt on Lib. I7(), Pinny, I L«»rd Haym. l.'j;}. 171. (/;) Ilex V. VVcllje, 2 Campb. 143. CHAP. XXV.] Of Libels against Private Individuals. 329 of the peace, when in the execution of his office, " you are a rogue and a liar." (/) VIII. As every person desires to appear agreeable in life, Of publica- and must be highly provoked by such ridiculous representa- pr^vate''lnd!- tions of him as tend to lessen him in the esteem of the world, ^iduals. and take away his reputation, which to some men is more dear than life itself; it has been held that not only charges of a flagrant nature, and which reflect a moral turpitude on the party, are libellous, but also such as set him in a scur- rilous ignominious light, whether expressed in printing or writing, or by signs or pictures ; for these equally create ill blood, and provoke the parties to acts of revenge and breaches of the peace, (m) But it should be observed, that there is an important dis- Words spoken tinction under this head between words spoken onlv, and aj-e not indict words published by writing or printing. Words spoken, however scurrilous, even though spoken personally to an individual, are not the subject of indictment, unless they directly tend to a breach of the peace, as if they convey a challenge to fight, (w) But words, though not scandalous (/) Rex r. Revel, 1 Str. 420. " dictment lies " And in Rex v. (m) .4nte, p. 303. 4 Bac. Abr. Cobbett, Holt on Lib. 114, 115. Libel, (A) 2. p. 450. So in the late Lord Ellcnborough, C. J. said, case of Thorlcy v. Lord Kerry, 4 " No man has a right to render Taunt. 364, Mansfield, C. J. deli- " the person or abilities of ano- vering the opinion of the court " ther ridiculous, not only in pub- said, '• there is no doubt this is a " licalioiis; but if the peace and " libel for which tlic plaintift^ in '' welfare of individuals, orofso- " error might have been indicted " ciety, be interrupted, or even " and punished, because, though " exposed by types and figures, " the words impute no punishable " the act, by the law of England, " crimes, they contain that sort of " is a libel." " imputation which is calculated (h) Reg. v. Langley, 6 Mod. *' to vilify a man, and bring him, 125. Rex v. Bear, 2 Salk. 417. *' as the books say, into hatred. By Holt C. J. Villars v. Monsley, " contempt, and ridicule; for all 2 Wils. 403, and see Starkie on " words of that description an in- Lib. 548. In Thorley v. Lord 330 Of Libels against Private Indivlchials. [book ii. C«<$. in themselves, if published in writing, and tending in any dejrree to the discredit of a man, have been held to be libel- lous. (o) Upon these principles it has been held to be Jibellous to write of a man that he had the itch, and stunk of brim- stone. (^) And an information was granted against the mayor of a town for sending to a nobleman a licence to keep a public house, (q) An information also was granted for a publication reflecting upon a person who had been unsuc- ces-iful in a lawsuit ; (r) and against the printer of a news- paper for publishing a ludicrous paragraph, giving an account of tlie marriage of a nobleman with an actress, and of his appearing with her in the boxes with jewels, &c. (5) A defendant was convicted for publishing a libel in a review, tendin'^ to traduce, vilify, and ridicule, an officer of high rank in the navy, and to insinuate tjiat he wanted courage and veracity, and to cause it to be believed that he was of a conceited, obstinate, and incendiary disposition, (t) And an information was lately granted against a printer of a Kerry, 4 Taunt. 355. (in the Exche- quer chamber) it was held, that an action maybe matntainctl for words written for which an action could not be maintained if thiy were merelv spoken. Mansfield, C. J. stated the arguments which would Mvc prevailed in liis mind to repu- diate the distinction between writ- ten and spoken scandal, Inil lli.il the distinction l»ad been eol.ihlished by «omc of the {;rc:»l(st names known ■to the law. Lord Jlardwicke, Hale, Holt, and others; and that Lord Hardwicke, C.J. had especially laid it down, that an action for a \\\yc\ nuiv Ik; brought on words written when the words, if »poken, would not sustain it. (0)4 Bac.Abr.Lf'6<'/, (i4)2. pl.450. (p) Villars v. Monsley. 2 Wils. 403. The libel, the material part of which is stated in the text, was in rhimc, and very abusive. {q) The mayor of Norlhamptoirs case, 1 Str. 422. (r) 2 Barnard. 84. (») Rex V. Kiniiersley, 1 Blac. R. 294. It was sworn, that the nol)le- man was a married man ; and the court said, that under su( h circum- stances the publication would have been a liij;li ollence even against a commoner, and that it was higlt time to slop such intermeddling in private families. (I) Hex t'. Dr. Smollett, 1759. lioll un Lib. 224. CHAP. XXV.] Of Libels against Piivate Individuals. 331 newspaper, for publishing- a paragraph conlainini? a libel on the bishop of Derry, by representing him as a bankrupt. («) But in an action on tlie case for publishing a libel by post- ing it on a paper in the Casino room at Southwold, con- taining these words, " The Rev. John Robinson and Mr. " James Robinson, inhabitants of this town, not being per- *' sons that the proprietors and annual subscrilwrs tliink it *' proper to associate witb, are excluded this room ;" the court of Exchequer held, that the publication was not a libel, as it did not affect the moral character of the plaintifTs, nor state that they were not proper persons for general society ; that the paper might import no more than that the plaintiff was not a social and agreeable character in the in- tercourse of common life, (w) A publication reflecting upon a man in respect of his Publication trade may also be libellous; as where A. a gunsmith, pub- f/!„!;f '"*' • " ' r ii)'ou a iiinri in lished in an advertisement that he had invented a short kind rt"*pectof bis of gun, that shot as far as others of a longer size, and that he was gunsmith to the prince of Wales; and B. another gunsmith counter-advertised, " That whereas, &cc. (reciting " the former advertisement) he desired all gentlemen to be " cautious, for that the said A. durst not engage with any " artist in town, nor ever did make such an experiment, " except out of a leather gun, as any gentleman might be " satisfied at the Cross Guns in Long Acre, the said B.'s " bouse." The court held, that though B. or any other of the trade might counter-advertise what was pul)Iished by A. (a) Rex i;. , nil. T. 1812. ordinRry remedy : as where tbe ap- Though it is not Ibe object of tbis plication is made after a great work to treat of the practice and length of time, or where tbe matter modes of proceeding in criminal complained of as a libel happens to prosecutions, it may be proper be true. See 4 Bac. Abr. LibcL 2. shortly to observe, that the court p. 451. and Starkie on Lib. 590. eL of King's Bench always exercises a sequ. discretionary power in granting an (w) Robinson r. Jermyn and information for a libel, and will, in others, 1 Price R. 1 1 . many cases, leave the party to his 332 Of Libels against Private Individuals, [book ii. yet it should have been done without any general reflections on him in the way of his business : that the advice to " all " gentlemen to be cautious," was a reflection upon his honesty ; and the allegation that he would not engage with an artist was setting him below the rest of his trade, and calling him a bungler in general terms ; and that the ex- pression " except out of a leather gun" was charging him with a lie, the word gun being vulgarly used for a lie, and gunner for a liar, and that therefore these words were libel- lous, (x) General im- General imputations upon a body of men are indictable, upon a body though no individuals may be pointed o\\\.(y) An inform- of men are ation was prayed against the defendant for publishing a indictable. \ . ^ ^ , • , paper contammg an account of a murder committed upon a Jewish woman and her child, by certain Jezcs lately arrived from Portugal, and living near Broad Street, because the child was begotten by a Christian. (::) It was objected that no information should be granted in this case, because it did not appear who in particular the persons reflected on were. («) But the court said, that admitting that an inform- ation for a libel may be improper, yet the publication of this paper is deservedly punishable in an information for a misdemeanor, and that of the highest kind ; such sort of advertisements necessarily tending to raise tumults and dis- orders amongst the people, and inflame them with an uni- versal spirit of barbarity against a whole body of men, as if guilty of crimes scarcely practicable, and wholly incredi- ble. (6) And if some of the individuals aflbctcd by the (x) Harman v. Dclany, Barnard. K. B. «H9. Filzgib. 121. '2 Sir. 898. S. C. (y) Ante, p. 305. (s) The affidavit srl forth that several persons therein mentioned, who were recently arrived from Porluj;:il. and lived in Broad-street, were attacked by mulliludes in se- veral parts of the city, barbarously treated, and threatened with tiealh, in case they were found abroad any more. (fl) Hex V. Orme, .'} Salk. 221. pi. 5. 1 Lord Hajm. 480. was cited. (b) Rex V. Osborne, Scss. Cat. 200. 2 Barnard. I'lH. 166. Kel. 230. pi. 18.'}. CHAP. XXV. J Of Libels against Private Individuals. 333 libel are specified, it will be sufficient; as where it was ob- jected that the names of certain trustees, who were part of the body prosecutinii;, were not mentioned, Lord Hardwicke observed, that though there were authorities where, in cases of libel upon persons in their private capacities, it had been holden necessary that some particular person should be named, this was never carried so far as to make it neces- .sary that every person injured by such libel should be spe- cified, (c) A malicious defamation of one who is dead, if published Libel upon a with a malevolent purpose, to vilify the memory of the de- ceased ceased, and with a view to injure his posterity, will be li- bellous; but it has been holden that an indictment for a libel, reflecting on the memory' of a deceased person, cannot be supported, unless it state that it was done with a design to bring contempt on his family, or to stir up the hatred of the king's subjects against his relations, and to induce them to break the peace in vindicating the honour of the family, (d) But there are some exceptions to the general rules and Exceptions to doctrine concerning libels, in the case of comments upon rulef^"^"^ literary productions, and also in the case of communications considered as confidential, or made bond fide with a view of investigating a fact, or in the regular and proper course of a proceeding. A publication commenting upon a literary work, exposing Comments its follies and errors, and holding up the author to ridicule, pfoductionf'^ will not be deemed a libel, provided such comment does not exceed the limits of fair and candid criticism, by at- tacking the character of the writer, unconnected with his publication ; and every one has a right to publish a com- ment of this description, (e) But if a person under the (c) Rex V. GriflBn and others, (rf) Rex r. Topham, 4 T. R. 126. Holt on Lib. 239. (e) Curr v. Hood, 1 Campb. 355. 334 Of Libels against Private Individuals, [book ii. pretence of criticising a literary work, defames the private character of the author, and, instead of writing in the spirit, and for the purpose of fair and candid discussion, travels into collateral matter, and introduces facts not stated in the work, accompanied with injurious comments upon them, such person is a libeller. ( /) A fair and candid comment on a place of public entertainment, in a newspaper, is not a libel, (g) Confidential coiniuuuica- tioDs. Confidential communications are in some cases privileged. As where it was holden that a letter written confidentially to persons who employed A. as their solicitor, conveying charges injurious to his professional character in the ma- nagement of certain concerns, which they had entrusted to him, and in which B. the writer of the letter was likewise interested, was not a libel. (//) And if a person, in a pri- vate letter to the party, should expostulate with him about fome vices, of which he apprehends him to be guilty, and desire him to refrain from them ; or if a person sliould send such a letter to a father, in relation to some faults of his children ; these it seems would not be considered as libel- lous, but as acts of friendship, not designed for defamation but refonnation. (/) But this doctrine must be applied with And in action for a libel npoii the plaintift'in his business of a book- seller, accusing him of being in the habit of |iublishing iniinorai and foolish books, tlie defendant, un- der the plea of not ;;"iiilly, may ad- duce evidence losli;\v that the sup- posed I iliel is a fair stricture upon thb general run (if tiie plninlilV's publications. Tabart v. Tipper, 1 Caniph. -AM). (/) Nightingale v. Stockdale, 49 Geo. III. cor. Ellenborough, C. J. Selw N. P. 10 J1. Ai.d it was held lliat though it is lawful to animadvert upon the conduct uf a bookseller in publishing books of an improper tendency, it is action- able /a/se/// to impute to him the publication of any inmioral or ab- surd literary produclioii. Tabart V. Tipper, 1 Campb. 354. (f^) Dlbdin t'. Swan, 1 Esp. N. P. C. 'J8. and sec also Ashley v. ilarrison, 1 Esp. N. P. C. 48. Peake N.P. C. 10 1. (A) M'Dougall V. Claridge, 1 Camph. 267. (i) Peacock J'. Sir George Rcy- nell, i> nr«>wnl. 151, 152. 4 Bac -Abr. Libel {A) 2. in the notts p. 45a. CHAP. XXV.] Of Libels against Private Individuals. 335 some caution ; since the sending an abusive letter filled with provoking language to another, is an offence of a public nature, and punishable as such, inasmuch as it tends to create ill blood and cause a disturbance of the public peace ; (A) and the reason assigned by lord Bacon, why such private letter should be punishable, seems to be a very suf- ficient one, namelvr that it enforces the party to whom the letter is directed, to publish it to his friends, and thus in- duces a compulsory publication. (/) And though a letter written by a master, in giving a character of a servant, will not be libellous, unless its contents be not only false but malicious ; (m) yet in such a case malice may be inferred from the circumstances. («) Although that which is written maybe injurious to the Communica- character of another, yet if done bond fide, or with a view J'^"„"/ Jj'^'J'oj. of investigating a fact, in which the party making it is in- with a view of terested, it is not libellous. Thus where an advertisement ^"faci.'^^ '"^ was published by the defendant at the instigation of A. the plaintiff's wife, for the purpose of ascertaining whether the plaintiff had another wife living when he married A. ; it was holden that although the advertisement might impute bigamy to the plaintiff, yet having been published under such authority, and with such a view, it was not libel- lous, (o) And if the communication be made in the regular ormade io and proper course of a proceeding, it will not be libellous. **ie proper .. ••11/.I5 course of a As where a writuig, containing ttie defendant s case, and proceeding. stating that some money, due to him from the government for furnishing the guard at Whitehall with fire and candle, had been improperly obtained by a captain C. was directed to a general officer, and the four principal officers of the (A») 4 Bac. Abr. Lilel (B) 2. p. 459. Lib. 922. ftex V. Cater, 2 East. 11. 361. (in) VVeallicrslone v. Hawkins, Thorley u. Lord Kerry> 4 Taunt. 1 T. II. 110. lidmonson v. Ste- 355. Ill the last case the letter phenson. Bull. N-. P. 8. was unsealed and opened and read («) Roj^crs v. Sir G. Clifton, .t by the bearer. Bos. & Pul. .^87, (/) Poph. 189, cited in Holt on {o) Delaacy u. Jones, 4 Ehall be named and names, additions, descriptions, and described in the affidavit or affirra- places of abode of the printer, pub- ation. This affidavit or affirraa- lisher, and of all the proprietors, if tion must be renewed as often as thev do not exceed two, exclusively the printer, ^o. shall change their of printer and publisher; if they abode or priiitiu}; office, or as ofteu do then of two such proprietors, as counnissioners lor slump duties exclusively of printer and pul»- shall require. It must be signed lisber; specifying the amount of by the parlies making it, and tjikeii shares, the true description of the by a commissioner or person spe- housc or Ituilding wherein »uch cially appointed Ly commissioners, paper ii intended to be printed. And it nuisl be sworn by all the and the title of such paper. If the parties, if they do not exceed four ; proprietors exceed two, then two if they do, then by four, who shall vhose proportional shares in the give notice to the other parties not property shall uot be less thau the iweariog, under a penally of iO/. CHAP. XXV.] Makiiig and Publishing ^^'j duced in evidence intituled in the same manner as the now?- meuiloiud, paper mentioned in such ailidavit or copy, and wherein the *^«^»t shall nut r r . . "^ necessary name of the printer, &c. and the place of printing shall be to prove thi; the same, it shall not be necessary for the prosecutor to thcpaper.*^ prove that the newspaper to which such trial relates was purchased at any house, &c. belonging to or occupied by the defendants or tiieir servants, &c. or where they by them- selves or their servants. &c. usually carry on the business of printing or publishing such paper, or where the same is usually sold. The thirteenth section enacts, that a certified copy of any S. 13. A cer- such affidavit or aftirmation shall be delivered to the person be delivvred" applying for the same, by the commisaioners or officers by on paying i*. whom they shall be kept, on payment of one shilling. The fourteenth section enacts, " that in all cases a copy of such S. 14. Copies " affidavit or affirmation certified to be a true copy, under cerJiflej^iJ^*' " the hand or hands of one or more of the commissioners or thecommis- /, «. . , • ^i I 11 1 I II sioaers or offi- '• otticers in whose possession the same shall be, shall, upon j.^.^^ j,j ^^jj^j.^ " proof made that such certificates have been signed with custody they , , , . . . , , • , shall he, to be "the handwriting oJ the person or persons making the sufficient evi- " same, and whom it shall not be necessary to prove to be a "^"^e. " commissioner or commissioners, or officer or officers, be " received in evidence as sufficient proof of such affidavit or " affirmation, and that the same was duly sworn or aflirmed, " and of the contents thereof;" and that such copies shall bo evidence that the affidavit or affirmation has been sworn or affirmed according to the act, and shall have the same effi>ct for the purposes of evidence to all intents whatsoever, as if the original affidavits or affirmations had been produced in evidence. The seventeenth section provides, that every printer or S.n. One of publisher shall, within six days after the publication, deliver pers"hrb^d to the commissioners of stamps, at their head ofiice, or to iivtriil within rr. • . 1 1 .1 p ,1 I si\ (hn s to the some officer appointed by them, one oi the papers so pub- commission- lislied, signed by the printer or publisher in his hand- e", tic. and 344r Of Libels. —Evidence of [boor ii. within two writing, with Ills name and place of abode ; and in case any years after- person stiall anplv to the commissioners, &c. in order that warns it may ' i i .' be applied for such newspaper may be produced in evidence, the said com- Id hiVv^deiice. "I'^^sioners, &c. shall, at the expence of the party applying, at any time within two years from the publication, either cause the same to be produced in comt, or deliver the same to the party applying, taking reasonable security for its be- ing returned. Construction Before this statute it was holden, upon an indictment for a of the statute. jju,p| j^^ ^ newspaper, that evidence that the paper had been sold at the office of the defendant, that the defendant, as pro- prietor of the papor, had given a bond to the stamp office pursuant to the £9 Geo. 111. c. 50. s. 10. for securing the duties on the advertisements, and that he had from time to time applied to the stamp office respecting the duties on the paper, wa«: evidence to be left to the jury, to shew that the defen.lant v. as the publisher, (w) And since the statute, it has been held to be sufficient evidence 61 a publication at common law to put in the original affidavit of the proprietor stating where the paper was to be published, and to prove that a paper with a corresponding title, containing the libel, was purchased there, (o) This was held in a case where it had been previouslv ruled that in order to render the certi- fied copy of the affidavit, made by the proprietor of a news- paper, evidence under the statute 58 Geo. 11 I.e. 78. it must cither appear upon the Jurat that the person before whom it was made had authority to take it, or this fact must appear nliiinde. (p) U has been ruled, that an allidavit according to the statute, together with the production of a newspaper, corresponding in every respect with the description of it iu the affidavit, is not only evidence of the publication of such paper by the parties named, but is also evidence of its publi- cation in the county wlicre the printing of it is described to (n) Ttex r.Topham, 4 'I'. U. I'ifi. (p) Id. HH. (») Ucxt. White, 3 Campb. 100. CHAP. XXV.] Mafdng and Publishing. 545 be. (g) And a newspaper may be given in evidence, tliou£^]i it is not one of the copies published, and though it is un- stamped at the time of trial, (r) Upon the trial the libel must in general be produced on ThelihH the part of the prosecution, and after sufliciont proof of a '""'*t ''c pro- '. . ' ' duced, and publication by the defendant, may be read ; and if the libel must corres- has merely been exhibited bv the defendant, and he refuses P«"fl;^'t'» »''' on the trial to produce it, after notice for that purpose, parol evidence may be given of its contents. () (tf) I Hawk. P. C. c. G5. 8.1,8, iiisertfil instead of " three persou* 9. 3 Inst 176. -t Blac. Com. 1 16. or more;" which in 5 Burn. Just. (b) 1 Hawk. 1'. C. c. Cj. s. 1. Itiol, S. 1. is remarked as an in- Tlirce pcmons or mort* is the cor- stance that, in a variety of matter, reel description of the number of it is impossihie for the tnind of persons necessary to conslilute a nian t<» he always equally atten- riolous meeting ; but it should lie live. The description of riot stated observed, that in Hawkins (c. C.i. in the text, and taken from the 8. 2. 5. 7.) the words " more than w()rk of Mr. Serjeant Hawkina, ii three persons" arc three limes over submitted as that which would pro- CHAP. XXVI.] Of Riots.— Object of a 'private Xature. 351 In some cases, in which the law authorizes force, it is not Wherrthelaw 111 i> ■ aiitliorizcs only lawful, but also coinmendab'e, to make us'» o\ it ; as (or force i! as a sheriff or constable, or perhaps even for a private person s'"i'''""S "'" ' ' , nolbcriolwus. Id assemble a competent number of people in order with force to suppress rebels, or enemies, or rioters; and after- wards with such force actually to suppress them; «'' for a justice of peace, who has a ju^^t cause to fear a violent re- sistance, to raise the posse, in order to remove a force in makino- an entry into, or detaininii^ of, lands. Also it seems to be the duty of a sheriff, or other minister of justice, hav- ing the execution of the king's writs, and beinjj: resisted in endeavouring to execute them, to raise such a pow 'r as may effectually enable them to overpower any such resistance; yet it is said not to be lawful for them to raise a force for the execution of a civil process, unless they find a resist- ance ; and it is certain that they are highly punishable for using any needless outrage or violence, (c) It seems to be agreed, that the injury or grievance com- How far the 1 • 1 P 1 • X 1 1 . I * 1 .- • • objectmustbe plained ot, and intended to be revenged or remedied by a of a pnvaU riotous assembly, must rolaie to some private quarrel only; "^.ture. as the inclosing of lands in which the inhabitants of a town claim a right of common, or gaining the possession of tene- ments the title whereof is in dispute, or such like matters relating to the interests or disputes of particular persons, in no way concerning the public. For the proceedings of a riotous assembly on a public or general account, as to re- bably be deemed most correct at " sembly : and as to what act will the present time. It should be ob- " make a riot, or trespass, such an served, however, that riot has been "act as will make a trespass will described differently by iii<;;h an- "makcariot. If a number of men thority. In Regin. i'. Soloy and " assemble with arms, in terrorem others, 11 Mod. 116. Holt, C. J. " populi, though no act is done, it said, '• The books arc obscure in " is a riot. If tliree come out of '• the definition of riots. I take it, " an ale-house, and go armed, it is " it is not necessary to say they as- " a riot." " scmblcd for that purpose, but (t) 1 Hawk. P. C. c. 65. s. 2. 19 •there must be an unlawful as- Vin, Abr. /t/o/.v, ^T. (A) ♦. Sb'Z As to the dc- f^ree of vio- ence or ter- ror. Of Riots. — Degree of Violence, [boor ii. dress grievances, pull down all inclosures, or to reform reli- gion, and also resisting the king's forces, if sent to keep the peace, may amount to overt acts of high treason by levying Avar against the king, (d) It seems to be clearly agreed, that in every riot there must be some such circumstances either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people : as the shew of armour, threatening speeches, or turbulent gestures ; for every such oflence must be laid to be done in Icrrorcm populi. (f ) But it is not necessary in order to constitute tliis crime that personal violence should h.avc been com- mitted, (f) Upon these principles assemblies at wakes, or other festi- val times, or meetings for the exercise of common sports or diversions, as bull-baiting, wrestling, and such like, are not riotous, (g) And upon the same ground also it seems to follow that it is possible for three persons or more to assem- ble together with an intention to execute a wrongful act, and also actually to perform their intended cnterprize, with- out being rioters; as if a man assemble a number of persons (rf) 4 Blac. Com. 147. 1 Hawk. P, C. ,c. 65. s G. (e) 1 Hawk. 1'. C. c. 65. s. 5. (/) Per Mansfield, C. J. in Clif- f(^rd V. Urandon, 2 Canipb. 369. (g) I Hawk. P. C. c. 65. s. 5. But gee in 9. Chit. Crnn. L. 494. an in- dictment said lo have been drawn in the year 1707 by a very eminent pleader fur tlic purpose of suppress- inf; an ancient custom of kicking about foot-bail.s on a IShrovc Tues- day, at Kingston- upon -Thames. The first count is for riotously kiekiiifr about a foot-ball in the Lowu of Kingston ; and the liccoud, for a conmion nuisance in kickii:<; about a fool-ball in the said town. And in Sir Anthony Ashley's case, 1 Hull. U. 109. Coke, C. J. said, that the stage plai/crs migiU be in- dicted for a riot and uida>^ful as- sembly : and see Dall. Just. c. 13(i. (citing lloll. U.) that if such players Ity their she\vs occasion an extra- ordinary and unusual concourse of people to see them act their tricks, this is an unlawful assemi)ly and riol, for which the} may beii\dicted and hncd, 19 Yin. Abr. Hiols, i)C. (A)i(. CHAP. XXVI.] Of Riots. — Illegality of the Act, S^c. 35.3 to carry away a piece of timber or other thing to which he claims a right, and which cannot be carried away witliout a number of persons, this will not of itself be a riot, if the number of persons are not more than are necessary for the purpose, and if there are no threatening words used, nor any Other disturbance of the peace ; even though another man has better right to the thing carried away, and the act there- fore is wrong and unlawful. (/?) Much more may any per- son, in a peaceable manner, assemble a fit number of per- sons to do any lawful thing ; as to remove anj common nui- sance, or any nuisance to his own house or land. And he may do this before any prejudice is received from the nui- sance, and may also enter into another man's ground for the purpose. Thus where, a man having erected a wear across a common navigable river, divers persons assembled with spades and other instruments necessary for removing it, and dug a trench in the land of the man who made the wear in order to turn the water and the better to remove it, and thus removed the nuisance, it was holden not to be a for- cible entry nor a riot. (?) But if there be violence and tumult, it has been generally The legality holden not to make any difference whether the act intended or illcgilit>of •' the act intend- to be done by the persons assembled be of itself lawful or ed to bdone unlawful; from whence it follows that if three or more iftherebevio- per^ons assist a man to make a forcible entry into lands to Jenre and lu- • which one of them has a good right of entry ; or if the like number, in a violent and tumultuous manner, join together in removing a nuisance or other thing, which may be law- fully done in a peaceable manner, they are as properly rioters as if the act intended to be done by them were ever so unlawful. (A) And if in removing a nuisance the pcr- (h) 1 Hawk. P. C. c. 65. s. 5. redress of their private grievances Reg. V. Soley, 11 Mod. 117. Dalt. by such dangerous disturbances of c. 137. 5 Burn. Just. 7?/o<, s. 1. the public peace; but the Justice of (j') Dalt. c. 137. 5Burn. /?jof, s. 1. the quarrol ia which such an as- (Jc) 1 Hawk. P. C. c. 65. s. 7. The seuibly may have been engaged will law will not suQer persons to seek be considered a* a great mitigatiou 2 A 354 Of Riots. — Premt'dltaiion. [book ii. sons assembled use any tliroatenini;- words, (such as, they will do it though they die for it, or the like) or in any other way behave in apparent disturbance of the peace, it seems to be a riot. {I) How far the jiyj ^|jg violence and tumult must in some des^ree be pre- violence and . ^ tumult must meditated. For if a number of persons, being met toge- tater'"^*^' ther at a fair, market, or any other lawful or innocent occa- sion, happen on a sudden quarrel to fall together by the ears, it seems to be agreed that they are not guilty of a riot, but only of a sudden affray, of which none are guilty but those who actually engage in it, because the design of their meeting was innocent and lawful, and the subsequent breach of the peace happened unexpectedly, without any previous intention. C"0 But if there be any predetermined purpose of acting with violence and tumult, the conduct of the parties may be deemed riotous. As where it was held that although the audience in a public theatre have a right to express the feelings excited at the moment by the perform- ance, and in this manner to applaud or to hiss any piece which is represented, or any performer who exhibits himself on the stage ; yet if a number of persons, having come to the theatre with a predetermined j)urpose of interrupting the performance, for this purpose make a great noise and disturbance, so as to render the actors entirely inaudible, though without offering personal violence to any individual, or doing any injury to the house, they are guilty of a riot. («) of the onViice. And Per Cur. in one or two persons, or if a {greater 12 Mod. 648. Anon. If one c;ocs number, yet no luore tinin are to assert his riglit with force and needful, and only with meet tools, violence, he may be jjnilly of a in order to remove it; and that such riot. persons tend their business only, H) Dalt. c. 137. 5 Buru. Just. willionl disturbance of the peace, Hiot, s. 1. where it is said, tiiat if or llirralenin;; speeches. there is cau.sc to remove any such (/«) 1 IIa\vk. I'. C. c. 65. s, S. nuisance, or to do any like act, it (n) Clifford f. Brandon, I Carapb. is safest not to assemble any multi- 358. tude of people, but only to send CHAP. XXVI.] Of Riots,— Principals. 355 Even thoiigli the parties may have assembled for an in- Thoujrii the nocent purpose in tlie hrst instance, yet it they altervvards, sembhd in upon a dispute ha|)peninj^ to arise amongst then), form t' of . ^ . -ij felony with- " molish or pull down, any church or chapel, or any build- out clergy. << j^^^ ^^^ religious worship, certified and registered (accord- " ing to the 1 W. & M. sess. I. c. 18.) or any dwelling- " house, barn, stable, or other outhouse, that then every " such demolishing, or pulling down, or beginning to de- " molish, or pull down, shall be adjudged felony without " benefit of clergy, and the offenders therein shall be ad- " judged felons, and shall suffer death, as in case of felony, " without benefit of clergy." (/) Principals in the second And see Rex i-. Royce, 4 Burr. in consequence of it. See a simi- 207.S. and the second and third re- lar precedent in 2 Chit. Criin. L. solutions in the Sissinghursl house 506. and the principles stated, an/e, case, 1 Hale, 403. p. 61. f/ scqu. (r) 19 Yin. Ah. liiolx, b^c. (A) 15. (/) The sixth section of this sti- Rcg. r. Ellis, 2 Salk. 595. lute makes provision for recovery («) See a precedent, Cro. Circ. of dainaj^es done to any church, Comp. 420. (^Ih ed.) the 1st count &c. by action a^^ainsl the inhabi- of which is for inrilivf^ ])ersons to lants of the hundred, or in some a.ssenible, and Ihaf in r<)MS((|uence cases against the inhahilanis of a of such incitement they did so; city; and section 11. provides for and the second count sUiles the the recovery of such damages in inciting, aud omits the assembling Scotland. Most of the cases upojj CHAP. XXVI.] Of Riots. — Pulling doion Churches, ^c. 357 degree are within this statute : and where a jury found by a special verdict that the defendant was present at a riot, and encouraged and abetted the rioters in beginning to de- molish and pull down a dwelling house, by shouting and using expressions to incite them, it was held that he was a principal in the second degree, and as such ousted of his clergy, though he did no act himself, (u) By the eighth section of this statute no person is to be prosecuted, by vir- tue of the act, for any offence committed contrary to it, unless the prosecution be commenced within twelve months after the offence committed. this subject are collected in the notes to 2 Saund. 377, a. et seqii. But two cases of recent occur- rence may be mentioned here. In one of them (Sampson v. Cham- bers and another, 4 Campb. 221.) it was held that, in an action on this statute, the breaking of in- side window shutters, a window sill, and the wood of the fanlight, is sufficient evidence of a begin- ning to pull down, if the mob are interrupted and dispersed, while committing these acts of violence, by an alarm of the approach of the military. In the other (Lord King V. Chambers and another, 4 Campb. 377.) it was held that in order to render the hundred liable for partial damage done to a house, the rioters must have be- ffun to demolish it willi the inten- tion of actual/^/ demolishing it, if not interrupted. But by a recent statute 57 Geo. III. c. 19. s. 38. it is enacted " that in every case " where any house, shop, or other " building whatever, or any part " thereof, shall be destroyed, or " shall be iu any maauer damaged, " or injured, or where any fixtures " thereto attached, or any furni- " ture, goods, or commodities, " whatever which shall be therein, " shall be destroyed, taken away, " or damaged by the act or acts of " any riotous or tumultuous as- " sembly of persons, or by the act " or acts of any person or persons " engaged in, or making part of, " such riotous or tumultuous as- " sembly," the inhabitants of the city, &c. in which such house, &c. shall be situate, if such city, &c. be a county of itself, or is not within any hundred, or otherwise the inhabitants of the hundred, in which such damage shall be done, shall yield compensation to the person damnified ; to be recovered by the same means, and under the same provisions as are provided by 1 Geo. I. c. 5. with respect to per- sons injured and damnified by tlie demolishing or pulling down of any dwelling-house, by persons un- lawfully, riotously, and tumultu- ously assembled. (m) Rex V. Hoycc, 4 Burr. 307S. And see ante, 33, et seqiu 358 Riots. — Pre-centing the Loading of Vessels, [bookii. 9 G.III.c. 29. The 9 Geo. III. c. 29. ?. 1. recitinnces committed on the hiiih seas within the juris- diction of the Admiralty. And by the eighth section it is provided, that no person shall be prosecuted by virtue of the act for any of the offences therein mentioned, unless such prosecution be commenced within twelve calendar months after the otfence committed, (uu) The 52 Geo. III. c. 130. reciting the 1 Geo. 1. st. 2. c. 5. 59 Geo. III. c. and the 9 Geo. III. c. '29. and several other acts, and stating piliinp; down, that it was expedient and necessary that more ellectual pro- &c. buildings, visions should be made for the protection of property not ^sed in tr ides within the provisions of the said acts, makes the hurnino- cer- or manuficto- ' _ ^ rip«, ,2;iiilt.} 01 tain buildinirs, &c. used for manufactories a capital oftVnce, felony with- 1 out clcr*'*v and then enacts, '• That if any person or persons unlaw- =- " fully, riotously, and tumultuou.sly, assembled tog:ether in " disturbance of the public peace, shall unlawfully and with " force demolish or pull down, or be^in to demolish or pull *' down, any erection and buildinjy, or engine, which shall be " used or employed in the carrying on or conducting of any " trade or manufactory, or any branch or department of any " trade or manufactory of goods, wares, or merchandize, of '' any kind or description whatsoever, or in which any goods, " wares, or merchandize, shall be warehoused or deposited; " that then every such demolishing or pulling down, or be- " ginning to demolish or pull down, shall be adjudged (w) This statute was at first only tual by U Geo. III. c. 19. temporary, but was made jicrpc- 360 O/Riuts. — Pidlhig doiLm Bulldi7igs, S^c. [book ii. " felony, without benefit of clergy, and the offenders therein " shall be adjudged felons, and shall sutFer death, as incases " of felony, without benefit of clergy." (x) 56 Geo. III. c. The 56 Geo. III. c. 125. reciting the 1 Geo. I. st. 1. c. 5. ers^imlliiK^'*' the 9 Geo. III. c. 29. and the 52 Geo. III. c. 130. and that down, kc en- -^ ^^,^^ expedient and necessary that more effectual provi- gines.bridtjis, ' buildings, kc. sions should l)C made for the protection of property not belonging to ■^^l^^ tjjg provisions of those acts, enacts, " That if any coMienes, r iniues, fee. " person or persons unlawfully, riotously, and tumultuously fo"nv"li'thout " assembled together in disturbance of the public peace, clergy. u ghall unlawfully and with force demolish, pull down, de- " stroy or damage, or begin to demolish, pull down, destroy " or damage, any fire engine, or other engine, erected, or to " be erected, for making, sinking, or working collieries, coal " mines, or other mines, or any bridge, waggon way, or " trunk, erected or made, or to be erected or made, for con- " veying coals or other minerals from any colliery, coal mine " or other mine, to any place, or for shipping the same, or " any staith or other erection or building for depositing " coals or other minerals, or used in the management or " conducting of the business of any such colliery, coal mine, " or other mine, whether the same engines, bridges, waggon- " ways, trunks, staiths, erections and other buildings or " works, shall be respectively completed and finished, or " only begun to be set up, made and erected, that then " every such demolishing, pulling down, destroying and " damaging, or beginning to demolish, pull down, destroy (x) The lliircl section eniicls, within two days after the damage, (hat persons injured by such dc- an examination on oath, within molishing, &.c. may reco>tT the four days after the notice, as to value or damage in the same man- the persons who committed the nor as is pro\ided h) the 1 Geo. I. fact being known, and a recogui- sl. •2. c. .1. ill respect of the build- zancc lo prosecute if the offenders ings mentioned in that act. The arc known. And there is a proviso fourlh section provides as to some also, tliat llie action against the of llic proceedings necrssary to en- inindred sliall be brouglit within a title a person to recovery ; a notice year after the oU'cnte committed. CHAP. XXVI.] Of Routs, and Unlawful Asseinhlies, 361 " and damag^e, shall be adjudged felony, without l>enefit of " clergy ; and the oftenders therein shall be adjudged felons, " and shall sufler death as in case of felony vvitliout benefit « of clergy. "(^) Women are punishable as rioters, but infants under the age of discretion are not.(;:) II. By some books the notion of a rout is confined to such Of a rout, assemblies only as are occasioned by some grievance com- mon to all the company ; as the inclosure of land in which they all claim a right of common, &c. But, according to the general opinion, it seems to be a disturbance of the peace by persons assembling together with an intention to do a thing, which, if it be executed, will make them rioters, and actually making a motion towards the execution of their purpose. In fact it generally agrees, in all the particulars, with a riot, except only in this, that it may be a complete offence without the execution of the intended enterprize. {a) And it seems, by the recitals in several statutes, that if peo- ple assemble themselves, and afterwards proceed, ride, go forth, or move by instigation of one or several conducting them, this is a rout ; inasmuch as they move and proceed in rout and number, (b) III. An unlawful assembly, according to the common Ofanunlawful opinion, is a disturbance of the peace by persons barely as- ***^"''''J- {y) The second and third sec- is punishable ; and though under tions provide as to the recovery of the age of eighteen, need not ap- ihe value of property destroyed, pear by guardian, but may appear and as to the proceedings for iuch by attorney, Regin. v. Tanner, 2 purpose, in a manner nearly simi- Lord Haym. 1284. lar to the third and fourth sections («) 1 Hawk P. C. c. 65. s. 8. of the 32 Geo. ill. c. 130. See (b) 19 Vin. Abr. Riots, i^c. (A) a/i/e, note (or). 2. referring to 18 Edw. III. c. 1. (z) I Hawk. P. C. c. 65. s. U. 13 Hen. IV. c. ult. and 2 Hen. V. Ante, 2. el sequ. and 25. But an c. 8. infant above the age of diucreliou 363 Of Unlawful Assemblies^ [book ii, SPmhlln'T tojjetlier nith an intention to do a thin? which, if it wpi-p oxf^ruted, would make them rio1er=, hut neither actnallv execnttnreat num- bers of people with such circumstances of terror as cannot but endanr^r t^*^ public peace, and raise fears and jealousies amons^ the kipn^'s subjects, seems properly to be called an vnlaixful nssemblij. As where oreat numbers compla-ning of a common grievance meet top^ether armed in a warlike manner, in order to consult tooether concerning the niost proper mean*; for the recovery of their interests; for no one can foresee what may be the event of such an assembly, (c) An assembly of a man's friends for the defence of his per- son a£jainst those who threaten to beat him, if he 2^0 to such a market, &c. is unlawful ; for he who is in fear of such insults must provide for his safety by demandino- the surety of the poace ag-ainst the persons by whom he is threatened, and not make use of such violent methods, which cannot but be attendf^d with the danger of raising tunnilts and disorders to the disturbance of the public peace. But an assembly of a man's friends in his own house, for the defence of th.e pos- session of it against such as threaten to make an unlawful entry, or for the defence of his person against such as threaten to beat him in his house, is indulged by law ; ft)r a man's house is looked upon as his castle, {d) He is not, however, (c) 1 Havk. P. C. c. fiS. s. 9. (d) 1 Hawk. P. C. c. 63. s. 9, 10. There may be an unlavful assem- 19 Vin Abr. liiols^ Ssc. (A) 5, 6. biy if tlip peo) le assemble thein- And, by Holt, C. J. in Ke Ions, ;ind suf- " fully, riotously, and tumultuously assembled together, to ferdeathwith- " the disturbance of the public peace, and being required or cierey"*^ * ^ ^' commanded by any one or more justice or justices of the " peace, or by the sheriff of the county, or his under-sheriff, " or by the mayor, bailiffor bailiffs, or other head officer, or "justice of the peace of any city or town corporate, where " such assembly shall be, by proclamation to be made in the " king's name, in the form hereinafter directed, to disperse " themselves, and peaceably to depart to their habitations, *' or to their lawful business, shall, to the number of twelve *' or more (notwithstanding such proclamation made) unlaw- " fully, riotously, and tumultuously remain, or continue " together by the space of one hour af(er such command or " request made by proclamation, that then such continuino- *' together to the number of twelve or more, after such cora- " mand or request made by proclamation, shall be adiud2:ed " felony without benefit of clergy, and the offenders therein (<•) By Heath, J. Rex v. the Bishop of Bangor, Shren'sbury Sum. Ass. 1796. 364 Of Unhmful Assemblies. [book ii. " shall be adjudged felons, and shall suffer death as in case '• of felony without benefit of clergy." iGeo. I.st. 2. The second section of the statute gives the form of the vide* as'io the proclamation, and enacts, that the justice of the peace or form of the other person authorized by the act to make the proclamation and manner in shall, among the said rioters, or as near to them as he can which it shall gafgiy come, with a loud voice command, or cause to be com- be made. * i i -i i • • i • manded, silence to be while proclamation is making, and after that shall openly and w ith loud voice make, or cause to be made, proclamation in these words, or like in effect : " Our sovereign lord the king chargeth and commandeth " all persons, being assembled, immediately to disperse " themselves, and peaceably to depart to their habitations, *' or to their lawful business, upon the pains contained in " the act made in the first year of king George, for prevent- " ing tumults and riotous assemblies. God save the king." And every justice, sheriff, &c. within the limits of their re- spective jurisdictions are authorized and required, on notice or knowledge of any such unlawful assembly of twelve or more persons, to resort to the place, and there to make or cause such proclamation to be made. 1 Geo. I. St. 2. The third section enacts, that if the persons so unlawfully, c. 5. s. 3. Per- riotously, and tumultuously assembled, or twelve or more sons so assem- "^ ' bled, and not of them, after such proclamation, shall continue together dispersmg ^^^j ^^^ disperse themselves within one hour, that it shall hour, to be be lawful for every justice, sheriff, or under-sheriff of the krn'heforca county where such assembly shall be, and for every consta- jusiice. ]y\Q OP other peace officer within such county, and for every mayor, justice, sheriff, bailiff and otiier head olhcer, con- fctablc and other peace officer of any city or town where such assembly shall be, and for such other persons as shall be cominaiided to be assisting unto any such justice, sheriff or iMuier-sherilf, mayor, baililT, or other head ollicer (who are thcrei)y authorized to command all his majesty's subjects of age and ability to be assisting to them therein) to seize CHAP. XXVI. J Twelve or more Persons. 365 and apprehend such persons so unlawfully, riotously, and tumultuously continuing together after proclamation made ; and they are thereby required so to do. And that they shall carry the persons so apprehended before one or more of his Majesty's justices of the peace, of the county or place where such persons shall be so apprehended, in order to their being proceeded against according to law. And And if ihcy the section also enacts that if any of the persons so as- ^^^^ j.^^ ^^^^^ sembled shall happen to be killed, maimed, or hurt, in the sons killing . • 1 1- ^1 • *i A them, &c. are dispersing, seizing, or apprehending them, or in tlie endea- indemnified. vour to do so, by reason of their resisting, then every such justice, &c. constable, or other peace officer, and all per- sons being aiding and assisting to them, shall be free, dis- charged, and indemnified concerning such killing, maiming, or hurtinff. The fifth section provides, " That if any person or per- i G. I. st.2. " sons do, or shall, with force and arms, wilfully and know- pVeventin'' " ino-ly oppose, obstruct, or in any manner wilfully and such procla- ° , , , . , , mation from " knowingly lett, hinder, or hurt, any person or persons being made, " that shall beffin to proclaim, or go to proclaim, according f^^'^^y ^>*^^>' ^ ^ . , out clergy. " to the proclamation hereby directed to be made, whereby " such proclamation shall not be made, that then every " such opposing, obstructing, letting, hindering, or hurting, " such person or persons, so beginning or going to make " such proclamation, as aforesaid, shall be adjudged felony " without benefit of clergy ; and the offenders therein shall " be adjudged felons, and shall suffer death as in case of " felony, without benefit of clergy ; and that also every And persons " such person or persons so being unlawfully, riotously, ^her^ the " and tumultuously assembled, to the number of twelve, as proclamation . , ,j IS hindered, " aforesaid, or more, to whom proclamation should or a^^^\ „„i ^u- « ou'rht to have been made, if the same had not been hin- persi..- within » ^ tii\ hour. Ic- " dered, as aforesaid, shall likewise, in case they or any of iy„s without " them, to the number of twelve or more, shall continue •^'^^''Sy- " together, and not disperse themselves within one hour " after such lett or hindrance so made, be adjudged felons, ed. 3G6 Of Unlawful Assejnhlies. [book ii. *' and shall ?ufFer death as in case of felony, without benefit " of clerji;y." Prosecutions Bv the eighth section of the act, it is provided that no mcnred^iii person shall be prosecuted by virtue of the act for any of- months. f^^^ce committed contrary to it, unless the prosecution be commenced within twelve months after the offence com- mitted. (/) 39G. lll.c. By the 39 Geo. III. c. 79. s. 1. reciting- that divers so- 79. s. 1. Cer- j ^j ^^^ i^^^g,, instituted in this kingdom and in Irchmd, tain societies _ ^ _ are suppress- of a new and dangerous nature, inconsistent with public tranquillity, and with the existence of regular government ; particularly certain societies calling themselves " Sonetics *' of Vnilcd Englishmen, Lhiited Scotsmen, United Britons, " United Irishmen, and The London Corresponding Society,'' and that it was expedient and necessary that all such socie- ties, and all societies of the like nature, should be utterly suppressed and prohibited, as unlawful combinations and confederacies, highly dangerous to the peace and tranquillity of these kingdoms, and to the constitution of the govern- ment thereof, as by law established, it is enacted, " That " all the said societies of United Englishmen, United Scots- " men, United Irishmen, and United Britons, and the said " society commonly called the London Corresponding So- " ciety, and all other societies called Correspo)iding Socie- " ties, of any other city, town, or place, shall be, and the " same are hereby utterly suppressed and prohibited, as *' bein"- unlawful combinations and confederacies against (J) I'or tlic section ol llic acl li;ivi' here;: aiul tli;it oflciulers in relaliii}; to the demolishing or pull- ScoUand sliuU sullVr death, and ing down churches, chapels, houses, confiscation of moveables. This &c. by rioters, Hec anle, 330, 3j7. statute is commonly called tlie The ninth section of the act enacts, lUol Act, and is required by s. 7. that sheriff's, &c. \n Scotland, shall to be openly read at every quarter have the same power for putting st ssion, and at every lect or law the act iu cxtculiou a» jublices, &c. day. CHAP XXV!.] Taking imlazvfiil Oaths. 367 " the s;overnment of our sovereign lord the Kinc^, and " ag;ain^t the peace and security of his Majesty's liege sub- ejects." The second section of the statute enacts, that the said S9 G. III. c. societies, and every other society then e-'tablished, or here- ^ig^*i'j.j' ji after to be established, tlie members whereof shall, accord- members of ing to the rules thereof, or to any provision or agreement take unlawful for that purpose, be required or admitted to take any oath oiths oreu- 1 • 1 1 1 1 1 <• 1 I gagemeiits, or engagement which shall be an unlawtul oath or engage- &c. or where ment, within the intent or meaning of the 37 Geo. III. c. the nauies of ^ . . some ol the 123. (£•) or to take any oath not required or authorized by members or law : and every society the members whereof, or anv of ^. P^!"'*"* them, shall take, or in any manner bind themselves by any mittees, &c. such oath or engagement, on becoming, or in consequence secret ^or^^^ of being members of such society ; and every society the "here there members whereof shall take, subscribe, or assent to any tes^t or branch so- or declaration not required bylaw, or not authorised in c'tt'es, are to • • • II • <• I • I "*^ deemed manner hereinafter mentioned ; and every society of which unlawful the names of the members, or of any of thein, shall be kept combiiuitioni ' , 'iiid con- secret from the society at large, or which shall have any federacics. committee, or select body, so chosen or appointed that the members, constituting the same, shall not be known, by the society at large, to be members of such committee, or select body ; or which shall have any president, &c. or other olfi- cer, so cho?en and appointed, that the election or appoint- ment shall not be known to the society at large,.or of which the names of all the members, and of all committees or select bodies of members, and of all presidents, &c. shall not be entered in a book to be kept for that purpose, and open to the inspection of all the members ; and every so- ciety which shall be composed of different divisions or branches, or of different parts, acting in any manner sepa- rately or distinct from each other, or of which any part shall have any separate or distinct president, &c. or other officer, elected or appointed by, or for such pa. t, or to act (g-) Jnte, p. 200, ct itqu. 368 Of Unlawful Assemblies. — Taking [bookii. as an ofBcer for such part ; shall be deemed and taken to be And persons iinhmful combinations and conftderacies.ih) And further, correspond- ^j^^^ everv person who shall directly or indirectly maintain ing wilh such •' ' _ • *' societies, or correspondence or intercourse with any such society, or to*^be"deeTired ^^»*'^ ^"X division, branch, committee, or other select body, guilty of an president, &c. or other officer, or member thereof as such, or combination ^^lo shall by contribution of money, or otherwise, aid, abet, and coufedi- qj. support, such society, or any members or officers thereof, '^*^^" as such, shall be deemed guilty of an unlawful combination and confederacy. The act is not There is a provision, that the act shall not extend to de- d^c'larations clarations approved by two justices, and registered with the approved by j,jp,.|^ ^^ ^jjp peace ; but that such approbation shall only two justices, 1 • 1 I and register- remain valid till the next general session, unless the same ed : nor to ^||^]j ^^ confirmed by the maior part of the justices at such lodges ot •' o I 1 1 • 1 11 Free-masons, general session. (0 And it is al«o enacted, that it shall not u'Tcerfifkrte extend to the meetings of societies, or lodges of Free- and registry, masons, which, before the passing of the act, had been usually held, under the denomination of " Lodges of Free- " masons," and in conformity to the rules prevailing among such societies ; (A) provided that there be a certificate of two of the members upon oath, that such society or lodge had been usually held under such denomination, and in con- formity to such rules ; the certificate duly attested, &c. being, within two months after the passing of the act, de- posited with the clerk of the peace, with whom also the name or denomination of the society or lodge, and the usual place and time of meeting, and the names and de- scriptions of the members, are to be registered yearly. (/) The clerk of the peace is required to enrol such certificate and registry, and to lay the same, once in every year, be- But the jus- fQcg the general session of the justices; and the justices ticcs may or- (/i) B) llie 59 (ieo. 111. c. 19. s. only, and in vhirli no olhcr mailer 27. this enactment is not to extend sliall be discussed. to meetings of Quakers, or t(» any («) ."lO Geo. 111. c. 79. s. 3. meeting or society for purposes of {k) Id. ». ."). a religious or cliunlablc nature (0 Id- »• 6. CHAP. XXVI.] Unlawful Oaths.— Branch Societies, ^c. .'JG9 may upon comi^laiiit, upon oath, that the continuance of the df^r the meet- nieetings of any such lodge or society is likely to be inju- |od..;io b'c rious to the puhh'c peace and "ood order, direct them to be r • described, shall and may be proceeded against for such milictuieut. ' oflTence in a summary way, either before one or more jus- ' tice or justices of the peace for the county, stewartry, ' riding, division, city, town, or place, where such person ' sliall happen to be, or by indictment to be preferred in ' the county, riding, division, city, town, or place, in Eng- ' land, wherein such oHencc shall be committed, or by in- ' dictment in the court of justiciary, or in any of the cir- ' cuit courts in Scotland, if the offence shall be committed in Scotland ; and every person being convicted of any ' such ofibnce, on the oath of one or more credible wit- ness or witnesses, by such justice or justices as aforesaid, ' shall be by him, or them, committed to the common gaol, ' or house of correction, for such county, &c. there to re- ' main without bail or main-prize, for the term of throe ' calendar months; or sliall be by such justice or justices • adjudged to forfeit and pay the sum of twenty pounds, as ' to such justice or justices shall seem meet; and in case ' such sum of money shall not be forthwith paid into the ' hands of such ju-tice or justices, he or they shall by war- ' rant under his or their hand and seal, or hands and seals, ' cause the same to be levied by distress and sale of the • offender's goods and chattels, together with all costs and (/n) 3a Geo. III. c. 79. s. 7. 2b 370 Of Unlawful Assemblies. [book ii. " char2;cs attending such distress and sale ; and, for want " of sufficient distress, shall conimit such offender to the " common jraol or house of correction of such county, &c. " for anv time not exceeding three calendar months ; and " every person convicted of any such offence, upon indict- " ment by due course of law, shall and may be transported " for the term of seven years, in the manner provided by " law for transportation of offenders ; or imprisoned for " any time not exceeding two years, as the court before '*' whom such offender shall be tried shall think fit ; and " every such offender, who shall be ordered to be trans- " ported, shall be subject and liable to all laws concerning '• offenders ordered to be transported." Justices may But the justice or justices, before whom any person shall nutifjate the ^ convicted of any unlawt'ul combination or confederacy, punishment. •' - ' may mitigate the punishment, so as it be not thereby re- duced to less than one third of the punishment by the act directed to be inflicted, Avhether by imprisonment or fine, {n) And persons And it is provided, that any person who shall be convicted c'uied before ^"^ acquitted by any justice, upon a summary prosecution,, a justice or shall not afterwards be prosecuted by indictment, or other- indicted, ;irc • i^ ,^ ,T» 1 • ' II i\ i. not liable to Wise, for the same offence; and in like manner that any other prose- person convicted, or acquitted, upon an indictment, shall cations. * . ' , ' ... not alter\\ards w prosecuted l)efore any justice in a sum- But olTcnders mary way. (o) Hut the act is not to extend to prevent any "cTfl not\)'i-f)- prosecution by indictment or otherwise, for any thing which secuted under shall be an olVcnce within the intent and meaning of the act, and uhich might have l)een so prosecuted if the act had not been made, unless the offender shall have been pro- secuted for such offence tinder the act, and convicted or accjuilted of such offence, {p) srciii. r. A recent statute, 5? Geo. III. c. 19. contains many rary cnact^" enactments relating to assemblies of persons, collected for menta. (n) 39 Geo. III. c. 79. «. 9. ;tices, or by the major part ot the grand jury &c.) is to be at the assizes, or general quarter sessions, or any meetinsr ^°'''^'" ^^'^'i* ' ^ ' ^ J s out notice. of any citv, (Sec. called by the mayor, or other head officer And nieetinjrs of such city, ^'c. or any meeting of any ward or division of ^'y.^""* '*"^" • ' •' s J notice are to any city, called by the alderman, or other head officer, of be deemed such ward or division, or any meeting of any corporate seniMies body) shall be holden for the purpose of considering of '^"^ a" ^d- '' . . ^, , , r- 1 • o journed meet- any petition, or other address, tor alteration ot matters ino- is to be established in church or state, or for the purpose of deli- u^^'"'<*d aa •^ ' unlawful berating upon any grievance in church or state, unless assenibly, notice of such meeting shall be given in the names of seven householders at least, with their places of abode and de- scriptions, by public advertisement in a newspaper, five days at least before the meeting, (an authority to insert such no- tice in the newspaper being signed by seven householders, and written at the foot of a copy of the notice in the man- ner particularly specified in the act), or shall be delivered, signed by the seven persons in whose names it shall be given, with their places of abode and description, five days at the least before tlie meeting, to the clerk of the peace of the county, &c. ; who is directed to send a copy of such notice to three justices of the peace, at the least, of such county, &c.; or in case the justices of the city, &;c. where (q) By s. 2'2. the clauses and same as were contained in a former provisions of the act therein be- act 36 Geo. 111. c. 8. the continu- fore contained, are to continue in ance of which was for three years force until the 24th of July 1818. from the 18th December, 179^ They are, with litUe variation, the 2b2 ^^'^ Of Unlawful Asse77iblies. [book ii. such meeting is proposed to be holden, have exclusive juris- diction, then to three of such justices, if there are so many resident within the jurisdiction, and if not, to so many as shall be resident, (r) And all meetings of persons exceed- ing- the number of fifty, held, without such previous notice, for such purposes, are to be deemed unian^ful asse7nblic!{. (s) Adjournments of meetings held by virtue of such previous notice, are prohibited ; and any meeting exceeding the num- ber of fifty persons, held by way of an adjourned meeting, ig to be deemed an uiilazcftd assembJjj. (0 57 Geo. III. c. The punislunent of persons assembled contrary to the act, sons asscm-*^' ^"^ "^^ dispersing after being required so to do by procla- hled contrary mation, is very serious. If any such persons to the number to theacl, aiid ^ , ■ i ^ i- i i • not disiicrsiii"- Of twelve or more, notwitlistanding tlie proclamation made, after beinof re- continue tooether by the space of one hour afterwards, thev quired s(. to . 'J do by procla- will be guilty of felony without benefit of clergy. (?/) The matioii, guilty ^^^^ ^f t|,g proclamation, and the manner in which it is to oitcloiiy with- » ' out clergy. be made, are nearly similar to the proceedings under the 1 Geo. I. St. 2. c.5.(a)) 57 Geo. 111. c. "Where the matter wliich sliall be in tlie notice proposed ■"^.' '■\\^^' to be propounded or deliberated upon at any such meeting notices ex- shall purport that any thing by law established may be pa'rtUularMo altered otherwise than by the authority of the king, lords, be disjM rsed jj„(| commons, in parliament assembled, or such notice shall bv luociama- , . • , , , , ,. , tioii. And tend to mcite the people to hatred or contempt ot the person persons to tlie ^^p l,is majesty, or of the government and constitution, it (r) .57 Geo. III. r. |0. s. 1,2. I?y 1 Ceo. I. and i.s in the following; ft. ly. llicact is not to legalize any iorni : " Our sovereign lord the notice which would have been coil- "king rhargclh and commandeth Irary to law, if tlic acl liad notbeea "all persons here assembled ini- made. " mediately to disjiersr themselves, (») Id. s. :i. " and |)eac<-abiy to d 'part lo their (0 Id. K. 4. " habilutions, or to their lawful (tt) Id. I. ."). " bu.siivess, upon pain of death. (jl) ►/«/*', .'}(>.'}, -1. The proelama- " God save the k-ing." Id. s. 6. kion does not refer to tlic act of CHAP. XXTI.] Meetings upon Public Grievances. 373 shall be lawful for one or more jn^tice^ of the peace, or the mimlicr of 12 sherifi; or his under-sheriff", or the mavor or other head offi- "rn'or'-'-o'ii- ccr, or any instice or nra^istrate of any citv, &c. by procla- tlur one imur mation, as before set forth, {x) to command the persons to ni;,',[,|J["Ju'^l", . disperse: and if any persons to the number of twelve or olf-Iony with- more beincj so conuiiandod, shall, to the number of twelve or more, notwithstanding; such proclamation, remain or con- tinue too^ether, by the space of one hour after the procla- mation, such continuing; tos^ether, to the number of twelve or more, shall be adjudged felony without benefit of clergy. {1/) The eiohtli and three followinn; sections relate to the 57 Geo. III. c. powers of justice^, &c. to carry the act into execution, and ^{ Po'wersof the punishment of those who obstruct them in the perform- justices, &c. to P ., . J . ,„ • .- o J. I 4. carry the act ance ot tlieir duties. It any justice, &c. at any such meet- i. to execu- iny; shall order any person maintainin"- any of the illesfal t'op; and pu- " . . • ' . : nishnieiilof propositions before mentioned to be taken into custody to persons ab- be dealt with accordinp^to law, then, in case the said justice, ^tructui^ Sec. or any peace oHicer actinif under their orders, shall be obstructed in takii)sed " ties or clubs, bj whatever name or description the same and piolnhit- a .^^^^ called or known, who hold and profess, or who shall edas unlawful i i • combinations " hold and profess, the same objects and doctrnies, shall be, andcoiifedc- I oT /--I III hedeeii.rdur- " ful engagement within the meaning of the 37 deo. 111. laufiilro.nbi- u <,. 123. (r/) or within tlie meaning of the 52 Geo. 111. natioi's and ^ roiil.dcra- " c. 104. (f) or to take any oath not recjuired or authorized *"^** " by law; and every society or club, the members whereof, " or any of them, shall take or in any manner l)ind lliem- " selves by any such oath or engagement, on becoming, or {d) Jnte, 200. (e) Jntr, 202. CHAP. XXVI.] Unlawful Oaths. — Elcclinsi; Delegates. '^77 " in order to become, or in consequence of boino; a member " or members of such society or club: and every society or " club, the members or any member whereof shall be rc- " quired or admitted to take, subscribe, or assent to, or " shall take, subscribe, or assent to, any test or declaration " not required or authorized by law, in whatever nuinner " or form such taking or assentini;r shall be performed, whe- " ther by words, signs, or otherwise, either on becoming or " in order to become, or in conse([uence of beiuij; a member " or members of any such society or club; and every society " or club that sliall elect, appoint, nominate, or employ any " committee, delegate or delegates, representative or repre- " sentatives, missionary or missionaries, to meet, confer, or " communicate with any other society or club, or with any " committee, delegate or delegates, representative or repre- " sentatives, missionary or missionaries, of such other so- " ciety or club, or to induce or persuade any person or per- ** sons to become members tliereof, shall be deemed and " taken to be ?m/azi;fitf combinations ami confederacies^ within " the meaning of the S9 Geo. III. c. 79. (/) and shall and " may be prosecuted, proceeded against, and punished, ac- " cording to the provisions of the said act ; and every per- " son who, from and after the pjjssing of this act, shall be- " come a member of any such society or club, or \\ho, after " the passing of this act, shall act as a member thereof, and " every person who, from and after the passing of this act, " shall directly or indirectly maintain correspondence or " intercourse with any such society or club, or with any " committee or delegate, representative or missionary, or '■'■ with any otlicer or member thereof, as such, or who shall^ " by contribution of money or otherwise, aid, abet, or sup- " port, such society or club, or any members or officers "*' thereof, as such, shall be deemed guilty of an unlawful " combination and confederacy within the intent and mean- " ing of the said 59 Geo. III. c. 79. aiul shall and may be *' proceeded against, prosecuted, and punished, according to (/) Anic, 366. cl acqu. 378 Of Unlawful Assemblies. [book ii. '• the provisions of the said act, with regard to the prosecu- " tion and punishment of unlawful combinations and confe- " deracies." {g) 57G. III.c. Notliins: contained in this act is to extend to lodces of 19. s. 26. The . . act is not to Freemasons, complyin;;- with the regulations of tlie 39 exteud to Geo. ill. c. 79 : (//) nor to any declaration approved and lodges of ^ , ■' , ' ' Freemasons: subscribed by two or more justices of the peace, and coii- norto dtcla- fjj.^jed by the major part of the justices at a general session, provedbyjus- or at a general quarter sessions of the peace, pursuant to TTieetino-s or *'^^ regulations in the said act of the 39 Geo. III. c. 79. ; (0 societies for nor to meetings of Quakers ; or to any meeting or society ctidfitable r. T • 1-11 1 purposes. for purposes oi a relig ous or charitable nature only, and in which no other matter or business shall be discussed. (/) 5.28. Offence Any person knowin^^ly permitting any meeting of any so- iieri'TiTn^ ciety, or club, declared by this act to be an unlawful com- u. lawful bination or confedevacv, or of any division or conmiittee of meetings. such society or club, to be held in any place belonging to him, or in his possession or occuj)ation, is made liable, for the first offence, to a forfeiture of five pounds ; and for any offence committed after the conviction for such first offence is to be deemed guilty of an uti/auful combination andean' 5.29. Li- y^^nvyr?/ in breach of this act. (/) And two justices, upon L^""*/*, evidence on oath that any such meeting, or any meeting for they are held any seditious purpose, has been held at any house, &:c. II- feiled. ' censed for the sale of liquors, with the knowledge and con- sent of the person keeping such house, &c. may adjudge the licence to be forfeited, (w) S. .lo, 31, .12, The thirtieth and three following .^sections of the act re- 3.^. Recovery y^^^ ^^ ^^^ recovery of the pecuniary penalties, which may of pcnallie* "' * "^ ' *^ (g) Ante, 369. (m) Id. s. 29. Section 14 of the (ft) .//n/t, 368. 39 Geo. III. c. "ifl. is similar, ex- (i) ^tnte. Ibid. cppt that it does not contain the (k) 57 Geo. III. c. 19. s. 2C. wordii "with the knoMlrdj^e and (/) Id. s. 2H. Section lU of the " consent of the person kecpinj; 39 Geo. III. c. 79. is nearly aimiiur. " such house, &c." CHAP. XXVI.] Societies lak'm^ Unlaicful Oaths, ^c. .370 be incurred under the act, their application, and the limita- nnd limit.i- tion of actions as:ainst iustices, &c. for any thins done in j!^" * *^^' pursuance of the act. Penalties exceeding 20/. may be re- covered by action of debt ; and those not exceeding i;0/. may be recovered before a justice in a summary way. The thirty-fifth section enacts that nothing contained in By s. .'?r). ih* the act shall be deemed to take awav, or abridge, any pro- ^% '^ "°^ '** - ' a 7 .; r aiii'ci Other vision already made by the law of the realm, for the sup- provisions .,'./. rp J -u 1 • ii * made by law: pression or punishment ot any onence described in the act. ,\,„i i,v s. 36. And bv the thirty-sixth section it is provided, that no per- "< "<'* '" ope- .' 11 1 11 1 o 1 • 1 rate against son shall be prosecuted under the act, for having- been a persons not member of any illeffal society, if such person shall not have "avinj^ acted acted as a member, after the passing of the act, but that the nfter tlic paw- act shall not extend to prevent any prosecution, by indict- '"| " roent or otherwise, for any thing which shall be an offence within the act, and which might have been so prosecuted, if the act had not been made. The thirty-sixth section also provides tliat no person And by s, 36. prosecuted and convicted, or acquitted, of any offence seei,ted 'not against the act, shall be liable to be again prosecuted for tobeaojain ^, ^ prosecuted the same offence. for the same offence. The thirty-seventh section contains a provision, that s. 37. cmpow- where any proceeding or prosecution siiall be instituted for »",* ^'p^' any offence against the o9 Geo. HI. c. 79. or this act, r.tlorLord .^, , ^. • £> X- 1 r • »• • Advocp.te to either by action or information, betore any justice or jus- sjay p,-<,ceed- tices, or otherwise, the attorney general in England, or the I'l^m certain til cus>'s : and a lord advocate in Scotland, maj order them to be stayed ; secretary of and in case of any iudffment or conviction one of his JNIa- state to stay ■^ "^ "^ cvecution, or jesty's principal secretaries of state may, by an order under to mitljrate his hand, stay the execution of such judgment or conviction, '*"' ""^ ^"' ^^^' or mitigate, or remit, any fine or forfeiture, or any part (hereof. The act does not extend to Irehmd. And it was enacted. SSO Of Unlaicful Asse77iblies. [nooK ii. that it miiiM be repealed, or in any manner altered, during the session. (;?) Of i>hcrs Several statutes linve Ifitelv been passed, for the purpose US'jcl ior lee- „ , , , , r i i- • i ^ i i i i turesaudde- of reonlntinsf place's used for delivennsr lectures, and holr'- ^^*^'- inff debates : but the enactments contained in them are for the most part of limited duration. 36 G. 111. Many of the sections of the S6 Geo. III. c. 8. were in- tended to remedy the evil occasioned by persons who, under pretence of d'^livering lectures and discourses on public grievances, delivered lectures and discourses, and held de- bates, tending to stir up hatred and contempt of tlie king's person and government, and of the constitution : but this statute was limited to a duration of three yfars fram the passing of the act, and until the end of the then next ses- 30 G. III. c. sion of parliament, (o) It is referred to in the 39 Geo. III. 79. s. i";. rjQ J. j;, ^vliich, rccitiu^- that divers places had been used Pbces ot lee- ' =^ ' _ turinj;, dc- for lectures or debates, which were not within the former read'ine' for ^^*' ^"^ which lectures or debates had in many instances the purpose been of u seditious and immoral nature, and that other nione'v.&c. placcs had been used for seditious and immoral purposes, to I'e deemed under the pretence of being- places of meeting for the pur- disorderlj, ^ '^ ' ' unless pre- pose of reading books, pamphlets, newspapers, or other MousI) li- publications, enacts, that every house, room, field, or other censed. ^ j 7 j j place at or in which any lecture or discourse sliall be pub- licly delivered, or any public debate shall be had on any subject whatever, for the purpose of raising or collecting money, or any other valuable thin<.T, from the persons ad- mitted ; or to which any person shall be admitted by pay- ment of money, or by any ticket or token of any kind, de- livered in consideration of money or other valuable thing, or in conseqiience of- paying or giving, or having paid or given, or having agreed to pay or give, in any manner, any (n) %. SO, 40. December, 1795. (o) The dale of the act is the 18 CHAP. XXVI.] Places for Debating, ^c. 531 money or other valuable tliinj^; or uhere any money or other valiiahle thine? shall be received from any person ad- mitted, either under pretence of paying for any refreshment, or other thing, or under any other pretence, or for any othor cause, or by means of any device or contrivance what- ever ; and every house, &c. which shall be opened or used as a place of meeting, for the purpose of reading books, pamphlets, newspapers, or other publications, and to which any person shall be admitted by payment of moi>ej, or by any ticket, &c. (as before) shall be deemed a (Usordi-rl^ III use or place, within the said act of 36 Geo. III. unless the same shall have i)een previously licensed in the manner afterwards mentioned in the act. And the persons by whom such house, &c. shall be opened or used, are to forfeit 100/. for every time of opening or using, and be otherwise pu- nished as the law directs in cases of disorderly houses ; and every person conducting the proceedings, debating, or fur- i nishing book«, &c. ; and also every person giving or receiv- ing money, &c. in respect of the admission to any such house, &c., or delivering out, or receiving, any tickets or tokens, knowing such house, »&;c. to be opened or used for any such purpose, is, for every such offence, to tbrfeit twenty pounds. It is further enacted that any person appearing as master, ^^ G. HI. c. or as having the management of any such house, &c. shall arc liable as be deemed to be a person by whom the same is opened, or p-r«'i''* "pea- i'»g housei, used, and liable to be sued or prosecuted, though not the ^c. real owner or occupier, (p) A power is also given to any S. 17. Jus- 1 1 11 1 • i- X- ii 1 ^ tices bv in- justice who .shall, h} information upon oath, have reason formatioaon to suspect that any house, &c. is opened or used for lectures, o;ith, susjjoct- ' , ingiiny place debates, reading, &c. contrary to the act, lo go to such t^ ^e opened house, &c. and demand to be admitted ; and in case of ad- 'or lociurcs, ' oic. may de- niittance being refused, such house, &c. is to be deemed a muul admit- disorder/^ house or place witliin this act, and the said act of J:,7J^'':d^"he* the 3Q Geo. 111. and the provisions in both the acts are to place into be (p) 39 Geo. III. c. 79. s. IG. •o 8*2 Unlawful Assemblies Places for Debating, [book. ii. deemed dis- ]jq applied to siicli houso, Sec. where such admittance shall the persons have been so refused ; and every person refusing, is to for- refusin}: to f^.jj (^ventv pounds, (n) S. 18. et scqii. Tlie eighteenth section of the act relates to the licensing as to licences i /• i * • j- i x • i- for lecturer ^"X J"«^ce for lecturing, or reading, by two or more justices &c. and the g^ their general sessions, or at a special session held for the power ol" jus- , . ... . ticestode- purpose; but gives a power to the justices at any general ma-d admit- ggggiQUj; \q revoke such licence. And any justice may de- taiue to place* . . licensed; and niand admittance to any licensed place; and, in case of re- if Hcenl-e^"'^^ fusal, sucli place is to be deemed, notwithstanding the li- cence, a disorderlj/ house or place, within the act ; and every person refusing such admittance is to forfeit twenty pounds, (r) It is also provided, that any two justices upon evidence, or oath, that any licensed place is commonly used for lectures or discourses of a seditious or immoral tendency, or that books, &c. of a seditious or immoral nature are there commonly kept, and delivered to be read, may de- clare the licence to have been forfeited, (v) Every house, &c. licensed for the sale of ale, or liquors, is to be deemed licensed for reading within the act ; but two or more jus- tices on evidence, on oath, that seditious or immoral pub- lications are usually distributed there for the purpose of being read, may declare the licence for selling ale, or li- quors, to have been forfeited. (/) Thr act is not The act is not to extend to lectures delivered in the uni- ■n( ccrui'i nlacrs. versitics by members, &c. or to lectures delivered in the hall of any of the inns of court by persons authorized ; and pay- ments to schoolmasters are not to be deemed payments for Pn)«r-cntions admission to lectures within the act. (m) And prosecu- liimt.d. jj^^^^ f^j. .^„y penalfy imposed by the act are to be com- menced witliin three months after it shall have been in- curred, (w) (7) 39 Geo. III. c. 79. 9. 17. (I) Id. s. 21. (r) Id. s. 19. (") ^rf- "• S'-^- (*; Id. t. 20. (">) ^d- s- ^*- cHAi*. XXVI.] Of Tumultuous Pctitionijf^. 383 A recent act, 57 Geo. III. c. 19. contains several sections 57fJ:,'o. III. respecting- lectures -'nd debates, (.r) in substance nearly similar to tliose of the 39 Geo. III. c. 79. wbich have been just stated ; but it does not relate to houses, &c. '• for read- ins; books, pamphlets, newspapers, or other publications." And these provisions of the 57 Geo. 1 1 L are limited in dura- tion to the *24th July 1^18. (^) Prosecutions also for any thin"- done contrary to them must be commenced within six months after the offence committed. (~) The statute 13 Car. II. c. 5. reciting the mischiefs of tu- isCar. II. st, muUitous peliliomng, enacts, that no person shall solicit or tumultuous procure the getting- ofliands or other consent of any persons petilioninjj. above the number of twenty, to any petition, &c. to the king or the houses of parliament, for alteration of matters esta- blished by law in church or state, unless the matter thereof shall have been first consented unto and ordered by three justices, or by the major part of the grand jury of the county, &c. at the assizes or quarter sessions; or, in London, by the lord mayor, aldermen, and common council : and that no person shall repair to his majesty or the houses of parlia- ment, upon pretence of presenting or delivering any petition, &c. acconjpanied with excessive number of people, nor at any one time with above the number of ten persons; upon pain of incurring a penalty not exceeding one hundred pounds, and three months' imprisonn.ent for every offence; such offence to be prosecuted in the court of king's bench, or at the assizes or quarter sessions, within six months, and proved by two credible witnesses, (a) But there is a pro- viso, that the act shall not hinder persons, not exceeding ten in number, from presenting any public or private grievance or complaint to any member of parliament, or to the king, for any remedy to be thereupon had : nor extend to any ad- (jt) 57 Geo. III. c. 19. 8. li to (=) Id. s. 21. ,20. (a) 13 Car. II. st. 1. c 3.6 ?. law SSi Of Riots, S^c. — Suppression [hook ii. dress to his majesty by the members of the houses of parlia- ment, during the sitting of parliament. (6) Jupprcssionof 'P||o common law, and also several more ancient statutes than tho'^e which have been mentioned, authorize proceed- By common ings for the restraining and suppression of riots.. By the common law the shorilf, under-sheriir, constable, or any other peace officer, may, and ought to do, all tliat in them lies towards the suppressing of a rioi, and may command all other persons to assist them : and by the common law also any private person may lawfully endeavour to appease such disturbances by staying the persons engaged from executing their purpose, and also by stopping otiiers coming to join them, (f) It has been holden also, that private persons may arm themselves in order to suppress a riot ; {d) from whence it seems clearly to follow that they may also make use of arms in suppressing it, if there be a necessity. However, it may be very hazardous for private persons to proceed to these extremities; and such violent methods seem only pro- per against such riots as savour of rebellion, (r) liut if a felony be about to be committed, the interference of private persons will be justifiable ; for a private person may do any thing to prevent tlie perpetration of a felony. (/,) In the riots which took place in the year 1780 this niatter was much misunderstood, and a general persuasion prevailed that no indillerent person could interpose without the autho- {b) 13 Car. H. si. 1. c. 5. «. 3. Hy nioii of the court, Unit neither that 1 W. and M. scss. y. c. v. s. 1. art. nor any other act of parliament had 5. usually styled the IJill of Ui;;lils, r<-pealed it, and tiial il was in full it is enacted, " That it is the rijjht force. Hex v. Lord (ieorge Gor- " of the sulijects to petition the don, l)ou<;l. 571. "king, and thai ;l1I commitments (r) 1 Hawk. P. C. c. 65. s. 11. " and prosecutions for smli peLi- (w- ductcd in this country ot late years, turbances in Places of Public /Fer- would be an affray ? «/»>• 390 Of Affrays Persons going Armed, [book ii. Wordswillnot nuikc an af- fray. But there may be an aUrny where there is no actual vio- lente,as where a person goes armed. It is said, that no quarrelsome or threatening words what- soever can amount (o an aflVay ; and that no one can justify laying his hands on those who shall barely quarrel with an- gry words, without coming to blows: but it seems that a constable may, at the request of the party threatened, carry the person who threatens to beat him before a justice, iu order to find sureties. And granting that no bare words, in the judgment of law, carry in them so much terror as to amount to an affray, yet it seems certain that in some cases there may be an affray where there is no actual violence ; as where persons arm themselves with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people ; which is said to have been always an offence at common law, and is strictly prohibited by several sta- tutes. (/O e Edw. III. c. 3. Persons ftrohibiti'd roni going armed. The principal of these statutes is 2 Edw. III. c. 3. some- times spoken of as the statute of Northampton. It enacts, that no man, of what condition soever, except the king's ser- vants in his presence, and his ministers in executing their office, and such as be in their company assisting them, and also upon a cry made for arms to keep the peace, shall come before the king's justices or other of the king's ministers doing their office, with force and arms, nor bring any force in affray of peace, («') nor go nor ride armed, by night or day, in fairs or markets, or in the presence of the king's jus- tices, or other ministers, or elsewhere; upon pain to forfeit their armour to the king, and their bodies to prison at the king's pleasure. The statute also provides, that the king's justices in their presence, sheriffs, and other ministers in their bailiwics, lords of franchises and their bailiffs in the same, and mayors and bailiffs of cities and boroughs within the same, and borough-holders, constables, and wardens of the (fc) 1 Hawk. P. C. f . 63. 8. 2. 4. (0 The words of the stilutc are en affrai de la pees. But Lord Coke, in 3 Inst. I5H. cites it an m fjfraicr de la jiuis, and ohscrvw, that the writ grt)unded u|)on the st^itutc .says /;/ qiiorundum de po- pn/o lerrorem, and Ilia I llurefore Mu- printed hook (en (iffray de la peace J khould be umended. CHAP. XXVII.] Of Affrays. — Persons crning Armed. 391 peace within their wards, shall have power to execute the act: and that the judges of assize may enquire and j)unish such oHicers as have not done that which pertained to their office. This statute is further enforced by 7 Rich. II. c. 13. and by the 20 Rich. II. c. 1. which adds the further punish- ment of a fine. In the exposition of this statute of Edw. III. it has been Constructioa holden, that no wearing of arms is within its meaning, un- !?^f ^^7' "^• . ^ o' c. J. as to |)er- less it be accompanied with such circumstances as are apt sous going to terrify the people ; from whence it seems clearly to fol- ^"^^ ' low, that persons of quality are in no danger of offending against the statute by wearing common weapons, or having the-r usual number of attendants with them for their orna- ment or defence, in such places, and upon such occasions, in which it is the common fashion to make use of them, with- out causing the least suspicion of an intention to commit any act of violence or disturbance of the peace. (Z) And no person is within the intention of the statute, who arms him- self to suppress dangerous rioters, rebels, or enemies, and endeavours to suppress or resist such disturbers of the peace and quiet of the realm. (0 But a man cannot excuse wearing such armour in public by alledging that a person threatened him, and that he wears it for the safety of his person from the assault ; though no one will incur the pe- nalty of the statute, for assembling his neighbours and friends in his own house, against those who threaten to do him any violence therein, because a man's house is as his castle, (m) It may be useful to mention shortly the acts which may be done for the suppression of an affray, by a private per- son, by a constable, or by a justice of peace. (fc) 1 Hawk. P. C. c. 63. s. 9. 7. as to the proceedings of justice*, (0 Id. s. 10. &c. executing the act. {in) Id, ij. 8. and sec in s. 5, 6, 592 Of .4JJ rat/ s— Suppression of them, [book ii. Of the siip- picssioD of affrays by a privalc per- son. It seems to be agreed, that any one who sees others fight- ing- may lawfully part them, and also stay them till the heat be over, and then deliver them to the constable, who may carry them before a justice of peace, in order to their find- ing sureties for the peace ; and it is said that any private person may stop those whom he shall see coming to join either party. (;/) And it seems to be clear that if either party be dangerously wounded in such an affray, and a stander by, endeavouring to arrest the other, be not able to take him without hurting, or even wounding him, yet he is in no way liable to be punished, inasmuch as he is bound, under pain of fine and imprisonment, to arrest such an of- fender, and either detain him till it appear whether the party will live or die, or carry him before a justice of peace, (a) Of the 5up- pres<;ion of nffiiiys by a constable. It seems agreed, that a constable is not only impowered, as all private persons are, to part an afi'ray which happens in /lis presence; but is also bound, at his peril, to use his best endeavours for this purpose ; and not only to do his utmost himself, but also to demand the assistance of others, which, if they refuse to give him, they are punishable with fine- and imprisonment. And it is laid down in the books, that if an atfray be in a house, the constable may break open the doors to preserve the peace, and if affrayers fiy to a house, and he follow with fresh suit, ho may break open the doors to take them, {p) And so far is the constable in- (n) 1 Hawk. I'. C c. (iU. s. 11. \^'hl'^c it is sniil lliat from Irmkh! it seems clearly to follow, that if a man receive a hurt from either parly, in thus eiuhsivourin};; to pre- serve the peace, he shall have his remedy by an action ajjainst him : and that iii»on the same p;roiin(l il »ecms equally reasonable thai if lie unavoidably ha[ipcn to hurl cillicr parlv, in thus doinjjj what the law bolli allows and commends, he may well jiislify it; inasmuch as he. is no way in fault, and the da- mage done lo till- other was occa- sioned by a laudable intention to do him a kindness. (o) Itl.s. 1'2. .{ Inst. l.')8. {p) \ Hawk. P. C. c. ().*i. s. 13. If). Hut (pi. if a conktable can CHAP. XXVII.] Of Affrays— Suppression of them. 393 trusted with a power over all actual affrays, that, thonp^h he himself is a sufferer by them, and therefore liable to be objected against, as likely to be partial in his own cause, yet he may suppress them ; and therefore if an assault be made upon him, he may not only defend himself, but also imprison the offender in the same manner as if he were ia no way a party, (q) It is said also that if a constable see persons either actually engaged in an affray, as by striking, or offering to strike, or drawing their >\capons, &c. or upon the very point of entering upon an affray, as where one shall threaten to kill, wound, or beat another, he may either carry the offender before a justice of the peace, to the end that such justice may compel him to find sureties for the peace, &c. or he may imprison him of his own authority for a reasonable time till the heat be over, and also afterwards detain him till he find such surety by obli- gation. But it seems that he has no power to imprison such an offender in any other manner, or for any other purpose; for he cannot justify the committing an affrayer to gaol till he shall be punished for his offence; and it is said that he ought not to lay hands on those who barely contend with hot words, without any threats of per- sonal hurt ; and that all which he can do in such a case, is to command them, under pain of imprisonment, to avoid fighting, (r) But it seems to be the better opinion, that a constable has no power to arrest a man for an affray done out of his own viezc, without a warrant from a justice of peace, unless a felony be done, or likely to be done ; for it is tlie proper business of a constable to preserve the peace, not to punish the breach of it ; nor does it follow, from his having safely break open the doors of a ordinary violence in the affray to dwellinor house in such case, with- justify him in so doinj. out a magistrate's warrant ? At (7) 1 Hawk. P. C. c. 63. s. 15. least, it should seem, there must (r) Id. s. 14. be some circumstances of extra- 3 394 Of AJprai/s— Suppression of them, [book ii. power to compel those to find sureties who break the peace in his presence, that he has the same power over those who break it in his absence ; inasmuch as in such case it is most proper to be done by those who may examine the whole circumstances of the matter upon oath, which a constable cannot do : yet it is said tliat he may carry those before a justice of peace, who were arrested by such as were present at an affray, and delivered by them into his hands, {s) Of the sup- pression of affrays by a justice of peace. There is no doubt but that a justice of peace may and must do all such things for the suppression of an affray, which private men or constables are either enabled or re- quired by the law to do : but it is said that he cannot, with- out a warrant, authorize the arrest of any person for an affray out of his view. Yet it seems clear, that in such case he may make his warrant to bring- the offender before him, in order to compel him to find sureties for the peace. Also it seems that a justice of peace has a greater power over one who has dangerously wounded another in an affray, than either a private person or a constable ; for there does not seem to be any good authority, that these have any power to take sureties of such an offender ; but it seems certain that a justice of the peace has a discretionary power, either to commit him, or to bail him till tlie year and day be past. It is said, however, that a justice ouglit to be very cautious how ho takes bail, if the wound be danger- ous ; since, if the party die, and the offender do not ap- pear, the justice is in danger of being severely fined, if (») lHawk.P.C.c.63.s. 17. His giibniitteil that a constable cannot, in a case ofanVay, arrest \\ithout a warrantfroin ani:i<;istrale, unless he iees an actual breach of the peace coimnitted ; or, in other wordsj/u- grantc delicto. He cannot arrest of his own authority after the af- fray is over. See the argument of Best, Serjt. and the judpnenl of Mansfield, C. J. in Cliflord r. Bran- don, 2 Canipb. 367. 37 1. and see ■Roj;. r. Tooley and others, 2 Lord Uajiii. 1290. and ;;o«/, Book 111. Chap. 111. on Mamlaushler, S. 4. CHAP. XXVII.] Of Affrays.— Puinshnicnt. 39; upon the whole circumstances of the case he has been too favourable. (0 The punishment of common affrays is by fine and im- Punislimffni prisonment ; the measure of which must be regulated by ^^ ^iUrays. the circumstances of the case : for where there is any ma- terial ago^ravation, the punishment will be proportionably increased, (w) (/) 1 Hawk. P. C. c. 63. s. 19. P. C. c. 6S. s. 20. (») 4Blac. Cora. 145, 1 Hawk. sm CHAPTER THE TWENTY-EIGHTH. Of Challenging to Fight. At is a very high oflence to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to endeavour to provoke another to send a challenge, or to fight ; as by dispersing letter?, for that purpose, full of reflections, and insinuating a desire to fight. («) And it will be no excuse for a party so offending, that he has received provocation : for as, if one person should kill another, in a deliberate duel, under the provocation of charges against his character and conduct ever so grievous, it will be murder in him and his second, the bare incitement to fight, though under such provocation, is in itself a very high misdemeanor, though no consequence ensue thereon against the peace, {h) OfondcaTour- The of!ence of endeavouring to provoke anotiior to send iiigio j)i<)\okc ^ challenge to fi:>ht was much considered in a modern case, aiKithiT to -. ' • I- 1 I • t si-nd a dial- in which it was held to be an indictable misdemeanor : and '*'^"b*^' more especially as such provocation was given in a letter containing libellous matter, and as the preliitory part of the indictment alleged that the deCondanl intench^d to do the party bodily Ipirm, and to break the king's peace, (c) And (o) 1 Hawk. I'.C.c.fi.'J.s..'?. .'Must. *' you gave of your fiTli"{js and 158. 4 Hiac. (^om. Ij(». Jliiks's " ideas witli rcspct 1 to insiill, in case. Hob. 215. " a Idler to Mr. Joins, of list (b) Rrx I'. Hire, 3 East. .SHI. " Monday"* dale, be siiflicient for (f) Hex r. I'liilli|it, f> K.isl. 11 1. " ine to lell you, lliat in tlic whole Tbe letter ^^;ls, " J-ir — II vill, I " of the rrtrmwr/Z/e/is/aVe elertiou *' conclude, from the description " business, as far as il relates t« CHAP. XXVIII.] Of Challenging to Fight. 207 the sending such letter was held to be an act done towards the procuring the commission of the misdemeanor meant to be accomplished, (d) In this case, with respect to the in- Of tlic intent. tent of the defendant, the rule was adopted that where an evil intent accompanying an act is necessarv to constitute such act a crime, the intent must be alleged in the indict- ment and proved ; though it is sufficient to allege it in the prefatory part of the indictment: but that where the act is in itself unlawful, the law infers an evil intent, and the allejration of such intent is merel\ matter of form, and need not he proved by extrinsic evidence on the part of the pro- secution, (e) It has been considered that mere words of provocation. Of words of as " liar" and " knave,"' though motives and mediate pro- P'"**^*^'^^ '°"" vocation for a breach of the peace, vet do not tend imme- diate!^ to the breach of the peace, like a challenge to fight, or a threatening to beat another. (jT) But words which directly tend to a breach of the peace may be indictable ; as if one man challenges another by words ; (g) and if it can be pro\ed that the words used were intended to pro\oke the party, to whom they were addressed, to give a challenge, the case would seem to fall within the same rule, (^h) With respect to challenges given on account of money 9 Ann. c. 14. won bv gaining, it is enacted by 9 Ann. c. 14. s. 8. that who- ^'^j .i'(.ion,,i''of ever shall challenge or provoke to fight any other person moncj won L . i. 1- I ty gaoling. or persons whatsoever upon account 01 any money won by •' gaming, playing, or betting, at any of the games mentioned " me, you have beh-ived like a to 475. " bl.ickguard. I sliall expect to (f) King's case, 4 Inst. 181. " hear from you on this subject, (g) Uegin. v. Langh»y, 6 Mod. "and will puiictiiaily attend to 125 S. C. 2 Lord K:iy ni. 1031. " auy appointment you may think (/j) The ruk' given in 3 Inst. 15S. " proper to make." is — " Quando aliquid prohibetur, {d) See an/e, 61,62. " prohihotnr rt omne per quod .(•) Rex ». Phillips, 6 East. 470. " deveuiiar ad inueU" 398 Of Challenging to Fight. [boor ii. in the act,(/) shall, upon conviction by indictment or in- formation, forfeit all their goods, chattels, and personal estate, and suffer imprisonment without bail, in the county prison, for two years. The Tcnue Jp q case where a person wrote a letter with intent to coiiiity in provoke a challenge, sealed it up, and put it into the two- whi.hthe pennv post-othce in a street in Westminster, addressed to challenge is '^ • ' i i • xi put int.. the the prosecutor in the city o\ London, by whom it was there po.t-office. received ; Lord Ellenborough, C. J. held that the defend- ant might be indicted in Middlesex, as there was a sufficient publication in that county by putting the letter into the post-office there, with intent that it should be delivered to the prosecutor elsewhere ; and that if the letter had never been delivered, the defendant's offence would have been the same. (A) Of proceeding jj ^^j^y [jg observed, before this subject is concluded, that jnformaiion. sending a challenge is an offence tor which the court of King's Bench will grant a criminal information : but in a case where it appeared, upon the affidavits, that the party applying for an information had himself given the first chal- lenge, the court refused to proceed against the other party by way of information ; and left the prosecutor to his or- dinary remedy by action or indictment. (/) A rule to shew cause why such an information should not be granted has been made, upon producing copies only of the letters in which the challenge was contained, such copies being suffi- ciently verified, {m) Punishment. The punishment for this offence, as a misdemeanor, is dis- (0 In the firnt section of the act 316. where it is said that the court the words arc " cards, dice, tahles, heUl that it niiglil havr been right " tennis, bowls, or other game or to have granted even cross inform- " games whatsoever." ations, in case each party had ap- (k) Rex I'. Williams, 2 Carapb. plied for an information against 506. ll»t^ "l''^""- (0 Rex r. ilankey, 1 Burr. (m) Rex t». Chappel, 1 Burr. 402 CHAP. XXVIII.] Of Challenging to Fight. 399 cretionary, and imist be guided by such circumstances of ag- gravation or mitigation, as are to be found in each parti- cular case, (n) (n) Rex V. Rice, 3 East. 584. ia which case the defendant (though he had undergone some imprison- ment, and though there were se- veral circumstances tending mate- rially to mitigate his offence,) was sentenced to pay a fine of 100/. and to be imprisoned for one ca- lendar month, and at the expira- tion of that time to give security to keep the peace for three years, himself in 1000/. and two sureties in 250/. each, and to be further imprisoned till such fine was paid and such securities given. Haw- kins, speaking of the pernicious consequences of duelling, says, " upon which considerations per- " sons convicted of barely send- " ing a challenge have been ad- " judged to pay a fine of 100/. and " to be imprisoned for one month " without bail, and also to make " a piiblic acknowledgment of " their offence, and to be bound " to their good behaviour." 1 Hawk. P. C. c. 63. s. 21. 400 CHAPTER THE TWENTY-NINTH. Of Disturbances in Places of Public Worship. It has been already stated that affrays in a church or church-yard have always been esteemed very heinous of- fences, as being very great indij;nities to the Divine Ma- je.-ity, to whose worship and service such places are imme- diately dedicated ;(r/) and upon this consideration all irre- verent behaviour in these places has been esteemed criminal by the makers of our laws. So that many disturbances occurring; in these places are visited with punishment which, if they happened elsewhere, would not be punishable at all ; as bare quarrelsome words : and some acts arc criminal, which would be commendal)le if done in another place ; as arrests by virtue of legal process, {b) Several statutes have been passed for the purpose of pre- venting disturbances in places of worship belonging to the established church, and also in those belonging to congrega- tions of Protestant Dissenters and Roman Catholics. 5& 6 Edw. rpi^g 5 & G Edw. VI. c. 4. enacts, " That if any person VI. c. 4. as to 1 1 • 1 I 1 ciuarrtllii.};, " whatsoever shall, by words only, quarrel, chide, or hrawJ, rhidir.-, or .^ . church or chtirch-yard, that then it shall be lawful brav.liiig in a ■•■''; j 7 , ^r 1 111 church or " unto the ordinary of the phice where the ollence shall be cburch-yartl, ^^ ^^^^^^^ ^^^^^ proved by two lawful witnesses, to suspend " every person so (jflending; that is to say, if he be a lay- " man, ah imrnssu rccltsia; and if he be a clerk, from the <• ministration of his oHice, for so long time as the said or- " dinary shall by his discretion think meet and convenient, " according to the fault." (a) Anle, 3b0. (/'; 1 Wav^- I'. C. c. 03. s. 23. «: CHAP. XXIX.] Of Disturbance of Public Worship. 401 By the second section of the same statute " if any person S. 2. Smiting " or persons shall smite or lay violent hands upon any other, "Jnt fi|,"n '" " either in any church or church-yard, then ipso facto every ciiurcli or *' person so offending shall be deemed excommunicate, and ^^"^ " be excluded from the fellowship and company of Christ's " congregation." And tiie third section enacts, " That if any person shall S. 3. Striking ^r !• • , . -1 -.i • with a weapon " maliciously strike any person with any weapon m any j^ ^ church or " church or church-yard, or shall draw any weapon in any church-yard, " church or church-yard, to the intent to strike another with one with in- " the same weapon, that then every person so offending, tent to strike. " and thereof being convicted, by verdict of twelve men, or *^ by his own confession, or by two lawful witnesses, before " the justices of assize, justices of oyer and terminer, or " justices of peace in their sessions, by force of this act, " shall be adjudged by the same justices before whom such " person shall be convicted to have one of his ears cut off:" then after providing for the offender being branded, in case he shall have no ears, it concludes " and besides that every " such person to be and stand ipso facto excommunicated as " is aforesaid." In the construction of this statute it has been held that Construction the ecclesiastical court may proceed upon the two first sec- ^ e statute, tions, and is not to be prohibited ; for though the offence mentioned in the second section of smiting in the church or church-yard is still an offence at common law, and the offender may be indicted for it ; yet besides this, he may, by the act, be ipso facto excommunicated, (c) No previous conviction is necessary in this case ; though, if there be one, the ordinary may use it as proof of the fact. But before the ecclesiastical court can proceed for the offence, in the third section, of maliciously striking, (fee. there must be a previous conviction, and a transmission of the sentence to the ordinary, (d) Indeed, if the ecclesiastical court pro- (c) Wilson, Clerk, i-. Greaves, 1 Burr. 240. (d) Id. Ibid. 2 D 402 Of Disturbances in Places [book ii. M. sess. 2. c, 3. as to dis- turbances du- rinjj the time of divine service. cceds for damages on either clause, the court of King's Bench will prohibit them ; for the proceedings of the eccle- siastical court are pro salute animce. {e) Cathedral churches, and the church-yards which belong to them, are within this statute. (/) And it has been held that it w ill be no excuse for a person who strikes another in a church, Szc. to shew that the other assaulted him. (g-) But church-wardens, or perhaps private persons, who whip boys for playing in the church, or pull off the hats of those who obstinately refuse to take them off themselves, or gently lay their hands on those who disturb the performance of any part of divine service, and turn them out of the church, are not within the meaning of the statute, (^h) The statute 1 Mary, sess. 2. c. 3. enacts " that if any per- " son or persons, of their own power and authority, do and " shall willingly and of purpose, by open and overt word, *' fact, act, or deed, maliciously or contemptuously molest, " let, disturb, vex, or trouble, or by any other unlawful " ways or means disquiet or misuse, any preacher or " preachers, licensed, allowed, or authorized, to preach by " the Queen's highness, or by any archbishop or bishop of " this realm, or by any other lawful ordinary, or by any of *' the universities of Oxford and Cambridge, or otherwise " lawfully authorized or charged by reason of his or their "cure, benefice, or other spiritual promotion or charge, in *' any of his or their open sermon, preaching, or collation, " that he or they shall make, declare, preach, or pronounce, " in any church, chapel, church-yard, or in any other place " or places, used, frequented, or appointed, or that here- " after shall be used or appointed to be preached in ; or if " any person or persons shall maliciously, willingly, or of " purpose, molest, let, disturb, vex, disquiet, or otherwise (e) Wilson, Clerk, v. (Ireavcs, " amend.'''' 1 Hiirr. 240. And by Lord M.in8_ (J) Dclhiek's case, 1 Leon. 248. field, C. J. in the same ease; " We (^) \ Hawk. I'. C. c. 6.3. 8. 28. "proceed to punish, they to {h) I Hawk. T. C. c. 63. 9. 29. CHAP. XXIX.] Of Piihlic Worship. ^0,'? " trouble, any parson, vicar, parish-priest, or curate, or any " lawful priest, preparing, saying-, doing;, singing, minis- " tering, or celebrating, the mass, or other such divine ser- " vice, sacraments or sacramentals, as was most commonly " frequented and used in the last year of the reign of the " late sovereign lord king Henry the eighth, or that at any " tin)e hereafter shall be allowed, set forth, or authorized, " by the Queen's majesty ; or if any person or persons shall " unlawfully, contemptuously, or maliciously, of their own " power or authority, pull down, deface, spoil, or otherwise " break, any altar or altars, or any crucifix or cross, in any " church, chapel, or church-yard," every such offender, his aiders, procurers, or abettors, may be apprehended by any constable or churchwarden of the place where such offence shall be committed, or by any other officer or person then being present at the tinr.e of the said offence, and being so apprehended, shall be brought before some justice of peace, by whom he shall upon due accusation be committed forth- with ; and within six days next after the accusation the said justice with one other justice shall diligently examine the offence ; and if the two justices find the person guilty, by proof of two witnesses, or confession, they shall commit him to gaol for three months, and further to the quarter sessions next after the end of the three months; at which sessions he is upon repentance to be discharged,, finding surety for his good behaviour for a year ; and if he will not repent he is to be further committed till he does. (/) It has been resolved, that the disturbance of a minister i;r saying the present common prayer is within this statute ; for the express mention of such divine service as should be afterwards authorized by queen Mary impliedly includes such service also as should be authorized by her successors, upon the principle that as the king never dies a prerogativo given generally to one goes of course to others, i^/c) (0 1 Mar. sess. 2. c. 3. s. 2, 3, (A) 1 Hawk. T. C. c. 63. s. .il. 4, 5, G. Gibs. 372. 2d 2 404 Of Disturbances in Places f book ii. Rescuing of- The statute further provides, that persons rescuini^ of- fenders, or fenders so appreliended as aforesaid, or hindering the arrest nindenng '^'^ " their.arrest. of offenders, shall suffer like imprisonment, and pay a fine Escape of of- of five pounds for each offfence. (/) And if any offenders lenders. y^^ ^^^^ apprehended, but escape, the escape is to be pre- sented at the quarter sessions, and the inhabitants of the parish where the escape was suffered are to forfeit five pounds. ()n) Precedents are to be met with of indictments for breaking the windows of a church, by firing a gun against them ; (w) but it has been doubted whether such an indictment is sus- tainable ; as being for a mere trespass, (o) The arrest of a clergyman in any church or church-yard, while attending to Divine service, makes the offender liable to imprisonment and ransom at the king's will, and gree to the party arrested, (p) 1 W.and M. c. The statute 1 W.andM. c. I8.s. 18. which was passed for the in«- dissenting pui'P°^^ ^^ exempting Protestants dissenting from the church cono;rega- of England from the penalties of certain laws therein men- tioned, enacts, " That if any person or persons shall, will- " ingly and of purpose, maliciously or contemptuously, come " into any cathedral or parish church, chapel, or other con- " gregation permitted by this act, and disquiet or disturb " the same, or misuse any preacher or teacher; such person " or persons, upon proof thereof before any justice of peace, " by two or more sufiicient witnesses, shall find two sureties *' to be bound by recognizance in the penal sum of fifty " pounds; and in default of such sureties shall be committed " to prison, there to remain (ill the next general or qtiarter " sessions; and upon conviction of the said offence at the (/) S. 7. c. ir>. Hul llic arrest notwitli- (m) S. 8. slandiiif;, if not on a Sunday^ is (n) 2 Chit. Crim. L. 23. good in law. Wats. c. 34. 5 Burn, (o) Id. Ibid. And av.c ante, 70. Just. Public JVorship, p. 111. ip) 50 Edw. 111. 0. b. I U. II. tions. CHAP. XXIX.] Of Public Worship. 403 « said general or quarter session?, shall suffer the pain and " penalty of twenty pounds," to the use of the king. Before this statute the court of Kinjr's Bench refused to grant a certiorari to remove an indictment at the sessions for a person not behaving himself modestly and reverently at the church during divine service ; for, although the offence w^as punishable by ecclesiastical censures, the court consi- dered it properly to come within the cognizance of the jus- tices of the peace, {q) An indictment upon the statute, found at the quarter sessions, may be removed by certiorari before verdict, notwithstandrng the words of the statute, which seem at the first view to confine the cognizance of the offence to the justices in the first instance, and in the next to the quarter sessions, (r) The oaths taken by a preacher under this act are matter Points decld- of record, and cannot be proved by parol evidence ; but it is ^^ "P^" ^^^'^ ... r 1- 1 • 1- statute. not necessary, upon an indictment for disturbing a dissent- ing congregation, to prove that the minister has taken the oaths, (.y) It is no defence to such an indictment that the defendant committed the outrage for the purpose of assert- ing his right to the situation of clerk. (0 And it has been held that a congregation of foreign Lutherans, conducting the service of their chapel in the German language, are within the protection of the statute, {u) Upon the convic- tion of several defendants, each of them is liable to a penalty of twenty pounds, (a) A late statute makes further provision for the punishment 52 Gm. IIT. c. of persons disturbing religious assemblies : and enacts, " that ^^^■- '."'"" * c7 D '7 provision " if any person or persons do and shall wilfully and mali- :;g.iiiist the " ciously or contemptuously disquiet or disturb any meet- rdi'-^iousas- scm blies. (9) Rext-. , 1 Kel). 491 5 (0 Id. Ibid. Burn. Just. Public fVonhip, p. 1 1 1 . («) Id. Ibid. (r) Rex V. Hube, 5 T. R. 512. {iv) Rex v. Hube, 5 T. R. 542 (») Rex r. Hube, PeakcR. 131. 406 Of Dlshnhajiccs ill Places [bookii. *•' ing, assembly, or congregation of persons assembled for " religious worship, permitted or authorized by this act, or " any former act or acts of parliament, or shall in any wav " disturb, molest, or misuse any preacher, teacher, or per- " son oflkiating at sucli meeting;, assembly, or congregation, " or any person or persons there assembled : such person or " persons so offending, upon proof thereof before any jus- " tice of the peace by two or more credible witnesses, shall " find two sureties to be bound by recognizances in the " penal sum of fifty pounds to answer for such offence ; and " in default of such sureties shall be committed to prison, " there to remain till the next general or quarter sessions ; " and upon conviction of the said offence at the said general " or quarter sessions sliall suffer the pain and penalty of " forty pounds." (.r) A subsequent section of the statute provides that nothing contained in the act shall extend to Quakers, nor to any meetings or assemblies for religious worship held or convened by them, (i/) Certionri. It has been holden upon this statute, in conformity to the decision which has been mentioned upon the 1 W. and M. c. 18.(2) that an indictment found at the quarter sessions may be removed into the court of King's Bench by certiorari before trial, (a) 31 Geo. III. c. A similar provision to that contained in the 1 W. and IVI. ilomaii Ca- ^' ^^' ^- ^8. (i) relating to Protestant dissenters, is enacted tholic congre- ,„ the 31 Geo. III. c. 52. s. 10. with respect to Roman Ca- tholic congregations, or assemblies of religious worship per- mitted by the latter statute. Conspiraci«s The facts attending disturbances of religious assemblies may sometimes authorize proceedings at common law for a (x) 52 Geo. III. c. 155. 8. 12. {a) Rex v. Watllcy, 4 M. and S. iy) Id. ». 14. 508. (r) Rex V. Hubc, ante, 406. (p) Ante, 404. CHAP. XXIX.] Of Public Worship. 407 conspiracy or a riot : (c) and we have seen that by tlie enactment of a statute of George I. if persons riotously as- sembled begin to demolish or pull down any church, chapel, or building for religious worship, certified and registered according to the 1 W. and M. sess. 1. c. 18. they will be guilty of felony without benefit of clergy, {d) (c) Sec Preced. 2 Chit, Crim. L. 29. (d) Ante, 356. 408 CHAPTER THE THIRTIETH. Of Forcible Entry and Detainer. Offence at ^ FORCIBLE entry or detainer is committed by vio- common law. '-' lently taking or keeping possession of lands and tenements with menaces, force, and arms, and without the authority ofthelaw. (a) It has been laid down in the books that, at common law, and before the passing of the statutes relating to this subject, if a man had a right of entry upon lands or tenements, he was permitted to enter with force and arms ; and to detain his possession by force, where his entry was lawful : {h) and that even at this day he who is wrongfully dispossessed of hi?, goods , may justify the re-taking of them by force from the wrong doer, if he refuse to re-deliver them, (c) However, it is clear that, in many cases, an indict- ment will lie at common law for a forcible entry, if it con- tain, not merely the common technical words, " with force and arms," but also such a statement as shews that the facts charged amount to more than a bare trespass, for which no one can be indicted, id) And, in a modern case in the court of King's Bench, it was mentioned, by the great judge who then presided in that court, as a part of the law whicli ought to be preserved, that no one shall with force and violence assert his own title. (<) But on a subsequent day of the (fl) 4Blac. Com. 148. Burr. 1699, 1702. Ilex t'. Wilson ib) Dalt. Just. «97. Lamb. 135. and others, 8 T. R. 357. in Mhich Crom. 70. a, b. 1 Hawk. P. C. c. last case the indictment charged 64. 8. 1, 2, 3. 3 Bac. Ahr. Forcible the defendants (twelve in number) Entry and JJelaintr. willi having unlaujul/y and uith a (f ) 1 Hawk. F. C. c. 64. s. 1 . *7ron^ hand entered, &c. and it was (d) Hex V. Bake and others, 3 held good. Burr. 1731. Rex v. Bathurst, Say. (c) By Lord Kenyon, C. J. Rex S25. referred to iu Rc.x v. blorr, 3 v. Wihoa and others, 8 T. IV. 361. CHAP. XXX.] Of Forcible Entri/ and Detainer. 409 same term he said that the court wished that the grounds of their opinion in that case might be understood, and desired that it might not be considered as a precedent in other cases to which it did not apply. He then proceeded : " Perhaps " some doubt may hereafter arise respecting what Mr. Ser- *' jeant Hawkins says, that at common law the party may " enter with force into that to which he has a legal title. " But without giving any opinion concerning that dictum *' one way or the other, but leaving it to be proved or dis- " proved whenever that question sliall arise, all that we *' wish to say is, that our opinion in this case leaves that " question untouched; it appearing by this indictment that " the defendants unlawfully entered, and therefore the court " cannot intend that they had any title." (/) Whatever may be the true doctrine upon this subject at Offence by common law, the statutes which have been passed respecting forcible entries and detainers ai'e clearly intended to restrain all persons from having recourse to violent methods of do- ing themselves justice : and it is the more usual and effectual method to proceed upon these statutes, which give restitu- tion and dan)ages to the party grieved. By the 5 R. II. c. 8. none shall make entry into any lands Statate^, 5 R. , . • • 1 J 1 II. c. 8. None and tenements but in cases where entry is given by the law ; shall enter in- and in such cases not with strong hand, nor with multitude *". 'j^nds, &c. ^ . with strou* of people, but only in a peaceable and easy manner, on pain hand. of imprisonment and ransom. This statute gave no speedy remedy, leaving the party injured to the common course of proceeding by indictment or action ; and made no provision at all against forcible detainers. The 15 R. II. c. 2. goes 15R. II. c.8. ,. /.n-ii i'l^n complaint further, and enacts, that on complaint or lorcible entry into offorciblecn- lauds and tenements, or other possessions whatsoever, to the try justices •^ may commit justices of peace or any of them, the justices or justice take theoflVnder sufficient power of the county, and go to the place where the "j[j[sy,J"*' *"** force is made; and if they find any that hold such place (/) 8 T. R. 364. 410 Of Forcible Entry [bookii. forcibly, after such entry, they shall commit them to the next gaol, there to abide, convict by the record of the same jus- tices or justice, until they make fine and ransom : and that the people of the county and the sheriff shall assist, &c. on pain of imprisonment and fine. And it also enacts, that it shall be done in the same manner of them that make such forcible entries in benefices or offices of holy church. But this statute gave no remedy against those who were guilty of a forcible detainer afler a peaceable entry, nor against those who were guilty of both a forcible entry and forcible detainer, if they were removed before the coming of a justice of peace ; and it gave no power to the justice to restore the party injured to his possession, and did not impose any penalty on the sheriff for disobeying the precepts of the jus- tices in the execution of the statute. Further enactments were therefore necessary, (o) 8 H. VI. c. 9. The statute 8 II. VI. c. 9. enacts, that though the persons Justicrsmay niakin"; forcible entries be present or else departed before eiKjuirc n« ^ .... . . well of those the coming of thejustices or justice, the same justices orjus- i:i mn L- ^j^p jj^ some cood town next to the tenements so entered, tries as of or in some Other convenient place, according to their discre- hol'dhiiidsA'c *'*^"' ^^^^' ''^^^ authority to enquire, by the people of the *ith force. same county, as well ofthem that make such forcible entries in lands and tenements as ofthem which hold the same with force; and if it be found that any doth contrary to this sta- tute, then the justices or justice shall cause to re-seise the lands and tenements, and shall put the party in full posses- sion as before. (//) And after making provision concerning the precepts of the justices to the sheriff to return a jury to enquire of forcible entries, the qualification of thcjurors, and the remedy by action against those who obtain forcible pos- session of lands, &c. it enacts, that mayors, «Scc. of cities, (ff) Upon the imjiosiiifr and levy- Abr. Forcible Entry and Dclainer^ ill}; the fine under this sliitnlc of (A) in Ihe note*. H. II. see I Hawk. V. C. v. f.l. s. s. {h) S. 3. aud the cmcs cullcctcU iu ^ Jjuc. CHAP. XXX.] .4nd Delainer. — Sialutcs. 411 towns, and boroughs, having franchise, shall have in such citios, &c. like power to remove such entries, and in other articles aforesaid, rising- within the same, as the justices of peace and sheriffs in counties. (0 And it is then provided. This stuiutc " that they which keep their possessions with force in any J^|Ij' J^\lj^',j, " lands or tenements, whereof they or their ancestors, or who maintain . ■ - , possession af- " they whose estates they have in such lands and tenements, ter peaceable « have continued their possessions in the same by three ^/^'J^'J'"!!;^^/'''' " years or more, be not endamaged by force of this sta- " tute."(/0 This proviso is further enforced by a statute, 31 Eliz. c. SiEliz c ii. ' •' . .\o restitution 11. which enacts, " That no restitution, upon any indictment to be made if « of forcible entry, or holding with force, be made to any j-^^g^.ltir " person or persons, if the person or persons so indicted been three " hath had the occupation, or hath been in quiet possession Joslession"'^* " by the space of three whole years together next before and his estate ^,11-1 xL • uot ended. " the day of such indictment so found ; and his, her, or their " estate or estates therein not ended or determined ; which " the party indicted shall and may alledge for stay of resti- " tution, and restitution to stay until that be tried, if the " other will deny or traverse the same : and if the same Costs. " allegation be tried against the same person or persons so " indicted, then the same person or persons so indicted to " pay such costs and damages to the other party as shall be " assessed by the judges or justices before whom the same " shall be tried ; the same costs and damages to be recovered " and levied as is usual for costs and damages contained in *' judgments upon other actions." Tn the construction of these statutes it has been holden, noubt upon that if a lessee for years or a copyholder be ousted, and the whether lessee lessor or lord disseised, and such ouster, as well as disseisin, ^"'" yp"" "r ' ' copyholder be found in an indictment of forcible entry, the court may, ousi.d by the in their discretion, award a restitution of the possession to {.""j^jj ',',!j|e'^*^ such lessee or copyholder; which was, by necessary conse- restitution, (0 S. 6. (k) S. 7. 412 Of Forcible Entry and Detainer, ^c. [book ii. quence, a re-seisin of the freehold also, whether the lessor or lord had desired or opposed it. But it was a great ques- tion, whether a lessee for years or a copyholder, being ousted by the lessor or lord, could have a restitution of their pos- session within the equity of 8 H. VI. the words of which are, that the justice " shall cause to re-seise the lands," &c. and by which it seems to be implied that the party must be ousted of such an estate whereof he may be said to be seised, which Removed bv must at least be a freehold. For the purpose of removing viJac.l.c.io. tiiis doubt, it was enacted by 21 Jac. I. c. 15. that such judges or justices of the peace as by reason of any act of parliament then in force were authorized to give restitution to tenants of any estate of freehold of their lands, &c. en- tered upon by force, or withholden by force, shall have the like authority (upon indictment of such forcible entries or forcible withlioldings) to give like restitution of possession to tenants for term of years, tenants by copy of court roll, o-uardians by knight's service, tenants by elegit, statute mer- chant and staple. It has been holden, that a tenant by the verge is not within this statute ; but the propriety of this de- cision is doubted ; as such person, having no other evidence of his tille but by the copy of court roll, seems at least to be within the meaning, if not within the words, of the statute. (0 If a lessor eject his lessee for years, and afterwards be forcibly put out of possession again by such lessee, he has no remedy for a restitution by force of any of the above- mentioned statutes: there seems, however, to be no doubt but that a justice of peace, &c. may remove the force, and commit the oflendcr. (;«) The law upon these statutes respecting forcible entries and detainers may be further considered with reference 1. to the persons who may commit the oflence ; II. to the nature of the possessions in respect of which it may be com- (0 1 Hawk. P. C. c. 64. i. 17. (m) Id. Ibidy i. 17, 18. CHAP. XXX.] Persons who maij Commit the Offence. 413 mitted ; III. to the acts which will amount to a forcible entry ; and, IV. to the acts which amount to a forcible de- tainer. I. A man who breaks open the doors of his own dwelling As totheper- 1 1 • 1 • 1 • • 1. -i \ t. c sons who may house, or of a castle, which is his own inheritance, but tor- commit the cibly detained from him by one who claims the bare custody oft'euce. of it, cannot be guilty of a forcible entry or detainer within these statutes, (w) But a joint-tenant or tenant in common may offend against them either by forcibly ejecting or for- cibly holding out his companion ; for though the entry of such a tenant be lawful per my et per tout, so that he cannot in any case be punished in an action of trespass at common law, yet the lawfulness of his entry does not excuse the vio- lence, or lessen the injury done to his companion ; and, con- sequently, an indictment of forcible entry into a moiety of a manor, &c. is good, (o) Also where a man has been in possession of land for a great length of time by a defeasible title, and a claim is made by him who has a right of entry, the wrongful possessor, continuing his occupation, will be punishable for a forcible entry and detainer ; because all his estate was defeated by the claim, and his continuance in possession afterwards amounts in the judgment of law to a new entry, (p) II. A person may be guilty of this offence by a force done As to the pos- , . . , . 11' 1 sessions in re- to ecclesiastical possessions, as churches, vicarage-nouses, ^pect of which &c. as much as if it were done to a temporal inheritance, the offence niav be com- And it has been holden, as a general rule, that a person may fitted. be indicted for a forcible entry into any such incorporeal hereditament for which a writ of entry will lie, either by the common law, as for rent, or by statute as for tithes, &c. It is, however, questioned whether there be any good au- (n) 3 Bac. Abr. Forcible Entry, possession of his own lessee at will; Sfc. (D) 1 Hawk. P. C. c. 64. s. 32. but a qu. is subjoined, where it is said also that a man {o) 1 Hawk. P. C. c. 64. s. 33. will not be within the statutes who (p) Id. s. 21. 31. Crom. 69. forcibly enters into land in the Dalt, c. 77. Co. Lit. 256. 414 Of Forcible Entri/ , [book ii. thorlty that such an indictment will lie for a common or oflice ; thou2;h it seems agreed that an indictment of forcible detainer liesagainst anyone, whether he be the terre-tenant or a stranger, who shall forcibly disturb the lawful proprie- tor in the enjoyment of these possessions ; as by violently resisting a lord in his distress for a rent, or by menacing a commoner with bodily hurt, if he dare put in his beasts into the common, &c. No one can come within the danger of these statutes by a violence offered to another in respect of a way, or such like easement which is no possession. But it seems that a man cannot be convicted, upon view, by force of the 15 R. II. c. 2. of a forcible detainer of any incor- poreal inheritance wherein he cannot be said to have made a precedent forcible entry. (7) As to the acts m, X forcible enlru must regularly be with a strong which will , , . , , •., r If amount to a hand. With unusual weapons, or with menace of lite or forcibleentry. \^^\^ . \^ j^yg^ be accompanied with some circumstances of actual violence or terror ; and an entry which has no other force than such as is implied by the law in every trespass is not within these statutes, (r) An entry may be forcible not only in respect of a violence actually done to the person of a man, as by beating him if he refuse to relinquish his pos- session ; but also in respect of any other kind of violence in the manner of the entry, as by breaking open the doors of a house, whether any person be in it at the time or not, especially if it be a dwelling house, and perhaps also by any act of outrage after the entry, as by carrying away the party's goods, &c. whicli being found in an assize of norel dissdsin will make the defendant a disseisor with force, and subject him to fine and imprisonment, (i) If a man enters to distrain ("or ront in arrear with force, this is a forcible entry, b(>causc, though he does not claim the land itself, yet he claims a right and title out of it, which by these sta- (q) 1 Kawk. P. C. c. 01. ». 31. f;e before whom the inqupst was found, can award restitution, unless the in- dictment be removed by certiorari into the court of King's Bench ; and that court, by the plenitude of its power, can re- store, because that is supposed to be implied by the statute ; on tlli- The same justices who have awarded a restitution on an indictment of forcible entry, &c. or any two or one of them, may afterwards supersede such restitution upon an insuffi- ciency in the indictment appearing unto them : but no other justices or court whatsoever have such power, except the court of King's Bench ; a certiorari from whence w holly closes the hands of the justices of peace, and avoids any restitution which is executed after its teste, but does not bring the justices into contempt without notice, (c) Of setting aside the rc- ■titulion. The court of King's Bench has such a discretionary power over these matters, from an equitable construction of the statutes, that if a restitution shall appear to have been ille- (i/) 3 Bac, Abr. Fore Enlr. S)C. (G). 1 Hawk. c. 61. r. 54. (z) 1 Hawk. c. 6 J. s. 56. (a) 3 Bac. Abr. Fore. Enlr. S;c. (G). 1 Hawk. c. 64. «. 58,fcy. Keg. V. Winter, 2 bulk. 38b. (b) Reg. V. Goodenougb, y Lord Rarm. lO.'iG. And sec the words of Jbe statute, ante. 111. (f) 3 Bac. Abr. Id. Ibid. \ Hawk, C.64. s. G1,C2. CHAP. XXX.] Of Restitution. 425 gaily awarded or executed, that court may set it aside, and grant a re-restitution to the defendant. But a defendant cannot in any case whatsoever ex rigore Juris demand a restitution, either upon the quashing of the indictment, or a verdict found for liim on a traverse thereof, &c. for the power of granting a restitution is vested in the King's Bench only by an equitable construction of the general words of the statutes, and is not expressly given by those statutes, and is never made use of by that court but when, upon con- sideration of the whole circumstances of the case, the defend- ant shall appear to have some right to the tenements, the possession whereof he lost by the restitution granted to the prosecutor, (d) The court of Kind's Bench has been so favorable to one who, upon his traverse of an indictment upon these statutes being found for him, has appeared to have been unjustly put out of his possession, that they have awarded him a restitution, notwithstanding it has been shewn to the court that, since the restitution granted upon the indictment, a stranger has recovered the possession of the same land in the lord's court, (e) The justices or justice may execute the writ of restitution Howrestltu ... .x.ii-a>i.j tion shall be in person, or may make their precept to the slientt to do j^^^^^ it. (/) The sherift", if need be, may raise the power of the county to assist him in the execution of the precept ; and therefore, if he make a return thereto that he could not make a restitution by reason of resistance, he shall be amerced, (g) And it is said, that a justice of peace or sheriff may break open a house to make restitution, (/i) If possession under a writ of restitution is avoided irame- (d) 3 Bac. Abr. Id. Ibid. 1 Hawk. (/) 1 Hawk. c. 64. s. 49. C. 64. s. 63, 64, 65. ig) Id- s. 52. (e) 3 Bac. Abr. Id. H>id. 1 Hawk. (h) 4 Com. Dig. Forcible Entry c. 64. ». 66. (D. 6). 426 Of For cihle Entrj/ and Detainer, S^c. [book ii. diately after execution by a fresh force, the party shall have a second writ of restitutii»n without a new inquisition : but the second writ must be applied for within a reasonable time. (/> And where restitution is not ordered till three years after the inquisition, it is bad. (A) (i) Rex V. Harris, 1 Lord Raym. 482. (k) Rex t'. Harris, 3 Salk. 313. 427 CHAPTER THE THIRTY-FIRST. Of Nuisances. WuiSANCE, nocumentmn, or annoyance, signifies any NVisancesarc thing that worketh hurt, inconvenience, or damage. And J^j'^'j^J/"*^ nuisances are of two kinds; public or common nuisances, which affect the public, and are an annoyance to all the king's *nhjpct>5; and private nuisances, which may be defined as any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another, (r/) Private nui- sances, as they are remedied only by civil proceedings, do not como within the scope of this treatise : but public or common nuisances, as they annoy the whole community in general, and not merely some particular person, are pro- perly puni>hable by indictment, and not the subject of action: for it would be unreasonable to multiply suits by giving every man a separate right of action (or what damni- fies him in common only with the rest of his fellow-sub- jects, (b) In treating of public or common nuisances, we (a) 3 Blac. Com. 216. 2 Inst. injiiryby falling therein; there, for 406. this particular damage, not com- (b) 4 Blac. Com. 166. There is, mon to others, it has been held however, a case mentioned in the that the party may have his action, books where a party has been ad- Co. Lit 56. 5 Rep. 73. 3 Blac. mitted to have a private satisfac- Com. 219. And see also Fowler f. tion by civil suit for that which is Sanders, Cro. Jac. 446. But the a public nuisance; namely, where particul ir damage in this case he has sustained some cxtraordi- must be direct, and not co.ise- nary damaL';e by it beyond the rest quential, as by being delayed in a of the king's subjects. As if by journey of importance. Bull. N, meansof a ditch dug across a pub- P. 26. In Rex r. D.-wsnap and lie way, which is a common nui- another 16 East. 196. Lord Ellen- sauce, a man or his horse suffer any borough, C. J. said, " 1 did not 428 Of Nuisances. [book. II. may consider, I, of public nuisances in general ; II, of nui- sances to public highway**; HI, of nuisances to public rivers; and, IV, of nuisances to public bridges. SECT. I. OF PUBLIC NUISANCES IN GENERAL. Of public nui- laiiccs in ge- neral. Offensive trades and manufactures. Public nuisances may be considered as offences against the public order and oeconomical regimen of the state: being either the doing of a thing to the annoyance of all the king's subjects, or the neglecting to do a thing which the common o-ood requires, (c) But the annoyance or neglect must be of a real and substantial nature : and the fears of man- kind, though they may be reasonable, will not create a nuisance. (;400barrils of <;un- insalubrity and offcnsivencss. ])()wder near the town of Bradford, (k) Rex ». Davcy and another, and he was convicted. And in Rex. 5Esp. 217. I'. Taylor, 1.5 Geo. II. the court (/) Rex V. Karlholomcw Neville, granted an information against the I'eakc 91 . defendant as for a nuisance, on affi- (;//) Rex V. Samuel Neville, da\ its of his kic|»ini;- great quanti- Peake 93. ties of gun|»<)wder ixrnr Ma Irion in (n) Weld V. Hornby, 7 East. 199. Surri/, to the cndaugering of the CHAP. xxxT. § I.] Combustibles. — Disorderlij Houses. 431 the making, keepinif, or carrying^, of too large a quantity of gunpozvder at one titne, or in one place or vehicle, is prohi- bited by the statute 12 Geo. III. c. 61. under heavy penal- ties and forfeiture. And it appears, that persons putting on board a ship an article of a combustible and dangerous na- ture, without giving due notice of its contents, so as to enable the master to use proper precautions in the stowing of it, will be guilty of a misdemeanor. The case did not come before the court of King's Bench directly upon its criminal nature ; but that court, in adverting to the conduct imputed to the defendants, declared it to be criminal, and said, " in " order to make the putting on board wrongful the defend- *' ants must be conusant of the dangerous quality of the " article put on board ; and if, being so, they yet gave no " notice, considering the probable danger thereby occa- " sioned to the lives of those on board, it amounts to a spe- " cies of delinquency in the persons concerned in so putting " such dangerous article on board, for which they are crimi- " nally liable, and punishable as for a misdemeiinor at « least." (p) All disorderly inns or ale-houses, bote djj -houses, gam' ing-Iiouscs, ploy-houses, unlicensed or improperly con- ducted, bootlis and stages for rope-dancers, mountrhanks, and the like, are public nuisances, and may therefore be indicted, (q) inns. It seems to be agreed, that the keeper of an inn may, by pisorderlj- the common law, be indicted and fined as being guilty of a public nuisance, if he usually harbour thieves, or persons of scandalous reputation, or suffer frequent disorders in his house, or take exorbitant prices, or set up a new inn in a place where there is no manner of need of one, to the hin- church and houses where he lived. " the lives of his luajcsty's sub- 2 Str. 1167. 2 Burn. Jusl. Gun- "jccts." powder ; where it is said, " or ra- (/>) Williams v. The East India " ther it should have been ex- Company, 3 East. 192. 201. " pressed to the endangering of (q) 4 Biac. Com. 167. 432 Of Nuisances. [book ii. drance of other ancient and well governed inns, or keep it in a place in respect of its situation wholly unfit for such a purpose, (r) And it seems also to be clear that if one who keeps a common inn refuse either to receive a traveller as a guest into his house, or to find him victuals or lodging, upon his tendering him a reasonable price for the same, he is not only liable to render damages to the party in an action, but may also be indicted and fined at tlie suit of the king ; and it is also said, that he may be compelled by the constable of the town to receive and entertain such a person as his guest; and that it is in no way material wliether he have any sign before his door or not, if he make it his common business to entertain passengers, (s) The keeping of an inn is no franchise, but a lawful trade when not exercised to the prejudice of the public, and there- fore there is no need of any licence or allowance for such erection. (0 But if an inn use the trade of an alehouse, as almost all innkeepers do, it will be within the statutes made concerning alehouses, (u) Bawdy- ^* ^^ clearly agreed that keeping a baxcdy-house is a cora- ous«. mon nuisance, as it endangers the public peace by drawing together dissolute and debauched persons ; and also has an apparent tendency to corrupt the manners of both sexes, by such an open profession of lewdness, (ud) And it has been (r) 1 Hawk. P. C. c. 78.8. 1. And (u) 1 Hwnx. imt. Alehouses, viheva «ec in 3 Bac. Ahr. /rmjf, S;c. (A) that tliosr statntrs are collocted. Bc- as inns from their niiinbrr and si- iorc: llie sliil. 5 and G Edw. VI.c. 25. tuation may beconu" nuisances, they il was lawliil for anyone to keep may bo suppressed, and the parlies an alehouse whhout licence, for it keeping them may at common law was a means of livelihood which be indicted and fined. And see any one was free to follow. But if also as to exorbitant prices. Id. (O it was so kept as to be disorderly, il 5. 21 Jar. I. c. 21. was indictable as a nuisance. 1 Salk. (s) 1 Hawk. P. C. c. 7S. s. 2. 45. 1 Hawk. P. C. c. 7h. s. 52. in (I) Dall. c. 5G. Blackerby 170. murp;. I Burn. Just. tit. .,^/c/jOHj.Ti, J. 3 (w) S Inst. c. 98. p. 204. 1 Hawk. Bac. Abr. Inm, bfc. (A) P. C. c. 7 4. and c. 75. s. 6. » Bac. CHAP. xxxr. § 1.] Common Gaming- Houses. 433 adjudged that this is an offence of which a feme covert may be guilty as well as if she were sole, and that she, together with her husband, may be convicted of it; for tiie keeping- the house does not necessarily import property, but may signify that share of government which the wife has in a family as well as the husband; and in this she is presumed to have a considerable part, as those matters are usually managed by the intrigues of her sex. (r) If a person be only a lodger, and have but a single room, yet if she make use of it to accommodate people in the way of a bawdy- house, it will be a keeping of a bawdv-house as much as if she had a whole house, (y) But an indictment cannot be maintained against a person for being a common bawd, and procuring men and women to meet together to commit for- nication : the indictment should be for keeping a bawdy- house, (r) For tlie bare solicitation of chastity is not in- dictable, but cognizable only in the ecclesiastical courts. (a) It is clearly agreed, that all common gamivg-hoiises are Commoa nuisances in the eye of the law, being detrimental to the houses^ public, as they promote cheating and other corrupt prac- tices ; and incite to idleness, and avaricious wavs of oaininT- property, great numbers whose time might otherwise be em- ployed for the good of the community, {b) And it has also been adjudged, that it is an offence for which a feme covert may be indicted ; for, as she may be concerned in acts of bawdry, as has been observed above, so she may be active in promoting gaming, and furnishing the guests with conve- niencies for that purpose, (c) There are also certain penal- Abr. J\i"uisanccs (A). .3 Burn. Just. Just. Lewdness. Leivdncss and A'uiaance. (i) 5 Bac. Abr. Nuisances (A). (x) Reg. r. Williams, 1 Salk.. 383. I Hawk. P. C. c. 75. s. 6. '^n'P. 25. (c) Rex t<. Dixon, Trin. 2 Geo. I. tv) Rex V. Pierson, 2 Lord Ray ra. 5 liac. Abr. A'uisarices (A). 1 Mod. 1197. 1 Salk. 382. 335. 1 Hawk. P. C c. 92. 8. 30, (z) Id. Ibid. and see ante, 25. (a) 1 Hawk.P. C. c. 74. 3 Burn. 2 F 434 Of Xidsances. — Playhouses and [book ii. ties imposed bv statutes upon the offence of keeping a com- mon gaming-house, (t/) An indictment against a defendant for that he did keep a common, ill-governed, and disorderly house, and in the said house for his lucre, &c. certain persons of ill name, &c. to frequent and come together, did cause and procure, and the said persons in the said house to remain fgf'ling of cocks^ boxings pl(itji)}g at cudgels, and mhhehaving themselves, did permit, has been held to be good, (e) And it seems that the keeping of a cockpit is not only an indictable offence at com- mon law, but that a cockpit is considered as a gaming-house within the statute S3 Hen. VIII. c. 9. s. 11. which imposes a penalty of forty shillings per day upon such houses ; and therefore, on a conviction on an indictment at common law, the court will measure the fine by inflicting forty shillings for each day, according to ther.umber of days such cockpit was kept open. (/) Playhouses. It seems to be the better opinion that playhouses, having been originally instituted with a laudable design of recom- mendin"^ virtue to the imitation of the people, and exposing vice and folly, are not nuisances in their own nature, but may only become such by accident ; as, where they draw too-other such numbers of coaches or people, Sec. as prove generally inconvenient to the places adjacent; or, when they pervert their original institution by recommending vi- cious and loose characters, under beautiful colours, to the imitation of the people, and make a jest of tilings commend- able, serious, and useful, (g) Players and playhouses are now put under salutary regulations by tlio provisions of id) 1 Hawk. 1'. C. c. 92. s. 11. cl l-Hawk. I'. C. r. !)2. s. 29. setju. (g) !> Bac. Abr. Nuisances (A). (c) Ilex V. Hij,'ginson, 2 IJurr. 1 Mawk. P. (\ c.iry.s.l. And as 1233. to l]ie pcrformaiice of an obscene (/) Rex r. Howell, .3 Ktb. 510, play sec UH/t-, 317. CHAP. XXXI. § 1 .] Unlicensed Places of Enter Lainment. 435 several statutes. (^) And places of public entertainment in Place? of pub- the neighbourhood of London, if not properly licensed, are nieutunli- to be deemed disorcferhy /wuses by the statute '25 Geo. II. censed u> be „„.,., ... 1 • 1 n 1 n • deemed di.sor- c. 3o.(t) u hich, recitino- the multitude ol places ofentertain- derly houses. ment for the lower sort of people as a great cause of thefts and robberies, enacts, " that any house, room, garden, or " other place, kept for public dancing, music, or other pub- " lie entertainment of the like kind in the cities o^ London *' and TFeslminster, or within twenty miles thereof," with- out a license from the last preceding Michaelmas quarter sessions, under the hands and seals of four of the jjistices, " shall be deemed a disorderly house or place." The act then particularizes the mode of granting the license, makes it lawful for a constable or other person, authorized by war- rant of a justice, to enter such house or place, and to seize every person found therein ; and makes every person keep- ing such house, &c. without a licence liable to a penalty of 100/. and otherwise puniohable as the law directs in cases of disorderly houses. (A) It seems also to be the better opinion, that all common stages Stages for Jbr rope-dancers, SfC. are nuisances, not only because they ^P'^""'^'^*^'-* » are great temptations to idleness, but also because they are (h) The 10 Geo. II. c. 28. enacts not to extend to an exhibition of tiiat persons performing any enter- tumbling. Rex v. Handy, 6 T. R. tainment of the stage without au- 286. By special acts of parlia- thority or licence, shall be deemed ment playhouses are permitted to rogues and vagabonds, and liable be erected in particular places, to the penalties of 12 Ann. stat. 2. (0 Made perpetual by the 28 c. 23. (an act repealed, but re- Geo. 11. c. 19. enacted by 17 Geo. II. c. 5.) and (k) By s. 3. this act is not to ex- also to a penalty of 50/. See also tend to the theatres iu Drurj/ Zawe the 28 Geo. III. c. 30. by which and Covent Garden, or the King's justices of the peace at their quar- Tliealre in the Hai/markct, nor to tcr sessions may license theatrical performances and public eiitertain- representations occasionally, un- ments carried on under letters pa- der certain restrictions. The words tent, or licence of the crown, or " entertainment of the stage," in licence of the lord chamberlain. 10 Geo. II. c. 28. have been held o p o 436 Of Xuisances. — Disorderly Houses, [book ii. np( to c5raw tooether numbers of disorderly persons, which cannot but be very inconvenient to the neighbourhood. (/) Proceedings The proceedings in respect of prosecutions against per- tW)i!s against ^®"'' kee|)ing bawdy-houses, gaming-houses, or other disor- persoiisior ^]f,y\y houses, are facilitated by 25 Geo. II. c. 36. by which hl\\\y it is enacted, that if two inhabitants of any parish or place, hous.s, y the ninth section any person may (I) .') Rac. Abr. 7\ //;*rt7?rr»' (A). I plaveis belli;; iiidirtrd for a riot Hawk. P. C. 0.7.'). H. 0. And sei; and unlawful uiiseinbly. ante, p. 'A'yi. uole (£•), uv lu stajje- (m) Si. 4. CHAP. XXXI. § 1.] Proceedings. — Evidence. 437 give evidence upon sncli prosecution, thou«;h an inhabitant of tlie parish or place, and though he may have entered into the before mentioned recognizance. The tenth i^ection Certiorari. enact»^, that no indictment shall be removed by certiorari^ but shall be tried at the same sessions or assizes where it shiill have been preferred (unless the court shall think pro- per, upon catise shewn, to adjourn the same,) notwithstand- ing any such writ or allowance. Upon ihis last clause it has be^n (!ecided, that the general words do not restrain th^ crown from removing the indictment by certiorari : there beinir nothinjr in the act to shew that the legislature intended that the crown should be bound by it. (w) Any number of persons may be included in the same in- Indictmpnt ^• n \ • i-zr- . !• Ill , , « , and evidence dictment tor keeping dittereni disorderly houses, stating that as to disorder- they " severally" kept, &c. such houses, (o) It seems that '> houses, it is necessary to state where the house is situate, and the time, so as to make a particular statement of the offence, which is the keepir/g of the house, (p) But particular facts need not be stated ; and tliough the charge is thus general, yet at the trial evidence may be given of particular facts, and of the particular time of doing them, (ly) It is not necessary to prove who frequents the house, for that may be impos- sible ; but if any unknown persons are proved to be there, behaving disorderly, it is sufficient to support the indict- ment, (r) (n) Rex V. Davies and others, 5 that several different defeudants T. R. 626. are charged in different counts of (o) 2 Hafe 174. wheTe it is said, an indictment for offences of the " It is common experience at this same nature ; though it may be a " day that twenty persons may he ground for application to the dis- " indicted for keeping disorderly cretion of the court to quash the " houses or bawdy-houses: and they indictment. " are d lily convicted upon suih in- (p) By Bullcr, J. in J'Anson i". •' dictiients, for the word scpara- Stuart, 1 T. R. 7.'j4. *' Wter makes them several indict- ( By Lord Ilardwicke, in Clarke " ments." And in Rex v. Kind been usual for mea to bathe in great numbers at the place in question. M'Do- nald, C. B. ruled, that whatever place becomes the habita- tion of civilized men, there the laws of decency must be enforced. (0 And to shew a being of unnatural and mon- strous shape for money is a misdemeanor, (u) Eaves drop- pers. Eaves droppers, or such as listen under walls or windows^ or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance, and presentable at the court leet : or are indictable at the sessions, and punishable by fine and finding sureties for their good behaviour, {w) Common scold. Kcommon scold, communis rixatrix, (for our law confines it to the feminine gender) is a public nuisance to her ncigh- (s) I Hawk. P. C. c. 5. s. 4. 3 Burn. Just. Lewdness. 4 Blac. Com. 63. (m) 1 East. P. C. c. l.s. 1. (0 Rex V. Crunden, 2 Camjyb. 89. And Ihe court of King'.s Bcncli, when llie defendant was brought up for judgment, expressed a clear opinion that the oftencc imputed to him was a misdemeanor, ;ind that he had lieen projierly fon- ▼icted. In Hex v. Sir Charles Sedley, Sid. IGH. 1 Keb. fi'iO. S. C. the dc'fendanl heiiijj indicted for siiewinjr himself naked from a bal- cony in Coveut Garden to a i;rcat multitude of people, confessed the indictment, and was sentenced to pay a fine of 2000 marks, to be im- prisoned a week, and to give se- curity for his good lieh iviour for three years. (m) Harring v. Wulroiul, 2 Cha. Cas. 110. the case of a monstrous child that died, and was embalmed 1o lie kept for shew, but was or- dered by the lord chancellor to be buried — (ciled in Burn. Jusl. TV'uj- sunic). (k) \ Blac. Com. 107, 168. I Burn. Just. Eaves Droppers, CHAP. XXXI. § 1 .] Common Scolds. — M)ises, 5cc. 4.39 bourliood, and may be indicted for the ofTence ; and. upon conviction, punished by being placed in a certain engine of correction called the trebucket or cncking stool, (x) And she may be convicted without setting forth the particulars in the indictment : (j/) though the offence must be set forth in technical words, and with convenient certainty; and the indictment must conclude not only against the peace, but to the common nuisance of divers of his majesty's liege sub- jects, (z) It is not necessary to give in evidence the parti- cular expressions used ; it is sufficient to prove generally that the defendant is always scolding, (a) A defendant was convicted on an indictment for making Noises in the great noises in the night witli a speaking trumpet, to the "'° disturbance of the neighbourhood : which the court held to be a nuisance, (b) The exposing in public places persons infected with con- Spreading In- tagious disorders, so that the infection may be commnni- "-'^^tion. cated, is a nuisance, and has been already treated of in a preceding chapter, (c) It is said that a mastiffs going in the street unmuzzled, Mastiffun- from the ferocity of his nature being dangerous and cause of '""^zled. terror to his majesty's subjects, seems to be a common nui- sance ; and that, consequently, the owner may be indicted for suffering him to go at large, (d) (x) 1 Hawk. P. C. c. 75. s. U. 4 (2) Rex r. Cooper, 2 Str. 1246. Blac. Cora. 168. Burn. Just. Nui- (a) By Buller, J. in J'Ansoa v. sance. III. Cuck, or guck, in the Stuart, 1 T. R. 754. Saxon language, (according to Lord (6) Rex v. Smith, I Str. 704. Coke) signifies to scold or brawl ; And see a precedent of an indict- takcn from the hird cuckow, or ment for keeping dogs which made guckhaiv : and ing in that language noises in the night, 2 Chit. Crim. signifies water, because a scolding L. 647. woman, when placed in this stool, (c) Jnte, Chap. IX. p. 1 37. et sequ. was for her punishment soused in (rf) 3 Burn. Just. ^, uinamc, I. tlic water. 3 Inst. 219. And sec a precedent of au iiidict- (j/) 2 Hawk. P. C. c. 25. s. 59. ment for tliis oUencc, 3 Chit. Crim. 440 Of .Vidsanccs. — Fircivorks. — Lotteries, [book ii. Nuisances by There are also some oftences which are declared to be nui- statutes. sances by the enactments of particular statutes. Fireworks. 9 & 10 W. III. c. 7. By the 9 and 10 W. III. c. 7. it is enacted, that it shall not be lawful for any person to make, or cause to be made, or to sell or utter, or offer or expose to sale, an} squibs, rockets, serpents, or oWxcrJirezcorks, or any cases, moulds, or other implements for the making any such squibs, &c. or for any person to permit or suffer any squibs, &c. to be cast, thrown, or fired from out of or in his house, lodging, or habitation, or any place thereto belonging or adjoining, in4o any public street, highway, road, or passage, or for any person to throw, cast off, or fire, or ije aiding or assisting in the throwing, casting, or firing of any squibs, &c. in or into any public street, house, shop, ri\cr, highway, road, or pass- age, " and that every such offence shall be a common nui- sance," The statute also imposes pecuniary penalties for these offences, to be inflicted upon conviction before a ma- gistrate : but as it declares the offences to be conunon nui- sances, they may clearly be also prosecuted by indictment, (e) Lotteries. ^Y ^^^ ^^ ^"^ ^^ ^^' ^^^* ^' ^^ ' ^^^ lotteries are declared lO^'iiW.III. tQ |je public nuisances; and all grants, patents, and licences, c 1 T. ^ for such lotteries to be against law. But for many years past it has been found convenient to the government to raise money by the means of them ; and accordingly different state lottery arts have been passed to license and regulate offices for lotteries. (/) L. 613. It sliould be observed, however, thai tiic ollencc Kccins to be stated too jjjenerally in the au- thorily from wbirli Ihe Icxt is ta- ken. To permil a furious mastiff or bull dof; to po at larj^e and im- miiz/.led maybe a luiiMruire ; but those doj;rs are fre^jiK^tl) «|irKl and ^nlle in their habit's, e.vrept when incited by Iheir owitert; and it can hardly be said to be a nuisance to permit them to p;o at largo and un- muzzled, because some of their breed arc ferocious. («•) Jnle, p. 65,66. The pecu- niary penalties are imposed by s. 2. and 3. of the slalule. And sec 2 Uurn. Just. Fircworlci. (f) See the acts collected, 2 IJurn. Juirt. Caming, III, CHAP. XXXI. § 1 .] Bubhling the Puhlic by Trading, S^c. 44 [ By the 6 Geo. I. c. 18. s. 19. it is enacted that all under- Biibhlinn^ lUc I • , I 11- I • ,• ^ l)lll)lic l>v takini»N, attempts, and projects, by piii)lic subscriptions (as tra.liutj ad- mentioiied in section 18, and the other preceding sections vc"«<":', *i of the act) for adventurin£>- in certain schemes of commerce, s. lo. tending to the common grievance of his IMajesty's subjects, or a great number of them, and the receiving and paying of any money upon such subscriptions, &c. : and more par- ticularly the presuming to act as a body corporate, or to raise transferable funds, or pretending to act under any charter formerly granted from the crown for any particular or special purpose therein expressed, by persons making or endeavouring to make use of such charter, for any such other purpose not thereby intended, and all acting or pre- tending to act, under any such obsolete charter, &c. &c. shall be deemed a public nuisance and nuisances ; and the offenders be liable to such fines, penalties, and punish- ments, as are inflicted on a conviction for common and pub- lic nuisances, and moreover to any of the pains and penal- ties of jprcemunire. It has been determined upon this statute, that the court has a discretionary power to inflict all, or only some, of the penalties of a prcemKnire, upon a conviction of the offence therein mentioned, {g) A recent case has been decided upon the construction of C:isp of th(« this Statute. A great number of persons at nirmingliam, flour and namely, two thousand five hundred, admitting of an ex- 'jrcad com- tensiou to twenty thousand, covenanted by a deed of co- ' " partnership to raise a large capital of twenty thousand pounds by small sub^^criptions of one pound for each share, for the purpose of buying corn, grinding it, making bread, and dealing in, and distributing flour and bread amongst the partners, under the name and firm of " The Birming- *' ham Flour and Bread Cowpam/,'' and niider the manage- ment of a committee : and they covenanted also that no (§•) Caywood'g case, 1 Str. 472. 1 Hawk. P. C. c. 75. ». 11. 442 Of Nuisances. — BuhhUng the Public [book ir. partner should liold more than CO shares, unless the same should come to him by marriage, &c. or act of law : and tl»at each member should purchase of the co-partnership ueekly a certain quantity of bread or tlour, not exceeding one shilling in value for each share, as the committee should appoint ; and that no partner should assign his share, unless the assignee should enter into covenant with the other partners, for the performance of all covenants in the ori- ginal deed ; and that the majority of partners at a public meeting might make bye laws to bind the whole. An in- dictment was framed against several of the partners upon this statute of 6 Geo. 1. c. 18. s. 18, 19. as for a public nuisance, upon which the jury found specially that the com- pany was originally, (during the high price of provisions), instituted from laudable moiivcs, and for the purpose of more regularlj/ suppljjing the town of Birmingham and its neigh- hourliood xcith flour and bread ; and that the same was ori' ginallj/, and still v:as, beneficial to the inhabitants at large ; but was (/. e. at the time of finding the special verdict, which did not include the time of the offence charged in the in- dictment,) prejudicial to the bakers and millers of the town and neighbourhood in their trades. After argument, and time taken by the court for consideration of the case, judg- ment was given for the defendants on the grounds, 1. That the fact of any nuisance was negatived by the special ver- dict during the Lime to whieh the offences charged related ; and, 2. That though the defendants were found to have raised a large capital by small subscriptions, which was one ingredient of a nuisance mentioned in the act ; and though the sliares were made transferable to a certain extent, {but to a certain extent onlij) namely, upon the vendee's entering into similar covenants with the original partners, which might be another ingredient of a nuisance in tlie act ; and though the defendants had assumed certain ecpiivocal indicia of a corporation, namely, the taking a common name, hav- ing a managing committee, general meetings, and a power to make bye-laws ; yet that all these things being done for the purpose of buijing corn, and mahing it into flour and CHAP. XXXI. § 1 .] By Trading Adventures. 443 bread f 07' the supply of the partners, which did not, upon the face of it, appear to be a dangerous and mischievous under- taking, tending to the common grievance, &c., nor was found in fact po to be ; and not being one of the specific nuisances prohibited by the statute ; the case was not within the terms and intent of the nuisances thereby created. (A) In this case the court also said, that it might admit of ft"- ff thr , , ^ , ., ,, . - . i- 1 • X 1 • • mere raising douot whether the mere raising transferable stock is in any transferable case, per se, an offence against the act, unless it has rela- ^^^^^ '^'J?" , , . " . , . , se, an oftence tion to some undertaking or project wnich has a tendency to within the the common grievance, prejudice, or inconvenience, of his ^^*' Majesty's subjects, or of great numbers of them, {i) But where there was a scheme for raising a great sum by sub- scriptions for trading purposes, and making the shares in the joint stock transl'erabie, it appears to have been con- sidered that the inviting of such subscriptions by holdin"- out false and illegal conditions, such as that the subscribers would not be liable beyond the amount of their respective slwires, was an offence within the act, though the scheme might not be in itself unlawful and prohibited, without re- ference to the fact of its tendency in the particular instance in the opinion of a court and jury, {k) Qi) Rex V. Webb and others, It the question whether the Golden- East. 406. Lane Brewery were a nuisanct- (.0 1^ East. 421. within this statute upon a motion (k) Rex V. Dodd, 9 East. 516. to set aside a judgment confessed But iu this case, as the statute hud to them. Brown v. Holt, 4 Taunt. not been acted upon for a great 587. But where B. being employed length of time, and was sought to by A. to purchase for hira certain be enforced by a private relator, transferable shares in an uiiincor- who seemed not to have been de- porated company, clinrged and rc- luded by the project, but to have ceived from him £25.'beyond the subscribed with a view to the ap- market price of such shares at tlu plication, the Court refused to in- time ; it was ruled at Mxi Prhn terfere by granting an information, that an action would not lie to rc- though they discharged the rule cover back this sum, the companj without costs. And the court of being within the statute, and thr Common Pleas refused to decide parlies in pari delicto. Buck v. o 444 Of J\ui. And it is aKo said that it senns that in a plea justifying the removal of a nui- sance, the party need not shew that he did as little damage as might be : {m) but this may perhaps be doubled, as even where there is a jud?:ment to abate a nuisance, it is only to abate so mucii of the thing as makes it a nuisance, (w) Of (hcproln- It is also stated as the better opinion, that the court of by wrirfJl'm" King's Bench may by a mandafory writ prohibit, a nuisance, th<-Kii.ji\s and Older that it shall be abated; and that the party dis- obeying such v.rit will be subject to an attachment, (o) Such writs appear to have been granted in some cases ; and the proceeding in one case was that the judges, upon view, ordered a rf cord to be made of the nuisance, and seiiding for the offender oidered him to enter into a recognizance not to proceed ; but he refusing to comply, the court com- mitted him for the contempt, issued a writ to tlie sheriff, on the record made, to abate the building, and ordered the of- fender to be indicted for the nuisance. (;;) Of tlie indict- But the more usual course of proceeding in cases of nui- of '.iui"alicc!' sance is by indiclmnit, in which the nninunce should be de- scribed according (o the circumstances: and it should be stated to be continuing, if that be the fact. ( alley erecl a party could not defend the putting his woodstack in the street before his house, on the ground that it was according to the ancient usage in the town, leaving sufficient room for passengers : for it is against law to prescribe for a nui- (r) Vin. Abr, [ndiclmcnl{Q,) .Yui- East. 315. Rex v. Rcyncll, there is sance, 13. Prat ti. Stearn, Cro. an indictment for not repairing the Jac. 382. Sir Rowland Ilaywards fences of a churchyard " to the case, Cro. Eliz. 148. Anon. 1 " nuisance of the inhabitants of Vcntr. 26. 2 Roll. Abr. 83. 1 '' the parish r Cut J ? ),epn eonvict- I other civil officer, who shall prosecute for any fact that con- ed. ' cerned them as officers to prosecute or present. Upon this -1 clause it was decided in a recent case, that persons dwelling- near to a steam engine, which emitted volumes of smoke af- fecting their breath, eyes, cloaths, furniture, and dwelling houses, and prosecuting an indictment for such nuisance, are parties grieved entitled to their costs, the defendants having ' I removed the indictment from the sessions by certiorari, and been afterwards convicted, (c) (z) Rex V. Pappineau, ante, note was previously brought before the {y) 9 Co. 53. Godb. 221. court in another shape. Rex v. the (a) Co. Ent. 92. b. Justices of Yorkshire. 7 T. R. 46S. ' (b) Rex V. Stead, 8 T. R. 142. (c) Rex i-. Dewsaap and anti- A strong opinion was intimated ther, 16 East. 194. upon the point when the same case 448 Of ^Xuisances to H'lghivciTjs. [dook ii. SECT. II. OF XUlSANCnS TO PUBLIC HIGinVAYS. Of nuisances I\ treating of nuisances io public Iiigliicn?/s, we may consi- hio-hwars. ^^^' '" ^'*^ ^''** place what is a public highway ; secondly, of nuisances to a pul)lic Iiic^lnvay by obstruction ; and, thirdly, of nuisances to a public liigliway by the neglect, on the part of those who are liable, to put it in repair. Whnt is a Highway is said to be the genus of ail public ways ; (d) of |)u^) ic tig »- .^^.j^j^.}^ there are three kinds, a footway ; a foot and horse- way, which is also a pack and prime-way ; and a foot horse and cart way. (e) Whatever distinctions may exist between these ways, it seems to be clear that any of them, when common to all the king's subjects, whether directly leading to a market-town, or beyond a town as a thoroughfare to other town^, or from town to toAvn, may properly be called a highway; and that the last, or more considerable, of them, has been usually called the ling's highway. (/) But a way to a parish chiirch, or to the common fields of a town, or to a private house, or perhaps to a village, which terminates there, and is for the beneHt of the particular inhabitants of stich parish, house, or village only, is not a highway ; be- cause it belongs not to all the king's subjects, but only to some particular persons, each of whom, as it seems, may have an action on the case for a nuisance therein, (g) (d) Reg. V. Saiiilin; fi Mod. 2.).j. 7ii. s. 1. 3 P.;ic. Abr. J/i^Jiwnj/s (A). (e) Co. Lit. 50 a. lUit it is not (f;) 1 Hawk. P. C. c. 76. s. 1. So ti) ho inulerslood Ii} 111-- Icnn carl- by Hale, C. J. in Austin's case, 1 m;iy, that the way is to be used Vciit. 180. Away lead i rig to any willi the particular vehicle called a market town, and common for all cart, for il it is a c<»mmou hij;h- travellcrx, and communicalin}; with, way il is a liit^liway for nil nianiicr any great road, is a highway ; but of tilings. Hex v. Hatfield, Cas. if it lead only to a cliun li, or to a lemi). llardw. :i\5. Iiouse, or village, or to fields, it iK (/) ftl. Jlul 1 JIawk. P. C. c. a private nay. CHAP. XXXI. §2.] What a Public Highwai/ . 449 The number of persons tlierefore who may be entitled to The numhcr use the way, or may be obliged to repair it, will not make "si'ii^Tway it a public way, if it be not common to all the king's sub- orrcpniriii;;; it jects. Thus where the commissioners under an inclosure iiapuMic act set out a private road for the use of the inhabitants of ^'^'^ '* ^^ ^^ not coniraoa nine parishes, directing the inhabitants of six of those pa- to all the rishes to keep it in repair, it was held that no indictment ^'"^ **"'*" could be supported against those six parishes for not re- pairing it ; because it did not concern the public. It was argued, amongst other reasons in support of the indictment, that there was no other remedy ; for that there were not less than 250 persons who were liable to the repair of the road, and that the difficulty of suing so many persons to- gether was almost insuperable. But the court said that, however convenient it might be that the defendants should be indicted, there was no legal ground on which this indict- ment could be supported ; that the known rule was that those matters only which concerned the public were the sub- ject of an indictment ; that the road in question, being de- scribed to be a private road, did not concern the public, nor was of a public nature, but merely concerned the individuals who had aright to use it; and that the question was not varied by the circumstance tliat many individuals were liable to repair, or that many otliers were entitled to the benefit of this road. (Ji) Though a highway is said to be the king's, yet this must The freehold be understood as meaning that in every highway the king and (a^'^m^ie''/"^*' his subjects may pass and repass at their pleasure ; for the trees, &c.) of freehold and all the profits, as trees, mines, &c. belong to Lh-mo the the lord of the soil, or to the owner of the lands on both '^'"^ "' **^® sides the way. (/) The rights, however, of the owner of the soil will be subject to those of the public as to their exer- cise of their right c\ way in its full extent. Thus it seems to be established, that if a common highway is so Ibundrous and out of repair as to become impassable, or even danger- (*) Rex V. Richards, 8 T. R. 634. 3 Com. Dig. Chemin (A. « ) (O 3 Bac. Abr. Wshwa^s (B). 2o 450 Of Xiiisaiices to Hi'ghwai/s. [book ii. ous to be travelled over, or incomniodiou?, the public have a ri?ht to ijo upon the adjacent ijround : and that it makes no difference whether such ground be sown with o;rain or not. (A) But it is a rijrht of passae;e only which is j;iven up by the owner of the soil, even where the way is dedicated by him to the public. Thus where, in an action of trespass, a case was made that the place where the supposed trespass was com- mitted was formerly the property of the plaintiff*, who some years ago had built a street upon it, which had ever since been used as a highway, that the defendant had lands contiguous, parted only by a ditch, over which ditch he had laid a bridge, the end of which rested on the highway; and it was insisted, for the defendant, that by the plaintiff's having made this a street, it was a dedication of it to the public, and that he could not therefore sue as for a trespass on his pri- vate property ; the court held that though it was a dedi- cation to the public, so far as the public had occasion for it, which was only for a right of passage, it never was un- derstood to be a transfer of the absolute property in the soil. (/) A way may A way may become a public highway by a dedication of lie by a dedi- '^ ^Y ^^^^ Owner of the soil, to the public use. Thus where cation of it jy^p owners of the soil suffered the public to have the free bv the owner of the soil to passage of a street in Londo7i, though not a thoroughfare, the j»ublic ^^j. gjg},t years, without any impediment (such as a bar set across the street, and shut at pleasure, which would shew the limited right of the public,) it was held a sufficient time for presuming a dereliction of the way to the public, (w?) And though if the land had been under lease during that (A) I lloil. Abr. 300 (A) pi. I. in the note. Lord Konyon also and (Ui |)i. 1. Absor r. Frciuh, said " In a {^rcat rase, wliich waf '2 Show. '2H. Taylor u. Whitrlicad, " much contested, nix years was Dougl. 740. " held sulTuienl." But sonic ob- (/) Sir John Lade v. She|>herd, Nervations were made upon tiiis 2 Str. 1001. doctrine in a late case of Woodycr (m) Trustees of the Rup])y Cha- v. Iladdcn, 5 Taunt. 125, post. 4i?. rily I'. Merry weather, 1 1 East. 31b. note (/)• use. CHAP. XXXI. §2] Wiat a Public FJlglncay. 451 time, or even for a much longer period, the aconipcoonce of the tenant wouhl not, it seems, have bound the landh)rd, without evidence of his knowledge : (n) yd it has been held that where a way has been used bv the public for a «yreat number of years over a close in the hands of a succession of tenants, the privity of the landlord, and a dedication by him to the public, may be presumed, although he was never in the actual possession of the close himself, and he is not proved to have been near the spot, (o) And it was also held in this case that where a way has been so used, notice of the fact to the steward is notice to the landlord, (p) In a case where it appeared that a passage, leading from one part to another of a public street, (though by a very cir- cuitous route) made originally for private convenience, had been open to the public for a great number of years, with- out any bar or chain across it, and without any interruption having been given to persons passing through it, it was ruled that this must be considered as a way dedicated to the public, (q) But the erection of a bar, to prevent the passing of carriages, rebuts the presumption of a dedication to the public ; although the bar may have been long broken down : and though such a bar do not impede the passing of persons on foot, no public right to a footway is acquired, as there can be no partial abandonment to the public, (r) And it has been ruled that the owner of the soil may replace the bar after it has been taken away for twelve years, (s) It seems also, that in every case the facts must be consi- dered as sufficient to shew that the owner meant to give the public, a right of way over his soil, before a dedication by Jiim will be presumed. Thus in a late case, where the plaintiff erected a street, leading out of a highway across his own close, and terminating at the edge of the defendant's (n) Trustees of the Rugby Cha- Kingston Lent Ass. 1808. 1 Campb. r'lty t'. Merrywcather, 11 East. 375. 261, note (A). (o) Rex I'. Barr, 4 Campb. 16. (») Lethhrid^e v. Winter, Somcr- {p) Id. Ibid. scf Spr. Assiz. 1808. r^r. Marshal, (g) Rex I'. Lloyd, 1 Campb. 260. Serjt. 1 Campb. 263. in the note. (r) Roberts v. Karr, cor. Heath, J. 9o? 452 Of Nuisances to HigJiKai/s. [book. it. adjoining close, which was separated by the defendant's fence from the end of the street for twenty-one years, dur- ing- nineteen of which the houses were completed, and the street publicly watched, cleansed, and lighted, and both footways and half the horseway paved, at the expence of the inhabitants, it was held that this street was not so de- dicated to the public that the defendant, pulling down his wall, might enter it at the end adjoining to his land, and use it as a highway. (/) An ancient -Qy the common law an ancient highway cannot be be'rhangoTb^y changed without the king's licence first obtained upon a writofarf v,Titof: ad quod damiiiwi, and an inquisition thereon found nuod damnum. ^ . ,. . , , ,. that such a change will not be prejudicial to the public : and it is said that if one change a highway without such authority he may stop the new way whenever he pleases ; and it seems that the king's subjects have not such an in- terest in such new way as will make good a general justifi- cation of their going in it as in a common highway ; but that in an action of trespass, brought by the owner of the land against those who shall go over it, they ought to shew, specially, by way of excuse, how the old way was ob- structed, and the new one set out. And it is also said that the inhabitants are not bound to keep watch in such new way, or to make amends for a robbery therein committed, or to repair it. {u) (Jt) Woodycr and another r. Had- dt-n, 5 Taunt. 125. Chambrt-, J. di»*ent. In \\\\n case Mansfield, C. J. said, " No one can resperl " Lord Kenyoii more than I do ; " bill i always thoujbt, as lo the ** Huf;t>y case, {ante, 150, note m.) " there was reason to doubt. I " never could discover when llie " dedication began : he suys that " during the lease there was no de- " dicalion, but that eight year*' •' aw«|uiesccnce aftcrwardi were sufficient: ho .says that ia ano- ther case si.\ years were held to be enough, not naming the case ;— if six, why not one? Why not half a year? It would then be- come necessary for every rever- sioner, coming into possession of his estate after a lease, in- stantly to put up fences all round his property, to prevent dedica- tion." And tee Rex v. Hudson, Str. 909. (u) I Hawk. P. C. C. 76. t. i. CHAP. XXXI. § 2.] What a Public Highcaij. Ah^ It is certain that a lii^hway may be changed by tlie act of A hij^hway God; and therefore it has been holden that if a water, which changed by has been an ancient hig-hwav, by decrees change its course, the act of and go over different ground from that whereon it used to run, yet the highway continues in the new channel in the same manner as in the old. {zs) By the statute 13 Geo. III. c. 78. a power was given to p Geo. ill. c. the justices of peace to widen, divert, and change, highways er to justices as they should ind^^e most convenient. This power was in to widen and , . . change high- aid of the common law, and in order to render the changing ways. of highways less troublesome and expensive. This statute enacts, that the surveyor shall make every public cartway, leading to any market town, twenty feet wide at the least ; and every public horseway or drift way eight feet wide at the least, if the ground between the fences inclosing the same Avill admit thereof, (x) And that where it shall appear, upon the view of two justices, that any high- way between the fences thereof is not of sufficient breadth, and may be conveniently widened and enlarged, or that th6 same cannot be conveniently enlarged and made commo- dious for travellers, without diverting and turning the same, the said justices shall order such higliway to be widened and enlarged, or diverted and turned in such manner as they shall think tit, so that the said highway, when enlarged and diverted, shall not e?fceed thirty feet in breadth ; and that neither of the said powers do e?itend to pull down any house or building, or to take away the ground of any garden, park, paddock, court, or yard. The statute then proceeds to em- power the surveyors to agree with the owners of the ground The writ of ad quod damnum is an ex parli, is in its own nature tra- original writ issuing out of and versable ; and heretofore the party returnable into the chancery, di- grieved might be lieard against it rected to the sheriff, to inquire by before the chancellor, "i Burn, a jury whether such change will Just. Wg'/tit'ff^s, S. XI. be detrimental to the public; which (w) 1 Hawk. P. C. c. 76. •. 4. inquisitioti being a proceeding only (x) S. 16. 4^ Of jSidsemces to HigJncai/s. [bookij. wanted for such purposes, for their recomppnce ; and pro- vides, that if they cannot agree, the same may be assessed by a jury at the quarter sessions : and, after directing the proceedings in such event, it enacts that," upon payment or " tender of the money, so to be awarded and assessed, to the " person or persons, bodies politic or corporate, entitled to " receive the same, or leaving it in the hands of the clerk " of the peace of such limit, in case such person, &c. cannot " be found, or shall refuse to accept the same, for the use " of the owner of, or others interested in the said ground, " the interest of the said person, &c. in the said ground " shall be for ever divested out of them ; and the said " ground, after such a2:reement or verdict as aforesaid, shall " be esteemed and taken to be a public highway, to all in- " tents and purposes whatsoever." (^) When such new highway is made, the old highway is to be stopped up, and the land thereof sold by the surveyor in the manner directed in the act ; but if such old road shall lead to any place which cannot, in the opinion of the justices, be accommodated with a convenient way or passage from the new highway, then the old highway is only to be sold, subject to the right of way and passage to such place, (s) This power of jj j^gs been decided, that the power thus given to two ius- justices lo or- , ' "^ -^ dtrro.idstobe tices to order any highway to be widened extends to roads r ,'".^ , repairable ratione lenurct : and that upon disobedience to u'lids to ro ids ' ' r«p.iir,il)le ra- such order the party may either be proceeded against sum- tnura:. ,„y,.j]y under the statute, or by an indictment as for an oflencc at conunon law. (r/) 13 Geo. III. c '^p},f. nineteenth section of this statute then enacted, that 78. tt. 19. ro- . . ' i)(:il -d ill |»;iri higliwuy". bridlcwass, and footways, might be turned by the c^G8 '^^ justices, at their special sessions, with the consent of the owners of the lands, so as to make them nearer and more (y) S. 16. There is a iiavinp to (s) S 17. tht' oviicrs ofthe giound otiiiiiics, (a) \ Hawk. P. C. c. 76. 8. 57. limber, Ike. Ucx r. buimc, Cowp. 648. CHAP. XXXI. §2.] What a Public Highway. 455 convenient to the public ; and provided for an appeal to the quarter sessions by persons injured by any such proceeding, or by the inclosure of any road by an inquisition upon a writ o^ad quod damnum : but this part of the section is re- pealed by a recent statute, 55 Geo. III. c. 68. which recites that it was expedient tliat more public notice should be given of any order or proceeding for diverting or stopping any such ways ; and also that a greater facility of appeal to the quarter sessions against such order or proceeding should be given to any person aggrieved tiiereby ; and also that the justices of peace should have power, under certain regula- tions, to stop up unnecessary highways, bridleways, and footways. The second section of the statute 55 Geo. III. then enacts, 5.5 Geo. III. c. that when it shall appear, " upon the view of any two or more ^h." .*m y^ "f" " of the said iustices of the peace, that any public highway, rertiiu csts, , r 1 1- X J A. with the coii- " or public bridleway or footway, may be diverted, so as to gp^.tofthe " make the same nearer or more commodious to the public, owners oi the lauds, by or- " and the owner or owners of the lands and grounds jeriitdspe- " through which such new highway, bridleway, or footway ^''^' sessions, o o J ' . ' . divert, etc. " so proposed to be made, shall consent thereto, by writing hi^^hwjys.bri- " under his or their hand and seal, or hands and seals, it fy^i^y^yg'"' " shall and may be lawful, by order of such justices, at some " special sessions, to divert and turn, and to stop up such " footway, and to divert, turn, stop up, and inclose, sell, and " dispose of, such old highway or bridleway, and to pur- " chase the ground and soil for such new highway, bridle- " way, or footway, by such ways and means, and subject to " such exceptions and conditions, in all respects, as in the " said recited act mentioned with regard to highways to be '' widened or diverted; (6) and also when it shall appear, Andthejus- „ . .... ,, tiii's ina> :iNo « upon the view of any two or more of the said justices ot order uui.-- " the peace, that any public highway, bridleway, or foot- '^'*''">^)|j^'|j' " way, is unnecessary, it shall and may be lawful, by order „ ,;^ ;,,„i " of such justices, or any two of them, to stop up, and to sell [^'^''J^^^^ y'^^''*" {b) 13 Geo. III. C. 78. s. 16. Ante, 453, 434. 456 OfXuisancestoHigh'JoaT/s. [bookii. " and dispose of, such unnecessary liighway, bridleway, or " footway, by such ways and means, and subject to such " exceptions and conditions in all respects as in the said " recited act is mentioned, in regard to highways to be « widened and diverted ; except that the money to arise " from such sale, where, by the said act, it would be appli- " cable to the purchase of the ground and soil of the new " highways or bridleways therein mentioned, shall be paid " to the surveyor or surveyors, and be applied towards the " general repairs of the highways and bridleways of the " parish, township, or place, within which the said highway, " bridleway, or Ibotway, so stopped up, shall be situate r But a notice " provided that in the several cases before mentioned a no- must be affix- ii jj^g j,j ^jjg f^j,j^j jjj. ^Q ^},g gg-gj,j of the schedule (c) to this cd at the ' place, &€. be " act annexed, shall be affixed in legible characters at the inserted in ;i ,, , ^^^ j , , ^j ^jj^^ ^ ^j^^ ^^l^l highway, bridlewa} , or newspaper. l J . " and also aflix- « footway, from whence the same is directed to be turned, of ihe^hurdi' " diverted, or stopped up, and also inserted in one or more &<•• " newspaper or newspapers published or generally circu- " lated in the county where the parish, township, or place, « in which the highway, bridleway, or footway, so ordered " to be diverted and turned, or stopped up, as the case may *• be, shall lie, (or, in case no such newspaper shall be so " published or circulated in such county, then in any news- *' paper or newspapers published or circulated in the nearest *' adjoiniug county) for three successive weeks after the (c) The form of Ibe notice is this •. dcrcd to be aloppcd up :) and Uiai " Notice in hereby given, tliat on the said order will be lodged with the day of last an the clerk of the peace for the said order was signed I)y J. W. and T. county, at the general quarter ses- H. two of his raajestys justices of gjoiis of tlie peace to he holdcn the peace ill an ■> ft ^ r o made, or if " be confirmed by the said court, the said inclosures may be J^Lkme'iuhe " ™ade, and the said ways stopped ; and the proceedings wa\smaybe « thereupon shall be binding- and conclu'^ive to all persons the'pmci'd- " whomsoever ; and the new highxcays, bridledoaj/s, and foot- ings are to be a -^ai/s, so to be appropriated and set out, shall be and for bindino; and ^ ^ ,,,.,., 7 -.i ^ j conclusive, " ever after continue a public highwaij, bndlex£ay, or Joot- hVh '- ''^& " ^^y^ ^° "^' intents and purposes whatsoever : but no inclo- are to be pub- " sures of such old liigluvays, bridleways, or footways, (ex- &c.^'o'!iIAn-' " cept in the case of stopping up of such useless highways, tents and pur- « bridleways, or footways, as hereinbefore is mentioned,) ^^^"" « shall be made, until such new highway, bridleway, or " footway, shall be completed and put into good condition " and repair, and so certified by two justices of the peace " upon view thereof; which certificate shall be returned to " the clerk of the peace, and by him enrolled amongst the " records of the court of quarter sessions next after such " order as aforesaid shall have been confirmed or enrolled " pursuant to the directions hereinbetbre contained ; but " from and after the enrolment (r/) of such order and certi- (d) lu section 19 of Ibc 13 Geo. is doubled whether that statute in- III. c. 78. the words were " from tended that a transcript should be and after such certificate," but in made. De I'onthieu v. Penny fca- other respects the clause was nearly ther, 5 Taunt. 634. In the same similar to that in the recent sta- case it seems to have been consi- tute ; and upon that section it was dered, that as the statute 13 Geo. held by the court of Conuiion Pleas HI. did not prescribe any parlicu- that il tile orders and certilicatcs lar form of cerlificale, by the ina- of inaj;istrate« were delivered to gislrales, of the new road being the clerk of the peace to he en- conijjlete and in >;ood condition rolled, the sLilute was satisfied, and repair, previous lo the stop- allhough the clerk of the peace pi";; »!» of the old road, a recital made no transcript thereof, the that they had so certified, con- stalule bein;; only directory to the tained «ilher in the order for di- oflicer as lo the enrohncnt ; aud it verting the road, or ia Uic order CHAP. XXXI. § 2] What a Public Highway. 459 " ficate, such old highway, bridleway, or footway, shall be " stopped up; and the soil of such old highway or bridleway " sold, in the manner, and subject to the reservations and " restrictions in the said recited act mentioned, with re- <' spect to highways to be diverted by virtue of the said re- " cited act. (e)" A part of section 19 of the 13 Geo. III. c. 78. remains 13 Geo. III. unrepealed by the 55 Geo. III. c. 68. and by this it is where ways enacted that " where any highway, bridleway, or footway, had been di- verted Jibovc " hath been diverted and turned above twelve months, ig months, *' either from necessity, where the same have been destroyed and others made in iieu " by floods, or slips of the ground on which they were thereof and " made, or from other causes and motives, if new hiffhways, acquiesced m, ' 7 o J 7 the new ways " bridleways, or footways, ^are been made in lieu thereof were to be the " nearer or more commodious to the public, and the same ^^ ^^ ways, " have been acquiesced in, and no suit or prosecution hath *' been commenced for the diverting or turning the same, " every new highway, bridleway, or footway, set out and " used in the place of that so diverted and turned, shall from " henceforth be the public highway, bridleway, or footway, " to all intents and purposes whatsoever." But it has been decided that this clause is only retrospective in its opera- tion. (/) It frequently happened that the boundaries of parishes 34 Geo. Ill, c. passed through the middle of a hiarhway ; one side of ^^- , Where . " . . . , the bounda- the highway being situated in one parish, and the other ries of parishes side of the highway being situated in another parish, JJg'of ^^""Jl whereby great inconveniencies arose to the parishes in way twoju*- for stopping up the old road, was {f) Waite v. Smith, 8 T, R, 133, a sufficient certificate within the Lord Kenyon, in giving hisjudg- 19th section. raent, said, " If any jobs had been (e)F/E the 13 Geo. 111,0.78. s. 17, "done before the act passed, that an/e, 453, 454. The 55 Geo. III. c, "act has certainly cured them: 68. is not to annul or affect any or- " but the legislature did not nieaa der or proceeding made or had previ- " to give a sauctioa to any jobs ia oug to the passing of the act. S, 5. " future." 460 Of Nuisayiccs to Highicays, [book ii. tices may di- settling the time and manner of repairing such highway : and vide the hiffh- . , ^ • i i i ., o.i ^-i T»r ^/ . ^ . * it was therefore provided by iJie 34 Geo. III. c. 64. that transverse two justices, upon application by the surveyor, may divide the whole of any such common highway, by a transverse line crossing it, into two equal parts, or into two such unequal parts and proportions as in consideration of the soil, waters, floods, the inequality of such highway, or any other circum- stances, they think just, {g) Hio-hwavs Besides the methods which have been already mentioned, may bechanp- roads are sometimes changed or stopped, or new ones created titular acts of ^Y turnpike acts, inclosure acts, or other acts of parliament, parliament. containing specific enactments for such purposes ; but such new roads may or may not be public, according to the pro- visions of the particular acts; and we have seen that where a road was set out by commissioners under an inclosure act? the number of persons using or repairing it would not make it a public way, it not being common to all the king's sub- jects, {h) And in some instances by private indi- Tiduals. In some instances a highway may, it seems, be in some measure changed or confined to a particular course by a pri- vate individual ; as, where it lies over an open field, and the owner of the field turns it to another part of the field foi" his own convenience, or incloses the field for his own be- nefit, leaving a sufficient way.(t) But in such case, as the public had clearly a right before such alteration to go upon the adjacent ground when the way was out of repair, the owner of the field can only make the alteration subject to the onus of making a good and perfect way. {!<) (g) I'he act sets forth particii- farly the proceedings to be had for the purpose of such division : and afterwards enarfx an fo Ihc liabili- ties of the parishes ri-sprrlivcly to repair their portions after such di- vision ; which provisions, as lo the repairing, will be further noticed in a subsequent part of this chapter, upon nuisanccii in not repairing highways. {h) yinte,U9. (i) SSalk. 185. (k) Id. Ibid. And see the caiel collected in Rex v. Stoughlon, 9 Saund. 160. a note (19). And i^ CHAP. XXXI. §2.] By Obstructions. 461 Having thus enquired concerninff the different sorts of Of n"'"*""! o 1 "=* to higliwayii highways, and tlie methods by which they may be changed, by obsiruc- widened, or stopped up, we may now consider of nuisances '" ' to highways by obstructions. There is no doubt but that all injuries whatsoever to a highway, as by digging a ditch, or making a hedge across it, or laying logs of timber in it, or by doing any other act which will render it less commodious to the king's subjects, are public nuisances at common law. (/) And it is clearly a nuisance at common law to erect a new gate in a highway, though it be not locked, and open and shut freely ; because it interrupts the people in that free and open passage which they before enjoyed and were lawfully entitled to : but where such a gate has continued time out of mind, it shall be in- tended that it was set up at first by consent, on a composi- tion with the owner of the land, on the laying out the road ; in which case the people had never any right to a freer pass- age than what they continue to enjoy, {m) It is a nuisance to suffer the highway to be incommoded Obstructions by reason of the foulness of the adjoining ditches, or by andannoy- •' . . ances in higu- boughs of trees hanging over it, &c. ; and an occupier, ways by meani as such, though at will only, is indictable for suffering a "„<, 0*!^^^^ ^"* house standing upon the highway to be ruinous ; and it is ditches not said that the owner of land next adjoining to the highway, carrra"-es, &c.' ought of common right to scour his ditches; but that the Ifttinsuch ... , . highways, owner of land, next adjommg to such land, is not bound by misconductof the common law so to do, without a special prescription : ^"^^"' ^^y^ ' r r r the cxccssiva and it is also said that the owner of trees hanging over a loading of highway, to the annoyance of travellers, is bound by the *^^"'^S«*' common law to lop them ; and that any other person may lop them, so far as to avoid the nuisance, (w) The general also pojf, as to the repair of high- (A 3.) ways. (n) 3 Bac. Abr. Highwa\i» (E). 1 (0 1 Hawk. P. C. c. 76. 8. 144. Hawk. P. C. c. 76. s. 3. 8. 147. (m) I Hawk. P. C. c. 75. s. 9. and But the building of a house in a c. 76. 8. 146. 3 Cora. Dig. Chemin larger manner thaa it wai before, 462 Of Ktiisances to Highways. [boor ii. highway act also relates to offences of this description, im- posinir pecuniary penalties upon persons obstructing; high- ways by means of trees or hedges, and omitting to cleanse and scour their ditches, drains, and watt r-courses ; and penalties are also imposed upon persons laying stones, tim- ber, or other matter, or leaving any carriages, or imple- ments of husbandry, in the highways ; and also upon per- sons encroaching upon them, (o) Provision is also made for the punishment, by similar penalties, of drivers of car- riages who may create annoyances in the public ways by their misconduct, (p) And with the view of preventing the highwavs from being destroyed by the narrowness of the wheels of the carriages travelling thereon, and by the ex- cessive burdens which might be carried in them, it is enacted that no waijgons, &c. the wheels of which are of a specified breadth, shall be drawn with more than a certain number of horses, on pain that the owner forfeit five pounds, and the driver ten shillings, for every horse or beast above the number. (- of a particular street should be under tlie care of commissioners, and provided a fund to be applied to that purpose, and another statute, which was passed for pavino; the streets of the parish, contained a clause that it should not extend to the particular street, it was held tliat the inhabitants of the parish were jiot ex- empted from their common law liability to keep that street in repair; that the duty of repfiiring might be imposed upon others, and the parish be still liable ; and that the parish were under the obligation, in the first instance, of seeing that the street was properly paved, and might seek a re- medy over against the commissioners. (/O No agreement can exonerate a parish from the common law liability to repair ; and a count in an indictment against the corpora- tion of Liverpool stating that they were liable to repair a highway, by virtue of a certain agreement with the owners of houses alongside of it, was held to be bad ; on the ground that the inhabitants of the parish, who are prima facie bound to tlie repair of all highways witliin their boun- daries, cannot bo discharged from such liability by any agreement with others. (?) Formerly it was held that if a parish lay in two counties, the inhabitants of that part of the parish in which the road cliargcd to be out of repair lay were bound to repair it, and not the inhabitants of the whole parish. (/.) But it has been more recently decided that if part of a parish be situate in one county and the rt st in another, and a higluvay lying in one part be out of ro]);iir, an indictment against the in- luibitants of that part only is bad : and that in such case the indictment must be against the whole parish. (/) And it apj)ears to have been always considered that the indict- {h) Hex r. Ihc liilialdtaiils of Si. .'} Bar. \I)r. I/ifrhwai/s (F). George, HanovrrSqujirr, M ("aiiijtl). (k) Hvx v. Ill'- iiihabilaiits of 2'2'i. Wrsh.ii, 1 Burr. 4507. (»■) Rev V. llie Mayor, Afc. of (/) Itrx v. the Inhabitants of UvcrpooJ, 3 £a»t. 8G. And sec Clil'lou, 5 T. U. i'Js. of them. CHAP. XXXI. § 2.] By not Repairing. 4G7 ment under such circumstances must be preferred in tliat county wherein the ruinous part of the road lies, {m) The statute 34 Geo. III. c. 64. which, wlien the boun- Rcmir of daries of parishes are in the middle of highways, gives two ^^•^(!,7il^,yai'. justices power to divide such highways by a transverse line, lotied by jus- . tices ou ac- has been already noticed, (w) The object of that statute count of the was to facilitate the repairing of a hi'i-hway so situated ; and l)"uiularies of I ^ ^' J parishes beingf it enacts that the justices may order that the whole of such in the middle highway, on both sides, in one of such parts, shall be re paired by one of such parishes ; and that the whole of such highway, on both sides, in the other of such parts, shall be repaired by the other of such parishes : and that they shall cause their order and a plan of the highway to be filed with the clerk of the peace. It then enacts " that after such *' order and plan shall be so filed with the clerk of the *' peace as aforesaid, such parishes, and the inhabitants " thereof respectively, shall be bound, as of common right, " to maintain and keep in repair such parts of such com- •' mon highway so allotted to them as aforesaid, and shall " be liable to be prosecuted and indicted for neglect of such " duty, and shall in all respects whatsoever be liable and " subject to all the provisions, regulations, and penalties, *' contained in any act or acts of parliament, for the repair " of the highways which are or shall be in force, in like " manner as they are liable and subject to with respect to " the repair of any other common highway within such (vi) Rex V. the Inhahilants of " in the parish with process; he Clifton. 5 T. R. 498. and Rex v. " may compel the appearance of Wesloii, ««/t', note (k). In Rex v. •' any two, who live within the Clilioi!. Lord Kenyon, C. J. in an- " county, upon whom the whole swer to OiiC of the supposed diffi- " lino may l»c levied ; and the rest cultics of this mode of proceeding " of the iuhahibints must rc-iiu- said, " ou an, indictment against " burse those two under the ge- *' a parish for not repairing a ro; aeral highway act," (13 Geo. III. " it is not necessary for the pro- c. 78. s. 47). " sccutor to serve every individual (n) AntCy 459, 460, 2h2 468 Of Kiiisances to Higlmays, [book if. '* parishes respectively ; and also sliall be discharged from " the repair of such parts of such Jiighway as shall not be " included in their respective allotments." (o) It is further enacted that the statute shall not affect or alter the boun- daries of counties, lordships, ttc nor any other division of public or private property, nor the boundaries of parishes, otherwise than for the purpose of repairing such particular portion of the highways, {p) 7\nd also that it shall not re- late to highways repairable by any bodies politic or corpo- rate, township, ^c. or by n private person ; but in case such bodies politic, &c. shall be desirous to be placed under its regulations, and the parties bound to the repair of the other side of the highway consent, two justices may make an or- der for the purpose. («y) In a case where a road lay in two parishes, and no division and allotment under this statute had been made, it was held that an indictment against one of the parishes, for not repairing one side of the road, ought to have stated that the parish was liable to repair ad filuin xioe : and it seems that in such case it is not sufficient to aver that a certain part of the road (setting out the length and one half of the breadth) is out of repair, and that the inhabitants, &c. ought to repair it. (r) EsrppUonsto Exceptions were taken to an indictment, for suffering a that tt i»"i"o"^' highway to be very muddy, and so narrow that people could ofltnrc for not pass without danger of their lives : first, that it is no iHMlirt?, ;irnl oflence for a highway to be dirty in winter ; and, secondly, thaiihciKiri-^h that the parish had no power to widen it, as there was a lott.ie/ea particular power vested by act of parliament in justices of hij^hwuj. ^1,(3 peace to do so. The indictment was held bad for want of saying that th(? way was out of repair; and one of the judges observed, that saying that the way was so narrow that the people could not pass was repugnant to its being (u) S. 2. (r) Itcx t'. tlic IiihabiLaiils of St. (;j) S. 4. I'ancras, I'caki; R. 'il9. (7) S. 5. CHAP. XXXI. § 2.] By not Repairing. 469 ** the king's highway ;" for that if it had been so narrow, the people could never have passed there time out of mind, {s) But tliouglj the parish is bound prima facie and of com- Particular mon riglit to repair the highways within it, yet a particular o" a iKilTsh" or subdivision of a parish, or particular individuals, maybe particular in- liable to relieve them from that onus, by reason of pre- beliablL-Vo scription, or the inclosiire of the land in which the high- r^^pair high- ,. . ways. way lies. Thus the iidiabltants of a district, township, or other divi- sion of a parish, and also particular individuals, may be bound to repair a highway hy prescription ; and it is said, that a corporation aggregate may be charged by a general prescription that it oiigl>t and hath used to do it, without shewing that it used to do so in respect of the tenure of cer- tain lands, or for any other consideration ; because such a corporation never dies, and therefore, if it were ever bound to such a duty, it must continue to be so ; neither is it any plea that the corporation have done it out of charity. (O But it is said, that such a general prescription is not suffi- cient to charge a private person ; because no man is bound to do a thing whic'i his ancestors have done, unless it be for some special reason ; as having lands descended to him holden by such service, &c.(m) It maybe observed that, where the origin of a way is accounted for, the prescription is destroyed, {w) Where lands bound to the repair of a bridge or highway Eachofseve- ... 1 , 1 ^ p ral persons, ratione tenurcK are conveyed to several persons, every one ot beinecrrantees the grantees, being a tenant of any parcel, is liable to the of lauds . I . ■ I I • r- 1 1 hound lo re- whole charge, and must have contribution trom the others, pair, is liable So where a manor so bound is conveyed to several persons, *" ^^'^ whole («) Rcj;. V. the Inhabitants of Bac. Abr. /lighwaj/t (F). Stretford, 2 Lord Rayni. 1169. (u) fd. Ibid. (0 I Hawk. P. C. c. 76, s. 8. 3 (x-) Rex v. Uudson, 5 Str. 909. 470 Of Xiiisances to Highicai/s, [bookii. a tenant of any pnrcel. either of the demesnes or services, is liable to the nhole repair, and may call upon the tenants of the residue to contribute ; and the grantees are chargeable Avith the repair, thougli the grantor should convey the lands or manor discharged of the repair ; and the grantees must have their remedy against the grantor. And the reason seems to be, because the whole manor or land, and every part thereof, in the possession of one tenant, being once chargeable with the repair, it shall remain so, notwithstand- ing any act of the owner. For the law will not suffer him to apportion the charge, and so make the remedy for the public benefit more diflicult ; or, by alienations to insolvent persons, to render the remedy against such persons quite frustrate. And though such lands or manor come into the hands of the crown, yet the obligation or duty continues ; and any person afterwards claiming the whole, or any part of it, under the crown, will be liable to an indictment for not repairing, (.r) Ofthcliability As an inclosiire of a highway takes away tlie liberty and to repair by convenience which the public have of going upon the ad join- reason ulin- _ • . V . closure. ing lands ^hen the highway is out ol' repair, (j/) it has been holdcn, that if the owner of lands not inclosed next adjoining to a highway incloses his lands on both sides, he is bound to make a perfect good zcai/ as long as the inclosure lasts ; and is not excused by shewing that he has made the way as good as it was at the time of the inclosure ; because, if it was then defective, the public might have gone upon the adjoining land. (~) So if a man incloses land on one side, wliich has been anciently enclosed on the other side, he ought to repair all the way; but if there is no such ancient inclosure on the (x) Note (9) to Rex V. Stoiigli- DiiiironiI)c's case, Cro. Car. 366. ton, 2 bauiul. 159. citing Itcfj. j-. Henn's case, Sir W. Jones, 296. Duclieus uf Bucdt'iii^h. 1 Salk. Sly. 364. 2 Lonl Ray in. 1170. 33S. 3 Wwvr .t jipor lion Jiicnt, 5. 1 Hawk. P. C. c. 76. s. G. 3 Bac. pi. 9. Abr. llijihiiLayH (F). Rex v. Slough- {y) Jnte, 460. tou, 2 tJauutl. 160. uolc (12). (s) 1 Roll. Abr. 390. (B) iil. 1. CHAP. XXXI. § 2.] By not Repairing. 471 other side, he ought to repair but half tlic way : thus, if there be an old hedge, time out of mind, belonging to A. on the one side of the way, and R. having land lying on the other side, make a new hedge, there B. shall be charged with the whole repair; but if A. make a hedge on the one side of the way, and B. on the other, thoy shall be-chargeal)lc by moieties. («) But a person, having made himself liable to repair a highway by reason of inclosure, may relieve him- self from the burthen of any further reparations by throwing it open again. (/>) Thus it was ruled that if a person re- move an encroachment, and leave that part of the road which was injured by the encroachment in a perfect state, his liability to repair ralione coarcAaiionis ceases, (r) But it was held, in the same case, that if a person charged ralione temircE pleads that the liability to repair arose from an en- croachment which has been removed, and it appears that the road has been repaired by the defendant for twenty-five years since the removal of the alleged encroachment ; this is presumptive evidence that the defendant repaired ratione tenurae generally, and renders it necessary for him to shew the time when the encroaclnnent was made.(, he will be still Hex V. Staujjhtoii, 1 Sid. 464. 1 bound to repair, Ihoiigh he lay the Hawk. P. C. e. 70. s. 7. Rex v. ground open to the highway. 3 Staiio-hton, 2 Saund. 161. note(12). Salk. 392, (ft) 3 Bac. Abr. Ibid. Rex v. (c) Rex t>. Skinner. 5 Esp. 219. Flecknow, 1 Burr. 465. 1 Hawk. ( the com- their full work required by statute; for the statutes, being mou law pro- . ' c visions. made in the alTirmative, do not abrogate any provision ot this kind by the common law.(/) If trustees under a road act turn a road through an inclo- Trustees uu- , _ , ,1 • 1 • der a road act sure, and make the fences at their own expence, and repair ^^t obliged to them for several years, they cannot be compelled to continue repair leuc*;s. such repairs, unless there be a special provision in the act to that effect. (A) In this case it was considered, that what is meant by a road is the surface over which the king's subjects (h) Some of its provisions and 54 Geo. III. c. 109. and 55Gco. III. enactments have received altera- c.08. jinlt',45ri.£t sequ. tions from time to time by diflfor- (i) 1 Hawk. P. C. c. 76. s. 43. 3 ent statutes ; araonojst otliers by Bac. Abr. Ifighn'ttj/s (G\ 34 Geo. III. c. 64. avtr, 4r>9. 34 (A) Rex «. the Com. of the Llan- Geo. III. c. 74. 44 Geo. III. c. 52. dilo District, 2 T. R. 232. 474- Of Xuisanccs to Hfghwc/T/s. [book ii. have a riglit to pass, and not the fences on each side : and that the owners of the land are bound to repair the fences on each side, unless otherwise provided by the act. (/) Construction It has been held tliat a turnpike act, givino- directions for of a turhiJiko repairing: the road to and from a town, excludes the town, (m) act. — Exclud- I c 1 • 1 1 • • 1 • inn-thcrt-pairs In the case upon which the decision was made it was stated, of a road in a ^j^^^ y^^ town had, lately before the act was passed, been town. . . . . pavedhy the inhabitants, and that it was kept in repair by them, and was then so : and in several parts of the act the roads were described as leadinij^ from, to, and throitgh, par- ticular towns ; but when it mentioned the town in ques- tion, it only said to and from the town, omitting the word " t/iroughr (n) Commission- The commissioners appointed by the 6 Geo. III. c. 78. inclosurt- act C*^" •^''^ '*^^ dividin<^ and inclosing certain lands in the parish not empower- of Cottiiigham) which enacted, that the public roads to be the repair of set out by them should be repaired in such manner as other prnatero.'ids public roads are by law to be repaired, and that the private on the parish. ' , , , • i , , , roads should be repaired by such person or persons as they should award, have no power to impose on the parisli at large the burden of repairing any of the private roads set out in pursuance of the act. (o) Award under Upon an indictment against the parish of Jlaslingfield, '"' '" . '"'"7 for not repairing a highway, an award made bv commission- act rejected as . . ' . evidence of ers under an inclosure act, which awarded the highway to J* K.'. "\*\iw be in a dilVcrent i)arisli, was holden not to be admissible evi- u»a;,'cnotha\- Jence for the defendants, without shewing that the commis- in^r l)e(ii pur- . • i • .• i • i ^i ^ • i ^ i • fcuaiii lo ii, sioncrs had given notices winch the act required to be given norilie proper prcviouhlv to the bouiuhiries having been ascertained by notices pro\- . " • i i ^d. them ; it appearing that tlie usage had not been pursuant to (■/) Hex t'. the Com. of llir l.l:m- lliii;a\, 1 t-earli .■)2S. and Uex v. dilo District, 2 T. K. vJlJii. ilarr()\». 1 Hiirr. yO!U. {in) Hammond i^. Brewer, 1 Ihirr. («» Itcx r. Ilic Inlialiitaiitsof Cot- R.376, liiif^bam, H T. H.20. (n) Id. Ibid, and sec Ilcx v. Gaui- CHAP. XXXI. § 2.] Modes of Proceeding. 475 the award: the defendants having since the award, as well as before, repaired the highway. The learned judge who tried this case reported that he shonld have had no diffi- culty in admitting the award, and, if the usage had been pursuant to it, presuming that the proper notices had been given, (p) We may now shortly consider the modes of proceeding by which persons guilty of these nuisances to highways may be prosecuted. Nuisances or annovances to hiijhways, whether positive, Proceeding* ., , . . , , against parlic* in the nature of actual obstructions, or negative, by the „uilty of nui- defect of proper reparations, may be made the subject of •''J'^^" '" i indictment, which is the more usual course of proceeding, indictinent. And the 13 Geo. III. c. 78. s. 24. enacts, that « every jus- JJ'iSrma"*' " tice of assize, justices of the counties palatine of Chester, tioa. " Lancaster, and Durham, and of the great sessions in " Wales, shall have authority, by this statute, upon his or " their own view, and every justice of the peace, either " upon his own view, or upon information upon oath to " him given by any surveyor of the highways, to make j;re- " sentment, at their respective assizes, or great sessions, or " in the open general quarter sessions, of such respective " limit, of any highway, causeway, or bridge, not well and " sufficiently repaired and amended, or of any other de- " fault or offence committed and done contrary to the pro- " vision and intent of this statute; and that all defects in Presentment " the repair thereof shall be presented in such jurisdiction jurisdiction " where the same do lie, and not elsewhere ; and that no wlKrcthe nui- sance IS. And " such presentment, nor any indictment for any such de- no prcscnt- " fault or offence, shall be removed by certiorari, or other- ',"'^""* '"^.T'l.^ " wise, out of such jurisdiction, till such indictment or pre- removed l)y " sentment be traversed, and judgment thereupon given, " except where the duty or obligation of repairing the said (p) Rex V. the Inhabitants of Haslingfield, 2 M. and S. 553. 476 Of .Xidsances to Highwai/s. [book ii. Fines may be assessed upon siuh present- ment. Right of tra- ■verse saved in case of pre- sentiueut. Expenros of prosecution upon Rurh prcscnlnicnts. " hijrhways, causeways, or bridfi^es, may come in question ; " and tliat every such presentment made by any such justice " of assize, counties palatine, great sessions, or of the peace, *' upon his own view, or upon such information having been " o-iven to such justice of the peace upon the oath of such *' surveyor of the highways, as aforesaid, shall be as good, " and of the same force, strength, and effect, in the law, " as if the same had been presented and found by the oaths " of twelve men ; and that for every such default or offence " so presented, as aforesaid, the justices of assize, counties " palatine, and great sessions, at their respective courts, and " the ju-tices of the peace, at their general quarter sessions, " shall have authority to assess such /ifies as to them shall " be thought meet: saving to every person and persons " that shall be a fleeted by any such presentment, his, her, " or their lawful traverse to the same presentment, as well " with respect to the fact of non-repair as to the duty or '• obligation of repairing the said highways, as they might " have had upon any indictment of the same presented and " found by a grand jury; and the justices of the peace, at " their general quarter sessions, or the major part of them, " may, if they see just cause, direct the prosecutions upon " sucii presentments as shall be made at the quarter sessions " as aforesaid to be carried on at the general expence of " such limit, and to be paid out of the general rates within " the same." Information. Another mode of proceeding is by in formation, which may be granted by the court of King's Bench at their dis- cretion. But they will not grant an information to compel a pari>h to n|)air a highway, which is not much used ; and when it appears that another highway, equally convenient to the i)ul)lir, is in good repair. And indeed they never •rive leave to file an information for not repairing a high- wav, unless it appear that the grand jury have been guilty of gross mislxdjaviour in not finding a bill ; and they re- fuse it for this reason that the fine set on conviction upon CHAP. XXXI. §2.] Lidiclment or Presentment. 477 an information cannot be expended in the repair of the highway ; whereas on an indictment it is always so ex- pended, iq) Thonj^h it is often stated in indictments or presentments Of the fona for nuisances to highways, that " from time whereof the ^^^^.Jll'^^r'J^r*!!: " memory of man is not to the contrary," or " from time seatment. (r) " immemorial," there was and is a common and ancient king's highway, yet it is not necessary to do so ; for it is sufficient to state in a compendious manner tliat it is a high- way. is) But the highway must be alleged in the present- ment or indictment to lie in the parish indicted, otherwise it is not bound to repair it ; and if it be not so alleged, the indictment or presentment is erroneous, and judgment will be reversed. (0 Where the indictment is against a parti- cular person, charging him with the repair of a highway in respect of certain lands, it seems that the occupier, and not the owner, is the proper person against whom the indict- ment should be brought ; on the ground that the public have no means of knowing who is the owner of the lands charged with the repair : and it does not seem to be ma- terial what estate the occupier has in the lands liable. (//) The averment of obligation to repair, in an indictment against a person for not repairing hit/ reason of tenure^ will, it seems, be sufficient, if it state that the defendant ought to repair, bi/ reason of the tenure of his lands, without adding that those who held the lands for the time being have immc- {q) 3 Bac. Abr. Highways (H). is referred to the Cro. Circ. Comp. Rex i>. the Inhabitants of Steynin^r, (8th ed.) 301. 6 Wentw. 405. 2 Say. 92. Starkie 60 1. 3 Chit. Criiu. L. 576. (r) It is not within the scope of 607. and the notes to Rex r. this work to treat particularly of the Stoughton, 2 Saund, 157, et $equ. formsofthe|ile:idino;s, though some (s) Aspindall v. Brown, 3 T. R. of the prominent points concerning 265. them are occasionally mentioned. (0 Rex r. Hartford, Cowp. 111. Foriudictmf'iits, pleas, &c. relating (m) Reg. v. Watts, 1 Salk. 357. to nuisances to highways, the reader Reg. v. BuckncU, 7 Mod. 55. 3 478 Of Nuisances to Hi gkwai/s. [bookii. moria/h/ repaired ; a prescription being- implied in the estate of inheritance in the land, (w) But an indictment against a particular part of a parish, such as a district, to^vn-;hip, division, or the like, for not repairing a highway in the parish, stating that the inhabitants of the district from time immemorial oifglit to repair and amend it, is er- roneous ; it should state that the inhabitants of such district from time whereof, &c. have used and been accustomed, and of rio-ht ought to repair and amend it : for the inhabitants of a particular division of a parish, not being bound to re- pair by common law, and their obligation arising necessarily only from custom or prescription, the indictment ought to shew such custom, prescription, or reason, of their obliga- tion. Cr) So it has been decided that a presentment under the statute 13 Geo. III. c. 78. s. 24. against a smaller dis- trict than a parish, must state expressly hoxs) the inhabitants tliereof are liable to the repair of the roads. ( y) A mate- rial variance from the description of the road in the indict- ment will be flital : and it was ruled that a highway leading from A, to B. and communicating with C. by a cross road, cannot be described as a highway leading from A. to C. and from thence to B. (:;) In every indictment against a parish for not repairing a highway, there are three essential aver- ments : the first, that the road is a highway ; the second, that it is out of repair, and the third, that it is situated in the parish, (a) 01 the dc- 't ^'^^ TwXedi in a late case, that if the description of a frnce iiiuler hJirlnvay in an indictment for the non-repair of it be too in- issue, and of definite, being equally applicable to several higliways, ad- thc nercKsitv ^..j,jtafrc should be taken by plea in abatement ; and that lor a spcciaj ° "^ ' (ir) Rex r. Stoughton, 2 Saund. 513. Rex v. Martoii, Aiidr. 276. 1 58. d. ii(»t. Gi«;al Canficld, 6 Esp. (r) Id. Ibid. R(.'x V. Brmifjiitoii, \'M. 5 Burr. 2700. Frcnii. .VJ2. Rex («) 2 Starkic Crim. I'lcad. 667, V. Slicflicid, 2 T. R. 111. note (/). {y) Hex V. Puiidcrryn, 2 T. R. |)lca. CHAP. XXXI. §2.] Indictment — Plea. 479 the description given, if true in fact, cannot be oljjoctod to at the trial under the plea of the general issue, {h) Where an indictment or presentment is against the in- habitants of u parish at large, who, as it has l)een seen, arc bound of common right to repair all the higliways lying within it, tliey may upon the general issue, not guiltj/., shew that the highway is in repair, or that it is not a highway, or that it does not lie within the parish ; for all these are facts which the prosecutor must allege in his indictment, and prove on the plea of not guilty, (c) But it is settled that they cannot, upon the general issue, throw the burden of repairing on particular persons, by prescription, or other- wise ; but must set forth their discharge in a special plea, {d) This rule, however, was recently held not to apply to a case where the burthen of repairing was transferred from the in- habitants of a parish to other persons by a public act of par- liament, to which all are supposed to be privy, and of which all are supposed to have cognizance, (e) Where a person is charged with the repairs of a highway, or bridge, against common right, he may discharge himself upon not guilty to the indictment : and therefore where a particular division of a parish is charged with the repair by prescriptiot), or a par- ticular person by reason of tenure or the like, which are obligations against tlie common law, they may throw the burthen either on the parish, or even on an individual, on the ffeneral issue. And the reason seems to be, because upon this issue the prosecutor is bound to prove that the de- fendants are chargeable by tenure or prescription, and there- fore the defendants may disprove it by opposite evidence : but if they will, though unnecessarily, plead the special matter, it is held not to be enough to say that they ought {b) Rex V. Hanunersmith, 1 (rf) Rex v. St. Andrews, 1 Mod. Starkie U. 357. 112. Anon. 1 Vent. 2.^6. (c) Rex V. the Inhabitants of (e) Rex i-. the lnhaltitants of gt. Norwich, I Str. 181, <•/ sequ. Rex George, 3 Campb. 2'2'2. t'. Stoughton, 2 Sauuil. 15!?. note 3. 4S0 Of Xidsances to Highicays. [book ii. not to repair, but they must go further and shew jx7/# ought, if) TraTerse of \^ ^ person indicted for not repairinsr ralione tefitirct, or a ohlif^utioii to f r o ^ repair. township, or otiicr particular persons, for not repairing by prescription, plead (though unnecessarily) to the indictment, and shew who ought to repair, as they must do, it is neces- sary to traverse (heir obligation to repair ; but if a parish is indicted for not repairing a highway, or a county for not re- pairing a bridge, and they throw the charge upon another, they ought not to traverse their obligation to repair, for it is a traverse of matter of law ; and such traverse, though very often inserted, is demurrable to, and therefore ought always to be omitted, (g) Where a pa- Where any subdivision of a parish is liable to the repair ell an 'las u I)- ^^ ^ highway, and the indictment is, notwithstanding, pre- di\isioiiol ferred against the whole parish, care should be taken to suth parish is , , , ,.,.,. „ , , ,. . . ,, .„ . , . , lialilc to the plead the liability of such subdivision ; tor it judgment be repair, the oiven acaiiHt tlie parish, whether after verdict uj)on not parish nuist » ^ ' ' . . take care to giiilty, or by default, the judgment Will be conclusive evi- plead such Jence of the liability of the zc/io/e parish to repair, unless fraud can be shewn, (h) Fraud, however, is only put for example ; for if the other districts can shew that they had no notice of the indictment, and (hat the defence was made and conducted futirely by the district in which the highway indicted lay, without tiieir liiiowledge or privity, the court will consider it as being substantially an indictment against thai district, and give the otlr.r districts leave to plead the prescription to a subse^juent indictment for not re})airing the higliways in that parish. (/) And in a late case of an (/) Hex r. Yariilon, 1 Sid. 1 10. l.")0. c. note (10). Bennel r. Fil- Hcx 1'. Ilornsey, Carth 211. Hex kins, 1 Saund. 23. note (.5). I'. City of Norwich, 1 Str. 180, ct (h) Rex v. St. Paiicras, Peake $cqu. Hex V. St. Andrews, .S Salk. H. '219. IH.'l. pi. .'}. Hex V. Stouj^hton, 2 (/) Hex v. Sloujjhion, 2 Sannd. Saund. I. ')0. a. note (10). l.')9. c. note (10). Rev v. TPowu- (g) Hex V. Stoiiglitoii, 2 Saund. itcud, Duugl. 421. CHAP. XXXI. §2.] Evidence. 481 indictment for not repairing a highway against the parish of Eardishwd^ consisting of three townships, Eardisland, Bur- ton, and Ilardwicke, where there was a plea on the part of the township of Burton, that each of the three townships had imnieniorially repaired its own highways separately ; it was held, that the records of indictments against the parish generally for not repairing high« ays situate in the township of Eardhland, and the township of IJardzcickc, with general pleas of ?iot gui/h/, and convictions fliereiipon, were prima facie evidence to disprove the custom for each township to repair separately ; but that evidence was ad- missible to shew that these pleas of not guilt)/ were pleaded only by the inhabitants of the townships of Eardisland and ' Ilardwicke without the privity of Burton, (t) In a case ^ where the inhabitants of a parish pleaded that the inhabi- i tants of a particular district were bound by prescription to repair all common highways situate within that district, save and except one common highway within the said district, i it was holden that the plea might be supported, although it appeared that the excepted highway was of recent date ; I and it was also holden that in such a plea it was not neces- sary to state by whom the excepted highway was repair- able, (m) < . 1 It has been held that the record of an acquittal upon an Record of au indictment for not repairing a highway, is not evidence to ^|J"^['^'J^!^'^c^ shew that the parish is tiot liable; on the ground that some to shew that ^ other parties might have indicted them, and that those par- Ji^'J ^'j^bl J to I ties could not be bound by this record, (w) And a satis- repair. factory reason for rejecting such evidence altogether seems to be that the acquittal might have proceeded upon the want of proof that the road was out of repair, (x) In the case of an indictment for not repairing a highway, which it was | alleged the defendant was bound to repair ralionc tenurcc, \ (0 Rex r. Eardisland, 2 Campb. (Ji-) Rex v. St. Paucras, Pcake > 494. R. 219. (u) Rex II. Ecclesfield, 1 Starkie (j) Mann. lud. N. P. R. 18». R, 393. I 2 I 482 Of Nuisances to llighicai/s. [book ii. it was held that an anard made under a submission by a former tenant for years of the premises, could neither be re- ceived as an adjudication, the tenant having no authority to bind the ris;hts of his landlord, nor as evidence of reputa- tion, being post Ulan mot inn. (^) 13 G. III. c. rpjjg general hidiway act 13 Geo. Til. c. 78. s. 68. enacts 78. s. 68. Sur- n o j veyor to be a that the surveyor of any parish or place shall be deemed a competent competent witness in all matters relative to the execution witness, ami l also ail iiiha- of the act, notwithstanding his salary may arise in part from parish, &c!"iii ^^^ forfeitures and penalties thereby inflicted. And a sub- ceriaiu cases, sequent section further enacts, that no conviction shall be had by virtue of that act, unless upon confession of the party accused, or upon the oath of one or more credible witnesses, or upon the view of a justice ; and that any in- liabitant of any parish or place, in which any oflence shall be committed contrary to the act, shall be deemed a com- petent witness. The prosecu- tor may, it seems, he a witness for the prose- cution. In a late case of an indictment for not repairing a high- way, the prosecutor was examined as a witness for the pro- secution, and no objection was taken to his competency : (s) and it seems that a prosecutor in such case is a competent witness ; for, though the court is autliorized to award costs against him in case the proceeding shall appear to have been vexatious, (a) yet the court would scarcely presume, in the first instance, that the prosecutor's con- duct had been vexatious, so as to raise an objection to his competency ; especially after the finding of a bill by the grand jury. (^) (y) Rex V. Coltou, 3 Canipb. question arose, that was not pos- 444, cor. Dainpier, J. Stafford Sum. sihle. Ass. IW13. Tlielearned judge stated (-) Rex v. Hammersmith, I lliat it was a question of consider- Sliirkie R. .'J57. able importance, and of uomc no- (a) By the 13 Geo. III. c. 78. i. velty ; and wikhrd that his opinioa 64. posl, 487. upon it could be reviewed : but, (&) Rex t'. Hammcriimilh, 1 from the manner in which the Starkic R. 358, note (a). CHAP. XXXI. §2.] Certiorari. 483 Though the same statute of Geo. III. by s.2i. declares, as Certiorari. we have seen,(c) that no presentments or indictments therein mentioned shall be removed \ty certiorari before traverse and judgment, except where the obligation of repairing may come in question, yet this clause does not take away the writ at the instance of the prosecutor ; for the crown does not traverse ; and it was calculated merely to prevent delay on the part of defendants, (d) And it has been holden to be no objection to a certiorari to remove such a present- ment, that it is prosecuted by another than the justice pre- senting, if it be by his consent, (e) The 5 W. & M. c. II. s. G. also provides that if any indictment or presentment be against any persons for not repairing highways, or bridges, and the right or title to repair the same may come in cjucs- tion, upon a suggestion and affidavit made of the truth thereof, a certiorari may be granted, provided that the party prosecuting such certiorari enter into the recogni- zance mentioned in the act. In a late case it was held that, upon an indictment against a parish for not repairing a highway, the right to repair may come in question so as to entitle the parish to remove it by certiorari, though the parish plead not guilty only, it being stated in an affidavit filed by the defendants, that, on the trial of the indictment, the question, whether the parish were liable to repair, and the right to repair, would come in issue. {/) And in a more ancient case it was decided that the prosecutor may remove an indictment by certiorari, though there be no affidavit made, nor recognizance given according to the statute, (g) The general rule of a new trial never being allowed A new trial ii not allowed (c) Jnte, 475. And by s. 80. therein before mentioned, of this statute it is further enacted, (rf) Rex v. Bodeiihain, Cowp. 78. that no proceedings had in pur- {e) Rex v. Penderryn, 2 T. R. suance of the act shall be quashed 260. or Tacatcd for want of form, or (/) Rex t-. Taunton, St. Mary, remoTed by certiorari, or any 3 M. & S. 465. Other writ or process, except a« {g) Rex d. Farewell, 2 Sir. 1209. 2i2 4S4 Of Nuisances to HighzDO^/s. [boor ii. after a con- viction. where the defendant is acquitted in a criminal case has been held to prevail in a prosecution for not repairing a high- way, tliough such prosecution is usually carried on for the purpose of trying or enforcing a civil liability. (/<) But if the defendants be found guilty, and the justice of the case seem to require it, the court would probably grant a new trial, or stay the judgment upon payment of costs, until another indictment be preferred for the purpose of trying the question of liability to repair. (?) Of the judg- ment. The object of prosecutions for nuisances to highways is to effect either a removal of the nuisance in cases of obstruc- tion, or the repair of the highway in cases where the nui- sance charged is the want of reparation. The judgment of the court is usually a fine, and an order on the defendant at his own costs to abate the nuisance in the one case, (A) and in the other a fine, for the purpose of obliging the defendants to repair the nuisance : (or they will not be discharged by submitting to a fine, but a distringas will go ad infinilum until they repair. (/) But in order to warrant a judgment (h) Rex V. Silverton, 1 Wils. 298. cited 2 Salk. 646. in the note. Rex r. Mann, 1 M. & S. 337. Rex »'. Cohen and Jacob, 1 Starkic R. 516. and see Rex v. Reynoll, 6 East. 3i5. and the cases tliere cited. See ante, 4S1. that the record of acquittal is not evidence to sliew that the ]);irish is iiol liable to repair. (0 The judgment was so stayed in a case where the liability to re- pair a CMuniy bridge was in i|ues- lion. Rex v. llir Inhabitantji of Oxfordsliire. If. Kasl. ^23. It was aaid h> Lord Kenyon. C. J. in Hex V. Mawbey and others, 6 T. R. 619. — " In misdemeanors there is " uo authority to shew that wc '* cannot grant a new trial in " order that fhe guilt or inno- " cence of tliose who have been " convicted may be again exa- " mined into.' It may be observed also that, in cases of indictment* for misdemeanors, the court will, in its discretion, save the point for consideration, giving the de- fendant an opportunity, in case he shall be convicted, to move to have an ac(|uittal entered. Rex t>. Ciash ami anoUier, i Starkic R. 445. {k) Rcxf. Pajtpineau, 1 ?tr. 686. 1 Hawk. P. C. c. 7,^,. s. JT). (/) Rex V. Cluworth, J Salk. .S58. 6 Mod. 163. I Uawk. P. C. c. 76. ». 249. CHAP. XXXI. § 2.] Judgment. — Fines. 485 for abating the nuisance, it must be stated in the Indictment to he coritiniiiKg ; as otherwise such a judgment would be absurd. (;«) And if the court be satisfied that the nuisance is etFectually abated before judgment is prayed upon the in- dictment, they will not in their discretion give judgment to abate it. And though it was contended, on the authority of several cases, (a?) that if the nuisance be of a permanent na- ture the regular judgment must be to abate it, the court refused to give such judgment upon an indictment for an obstruction in a public highway, where the highv/ay, after the conviction of the defendant, was regularly turned by an order of magistrates, and a certificate was obtained of the new way being fit for the passage of the public, and the affidavits stated that so much of the old way indicted as was still retained was freed from all obstruction, (o) The 13 Geo. III. c. 78. s. 47. enacts, that no fine, &c. for Levying and ..,,., . , • 1- i. applicutioa of not repairing the highways, or not appearing to any indict- fi,icg ment or presentment for not repairing the same, shall be returned into the court of exchequer, or other court, but shall be levied by and paid to such person or persons resid- ing in or near the parish, township, or place, where the road shall lie, as the court imposing such fines, &c. shall order and direct, to be applied towards the repair and amendment of such highways ; and the person or persons so ordered to receive such fine shall receive, apply, and ao (»0 Rex V. Stead, 8 T. R. 142. liighway indicted is in repair is a (n) Rex V. Pappineau, ante, note legal instrument recognized by the (fr) Rex V. the Justices of York- courts of law, and admissible in shire, 7 T. R. 467. Rex v. Stead, evidence after conviction when the an/e, note (7h), and other cases cited court are about to impose a fine, in those. In Rex v. Wingficld, 1 Blac. Rep. (o) Rexv. Incledon, 13East. 164. 602. where a person was convicted Judgment was given that the de- upon an indictment for not repiiir- tendant should pay a fine to the ing a road ratioric iertiirie, it was king of 6s. 8rf. In Rex v. Sir Jo- held that the court would not in- seph Mawbey and others, 6 T. R. flict a small fine, on a certificate of 619. it was held that a certificate the road being repaired, until the by justices of the peace, that a prosecutor's costs were paid. 4S6 Of Nuisances to Highicoys. [book ir. count, for the same, according to the direction of such court, or in default thereof shall forfeit double the sum received; and if any fine, &c. imposed on any such parish, &c. shall be levied on any one or more of the inhabitants of such parish, &c, then that such inhabitant or inhabitants may make his or their complaint to the justices at their spe- cial sessions, and the justices are authorized by warrant under their hands and seals to cause a rate to be made according to the form and manner thereinbefore prescribed for the reimbursing- such inhabitant or inhabitants : and the rate so made and confirmed by anj two justices is to be col- lected and levied by the surveyor of the parish, &c. in- dicted ; and the surveyor is within a month after the making and confirming the rate to collect, levy, and pay, unto such inhabitant or inhabitants the money so levied on him or them as aforesaid. Upon the latter part of this section it has been held that the application for the rate to reimburse the inliabitants, on whom a fine has been levied, after a con- viction upon an indictment against the parish for non-repair, ought to be made within a reasonable time after such levy, and before any material change of inhabitants ; and the court of King's Bench refused a mandamus to the justices to make such rate after an interval of eight years; though applications had been made in the interval, from time to time, to the magistrates bclou, who had declined to make the rate on the ground that the jiarish at large had been improperly indicted and convicted, and though, so lately as the year before the application to the court of King's Hench, the magistrates had ordered an account to be taken of the (juantum expended upon the repairs out of the money levied, (p) Whtreiuni- The 13 Ceo. TIT. c. 84. s. 33. provides for a portion of t)ikc roails arc • /. • • • ■ > ■ iii(li< i( (I ilu; ihe fine bewjg paid by the tumpd^e trustees when the high- cr.iiri iiiay ^yyy j.],.jU jj^. ^ turnpike road ; and enacts that, when the pr(>]i(irti<)fi •' ' ' ' the line aud inhabitants of any parish, township, or place, shall be in- (p) llci V. the Justices of Lancasliire, 12 East. 366. CHAP. XXXI. §2.] Fines. — Costs. 487 dieted or presented for not repairing any highway, being rosis lKi\\ci-n turnpike road, and the court, before whom such indictment J|,\'], '".'',", '!,*'[,„. or presentment shall be preferred, shall impose a fine for trustees. the repair of such road, the same shall be proportioned, toge- ther with the costs and charges, between such inhabitants and the turnpike trustees as to the court shall seem just; and the court may order the treasurer of such turnpike road to pay the same out of the money then in his hands, or next to be received by him, in case it shall appear to such court, from the circumstances of such turnpike debts and revenues, that the same may be paid without endangering the security of the creditors who have advanced their money upon the credit of the tolls. The true construction of this section is, that the court which imposes the fine shall have power to apportion it between the parish and the trust ; so that where an indictment was originally preferred at the assizes, and afterwards removed into the court of King's Bench by cer- tiorari, it was held that the court of King's Bench might ap- portion the fine. (q) The 13 Geo. III. c. 78. s. 64. enacts, " that it shall be Upon the trial " lawful for the court, before whom any indictment or pre- ^JJ^" „" pj-g'. " sentment shall be tried for not repairing highways, to sentment the court may " award costs to the prosecutor, to be paid by the person or award costs. " persons so indicted or presented, if it shall appear to the " said court that the defence made to such indictment or " presentment was frivolous ; or to award costs to the per- " son indicted or presented, to be paid by the prosecutor, if " it shall appear to the said court that such prosecution was " vexatious." It has been held that it is matter to be deter- mined by inquiry whether a person is or is not the prose- cutor within this section of the statute ; and that a court of quarter sessions, before whom a parish is acquitted upon the trial of an indictment for not repairing a highway, may, by their order, award C. and E. to pay costs to tlie parish, although the names of C. and E. be not on the back of the {q) Rex V. Uppor Papworlh, 2 East. R. 41S. "^SS Of Kulsancca to U'lghxaai/s. [nooRsr indictment, find althonu^Ii the indictment orifj;inated in a pre- sentment of A. and B. constables, whose names are on the indictment : and it was also held to be enough if the order is entitled as in the prosecution of C. and E. without shewing Antlier that C. and E. are prosecutors ; and that it need not appear on the face of the order that the indictment was tried, if that appear by the record of the proceedings ; and also that the order is good in form if it be for the pajraent of the costs to the solicitor of the parish, (r) The statute does not direct any certificate to be given in a precise form of words, in order to entitle the party to costs ; therefore where the judge, on the trial of an indictment certified that the defence was frivolous, without also awarding costs in express terms, it was held that the prosecutor was entitled to costs, {s) But it has also been holden, in the construc- tion of this section of the statute, upon an indictment, which had been removed into the court of King's Bench by cer- tiorari and been sent down for trial to the assizes, where the defendants were acquitted for want of prosecution, that the court of King's Bench had no power to award costs to the defendants on the ground of the prosecution having been vexatious, but that the application ought to have been made to the judge at Nisi Prius. (t) j^siorosuun- The 5 W. and M. c. II. s. 3. (which has been already W.c. n 8. 3. cited) enacts that if the defendant, prosecuting such writ of wlmre Jhe de- certiorari as is mentioned in that act, " be convicted of the lendaiif has ^^ . . . ^ ni.u.vcd the " otlence for which he was indicted, that then the court of in.lirimcMt hy , 7 lia-d. I9H, (n) Bulbrooke f. Sir U. (Joodere 199. and others, 3 Burr. 1768. (/) Ante, 445. (o) Rex v. WatLs, 2 Esp. R. fl7fr. CHAP. XXXI. §4.] ^nd to Public Bridges. 493 said, that perhaps the expence of removiiif? the vessel nu^ht have amounted to more than the whole value of the pro- perty ; and that he was therefore of opinion, that the offence charged was not the subject of indictment. (;;) It is said to have been adjudged that if a river be stopped Of iho liahi- to the nuisance of the country, and none appear bound by /he passage'^of prescription to clear it, those who have the piscary, and the a river, and of . , , . , , , , the iiidict- neighbouruig towns, who have a common passage and ease- meniforob- ment therein, may be compelled to do it. (1. be indictable as a nuisance. CHAP. XXXI. § 4.] By Obstruct ions. 495 that a bridge may be a public britl!:je, if it be used by the pub- lic, at all such times only as are dans^erous to pas> throui>;U the river, (t/) A bar across a public bridi^e, kept locked, except in times of flood, is conclusive evidence that the pub- lic have only a liuiited ria^ht to use the bridge at such times : and if an indictment for not keeping it in repair states that it is used by the king's subjects, " at their free will and pleasure," the variance is flital. (::) But a bridge built in a public way, without public utility, a bridg* may is indictable as a nuisaace; and so it is if built colourably in an imperfect or inconvenient manner, with a view to throw the onus of rebuilding or repairing it immediately on the county, (a) I Where a bridge is. in the sense which has been described, Of nuisance* . .,, „ ,,. to bridges by i a bridge in a highway^ it will of course be as public as the obstructions. ; highway itself in which it is situate, and of which, for the purpose of passage, it must be understood to form a part, (b) All actual obstructions, therefore, to such bridges will come within the rules already stated with respect to nuisances to | highways by obstruction, (c) and do not require a repetition in this place. There is, however, one case not previously . mentioned, where the defendant was indicted for not repair- ^ ing a house adjoining to a public bridge, which he was ] bound to repair ratione tenurce^ but permitted it to be so • much out of repair that it was ready to fall upon people | passing over the bridge. It was found by a special verdict that the defendant was only tenant at will of the house ; but i the court adjudged that he ought to repair, so that the pub- lic should not be prejudiced; and though not properly , (j/) Rex V. the Inhabitants of c. 59. s. 5. as to the liability of i Northampton, 2 M. and S. 262. counties to repair bridges there- | (z) Rex V. the Marquis of Buck- ofter to be erected, inghara, 4 Campb. 189. (ft) Rex v. the Inhabitants of | (a) Rex V. the Inhabitants of the Bucks, 12 East. 202, 203. j West Riding of Yorkshire, 2 East. (c) Anley/^Ql. et iequ. R. 342. But sec post, 43 Geo. Ill- ! 1 496 Of Nuisances to Pvblk Bridges, [book ii. charo-cable to repair the house ratione tenurop, yet that the averment shouhl be intended of the possession, and not of the service. ((/) It may also be mentioned that by the 13 Geo. III. c. 78. s. 63. if any person collecting the tolls of a public bridge shall keep any victualling house, alehouse, or other place of public entertainment, or shall sell, or permit to be sold therein, any wine, beer, liquors, &c. by retail, he shall, upon conviction before a justice of the peace, forfeit five pounds for every such olTonce. Of nuisances The nuisances which more frequently arise to the public to bridges jjj respect of bridges are in the nature oi noti-feazance, from in.'"thcm!'' the neglect of the parties, upon whom the burden is thrown, to keep them in a proper state of repair. The county is As parishes are bound to repair the public ways within ofn.mnion their district, SO the inhabitants of the county at large are, riijlit liiihlc to • 1 1- 1 1 1 • r II the repair «f pr 1771(1 fade, and of common right, liable to the repair ot all all |)ul)lic public bridges within its limits ; unless they can shew a legal l)ri(l^es, out I o . . tliey may oblii^ation Oil some other persons or public bodies to bear the itherJ'!il-l burthen : (e) and this without any distinction as to foot, liable. horse, or carriage bridges. (/) But a corporation aggre- gate, either in respect of a special tenure of certain lands, or in respect of a special prescription, and also any other persons by reason of such special tenure, may be compelled to repair them.(i,'-) And if part of a bridge lie within a ( man s estate was judgment. liable, namely, ixptdilio conlra (g-) 1 Hawk. P. C. c. 77. §. 2. 1 hottem, arcium comlruclio, ct pon- Bac.Abr. Bridf^es. A body politic Hum rcparatio. may be bound cilher ralionr Icnurcr (J) By Lord Eliriihorough, C. J. tivc prcpstriplioiiis; luil a private in Kcx V. Ihc luhubiluuls of tJiiiop, pcrsou docs uot appear lo be liable CHAP. xxti.§4.] Bi/ not Repairing, 497 franchise, those of the franchise may be charged with the repairs for so much : also by a special tenure a person may be charged with the repairs of one part of a bridge, and the inhabitants of the county be liable to repair the rest. (A) A prescription, that the lords of the manor ought to repair a bridge, is good, being laid ralione ienurce, by reason of the demesnes of the manor. (0 And as the obligation is by reason of the demesnes of the manor, if part of the demesnes be granted to an individual, he will be obliged to contribute to the repairs ; but the indictment may be against any of the tenants of the demesnes, and it will be no defence on an indictment against one of them that another is also liable, (k) And where an individual is liable to repair a bridge, his tenant for years, being in possession, will be under the same obligation, and liable to an indictment for the neglect. (/) In a late case a question was made, as to the evidence on which a jury might find, that the defendants were an imme- morial corporation, and liable, in their corporate character, to the repair of a bridge. The evidence was of a charter of Edward VI. granted Stratford upon the recited prayer of the inhabitants of the boroug-h of "pon-^vou r tr J o case. Imme- StratJo7'd upon Avon, "that the king would esteem them, morial corno- " the inhabitants, worthy to be made, reduced, and erected, ,„ thoir'cor-^ " into a body corporate and politic;" and thereupon pro- poratc cha- upon a general prescription. 2 ing the bridge before the statute Inst. 700. 13 Co. 33. iSalk. 358. quia emptoresterrarum, or that the 3 Salk. 77, 381. and see ante, 401. king might make such a grant, he {h) I Bac. Abr. Bridges. 1 Hawk. not being bound by the statute ; P. C. c. 77. s. 1. but he afterwards changed his opi- (i) Reg I'. Sir John Bucknall, 2 nion. Lord Raym. 804. In the first in- (k) Id. Ibid. 792. Reg. v. the stance, at A^'iaiPrius, (2 Lord Raym. Duchess of Buccleugli, 1 Salk. 358. 792) Holt, C. J. ruled that the pre- And see ante 470, 47 1 . icriptioii was good without saying (/) Reg. « Sir John Bucknall, 2 ratione tenurce, on the ground that Lord Raym. 804. And see Reg. v. the manor might hare been granted Watson, 2 Lord Ray.n. 856. ante, to be held by the service of repair- 495,496. Secalsofln/c,477.uote(,u). 2 K 498 Of Xinsances to Public Bridges, [book ii. meter to the ceeding to " grmit (without any word o^ confirmotion) unto repair of a a ^j^ hihahilanls of the boroudi, that the same borough bridge. ^ ' " should be a free borough for ever thereafter ;" and then proceeding to incorporate them by the name of the bailiffs and burgesses, SiG. And this, it was considered, would, without more, imply a new incorporation. But the same charter recited that it was an ancient borough, in which a guild was theretofore founded, and endowed with lands, out of the rents, revenues, and profits of which a school and an alms-house were maintained, and a bridge zoas from time to time kept up and repaired; which guild was then dissolved, and its lands lately come into the king's hands ; and further recited that the inhabitants of the borough, from time imme- morial, had enjoyed franchises, liberties, free customs, Juris- dictions, privileges, exemptions, and immunities, by reason and pretence of the guild, and of charters, grants, and con- firmations to the guild, and otherwise, which the inhabitants could not then hold and enjoy by the dissolution of the guild, and for other causes, by means whereof it was likely that the borough and its government would fall into a worse state without speedy remedy ; and that thereupon the inhabi- tants of the borough had prayed the king's favour (for better- ing the borough and government thereof, ^rxdi for supporting the great charges which from time to time they were bound to sustain,) to be deemed worthy to be made, &c. a body corporate, &c. And thereupon the king, after granting to the inhabitants of the borough to be a corporation (as before stated), granted them the same bounds and li)nits as the bo- rough and the jurisdiction thereof y^om time immemorial had extended to. And then " willing that the alms-house and " school should be kept up and maintained as theretofore, " (without naming the bridge) and that the girat charges to " the borough and its inhabitants from time to time incident " might be tlu-rcafter the better sustained and supported,^* granted to the corporation the lands of the late guild. There was also evidence by parol testimony, as far back as living memory went, that the corporatio7ihad dUvnys repaired the bridge. And the court held that, taking the whole of CHAP. XXXI. § 4.] By not Repairing. 499 the charter and the parol testimony together, the preponder- ance of the evidence was, first, that this was a corporation bj/ prescription, though words of creation only were used in the incorporating part of the charter of Edw. VI. ; and, se- condly, that the burden of repairing the bridge was upon such prescriptive corporation, during the existence of the guild, before that charter ; though the guild out of their revenues had, in fact, repaired the bridge, but only in ease of the corporation, and not ralione tenurce ; and that the corporation were still bound bi/ prescription, and not merely by tenure. A verdict, therefore, against them upon an in- dictment for the non-repair of the bridge, charging them as immevioriall}/ bound to the repair of it, was held to be sus- tainable, (w) The statute 22 Hen. VIII. c. 5. called the statute of 22 Hen. viii. bridges, and made in aflirmance of the common law, enacts, asto the re- that the justices of the peace in every shire, franchise, or pairino^of borough, or four of them, whereof one to be of the quorum, ^ may inquire and determine, in their general sessions, of an- noyances of bridges broken in the highways, and make such process and pains on every presentment against the persons charged, &c. as the King's Bench is used to do, or as it shall seem by their discretions to be necessary and conve- nient. («) It then enacts, that where it cannot be known what hundred, city, town, &c. ought to make such bridges decayed, they shall, if without city or town corporate, be made by the inhabitants of the shire or riding; and if within any city or town corporate, then by the inhabitants of such city or town corporate ; and that if part shall be in one shire, &c. and part in another, the inhabitants of each shall repair and make such part as lies within their respective limits, (o) The statute then proceeds (after making provisions for the taxing of the persons liable to contribute to the repairs and for the appointment of collectors, &c.) by enacting that such (m) Rex V. the Mayor, (fee. of (n) S. 1. Stratford upon Avon, U East. 348. (o) S. 2, 3. 2 K 2 500 Of Nuisances to Public Bridges, [book h. Aadastothe parts of highways as lie next adjoining to the ends of bridges, soofeet ofthc ^y ^^^ space of three hundred feet, shall be amended as often highways gs need shall require, and that the justices, or four of them, next adjoin- ... , . i t • iug to the whereof one to be of the quorum, within their several limits, bridges. ^^y enquire and determine, in their general sessions, all an- noyances therein, and do in every thing concerning the same in as ample a manner as they may do for making and repair- ing bridges, by virtue of the act. (p) It has been holden in tlie construction of this statute that no private bridges are w ithin its purview, but only such as are common in the high- ways where all the king's liege people have or may have passage. (5') Unless the justices of a town, &c. be four in number, and one of the quorum, they have no jurisdiction under this statute. But the justices of the county in which such town (not being a county of itself, and not having the number of justices,) shall lie, may determine as to the annoy- ances of bridges within the town, &c. if it be known for a certainty what persons are bound to repair them; but if it be not known, it seems that such annoyances are left to the remedy at common law. (r) Where the It appears also to have been holden, that where the king cit"'\7 -* enlarges the boundaries of a city, by annexing part of the larfjtd.it may county to the county of the city, the enlarged part is to be repair a considered as parcel of the old county of the city, so as to bridge in the charge its inhabitants with tlie repairs of bridges which were district so . t • . , ^r-. w ^rm e added. Situate, at the time when the statute Sullen. Vlll. c. o. was made, within the county at large. The point was put upon the ground that the statute lays no absolute charge till a bridge is in decay : so that though, when the statute was made, the bridges in question were within the county of Norfolk^ yet, as they were not then in decay, the statute had no operation upon tliem before they were annexed to the city of NorKiclt. (a) (p) S. 9. (r) 1 Hawk. P. C c. 77. s. 20. « {q) 1 Hawk. P. C. c. 77. s. 19. Inst, 702. andiccflnt>, or the ends tliercof, to be paid (in cases where the " county is liable to the repair thereof) by Uie treasurer of (1/) JiiU; 501,502. CHAP. XXXI. § 4.] Modes of Proceeding. 511 " the county out of the county rate, or (in cases where the " hundred is liable to the repair of the same) by the bridge *' master (or other public officer charged with the repair of " bridges) of the hundred by which such bridge is liable to " be repaired, for any term not exceeding seven years, nor " less than one, although no presentment of the insuffi- " ciency, decay, or want of repair of the same, shall have " been made, and although no public notice shall have been " given by the said justices, at their respective general or " quarter session, of their intention to contract for the re- " pair of such bridges, or the roads at the ends thereof, as ^ respectively directed by the said act (12 Geo. II. c. 29.) " provided nevertheless that, before any such contract shall " he made, the said justices shall cause notices to be given " in some public paper circulated in such county, city, rid- " ing, hundred, division, town corporate or liberty, of their " intention to contract." (2) By the statute 22 Hen. VIII. c. 5. s. 3. it was provided that where part of a county bridge shall be in one shire, &c. and part in another, the inhabi- tants of each shire, &c. shall be contributory, (a) And it has been questioned whether a borough, which has no bridge within its own limits, be not liable to contribute to the re- pairs of a county bridge. (6) Where certain townships had enlarged a bridge to a carriage-bridge, which they were before bound to repair as a foot-bridge, it was held that they should still be liable to repair pro rata, (c) The methods of appointing surveyors, &c. for effecting the repairs or re-building of bridges ; and the powers given to such surveyors, and persons employed under contracts, to (2) 55 Geo. III. c. 143. s. 5. separately, for neglectiug to repair (a) This provision is alluded to its own division, by Lord Mansfield, C. J. in Rex v. {b) 1 Hawk. P. C. c. 77. s. 25. I the Inhabitants of Weston, 4 Burr. Keb. 68. 2511. and by counsel argiiend. in (c) Rex u. the Inhabitants of the Rex V. Clifton, 5 T. R. 501, 2. West Riding of Yorkshire, 2 East. The usual proceeding at this time 353. note (a) and see Rex v. the appears to be to indict each county Inhabitants of Surry, 2 Campb. 455. 513 Of Kuisances to Public Bridges. fi^ooK ii. procure materials for such purposes, are contained in differ- ent acts of parliament, the provisions of which do not fall within the object of this work, (fl?) Where those upon whom the liability rests of repairing for nuisances pu^Hc bj-i^jres neglect their duty, such non-feazance is a to bridges by r o t? j ^ nuisance to the public, punishable by information, present- n)cnt, or indictment. An information was held to lie in the court of King's Bench for the non-repair of a bridge in a case where it was considered that the statute of 22 Hen. VIII. c. 5. gave only a concurrent, but not an exclusive, jurisdiction to the sessions : (e) but probably it would not be granted, except in some case of a peculiar nature, in which the court might be satisfied that the purposes of jus- tice would not be effected by an indictment. The more usual course of proceeding is by indictment or present- ment. (/) Proceed'iHgs for nuisances information prcsentmeut, or indict- ment. sessions. Proceeding* The statute 22 Hen. VIII. c. 5. s. 1. gave power to the of justices in justices of the peace to hear and determine in their general sessions all annoyances of bridges broken in the highways, and to make process, «&c. as the King's Bench used to do. Tiie filth section of that statute enacted, that where any bridge is in one shire, and the persons or lands, which ouoht to be charsed, are in another shire ; or where the bridge is within a city or town corporate, and the persons or lands that ought to be charged are out of the said city ; the justices of such shire, city, or town corporate, shall have power to hear and determine such annoyances, being within the limits of their commission; ajul if the annoyance be (d) Sec them collected in 1 Burn. Just. Brid^eu VI. and see also the laic act bb Geo. III. c. M-S. By tlie 43 Geo. III. c. 59. s. 4. inhabi- faiits of counties may sue for da- mages done to bridges in the name of the surveyor. (e) Ilex V. ihe Inlialilanls of Norwich, 1 Str. 177. (/) y Inst. 701. It has been held that an action will not lie by an individual against the inhabi- tants of a county for an injury sus- taii'cd from a county bridge being out of repair. Uussel v. Men of Dcvou, 2 T. 11. 667. CHAP. XXXI. §4.] Indictment. 513 presented, then to make process into every shire of the realm against such as ought to repair the same, and to do further in every behalf as they might do if the persons or lands chargeable y/exe in the same shire, city, or town cor- porate where the annoyance is. Any particular inhabitant or inhabitants of a county, or Of the indict-' tenant or tenants of land chargeable with the repairs of a ™^°*- public bridge, may be made defendants to an indictment for not repairing it, and be liable to pay the whole fine assessed by the court for the default of such repairs ; and shall be put to their remedy at law for a contribution from those who are bound to bear a proportionable share in the charge. (»■) The indictment ought to shew what sort of bridge it is ; whether for carts and carriages, or for horses or footmen only: and if the duty to repair arise by reason of the tenure of certain lands, the indictment must shew where those lands lie. (/i) It has been holden, that an indictment charging an individual with the repair of a bridge, b?/ reason of his being owner and proprietor of a certain navigation, is not equivalent to cliarging him ratione tenurce, but is erroneous; and, if judgment be given thereon, it will be reversed upon a writ of error. And it seems that a count, charging an individual by reason of being owner of a navigation under a private act of parliament, must set forth the act. (/) In pre- sentments by the grand jury, it is said that there is no occa- sion to shew who ought to repair ; and that it is sufficient if the defect be shewn, and the bridge stated to be public. (A) It is laid down, that it is not sufficient for the defendants Oftbepka, in an indictment for not repairing a bridge to excuse them- selves by shewing either that they are not bound to repair (ff) 1 Hawk. P. C. c. 77. s. 3. 1 paired till law suits are determined. Bac. Abr. Bridges, where the rea- (h) 1 Hawk. P. C. c. 77. s. 5. son given is, that cases of this na- (t) Rex v. Kerrisou, 1 M. and S. tare require the greatest expedi- 435. tion ; and bridges being of the ut- (J:) 3 Chit. Crim. Law, 392. citing most necessity arc not to lie unre- Andr. 285. o L 514 Of Kuisances to Public Brhlges. [book ii. the whole or any part of the brida:e, without shewintj what other person i«; bound to repair it, and that in such ca<5e the whole charo^e sliall he laid upon the defendants b\ reason of their ill pica. (/) But it is submitted that, from analofjv to the case of hij^hways, this doctrine must be understood only of indictments against the county, and not of indictments against individuals, or bodies corporate, who are not of com- mon right bound to repair ; because, as it lies on the prose- cutor specially to state the grounds on which such persons are liable, they may negative these parts of the charge under the general issue, (m) And it has been holden upon an information for not repairing a bridge, that the defendants, if not chargeal)le of common right, may discharge them- selves upon the general issue. (//) But it is clear that the inhabitants of a county, in order to exonerate themselves from the burden of repairing a bridge lying within it, must shew by their plea that some other person is liable to re- pair, (o) It has, however, i)een recently decided, that it is competent to the inhabitants of a county, upon the general issue, to give evidence of the bridge having been repaired by private individuals. But this evidence appears to have been considered barely admissible as a medium of proof that the bridge was not a public bridge, which undoubtedly the defeiKlants had a right to prove by every species of evi- dence: and the court seemed to think that it would have but little efl'ect ; though in order to ascertain whether a bridge be public, the mode of its construction, and the man- ner of its continuance may be circumstances which, as they are connected with others, may have much or little weight, (j)) (/) 1 II;iwk. P. C. c, 77. s. t. I Wilt*, I Salk 359. 2 Lord R;iy™. Rac. Aljr. Uridines. 1 Burn. Just. 1174. UridfiCH, V. (y/) Rex v. the lnbal»itanis of (111) .S Chit. (rim. L. jO'2. Noitlunnptou, '2 IVI. and S. 262. If (//) Hex r. lh(! Inhahitnnt.v of a hitlixp, iVc. halli once or twice Norwich, 1 Sir. 177. und %vt unli\ ot alms repaired a bridge, lliis binds 479,480. nol ; but y<'t it is evidence against (p) Rex V. the Inbabitunia ul hiui, thai he ought to repair, un- CHAP. XXXI. §4.] Pica. 615 It is said, that where the defendants plead that an indivi- dual ought to repair the bridge mentioned in the indictment, and take a traverse to tlie charge against themselves, the attorney general, in this special case, may take a traverse upon a traverse, and insist that the defendants are bound to the repairs, and traverse the charge alleged against the indi- vidual : and that an issue ought to be taken of such second traverse ; and that the attorney general may afterwards sur- mise that the defendants are bound to repair it, and that the whole matter shall be tried by an indifferent jury, (q) But where the inhabitants of a county are indicted for not repair- ing a bridge, and they throw the charge upon another, they ought not to traverse their obligation to repair ; as it is a traverse of a matter of law, and might be made the subject of demurrer, (r) Where to an indictment against a riding for not repairing The plea must a public carriage bridge the plea alleged that certain town- ^"[h^hela^cts. ships had immcmoriaUy used to repair the said bridge, it was held that evidence that the townships had enlarged the bridge to a carriage bridge, which they had before ]>een bound to repair as a foot bridge, would not support the plea, {s) And, upon the same principle, where it was proved that a particular parish was bound by prescription to repair an old wooden foot bridge, used by carriages only in times of flood, and that about forty years ago the trustees of the turnpike road built on the same site a much wider bridge of brick, which had been constantly used ever since l)y all car- riages passing that way; it was holden that these facts did not support a plea pleaded by the county that the parish had immcmorial/j/ repaired, and still ought to repair, the said bridge. (0 In a case where the county was indicted less he proves the contrary, 2 Inst. (s) Rex v. the Inhabitants of" the "^00. West Riding of Yorkshire, 2 Last. (q) i Hawk.. P. C. c. 77. s. 5. 1 353. note (a). Bac. Abr. Bridfres. (0 Rex v. the Inhnbi'^-its of (r) Jnte, 4hO. and the aulhori- Surry, 2 Camih. ij.i. Thu f .ts ties there cited. wouW uol have availed the county ^l2 516 Of Jsuisances to Public Bridges, [book ii. for not r"pairin» a bridp^e, and pleaded that one JMnrsack uas liable to repair r/itionc trnitrcv, it was liolden that this plea was not sustained by evidence that the estate of Mar- sack was part of a larger estate ; wliich part Mursock pur- chased of the Lord Cadogan, who had retained the rest in his own hands, and had repaired the bridge as well before as after the purchase. (?/) Of the trial. The stat. 1 Ann. st. 1. c. 18. s. 5. enacts, that all matters concerning the repairing and amending of bridges and the highways thereunto adjoining shall be determined in the county where thej lie, and not elsewhere; but it seems that objection may be made to the justices where they are all interested, and that in such case the trial shall be had in the next county. (u!') And no inhabitant of a county ought to be a juror for the trial of an issue, upon the question whe- ther or not the county be bound to repair, (x) So that where the matter concerns the whole county, a suggestion may be made of any other county's being next adjacent : (jy) and if the bridge lies within the county of a city, and the question i<, whether the county of the city, or the county at large, ought to repair, on a suggestion of these facts on the record, the venire will be awarded into the county adjacent to the larger district. (;;) Inhabitnnt* of lnl)abitants of counties may be witnesses in prosecutions cr>uiiti(-!< to be „-.-4 ill/' admitit-das ^S^'^^t private persons or corporate bodies for not repairing witnossrsin bridges. The 1 Ann. stat. 1. c. 18. s. 13. reciting that prostTllliniis ' . ^ 11. ,• • :ig;iiiist pri- niaiiy private persons, or l)odieH piditic or corporate, were Tate pcr-ioiis, of right obliged to repair decayed bridges, and the highways if llie pica liad hcoii framed differ- 859, 860. 1 Durn. Just. Brit/gcs, V. ciitlj, as the touiit) was clearly (j-) 1 Hiwk. 1'. C. c. 77. s. 6. liable to the repair of tiie new {;/) Rej;. v. the Inhabitants of brid};e. Sec ante, DO.'?. Wilts, 6 Mod. .307. and sec 1 Salk. (It) Hex i>. the luhabilanls of 'JhO. 2 Lord Rayin. 1174. OAfordnliire, 16 East. «'2:j. (-.) Hex r. the Inhabitants of (w) Rex r. the Inhabitants of Norwich, 1 Sir. 177. sChil. Criin. Norwich, i Geo. 1, cited in '.i iJurr. L. 5yy. CHAP. XXXI. § 4.] Judgment. ^J '^ thereunto adjoining, and that the inhabitants of the county, riding, or division, in which such decayed bridges or high- ways lay, had not been allowed, upon informations or in- dictments against such persons or bodies tor not repairing them, to be legal witnesses; enacts, that in all informations or indictments in the courts of record at JVcslniinsler^ or at the assizes, or quarter sessions, the evidence of the inhabi- tants of the town, corporation, county, &;c, in which such decayed bridge or highway lies shall br taken and admitted. Even before this statute such evidence had been thought admissible from necessity. («) As a prosecution for a nuisance to a public bridge has for of the judg- its object the removal of the obstruction, or the effecting of ™^"*- the necessary reparations, the judgment of the court upon a conviction will generally be regulated by the same princi- ples as those which have been mentioned in relation to the judgment for a nuisance to a highway, (i) The stat. 1 Ann. Stat. 1. c. 18. s. 4. enacts, that no fine, i^-sue, penalty, or for- feiture, upon presentments or indictments for not repairing bridges, or the highways at the ends of bridges, shall be returned into the Exchequer^ but shall be paid to the trea- surer, to be applied towards the repairs. Where a county indicted for not repairing a bridge had ofstayingthc pleaded a plea which their evidence did not support, and judgment. were in consequence found guilty, but the evidence seemed strongly to shew that they were not liable to repair ; the court of King's Bench, upon a motion for a new trial, or for a stay of judgment against the defendants until anotfier indictment was tried, directed a rule to be drawn up for staying the judgment upon payment of the costs of the pro- secution : and Lord Ellenborough, C. J. added tint, if the public exigency required it, the county must repair without prejudice to their case; and Le Blanc, J. said, that the (a) Rex V. Carpeutcr, 2 Show. 47. (b) Anic, 4S-i. 51ft Of Nuisances to Public Bridges, 5cc. [bookii. county miolit proceed to indict the parties whom they con- tended to be liable, (c) Of theccr- '^^^^ ' Ann. St. 1. c. 18. s, 5. enacts, that no presentment Uorari. qj. indictment tor not repairing- bridges, or the highwi»}s at the ends of bridge?, shall be removed by certiorari out of the county into any other court. But it has been decided tlu^*. notwithstanding these general words of the statute, an indictment for not repairing a bridge may be removed by certiorari at the instcmce of the prosectifor. (d) And it has been resolved, that this clause of the act extends only to bridges where the county is charged to repair: and that where a private person or parish is charged, and the right will come in question, the act of 5 W. and M. c. 11. had allowed the granting a certiorari, (e) A certiorari lies to remove an order made by the justices concerning the repair of a bridge, pursuant to a private act of parliament: and the justices ought to retain the private act upon wliich their order is founded. (/) (r) Hex V. the Inliabitanls of Ox- sec ante, 4SS. fordshirt, 16 East. 2'23. {e) Rex v. the Inliabitanls of (rf) Rex V. the Inhabitants of HaniWorlb,2 Str. 900. I Barnard. Cumberland, 6 T. R. 194. The 445. Sec as to the stat. 5 W. and case was afterwards brought before M. ante, 483. the house of Lords by a writ of (/) Dalt. 501. 1 Burn. Just, error, and the jndsfincnt was af- Bridges, V. firmed. J Bos. and I'ul. 334. .\ud 519 CHAPTER THE THIRTY-SECOND. Of Obstructing Process, atid of Disobedience to Orders of MagisLrales. SECTION I. OF OBSTRUCTING PROCESS. J. HE obstructing the execution of lawful process is an A party op- offence against public justice, of a very high and presunip- S upon 'cri- tuous nature ; and more particularly so when the obstruction minal process is of an arrest upon criminal process. So that it has been ticeps crimi- holden that the party opposing an arrest upon criminal pro- "'*• cess becomes thereby purticeps criminis ; that is, an acces- sory in felony, and a principal in high treason, {a) Formerly, one of the greatest obstructions to public jus- tice, both of the civil and criminal kind, was the multitude of pretended privileged places, where indigent persons as- sembled together to shelter themselves from justice (espe- cially in London and Southzcark) under the pretence of their having been ancient palaces of the crown or the like : {b) and it was found necessary io abolish the supposed privi- (a) 4 Blac. Com. 128. 2 Hawk. tacked in order to be arrested, to P. C c. 17. s. 1. where Hawkins save himself from the arrest by submits that it is reasonable to uii- such resistance, derstand the books, which seem to (ft) The fVhite Friars, and iti contradict this opinion, to intend environs, the Savoy, and the .V/n/, no more than that it is not felony in Soulhuark, were of Ibis dcscrip- in the party himself, who is at- tjoa. 520 Of Obstructing Process. [book ii. Ipires and protection of tliese places by several legislative enactments. The 8 and 9 W. 111. c. 97. 9 Geo. I. c. 28. and II Geo. I. c. 22. enact, that persons opposing the exe- cution of any process in the pretemled privileged places therein mentioned, or abusing any officer in his endeavours to execute his duty therein, so that he receives bodily hurt, shall be guilty of felony, and transported for seven years: and persons in disguise, joining in or abetting any riot or tumult on such account, or opposing any process, or assault- ing and ;tbu-;ing any officer executing, or for having exe- cuted, the same, are declared to be felons without benefit of clergy, (c) In some proceedings, particularly in those relating to the execution of the revenue laws, - rf) the legislature has made especial provision for the punishment of those who obstruct officers and persons acting under proper authority. But in ordinary cases, where the offence committed is less than felony, the obstruction of ollicers in the apprehension of the party will be only a misdemeanor, punishable by fine and imprisonment, (e) The arrest It should be observed, that a party will not be guilty of mii.t be law- this offence of obstructing an officer, or the process which Jul to makr ;i i • jiari) fjiiilty such officer may be about to execute, unless the arrest is tfoa" "'^'^^"^ lawful. And in an indiclmcnt for this offence it must ap- pear that the arrest Avas made by proper authority. Thus where an indictment for an assault, false imprisonment, and rescue, stated that the judges of the court of Record of tho town and county, &c. of P. issued their writ, directed to T. B. o;/r of the Serjeants at vince of the said town and . county, to arrest W. by virtue of which T. B. was proceed- ing to arrest VV. within the Jurisdiction of the said court, but that the defendunt assaulted T. B. in the due execution of his office, and prevented the arrest ; the court held that it (r) 4niac. Com. 128, l«y. (c) 2 Chit. Criiii. L. U.'). note (nlted, struck one of the assailants, a woman; and it was thoui^hifor some time that he had killed her; whereupon, and befoie her recovery was ascertained, the constable was sent for, and charired with the custody of the bailiiV wlio had struck the woman. The bailiffs, on the other hand, gave the constable notice of their authority, and represented the violence which had been previously ofiered to them ; notwithstanding; which the constable proceeded to take thr m into custody upon the charge of murder, and at first offered to take care also of their prisoner ; but their prisoner was soon rescued from them by the surroundir.g ii>ob. Tlte next morning, the woman havinij recovered, the baililVs wore released by the constable. Upon these fiicts, Ueaih, J. was clearly of opi- nion that the constable and his assistants were guilty of the assault and rescue, and directed the jury accordingly. (,0 Of l«triirt- ^^ cases where the ob^^truction of process by the res- ii ji l* < 's liy cue of a party arrested is accompanied, as is usuallv the tV- .Mri^Y ar- ^"^'^ ^'^" circumstances of violence and assault upon the of- rcstcd. ficer, the offence may be made t!.e subject of a proceeding by indictii ent : and, as will be shewn more fully in a subse- quent chapter, (y) the re^^cue or attempt to rescue a party a^re^•t(•d on a criminal charge, is usually punii^hed by that mode ot proceeding. And the ollence of rescuing a person arrested on mesne process, or in execution after judgment, subji'cts the oflcMider to a writ of rescous, or a general ac- tion ot trespass xi d armis, or an action on the case ; in all which damages are recoverable, (k) And it has also been the frequent prac tice of the courts to grant an attachment against such wrongdoers ; it being the highest violence (OAdoii. i-Jxt/trSum. Afw. no;}. (A) 6 Bac. Abr. Hescue (C.) « I East. P. C. c. 5. ». 7 1 . p. 305. Com. Dig. Htscous ^0) (J) Post. Chap. 35. O/Rchcuc, i ./ iraiucu; and of tl'.e pound in which they have been placed, have been of pound- considered as offences at common law, and made the subject of indictment, (m) It has before been stated, that an in- dictment will lie for taking goods forcibly, if such taking be proved to be a breach of the peace ; (n) but, as a mere trespass, without circumstances of violence, is not indict- able, (o) it has been doubted whether even a pound-breach, which has been considered as a greater offence at common law than a rescue, (p) is an indictable offence, if unaccom- panied by a breach of the peace, (q) But, on the other hand, it has been submitted that, as pound-breach is an in- jury and insult to public justice, it is indictable as suck at common law. (r) The civil remedy, however, given by the 2 W. and M. c. 5. s. 4. will, in most cases of a pound- breach, or a rescue of goods distrained for rent, be found the most desirable mode of proceeding, where the offenders are responsible persons. That statute enacts that, upon pound- breach, or rescous of goods distrained for rent, the person (I) 6 Bac. Abr. ibid. 6 Cora. Dig. 1 Lord Rayra. 589. Rescous (D. 6.) But, iii order to (/«) Cro. Circ.Comp. 409. 2 Star- ground an attachment for a rescue, kie's Crira. PI. 617. 2 Chit. Crina. it seems there must be a re/wrra of L. 201. precedents of indictment* it l>y the sheriff ; at least if it was for rescuing goods distrained for on au arrest on mesne process, rent: and Cro. Circ. Comp. 410. 2 6 Bac. Abr. ibid. 2 Hawk. P. C. Chit. Crira.L. 204. 206. precedents c. 22. s. 34. Anon. 6 Mod. 141. of indictments for pound-breaches. And see, as to the return of the (n) Jnte, 70. Anon. 3 ?alk. rescue by the sheriiT, 6 Com. Dig. 187. Rescous (D. 4.) (T). 5.) 6 Bac. Abr. (o) Jvfe, 70. Rescue (E.) Rex v. Belt, 2 Salk. (p) Mirror, c. 2. s. 26. 586. Rex v. Elkins, 4 Burr. 2129. (feiidants " were members of the society independently of their being " stewards, and were bonrd, as members, to see that the " order was obeyed ; or, at least, to have laken some steps " for that purpose. As members, they miii:ht have done "something; as stewa>*ds indeed, they mia^ht, with greater " facility, have inforced obedience to the order ; but each " member had it in his power to lend some aid for the at- *' tainment of that object." And when in the ensuing term a motion was made that a verdict might be entered for the defendants, on the ground that, having ceased to be stewards when the notice was served, they had not been guilty of a criminal default; the court said, that if the detendants had shewn that they did every thing in their power to restore the party, in ob'^dience to the order, they might have given it in evidence by way of excuse, {f) The order There must be personal service of an order on all persons sliouldl)PiM»r- ^^.jjQ j^pg charced with a contemnt of it : and it was held, soaall) serv- ^ ' ' ed. upon denuirrer, to be a decisive objection to an indictment for a distibedicnce and contempt of an order of sessions, (r) Rex V. Grish and anothor, 1 wrro hold, havinrj iriadc the order, Starkie 411. llioii^li llie socicly had been origi- (/) III. iL'd. Tin: ir.ution was nally esl:il,lishcd in London, and also made on anollier j^ronnd -, its rules enrolled al the sessions f«>r uauhilj, it defect in the jurisdiction London. But the court decided ot" tlio ina};istrales -. two niajris- that ihc magistrates of Aliddleacx trates of the county of Middlesex, h;\:l jurisdiction. See o3 Geo. III. where the mecliugs of the society c. 51. and 19 Geo. 111. c. 125. s. 1. I CHAP.xxxii. §2.] Of Magistrates. 527 j that it charoed a contempt by six persons of an order which was only stated to have been served on four of I them, (g) It appears to have been holden not to be necessary, in an Of the indict- » . . nicut* indictment against a public officer tor ditjobedience of or- ' i ders, to aver that the orders have not been revoked ; for the j orders, being stated to have been given by those who were ! empowered by certain statutes to give them, must be taken to remain in force until they were revoked or contra- dicted. (//) But an indictment for disobeying an order of justices must shew explicitly that an order was made; and it is not sufficient to state the order by way of recital, (i) It is said to be more safe to aver that the defendant was re- quested to comply with the terms of the order. (A) But if the statement of the order having been served on all the de- fendants (which, as has been before observed, is a necessary state. nent) be omitted, the want of sncii an allegation will not be supplied by averring that they were all requested to perform the duties required by the order. (/) On a motion to arrest the judgment upon an indictment Leo^allfy of for disobeying an order of justices for the payment of a fine cannot be in- upon a conviction, the court of King's Bench refused to f\^''red mto , 1 • • , 1-111 <"* motion in near any objections to the conviction which did not appear arrestofjud*'- upon the face of it. (m) meat. I Before this subject is concluded, it may be proper, shortly, 33 Geo. III. c. 55. s. 1. (g) Rex V. Kingston and others, of Rex v. Fearnly, where an objec- SEust. 41. lioii was taken to an indictment (/j) Rex I'. Holland, 5 T. R. 607, that it did not contain such state- 624., a case of an indictment mcnt ; but tlie court did not find it against the defendant for raalver- necessary to give any opinion upon i sations in office while he was one the point. ] of the council at JJudras. (/) Hex v. Kingston and others, ' (0 Rex V. Crowhurst, 2 Lord 8 E..st. 41, 53. '.j Raym. 1363. (m) Rex r Milton, 3 Esp. R, i (A-) 2 Chit Crim. L. 270. rote (g.> 20u. in the uote. I citing 1 T.R, 316. whiui is liiccase 50§ Of Disobedience to Orders, ^c. [book ii. jrives a power to notice the statute 33 Geo. III. c. 55. s. 1. which gives to justices, at ^^ ^Q justice:? of the peace assembled at any special or a pt'tlv scs- r J » sioiis,to ira- petty sessions, upon complaint upon oath of any neglect ot Sno^i consta- duty, OF of any disobedience of any lawful warrant, or or- bits. &c. for je,. of anv justice or justices of the peace, by any constable, dufsrai d .lis- overseer of the poor, or other peace or parish oflicer, (such oh (litnc to (.instable, &c. havinsf been duly summoned) to impose, upon orders of jus- ^ , , ,- n ^ j- r *. tices. conviction, any reasonable fine or hues, not exceedmg torty shillin'^s ; and, by warrant under the hands and seals of any two or more of such justices so assembled, to direct the fines to be levied by distress and sale of the oflender's goods. And it is provided, that any person ago:rieved by such fine, warrant, &c. may appeal to the next quarter sessions ; giv- ing, at least, ten days' notice. 529 CHAPTER THE THIRTY-THIRa Of Escapes. x\.N escape is, where one who is arrested gains his liberty before he is delivered by the course of the law. (a) And it maybeby the party himself ; either without force before he is put in hold, or with force after he is restrained of his liberty ; or it may be by others ; and this also either without force, by their permission or negligence, or with force, by the res- cuing of the party from custody. Where the liberation of the party is effected either by himself or others, without force, it is more properly called an escape ; where it is ef- fected by the party himself, with force, it is called jt?r/^o« breaking ; and where it is effected by others, with force, it is commonly called a rescue, (b) In the present chapter it is proposed to consider of those acts without force, which more properly come under the title of escape. There is little worthy of remark in the books respecting Of an escape \)y \\\^ uartv an escape effected by the party himself, without force : but himself, the general principle appears to be, that, as all persons are bound to submit themselves to the judgment of the law, and to be ready to be justified by it, those who, declining to undergo a legal imprisonment when arrested on criminal process, free themselves from it by any artifice, and elude the vigilance of their keepers, before they are put in hold, are guilty of an offence in the nature of a high contempt, and punishable by fine and imprisonment, (c) And it is also criminal in a prisoner to escape from lawful confine- (a) Terms de la ley. (c) 2 Hawk. P. C. c. 17. s. 5. (ft) 1 Hale. 390. 2 Hawk. P. C. 4 Blac. Com. 129. c. 17, 18, 19,20,21. S M 5oO Of Escapes suffh-ed hij Officers [rook ii. mont, tliougli no force or artifice be u^oiier "[o out of his pri-» ton \vithout any obstruction, the door'^ being; opened by the con>ent or neg'ii-encc of the 4!^aoler, or if he escape in any other manner, \\ ithout usin90. 31. And ;i» to tlic admiltiiij; pcr- Fuinm. lOrt. SLiund. P. C.iJO, ai, sons apprclicndcd in Kiijjl ind, ijcot- 2 Hawk. I'. C. c. \H. ». 9, 10. land, ;uul In-I^^nd, rcsprtlivcl) , to (f) And nee as to \hn opprclirn- bail, for bailable offences, sec 45 >i(iii. (if [xTsons enrapinj^ from ling- (!eo. III. c. 92. and 54Gco. HI. land into Srolland, and from Scot- c. 186, land into Knjjiand, l.'J Geo. III. c. CHAP. XXXIII. § 1.] What an Escape. 531 As there must be an actual arrest, it has been holden, that Tlioescnpr if an officer, liavin"; a warrant to arrest a man, see him shut •""^^ ''*' l'^^*" I 1 1 11 1- I- u * annctuaUr- up in a house, and challenge him as his prisoner, but never rest. actually have him in his custody, and the party get free, the officer cannot be charged witli an escape. (/) The arrest and imprisonment must be justifiable ; for, if a Andthearrest party be arrested for a supposed crime, where no such crime '^"^ impnson- . ... mont must be ivas committed, and the party neither indicted nor appealed, justifiable. or for such a slight suspicion of an actual crime and by such an irregular mittimus as will neither justify the arrest nor imprisonment, the officer is not guilty of an escape by suffering the prisoner to go at large, (g) But it seems that if a warrant of commitment plainly and expressly charge the party with treason or felony, though it be not strictly formal, the gaoler, suffering an escape, is punishable ; and that ■where commitments are good in substance, the gaoler is as much bound to observe them as if they were made ever so exactly. (//) It is stated as a good general rule upon this eubject that, whenever an imprisonment is so far irregular that it will be no offence in the prisoner to break from it }iy force, it can be no otfence in the officer to sutfer him to escape, {i) The imprisonment must not only be justifiable, but also Theimprison- for some cr'nninal matter. But the escape of one committed j-"|:" J":';'*;,,.^ for petit larceny only is criminal ; and it seems most agree- matter, and able to the general reason of the law that the escape of a tl,itimeo?ihit person committed for any other crime whatsoever should escapo. also be criminal, {j) The imprisonment must also be con- tinuhig at the time of the escape ; and its continuance must be grounded on that satisfaction which tlie public justice demands for the crime committed. So that if a prisoner be (/) 2 Hawk. P. C. c, 19. s. 1. v. Fell, 1 Lord Rajm. 424. (/f) Id. Ibid. s. 2. (j) Id. Ibid. s. 2. And sec poil, [h) 2 Hawk. P. C. c. 19. s. 24. Chap. a4. A commitmont to a;>n.v««, andnot {j) 2 Hawk. P. C. c. 19. s. 3. to a person, was held good in Ilex 1 Hale 592. 2m 2 532 Of Escapes suffered hij Officers, [book ii. acquitted, and detained only for his fees, it will not be cri- minal to suffer him to escape, though the judgment were that he should be discharged, " paying his fees ;" he being in such case detained only as a debtor : but if a person, con- victed of a crime, be condemned to imprisonment for a cer- tain time, and also " until he pays his fees," it is said that perhaps an escape of such person, after the time of his im- prisonment is elapsed, without paying his fees, may be cri- minal : as it was part of the punishment that the imprison- ment should be continued till the fees should be paid. (I) Escapes may The next important enquiry upon this subject will be, oruc'ligeut. v,heiher the escape he volunlari/ or negUgcnt, as the former is an offence of a much more serious nature than that which may have been committed by negligence. Of voluntary Whenever an officer, having the custody of a prisoner cicapts, charged with, and guilty of, a capital offence, knowingly gives him his liberty with an intent to save him either from his trial or execution, such officer is guilty of a volunlori/ escape, and thereby involved in the guilt of the same crime of which the prisoner is guilty, and for which he was in custody. (/) Jlazckins says, that it seems to be the opinion of Sir Mnllhtzc Ilalc, (m) that in some cases an officer may be adjudged guilty of a voluntary escape who had no such intent to save the prisoner, but meant only to give him a liberty wliich, by law, he had no colour of right to give ; as if a gaoler should bail a prisoner who is not bailable : but he withholds his assent to that opinion, on the grounds that it is not sufficiently supported by authorities, and does (k) 2 Hawk. P. C. r. 19. s. 4. to punish him for siifn'rinfij an in- Thi» uerms to he a good reason: jury lo himself only in the non- hut Hnwkins sayi that it is to be payment of a debt in his power to intended only where the fees are release. due to others as well as to the (/) Stauiid. P. C 33. 2 Hawk. gaoler; for, otherwise, the gaoler P. C. c, 19. ». 10. 4Biac.Coni. 129. would be the only sufferer by the (m) Sum. 113. 1 Hale 596,597. ricapc ; and that it would be hard CHAP. XXXIII. § 1.] Voluntary Escapes. 533 not seem to accord with the purview of a statute 5 Edw. HI. c. 8. relating to the improper bailing of persons by the mar- shals of the King's Bench, (n) He says also, that it seems to be agreed that a person who has power to bail is guilty only of a negligent escape, by bailing one who is not bail- able ; and that there are some cases wherein an officer seems to have been found to have knowingly given his prisoner more liberty than he ought to have had, (as by allowing him to go out of prison on a promise to return ; or to go amongst his friends, to find some who would warrant goods to be his own which he is suspected to have stolen) and yet seems to have been only adjudged guilty of a negligent escape, (o) And he concludes by saying, that if, in these cases, the officer were only guilty of a negligent escape, in suffering the pri- soner to go out of the limits of the prison, without any se- curity for his return, he could not have been guilty in a hiffher degree if he had taken bail for his return : and that from thence it seems reasonable to infer that it cannot be, in all cases, a general rule that an officer is guilty of a volun- tary escape by bailing his prisoner, whom he has no power to bail, but that the judgment to be made of all offences of this kind must depend upon the circumstances of the case : such as the heinousness of the crime with which the pri- soner is charged, the notoriety of his guilt, the im- probability of his returning to render himself to justice, the intention of the officer, and the motives on which he acted, (p) It appears to have been holden, that it is an escape in a constable to discharge a person committed to his custody by (b) Post, 542, 543. the old cases concerning this suh- (o) Hawkins says, however, that ject are so very hricfly reported it must be confessed that, in these that it is very difficult to make an cases, the prisoner was only ac- exact state of tiie matter from cused of larceny, and that it docs tliem. not appear whether he were bail- (p) 2 Hawk. P. C. c. 19. s. 10. able or not ; and that, gcnerallVj h3^ Of Escapes suffered hi/ Officers, [book ii. Of ncirli'^cnt a watchman a? a loose and disorderly woman, and a street walker, although no positive charge was made, (q) A negligent escape is where the party arrested or impri- soned escapes against the will of him that arrests or impri- sons him, and is not freshly pursued and taken again before he has been lost sight of. (r) And, from the instances of this offence mentioned in the books, it seems that where a party so escapes the law will presume negligence in the officer. Thus if a person in custody on a cliarge of larceny suddenly, and without the assent of the constable, kill, hang, or drown himself, this is considered as a negligent escape in the con- stable. (,<;) And if a prisoner charged with felony break a gaol, it is said that this seems to be a negligent escape ; be- cause there wanted either the due strength in the gaol that should have secured him, or the due vigilance in the gaoler or his ofticors that should have prevented it. (0 But it is submitted that it would be competent to a person charged with a negligent escape under such circumstances to shew in his defence that all due vigilance was used, and that the gaol (q) Rex f. Bootie, 2 Burr. 864. fr) Dalt. c. 159. 1 Burn. Just. Escape IV. (») DalU r. ir)9. (/) I Hale fiOO. nlierr it is »ai(l that " therefore it is lawful for the " gaoler to hamper them with " irons, to prevent their escape." But «rr the note (a) ibid, wliert. it is said that this liherty can only he iatended where tlic officer has jutt reason to fear an escape, as where the prison. s. 1. n. 54. says, that it is an ahuse that prisoners shouUl ho charged with irons, or put to any pain, before thry he atl.iintcd of felony ; and Lord Coke, in his comment on thslic^eat ca- gent escape, by bailing one who is not bailable. Thus if a mittiii- to justice of peace bails a person not bailable by law it ex- ^'^''• cuses the gaoler, and is not felony in the justice, but a negli- gent escape, for which he is fincable at common law, and by the justices of gaol delivery, (ti') It is laid down as clear law, that whoever de faclo occupies the oflice of gaoler is liable to answer for a negligent escape, and that it is in no way material whether or not his title to the office be legal. (r> But a case is reported where, upOn an indictment against a yeouian wardour of the Tower and the gentleuian gaoler there, for a negligent escape of a prisoner, who had been committed to the Tower on a charge of high treason, and consigned to the care of the defendants by the constable of the Tower, to be kept In the hoUse of the wardour, the court held, that the defendants were not such officers as the law took notice of, and therefore could not be guilty of a negligent escape; and that it was merely a breach of trust to the constable of the Tower, their master. {2/) And upon i f«) See the prccedenfcj ofindict- Edw. III. 82. a.1 and by the justices fiient* for this otfonce, 4 VVentw. of gaol delivery, by the statute I 363. Cro. Circ. Comp. 3ia. Cro. and a Ph. and M. c. 13. Sec 1 Circ. Ass. 398. 3 Chit. Crira. L. Hale 596. and as to escapes hv ad- •6S, 6(»'J. niittint; fu bail ur to improper ll- (u)) At c», "But i\Xi\. Etcape. " if the gaoler who suflcrg an es- CHAP, xxxiii. § 1.] Proceedings. 5.37 may retake him, wherever he finds him, without mentioning any fresh pursuit ; and, indeed, since the liberty gained by the prisoner is wholly owing to his own wrong, there seems to be no reason why he should have any manner of advan- tage from it. (c) If the officer pursue a prisoner, who flies from him, so closely as to retake him without losing sight of him, the law regards the prisoner as being so much in his power all the time as not to adjudge such flight to amount to an escape : but if the oflker once lose sight of the pri- soner, it seems to be the l)etter opinion that he will be guilty of a negligent escape, tliough he should retake him imme- diately afterwards, (t/) And if he has been fined for the offence, it is clear that he will not avoid the judgment of his fine by re-taking the prisoner, (e) And it is also clear that he cannot excuse himself by killing a prisoner in the pur- suit, though he could not possibly retake him ; but must, in such case, be content to submit to such fine as his negli- gence shall appear to deserve. (/) The proceedings against persons charged with having Proceedingi suffered escapes must in general be by presentment or in- „[g}|j ^^ ;„. dictment, or they may be by information, (f) dictment. or '•'•'•' ° l,y a more But where persons present in a court of record are com mitted to prison by such court, the keeper of the gaol, as he is bound to have them always ready to produce when called for, if he fail to produce them, will be adjudged guilty of an escape, without further enquiry ; unless he have some rea- sonable matter to allege in his excuse ; as that the prison was set on fire, or broken open by enemies, &c. for he will (c) 2 Hawk. P. C. c. 19. s. 12. 1 Str. 532. where the court refused (rf) Staundf. P. C. 33. 1 Hale to grant an attachment against the 602. 2 Hawk. P. C. c. 19. s. 6. 13. gaoler for a voluntary escape of {e) 2 Hawk. P. C. c. 19. s. 12, 13. one in execution for obstructing (/) Staundf. P. C. 33. 1 Hawk. an excise officer in the execution P. C. c. 28. «. 11, 12. 2 Hawk. of his office, but ordered hira to P. C. c. 19. ». 6. 13. shew cause why there should not {g) Gaoler of Shrewsbury's case, be an information. summary course. 53S Of Escapes suffered by Officers, [book ii, DP concluded b_y the record of the commitment from denying that the prisoners were in his custody, {h) And some liave holden,(/) that if a s;aoler say nothing in excuse of such an escape, it shall be adjudged voluntary ; but it seems difficult to maintain that where it stands indifferent whether an es- cape be negligent or voluntary, it ought to be adjudged a crime of so high a nature, without a previous trial. (A) With respect to other prisoners not committed in such man- ner, but in the custody of a gaoler or other person by any other means whatsoever, it seems to be agreed that the per- son u ho had them in custody is in no case punishable for an escape, until it be presented. (/) But it is laid down as a rule that though, where an escape is fineable, the present- ment of it is traversable ; yet that where the oflonce is anier- ciable only, there the presentment is of itself conclusive; such amerciaments being reckoned amongst those viinimn de fjuibus fion curat lex : (m) and this distinction is said lobe well warranted by the old books, (w) Tt shoulfl be observed that it is laid down in the books that a person who has suffered another to escape cannot be arraigned for such escape as for felony, until the principal be attainted ; on the ground that he is only punishable in this degree as an accessory to the felony, and that the general rule is, that no accessory ought to be tried until the principal be attainted j (o) but that he may be indicted and (A) 'J Hawk. P. C. c. J9. s 1 ."). though not attainted. Jvtc, p. 5.'}. (i) Stauiidf. P. C. 34. 1 Hale In the Cm. Circ. A»8. .'{*}8. is an in- fc99. 603. dictmeiit a>< for a niisdcnioanor ' (t) 2 Hawk. P. C. c. H). ». 15. ngaiiist a gaoler, for wilfully per- (/) 2 Hawk P. C c. 19. s. IG. niittinjij a prisoner to escape who (;h) Staundf. P. C. c. 32. p. 36. was under sentence of iniprison- (7i) 2 lla\vk. P. C. c. l^. s. 21. luciit for the term of six months, and M-c post, il2. a* to escapes after a conviction oj grand larceny : tineahle or iiirerrin! I'-. hut it seems that it ought to have io) ^cattle, b\.et nequ. I!y the been laid as a felony. Sec 2 Star- 1 Ann. si. 2. r. 9. an acc«-Hsory m;iy kic, Crim. Plead. 600. note {b) rc- fie tri<;r. Wins. 497, CHAP. XXXIII. §1.] Indictment. * 589 tried for a misprision before any attainder of the principal offender; for whether such offender were guilty or innocent, it was a high contempt to suffer him to escape. If, how- ever, the commitment were for high treason, and the person committed actually guilty of it, it is said that the escape is immediately punishable as high treason also, whether the party escaping be ever convicted of such crime or not; and the reason given is, that there are no accessories in high treason, (o) Every indictment for an escape, whether negligent or Ofthe indict- voluntary, must expressly shew that the party was actually eucuue!"^** in the defendant's custody for some crime, or upon some commitment upon suspicion; (p) and judgment was arrested upon an indictment, which stated that the prisoner was iti the defendant's custody, and charged with a certain crime, but did not state that he was committed for that crime ; for a person in custody may be charged with a crime, and yet not be in custody by reason of such charge, (q) But wher* a person was committed to the custody of a constable by a watchman as a loose and disorderly woman, and a street walker, it was holden, upon an indictment against the con- stable for discharging her, that by an allegation of his being charged with her " so being such loose, &c." it was suffi- ciently averred that he was charged with her " as such loose, «&c." and it was also holden not to be necessary to aver that the defendant knew the woman to be a street walker. (;-) And every indictment should also shew tliut the prisoner went at large : (s) and also the time when the offence was committed for which the party was in custody ; not only that it may appear that it was prior to the escape, but also that it was subsequent to the last general par- {o) 2 Hawk. P. C. c. 19. s. 26. averments, Rex v. Boyall, 2 Burr. (p) 2 Hawk. P. C. c. 19. s. U. 832. (7) Rex r. Fell, 1 Lord Rayra. (s) 2 Hawk. P. C. c. 19. s. U. 42t. 2Salk. 272. wlicre it is said tliut this is uui-.t (r) Rex V. Ro(»tie, 2 Burr. 8GI. properly expressed by the »orJ< and *eo as to the suilicienc) of such aivit ad lar^um. 540 Of Escapes suffered by Officers, [book ii. don. (0 If the indictment be for a voluntary escape, it must alleije that the defendant feloniously and voluntarily per- mitted the prisoner to go at large; (m) and must also shew the species of crime for which the party was imprisoned ; for it will not be sufficient to say, in general, that he was in custody for felony, &:c. (a') But it is questionable whether such certainty, as to the nature of the crime, be necessary in an indictment for a negligent escape; as it is not in such case material whether the person who escaped were guilty or not. (or) Of the trial. By the statute TVe&lminster \. c. 3. the proceedings and trial for the offence of an escape were to be had before the justices in eyre: but it was adjudged that the jurisdiction of the court of King's Bench was not restrained by that statute, that court being itself the highest court of eyre, {y) The 31 Edw. III. c. 14. enacts, that the escape of thieves and felons, and the chattels of felons, &c. from thenceforth to be judged before anj/ of the kbig's justices, shall be levied from time to time, &c. by which it seems to be implied that other justices, as well as those in eyre, may take cognizance of escapes: and it is certain that justices of gaol delivery may punish justices of peace for a negligent escape, in ad- mitting persons to bail who are not bailable, (s) The 1 Rich. III. c. 3. enacts, that justices of peace shall have authority to enquire in their sessions of all manner of escapes of every person arrested and imprisoned tor felony. l»uiu«limeni. In considering of the punishment for this offence, it will (0 'iHawk.P. C.f. 19.8. 14. But (x) Id. Ibid. upon :iii iiulitliivcnl for an escape (y) Staundf. P. C. c. 32. p. 35. tlie < ourl will not intend a pardon ; Eo que le hanke Ic roy est tin rire, it mu«l he shewn hy tin- ditendant, cS plus haul que un $ire, car si le hy way of excuse. H'X v. Fell, 1 eirc sea in un county, cl Ic banke le Lord Ka) ni. 4iJ I. roy veigne la, le eire ceisera. («) J'clonici! el voluntarit A.B. (s) 'i Hawk. P. C. C. 19. •• »9- ad lari^Hin ire permisil. ante, 535. (IP) 2 Hawk. p. C.e. Itt. ». 14. CHAP. XXXIII. § I.] Punishment of Voluntary Escapes. 54 1 be necessary ag^ain to attend to the distinction between a voluntary and negligent escape. It seems to be generally agreed that a voliintany escape i„ cases o\ amounts to the same kind of crime as the offence of which ^"'""tary es- cape. the party was guilty, and for which he was in custody ; whe- ther the person escaping were actually committed to some gaol, or under an arrest only, and not committed ; and whether he were attainted, or only accused of such crime, and neither indicted nor appealed, (a) But the voluntary escape of a felon will be within the benefit of clergy, though the felony for which the party was in custody be ousted, (b) An escape suffered by one who wrongfully takes upon him the keeping of a gaol seems to be punishable in the same manner as if he were rightfully entitled to the custody ; for the crime is in both cases of the same ill consequence to the public, (c) But no one is punishable in this degree for a voluntary escape but the person who is actually guilty of it : therefore the principal gaoler is only fineable for a volun- tary escape suffered by his deputy, (d) One voluntary escape is said to amount to a forfeiture of a gaoler's office (e) No escape will amount to a capital offence unless the cause for which the party was committed were actually such at the time of the escape: its becoming a capital offence afterwards, as by the death of a party wounded at the time of the escape, but not then dead, will not be sufficient. (/) Whenever a person is found guilty upon an indictment, Ofthepunish- ineut in casef (a) 2 Hawk. P. C. c. 19. s. 22. Ibid. And it is said to be no excuse of (b) 1 Hale 599. such escape that the prisoner had (c) 2 Hawk, P. C. c. 19. s. 23. been acquitted on an indictment of (rf) Rex v. Fell, 1 Lord Rayin. death, and only committed till the 424. 2 Salk. 272. 1 Hale 597, year and day should be passed, to 598. pve the widow or heir an oppor- (e) 2 Hawk. P. C. c. 19. s. 30. tunity of bringing their appeal. Id. (/) 2 Hawk. P. C. c. 19. t. 2i. 542 Of Escapes suffered bj/ Officers, [book ii. of ne^liljfnt cr prcFentment of a neg^ligent escape of a criminal actually ***^^f'^*' in his custody, he ought to be condemned in a certain sum, to be paid to the king as a fnc. ig) And it seems that by tlio common law the penalty for suffering the negligent escape of a person attainted was of course a hundred pounds, and for suffering such escape of a person indicted, and not attainted, five pounds; and that if the person escaping were neither attainted nor indicted, it was left to the discretion of the court to assess such a reasonable forfeiture as should seem proper. And it seems also, that if the party had escaped twice, these penalties were of course to be doubled : but that the ibifeiture was no greater for suffering a pri- soner to escape who had been committed on two several accusations, than if he had been committed but on one. (h) It is tl»e better opinion that one negligent escape will not amount to a forfeiture of a gaoler's office ; yet if a gaoler puffer many negligent escapes, it is said that he puts it in the power of the court to oust him of his office at discre- tion. (0 Punishmpnt Some reoulations by statutes respecting the punishment of iirglijjiMii of nc"'li'^cnt escapes should also be noticed. •srajtps by statutes. ^vA TIT The .5 Edw. 111. c. 8. recites, that persons indicted of i) ijflw. 111. c. 1 » • 1 8. as to the felonies had removed the indictments before the king, and ihrKin-s* there yielded themselves, and had been incontinently let to Beuch. " }jj,ii i)y the marshals of the King's Bench ; and enacts, that such persons shall be safely and surely kept in prison : and (after providing for the manner of such confinen»cnt, Sec.) further enacts, that if any such prisoner be found wandering (g) 2 ll.iwk. r. r. r. 10. s. .'.1. " inent, and in others it is spokca where the aiillior saj.t, " it seems " of j^encrally as the imposition of " most i.roji.rl} to l)e called a fine. " a certain sum, and ^vilhoul any '• But Ihn does not clearly appear " mention of either line or aincf' " from the old books; for in some " ciamenl." " ofthrin it seems to he l.-kiu ;ih (/») 2 Hawk. P. C. c. 19.8. 33. • a fine, in others as an ammia- {i) 2 Hawk. 1*. C. c. 19. «. 30. S CHAP, xxxiii. § 2.] Punishment of Negligent Escapes, 54-3 out of prison by ball or without bail, the marshal being found guilty, shall have a year's imprisonment, and be ransomed at the kind's will. The statute 5G G. III. c. 63. which was passed for regu- 56Gco.III.c. lating the general Penitentiary for convicts at Milbaiik, soi.shaTirg enacts- that if any person havin"; custody of any convict, or the custody of ' •' ^ '^ ^ •' •' convicts IQ being employed by the person having such custody, in the tlu'g;e8, by fine and imprisonment, at the discretion of the court, iq) " fore the next gaol delivery; un- {p) Ante, 541. " less he can, in the mean time, (fl) 2 Hawk. P. C. c. 20. 8. 6. " procure him to be bailed." j2n 546 CHAPTER THE THIRTY-FOURTH. OF PniSON-BREAKING BY THE PARTY CONFINED. Offence at common law. ?y HERE a party effects his own escape by force, the of- fence is usually called prison-breakino^ : and such breach of prison, or even the conspiring to break it, was felony at the common law, for whatever cause, criminal or civil, the party was lawfully imprisoned ; (a) and whether he were actually within the walls of a prison, or only in the stocks, or in the custody of any person who had lawfully arrested him. (b) But the severity of the common law is mitigated by the statute defrangenlibits prisonam, 1 Edw. H. stat. 2., which enacts, " That none, from henceforth, that breaketh " prison, shall have judgment of life, or member, for break- *' ing of prison only ; except the cause for which he was " taken and imprisoned did require such a judgment, if he " had been convict thereupon, according to the law and '' custom of the realm." Thus, though to break prison and escape, when lawfully committed for any treason or felony, remains still felony as at common law ; to break prison when lawfully confined upon any other inferior charge, is punishable only as a high n)isden)canor, by fine and impri- sonment, (c) Comlruction of 1 Ldw. 11. •L2. It will be proper to consider some of the points which have been holden in the construction of this statute. Wliut u a pri- Any placc whatsoever wherein a person, under a lawful shituu' '"'^'^ arrest for a supposed crime, is restrained of his liberty. (a) 4 lUac. Com. 129. \ H.ilc ft07. Oract. 1. 3. c. 9. 2 Inst. 58y. (b) 2 Hawk. P. C. c. 18. s. 1. (r) 4 Blac. Com. 130. CHAP. XXXIV. J Nature of the Imprisonment. 547 whether in the stocks, or the street, or in the common gaol, or the house of a constable or private person, or the prison of the ordinary, is properly a prison within the mean- ing of the statute ; for in)prisonment is nothing else but a restraint of liberty, (d) The statute, therefore, extends as well to a prison in law as to a prison in deed, (e) With respect to the regularity of the imprisonment, it is Of the regu- clear that if a person be taken upon a capias, awarded on imnrisou- '' an indictment or appeal against him for a supposed treason »'«^»t or felony, he is within the statute if he break the prison, whether any such crime were or were not committed by him or any other person ; for there is an accusation against him on record, which makes his commitment lawful, however he may be innocent, or the prosecution groundless. And if an innocent person be committed by a lawful minimus, on such a suspicion of felony, actually done by some other, as will justify his imprisonment, though he be neither indicted nor appealed, he is within the statute if he break the prison ; for he was legally in custody, and ought to have submitted to it until he had been discharged by due course of law. {/) But if no felony at all were done, and the party be neither indicted nor appealed, no minimus for such a supposed crime will make him guilty within the statute, by breaking the prison; his imprisonment being unjustifiable. And though a felony were done, yet, if there were no just cause of sus- picion either to arrest or commit the party, his breaking the prison will not be felony if the mittimus be not in such form as the law requires ; because the lawfulness of his imprison- ment, in such case, depends wholly on the w/7^///??« ; but if the party were taken up for such strong causes of suspicion as will be a good justification of his arrest and commitment, it seems that it will be felony in him to break the prison, (rf) 2 Hawk. P. C. c. 18. s. 4, 2 Iiist. 590. Sum. J 09. 1 Half (e) 2 Inst. 389. 610, 611. (/) 2 Hawk. P. C. CIS. s. 5, 6. 2n 2 , wiii^ii iiiunca ui» i;uiiiiiiiiuit;iii luniuj, iiu>vt'vt;i iiu i 5 is Of Frison-hreak'w^. [ijookii, though he happen to have been committed by an informal warrant, {g) Of the nature The next enquiry will be as to the nature of the crime for^^di^cluhc ^"'' which the party must be imprisoned, in order to make party is im- his breaking the prison felony within the meaning of the sta- pnsone . ixxie. It i«; clear that the oflcnce for which the party was imprisoned must be a capital one at the time of his breaking the prison, and not become such by matter subsequent, {h) Though an otVender breaking prison, while it is uncertain whether his olfence will become capital, is highly punishable for his contempt, by fine and imprisonment, (/) But it is not material whether the offence for which the party was imprisoned were capital at the time of the passing of the statute, or were made so by subsequent statutes ; for, since all breaches of prison were felonies by the common law, which is restrained by the statute only in respect of impri- sonment for oflences not capital, when an offence becomes capital, it is as much out of the benefit of the statute as if it had always been so. (A) If the crime for which the party is arrested, and with which he is charged in the w»7//wm5, do not require judg- ment of life or member, and the offence be not in fact greater than the mittimus supposes it to be, it is clear, from the express words of the statute, that his breaking the pri- son will not amount to felony. (/) And though the offence for which the party is committed be supposed in the luiiti- mus to be of such a nature as requires a ca[)ital judgment ; yet if, in the event, it be found to be of an inferior nature, and not to rccpiire such a judgment, it seems difficult to maintain that the breaking of the prison on a commitment for it can Ik; felony; as tlie words of the statute are, " cx- (g-) '2 II;nvk. V. C. c. 18. s. "?, 15. (/) 2 Hawft. P. C. c. 18. s. 14. c. 16. s. I.S. et nequ. 2 Inst. MH), (k) 2 Ilawli. P. C. c. 18. s. \:i. j91. Sum. 1(1!). I Hale 010, (ill. (/) Sec Ific statute, ante, 340. (h) t^nte, 541. {w) Anlc, ibid. CHAP. XXXIV.] J\atiire of the Crane, ^c. 549 " cept the cause for which he was taken and imprisoned " require such a judgment." (w) And, on the other hand, if the offence which was the cause of the couiniitment be in truth of such a nature as requires a capital judgment, but be supposed in the 7nittimus to be of an inferior degree, it may probably be argued that the breaking of the prison by the party is felony within the meaning of the statute ; for the fact for which he was arrested and committed does, in truth, require judgment of life, though the nature of it be mistaken in the 7)iitlinius.(n) It is not material whether the party who breaks his prison were under an accusation only, or actually attainted of the crime charged against him ; for persons attainted, breaking prison, are as much within the exception of the statute as any others, (o) A person committed for high treason becomes guilty of felony only, and not of high treason, by breaking the prison and escaping singly, without letting out any other prisoner : but if other persons, committed also for high treason, escape together with him, and his intention in breaking the prison were to favour their escape as well as his own, he seems to be guilty of high treason in respect of their escape, because there are no accessaries in high treason ; and such assist- ance given to persons committed for felony will make him who gives it an accessary to the felony, and by the same reason a principal in the case of high treason, (p) The breach of the prison within the meaning of the sta- Of the nature tute must be an actual breakins;. and not such force and ■„ (m) Ante, 146. 110. 1 Hale 609.) seeming rather (n) 2 Hawk. P. C. c. 18. s. 15. to incline to a ditforent opinion, he It should be observed, however, shall leave these matters to the that Hawkins, after giving his rca- judgment of the reader. sons for these conclusions, says, (o) Staundf. P. C. .'32. '2 Hawk. that no express resolution of the P. C. c. 18. s. 16. points appearing, and the authors (/») 2 Hawk. P. C. c. 18. s. 17. who have expounded the statute, Benstcad's case, Cro. Car. 583. Li- (see 2 Inst. 590, 591. Sum. 1 oo, mcrick's case, Kel. 77. 1 550 Of Pvison-breahing. [cook ii. violence only as may be implied by construction of law : therefore, if the party go out of a prison without any ob- struction, the prison doors being- open through the consent or nesfligence of the gaoler, or if he otherwise escape, with- out using any kind of force or violence, he is guilty of a misdemeanor only, but not of felony, {q) And such break- ing must be either by the prisoner himself, or by others through his procurement, or at least with his privity ; for if the prison be broken by others, without his procurement or consent, and he escape through the breach so made, it seems to be the better opinion that he cannot be indicted for the breaking, but only for the escape. (?) And the breaking must not be from the necessity of an inevitable accident hap- pening, without the contrivance or fault of the prisoner ; as if the prison should be set on fire by accident, and he should Kscapeoftho break it open to save his life. (5) It seems also that no P*"^*^' breach of prison will amount to felony unless the prisoner escape. (/) Of tlir pro- -^ party may be arraigned for prison-breaking before he cccdmgs. jg convicted of the crime for which he was imprisoned, (the proceeding dilTering in this respect from cases of escape or rescue,) on the ground that it is not material whether he be guilty of such crime or not, and that he is punishable as a principal offender in respect of the breach of prison it- self, (w) But if the party has been indicted and acquitted of the felony for which he was committed, he is not to be indicted afterwards for the breach of prison^ for though, while the principal felony was untried, it was indifferent (7) I Hale 611. 2 Inst. 590. also in the prisoner that escapes by (r) 2 Hawk. P. C. r. 18. s. 10. means of thi.s breach, as he con- Pult. dc Pac. 1476. PI. 2. where sents to the breach of the prison it is said, that if a siraiifjer breaks by taking; advaiitajje of it. the prison, in ordrr to help a pri- (s) 1 Hale 611. 2 Inst. 590. soner conimitted for felony toes- Suniiu. 108. cape, who does escape accordiiifjly, (0 2 Hawk. P. C. c. 18. s. 12. this is fdony, not only in tlic (» I '2 Inst. 502. 1 Hale 611. stranger that broke the prison, but '.i Hawk. 1*. C. c. 18. s. li. CHAP. XXXIV.] Proceedings — Punishment. 551 whether he were guilty of it or not, or rather the breach of prison was a presumption of the guilt of the principal of- fence, yet, upon its being clear that he was not guilty of the felony, he is in law as a person never committed for felony ; and so his breach of prison is no felony, (w) The indictment for a breach of prison, in order to bring Of the ;indict- the offender within the intention of the statute, must spe- "'®°*- cially set forth his case in such manner that it may appear tliat he was lawfully in prison, and for such a crime as re- quires judgment of life or member : and it is not sufficient to say in general " that he feloniously broke prison ;" {x) as there must be an actual breaking to constitute the of- fence. {7/) So it is held in all the books to be necessary that such breaking be stated in the indictment, (s) The offence of prison-breaking and escape, by a party Of the pu- lawfully committed for any treason or felony, is, as we have "'* "°^" ' seen, of the degree of felony, (a) and will of course be punishable as such : but it should be observed, that it is a felony within clergy, though the principal felony for which the party was committed were ousted of clergy, as in case of robbery or murder. (Z>) And in this it differs from the offence of a voluntary escape, which is punishable in the same degree as the offence tor which the party sufft;red to escape was in custody, (c) Where the prison-breaking is by a party lawfully confined upon any inferior charge, it is punishable as a high misprision, by fine and imprison- ment, {d) {w) 1 Hale 612. where the learned {y) Ante, 449, 450. writer also says, that if the party (z) Rex v. Burridge, 3 P. Wins, should be first indicted for the 483. Staundf. 31. a. 2 lust. 589, breach of prison, and then be ac- et sequ. quitted of the principal felony, he (a) Jnte, 546. may plead that acquittal of the {b) 1 Hale 612. principal felony iu bar to the in- (c) Jnte, 541. dictment for the breach of prison. (rf) 2 Hawk. P. C c. 18. ». 21. (x) 2 Hawk. P. C. c. 18. S.20. 552 Of Prison-breaking. [bookii. Prison-break- Before this chapter is concluded it should be observed, Stcs relating that, by statutes which relate only to particular crimes, the to particular Q^^nce of prison-breaking is, in certain cases, made the oSciiccs* subject of special enactment, and, in some instances, of ca- pital punishment; and will be mentioned in the course of the work, in the order in which the crimes are treated of to which those statutes relate. 553 CHAPTER THE THIRTY-FIFTH. Of Rescue ; and of actively Aiding in an Escape, or in an Attempt to Escape. JKESCUE, or the oflfence of forcibly and knowingly free- Of Rescue. j ing another from an arrest or imprisonment, is, in most \ instances, of the same nature as the offence of prisoti' J breaking, which has been treated of in the preceding j chapter. I Thus it is laid down, that whatever is such a prison that Of the sort of the party himself would, by the common law, be guilty of Jf the im ri- ' felony in breaking from it, in every such case a stranger sonmentaud ] would be guilty of as high a crime at least in rescuing him ^''^^'''"S' from it. But though, upon the principle that wherever the j arrest of a felon is lawful the rescue of him is a felony, it j will not be material whether the party arrested tor felony, ' or suspicion of felony, be in the custody of a private per- son, or of an officer ; yet, if he be in the custody of a pri- vate person, it seems that the rescuer should be shewn to 1 have knowledge of the party being under arrest for felony, (a) In cases where the imprisonment is so far groundless or ir- regular, or for such a cause, or the breaking of it, is occa- sioned by such a necessity, &c. that the party himself break- ing the prison, is, either by the common law, or by the sta- tute 1 Edw. II. St. 2. de frangentibus prisonam, saved from the penalty of a capital offender ; a stranger who rescues him from such an imprisonment is, in like manner, also excused. {b) (a) 1 Hale 606. 2 Inst. 589. SUundf. P. C. SO, 31. (ft) 2 Hawk. P. C. c. 21. s. 1, 2. Ante, 546. et $equ. 5olf Of Rescue— Proceedings. [book ii. Arescuerniay It has been stated in the preceiling chapter, that, where a Wh"i!eason. Person committed for hij^h treason breaks the prison and es- capes, letting ont other persons, committed also for high treason, he seems to be guilty of high treason, in case his intention in breaking the prison were to favour the escape of such other persons as well as his own : (c) and it is clear that a stranger who rescues a person committed for, and guilty of, high treason, knowing him to be so committed, is, in all cases, guilty of high treason, {d) It has been holden also, that he will be thus guilty whether he knew that the party rescued were committed for high treason or not : and that he would, in like manner, be guilty of felony by res- cuin'' a felon, though he knew not that the party was im- prisoned for felony, (e) A brcakinjj ( f As the party himself seems not to be guilty of felony by no't felony '" breaking the prison, unless he uctuaUj/ go out of it ; (/) so unlos tlupri- (Jig breaking of a prison by a stranger, in order to free the soiicrs escape. ^^.j^Qp^pg ^Jjq ^re in it, is said not to be felony, unless some prisoner actually by tliat means get out of prison, {g) Of the pro- The sheriff's return of a rescue is not of itself sufficient (c) Ante, 549. (d) 2 Hawk. P. C. c. 21. s. 7. Staundf. P. C. 11. 32. Sum. 109. 1 Hale 2.17. (r) Bcnstead's case, Cm. Car. 583. where it is said that it was re- solved by ten of the judges, (on a special commission,) ser/fl//;/i, that the hreakiii}; of a prison where traitors are in durance, and caus- ing them to escape, was treason, althoii'^h the parties did not know that there were any traitors there : and that, in like manner, to break a prison whenhy felons encape, is felony, williDiil knowledge of their being imprisoned for such oflciice. And see 1 Hale 006. But Haw- kins, (P. C. c. 21. s. 7.) says, that this opinion is not proved by the authority ofthecase, (1 Hen. VI. 3.)- on which it seems to be grounded. It should be mentioned, however, that Henstead's case is spoken of in Rex V. Hurridge, :i P. Wms. 468. as having been cited and allowed to be law at an assembly of all the judges of Englaiul, except the Chief Justice of the Common Pleas, (that place being at the time va- cant,) in Limerick's case, Keyl. 77. (/) ,4ntc, 550. (j?-) 2 Hawk. P. C. c. 18. s. 12; C.21. 8.3. ment for a rescue. CHAP. XXXV.] Indictment — Punishment. 555 to put the party to answer for it as a felony, without indict- cecdinp in . 1 ., . ,1 1 ^. • • ii A cases ol res- ment or presentment. (//) And it is the better opinion that ^^^ he who rescues one imprisoned for felony cannot be ar- raigned for such offence as a felony, until the principal of- fender be first attainted; unless the person rescued were imprisoned for high treason, in which case the rescuer may be immediately arraigned ; all being principals in high trea- son. But it is said that he may be immediately proceeded against for a misprision only if the king please : (/) and if the principal be discharged, or found guilty only of an of- fence not capital, such as petit larceny, &c. though the rescuer cannot be charged with felony, yet he may be fined and imprisoned for a misdemeanor. (/.) The indictment for a rescue, like that for an escape, (0 Oftheindicl- or for breaking prison, (?n) must specially set forth the na- ture and cause of the imprisonment, and the special cir cumstances of the fact in question, (n) And the word res- citssit, or something equivalent to it, must be used to shew that it was forcible and against the will of the officer who had the prisoner in his custody, (o) The rescue of one apprehended for treason is itself trea- of tUe minishl son: and the party rescuing one in custody for felony, or luentfora suspicion of felony, will, as we have seen, be guilty of a crime of the same kind; though not in all cases punishable in the same degree ; for the rescuer will be entitled to his clergy, though the crime of the prisoner rescued were not within clergy, (p) AVhere the party rescued was in custody for a misdemeanor only, the rescuer will be punishable as for a misdemeanor ; for, as those who break prison are punishable for a high misprision, by fine and imprisonment, in those (ft) 1 Hale 606. (n) 2 Hawk. P. C. c. 21. ». 5. (0 2 Hawk. P. C. c. 21. s. 8. (o) Rex t*. Burridgc, 3 P. Wmi (fr) 1 Hale 598, 599. 483. (/) Jnte, 539. (p) 1 Hale 607. (m) ^nte. 551 rescue. 55() Of Aiding an Escape. [book u. cases wherein they are saved from judgment of death by the statute 1 Edw. II. stat. 2. de fraiigeulibus prisonam ; so also are those who rescue such prisoners, in the like cases, punish- able in the same manner, iq) The rescue of a prisoner, in any of the superior courts, committed by the justices, is a great misprision ; for which the party, and the prisoner, (if assenting-,) will be liable to be punished by imprisonment for life, forfeiture of lands for life, and forfeiture of goods and chattels ; though no stroke or blow were given. (?) escape. Of aiding: a The aiding and assisting a pnsoner to escape out of pri- cseape. ^on, by whatever means it may be effected, is an offence of a mischievous nature, and an obstruction to the course of justice : and the assisting afdon in making an actual escape, is an offence of the degree of felony. (5) In a case which underwent elaborate discussion, the court of King's Bench held that where a person assisted a prisoner who had been convicted of felony within clergy, and, having been sen- tenced to be transported for seven years, was in custody under such sentence, to escape out of prison, the person so assisting was an accessary to the felony after the fact. (0 The court proceeded upon tlie ground that one so convicted of felony, within the benefit of clergy, and sentenced to be transported for seven years, continues a felon till actual transportation and service pursuant to the sentence ; and that the assistance given in this case amounted, in law, to a receiving, harbouring, or comforting such felon. («) But (q) 2 Hawk. P. C. c. 21. s. 6. the special verdict in this case, was 4 Blac. Com. l.'iO. not particuhirly specified: llu'slatc- (r) 1 East. P. C. c. 8. s. 3. p. 408. meiit was, that the defendant, (who 410, 6 Bac. Ahr. Hr.sruf, (C.) was confined in the same {raul with ■3 Fnst. 141. 2'i Kdw. III. 13. the parly whom he assisted to es- (») Tillry'n fniif!, 2 Leueh fi71. cape,) "did wilfully aid and assist (0 Hex t). liurridge, H P. Wing. "• the said W. P., so heing in cus- 4.'}0. " tody as aforesaid, to make his (m) The assistance, as stated in " escape out of the said gaol." CHAP. XXXV.] Rescuing, S^c. — Slalutes. they held the indictment to be defective, in not charging that the defendant knew tliat the principal was gnilty, or con- victed of felony, (co) The offence of aiding a prisoner to escape out of prison appears also to have been considered as an accessorial oflence in a case of piracy. On a return to a habeas corpus, in the case of one Scaddi?ig, who had been committed to the Marshalsea by the court of Admiralty, the cause appeared to be for aiding and abetting one Exon, who was indicted for piracy, to escape out of prison ; whereupon all the court held that, though the fact were committed by Scadding, within the body of the county, yet, because it de- pended upon the piracy committed by Exon, of which the temporal judges had no cognizance, and was as it were an accessorial offence to the first piracy, which was determin- able by the admiral, they must remand the prisoner, {x) Several statutes, some of which have been already men- Statutes re- tioned, and others will be referred to in the course of the rL'cuin^ oi work, especially provide for the punishment of those who prisoners, or . , . , /. Ill aiding them rescue or aid in the escape of persons apprehended or com- to escape. mitted for the particular offences enumerated in those acts- There are also some special provisions, by statutes, upon this subject, which may be noticed shortly in this place. By the 9 Geo. I. c. 22. (commonly called the Black Jet,) persons forcibly rescuing any person being lawfully in cus- tody of any officer, or other person, for any of the offences mentioned in the statute, or by gift or promise of money, or other reward, procuring any of his majesty's subjects to join in any such unlawful act, are, upon conviction, to be adjudged guilty of felony, and to suffer death without be- 9 Geo. I.e. 28. Rescuing per- sons in cus- tody for of- fences against this act, or aiding such offenders, felony with- out clergy. But any assistance given to one known to be a felon, in order to hinder his suffering the punish- ment to which he is condemned, is a sufficient receipt to make a man an accessory after tiic fact. Anlc, 48. {w) 3 P. Wms. 492. And see the indictment on which the prisoner was tried a second time, convicted, and transported, id. 499, 508. (x) Scaddings case, Yelv. 134. 1 East. P. C. c, 17. s. 14. p. 810. 558 Of Aiding an Escape. [book n. nefit of clergy, (j/) And if any person, being charged with any of the olVences against this statute, and being required by order of the privy council to surrender himself, neglects so to do for forty days, the person so neglecting, and all that knowingly conceal, aid, abet, or succour him, are declared to be felons, without benelit of clergy, (z) 25 Goo. II. By the 25 Geo. II. c. 37. s. 9. " If any person or per- c. 37. s. 9. c< sons whatsoever shall, by force, set at liberty, or rescue, so... i.i cus- " or attempt to rescue or set at liberty, any person, out ot h>d) for ini.r- „ p^i^^n^ ^^1,0 ^l^^^\ be committed for or found guilty of " murder, or rescue, or attempt to rescue, any person con- " victed of murder going to execution or during execution, " every person so offending shall be deemed, taken, and « adjudged to be guilty of felony, and shall suffer death with- S. 10. Ri-^cii- u out benciit of clergy." And the tenth section of the statute ot^a n7urde.Tr enacts, that if any person, after execution, shall, by force, after t.xccu- rescue, or attempt to rescue, the body of such offender, out of the custody of the sheriff, or his officers, during its con- veyance to any of the places directed by the act, or from the company of surgeons, or their servants, or from the house of any surgeon where the same shall have been deposited in pursuance of the act, such offender shall be guilty of felony, and be liable to be transported for the term of seven years. 55 Geo. III. The 55 Geo. 111. c. lOS. s. 13. (Mitlini/ Ad,) enjicts, c. 108. %. I a. iiigt jf ^py offender under sentence of death by a court A% ti) c J r i 11 j • in an attempt " from any gaol, although no escape be actually made, m to escape. a ^^^^ ^.^^.j^ prisoner then was attainted or convicted of " treaso!), or any felony, except petty larceny, or lawfully " committed to or detained in any gaol, for treason, or any " felony, except petty larceny, expressed in the warrant of " commitment or detainer ;" every person so offending shall, on conviction, be adjudged guilty of felony, and be trans- Auimg&r. a ported for seven years. (/) And, "incase such prisoner prisoner con- ^^ j convicted of committed to or detained in any >ictedorcorn- "^ iiiiticd for " gao'5 f*^t" petty larceny, or any other crime, not being ^c or coi!-' ' " treason or felony, expressed in the warrant of his or her firud upon a commitment or detainer as aforesaid, or then was in gaol pr<''"* within clergy, and liable only to the penalties of burning in the dorgy'may" hand or whipping (except persons convicted for receiving- '"^ trimsport- , . , , , . , od for 7 years. or buying stolen goods, knowing them to be stolen,) the And persons court may order them to be transported to America for se- ^■""*'<"t'^'! "f •' ' onenccs for ven years, and may convey and transfer them to the use of which they any person who shall contract for such transportation ; and the'be'noilt^of i,a) Rex V. Eurrldge, M. T. 1733. 3 P. Wms. 439, ante, 556. 566 Of Returyi, Escape, ^c. after [book ir. cler'T, and enacts also, that where any persons shall be convicted of receivers of g^^. crimes for whicli by law they are excluded the benefit stolen goods, • ,,,11 1 m^y be trans- of clergy, and his majesty shall extend the royal mercy to ^"ars'^or ^^ ^"^'^ oflenders upon the condition of transportation to Ame- other term. jica, signified under the great seal by one of his majesty's principal secretaries of state, the court may allow such of- fenders the benefit of a pardon under the great seal, and may order the like transfer and conveyance, to persons making contracts for their transportation, of any such of- fenders, as also of any person convicted of receiving or buying stolen goods, knowing them to be stolen, for the term of fourteen years, in case such condition of transporta- tion be jreneral: or else for such other term as shall be made part of such condition, if any particular time be spe- cified by his majesty (b). And the statute then enacts Persons so or- « that if any ofiender or offenders, so ordered by any such dercd to be ,, , , , 1 /• . p traiisiiorttd, court to be transported for any term ot seven years, or and returning u fourteen years, or other time or times as aforesaid, shall before the end _ t^.,. tiji^ of tlieir term, " return into any part of Great Britain or Ireland betore aretobepu- c< (h^ e„(j ^f his or their said term, he or she so returning nshed as per- _ '^ sons attainted « as aforesaid, shall be liable to be punished as any person whhouider- " attainted of felony, without the benefit of clergy ; and ex- gy. « ecution may and shall be awarded against such offender or " ofTenders accordingly." But it is provided, that the king may at any time pardon and dispense with such transporta- tion, and allow the return of any such offender upon certain terms (r). r)Geo.I.c.23. The next act passed, for the more effectual transportation " 5. Person* (,f felons, was the G Geo. I. c. 23. which, afler making dif- rcsruing, ae. offenders fercnt provisions respecting contracts for such transportation, tod V «d"thosc enacts, that persons so contracting may carry and secure the who have con- felons and offenders through any counties of Gtf at Britain thdr*iran»^ towards the sea-port from whence they are to be transported, portjition, i„ fjuch manner as they shall think fit ; " and that if any Ion) without " person or persons shall rescue such felons or offenders, or clergy. (b) 4 Geo. I. c. 11.8. (c) Td.s. 2. CHAP. XXXVI.] Sentence of Transportation. 5G7 "any of them, he, she, and they, so rescuing', or aiding or " assisting such felons or olTonders, or any of them, in " making their escape from such person or persons as shall " have them in their custody as aforesaid," shall be deemed guilty of felony, and sufTer death without benefit of clergy, {d) The statute then recites, that felons ordered for transporta- Andbys.e.fe- tion had come, and that others might come, on shore, and ""' ordered return to Great Britain before they had been actually trans- aiion, and bo- ported to America^ or might break gaol or escape before I'cfo^rc Uiif end such transportation; and enacts, "that if any felon or of their term, are to sufFer "felons, who have been or shall be ordered lor transporta- death without " tion by this or any other act, shall be afterwards at large f'*^""?) *' within any part of this kingdom of Great Britain, without " some lawful cause, before the expiration of the term for " which such felon or felons was, were, or shall be ordered to " be transported," such persons being convicted shall suffer death, as in cases of felony, without benefit of clergy, (e) It is further provided by this statute, that such offenders Trial of such zap I may be tried either before the justices of assize, gaol deli- ^^ ^"' very, &c. for the county, &c. where they shall be appre- hended, or before justices of assize, gaol delivery, &c. for that county, &c. from whence they were ordered to be transported : and that the clerk of the assize and clerk of Evidence of the peace where such orders of transportation shall be -v*icUoHand made, and their successors for the time being, shall certify order for a transcript briefly and in few words, containing the effect tion. and tenor of every indictment and conviction of such per- son, and of the order and contract for his or her transporta- tion, to the justices of assize, &c. where such person shall be indicted ; and that such certificate shall be a sufficient proof that such person has before been convicted and or- dered to be transported. (/) The 16 Geo. II. c. 15. after reciting that many felons 16 Geo. 11. c. who had agreed, upon certain conditions, to transport them- ^^ ordered (d) 6 Geo. I. c. 23. s. 5. (J) Id. s. 7. (e) Id. s. C. 66S Of Return, Escape, ^-c after [book ir. to be trans- Fclves, either for life, or for some term or number of years, a^eein«' to 'i^t' already, and might thereafter come on shore or return, transport enacts, " that if any felon or other olVender already ordered, themselves, i i r • andbeiiifjaf- " cr herealtcr to be ordered for transportation, or who ttrwards at c. |,.^tj, already, or hereafter shall a"ree to transport him or large neiore . theexpiration '• herself, on certain conditions, to America^ either for life losuffeHeath '' '^^ ^"X "U"iL>vilh regard to transporta- " terms for which they were ordered to be transported, or tion to. 4ine- j, j j gnrreed to transport themselves, and particularly the r/crt.and being t> . . at large after- "several provisions contained in the 4 Geo. I. c. 11., tTel'tlrrl^ion " 6 Geo. I. c. 23., 16 Geo. II. c. 15., and the 8 Geo. III. of the sen- " c. 15., shall take place, be in foice, and enure, with re- tence shall be • /^ n i /r i a in force with gard to the transportation ot all such ottenders, to any regard to " parts beyond the seas, and with regard to their punish- transporta- "^ ' . ... tion beyond " ment for being afterwards at large in this kingdom be- ihe seas or ^ ^ ^j expiration of their respective terms, in like being at large ' « ' afti rwards " manner as if the same had been repeated and specially before the ex- ,, . i i • iu* * »> / \ piration of inserted in this act. (n) the iicntencc. (m) 19 Geo. 111. c. 74. s. 1. text, have been continued by the (n) Id s. 2. This act was only 28 Geo. 111. c. 24. s. 3. 34 Geo. 111. temporary, and contained a great c. 60. s. 1. 39 Geo. III. c. 51. s. I. many |)rovisions (principally re- 42 Geo. III. c. 28. s. 1. 46 Geo. III. latinglothc erection of peniten- c. 2H. s. 1. .5.SGeo. 111. c. 39. s. 1. tiary houses) which have been suf- 54 Geo. III. c. 30. s. 1. and, lastly, fered to expire. But the Isl and by the 56 Geo. III. c 27.8. 20. !• 2d sections which are cited in the the 1st May, 1821. CHAP. XXXVI.] Sentence of Tranfiportation. 571 It appears, however, to have been a matter of difficulty 24 Geo. III. to find proper places beyond the seas for the purposes of '*°*'*; '^Z^- ^^• I ' »^ •' "^ "^ authorized transportation; and it was thought expedient to authorize the removal the removal of convicts who had received sentence of trans- p,.,iJ"(!\otr^n^ portation to temporary places of confinement. Accordingly i>ortation to the 24 Geo. III. sess. 2. c. 56. after providing that ©(Tenders places "of coa- convicted in England or Wales of any offence for which they fi">pm<^nf '" " • 1 1 England or were liable to be transported, might be ordered to be trans- ff'aies. ported beyond the seas ; and that his majesty, with the advice of his privy council, might appoint to what parts beyond the seas, either within his dominions or elsewhere, such offenders should be transported ; (o) and that any offenders so ordered to be transported, or having agreed to transport themselves on certain conditions, and being afterwards at large before the expiration of their term, should suffer death without clergy ; (p) enacted, that the king might order or authorize three justices of peace to direct the removal of male pri- soners under sentence of transportation to such place of confinement in England or Wales as the king or the justices so authorized should appoint ; to be there kept in the cus- tody of certain overseers, {q) It enacted also, that any And offenders offender escaping from such custody, and any person rescu- <^^*^ ip'"g fro|" ing, attempting to rescue, or conveying instruments, &c. to any persons such offender, should be punishable as if the offender had been tj^p*,^'"?. confined in a gaol or prison, under the custody of the sheriff were made or other gaoler, (r) There was also a provision that if suXpunrsh- offenders could not conveniently be transported to the place "itntas if the 1 . , . , o • 1 1 offender had mentioned in their sentence, the court, &c. might order been confined them to be transported to any other place; and that such "i a gaol or . . . prison, offenders returning before the expiration of their terms should suffer death without clergy, (y) But this statute is at present under a temporary repeal, which possibly may be continued. (0 (tf) 24 Geo. III. sess. 9. c. 56. s. 1, (s) Id. s. 13. (p) Id. 8. 5. {t) Its provisions, as far as they (5) Id. s. 6, 8. related to the removal of oQenders (r) Id. s. 10. to temporary places of coafliic- 572 Of Bcturn, Escape, $^c. after [book n. 25 Geo. III. r. 46. provides for the more clVectiial transporta- tion ototfcnd- crs in :>cot- land, and for the removal of prisoners reprieved dur- ing pleasure, or under sen- tence of trans- port ition in Scotland, to tempor iry places of coi>- lineraent. -And provides for tJie pu- nisiniunt of offenders es- caping, or be- ing at large, before the ex- piration of The 25 Geo. III. c. 46. i^as passed for the more effectual transportation of ofienders in Scotland, and also to authorize the removal of prisoners under sentence of death, but re- prieved during: pleasure, or under sentence of transporta- tion in Scotland, to temporarj' places of confinement. It contains enactments nearly similar to those of the 24 Geo. III. sess. 2. c. 56. but as it is at present an existing statute, its provisions respecting the return or escape of oflenders under sentence of transportation, and the rescuing such per- sons, or aiding them in their escape, may be mentioned ra- ther more at length. The second section, after providing that the persons contracting for the transportation of such oftenders, or any other person lawfully authorized, may, in such manner as they shall think fit, carry and secure them through any county of Great Britain towards the sea-port or place from whence they are to be transported, enacts, " that if any person or persons shall rescue such offenders, " or any of them, or assist them, or any of them, in making " their escape from such person or persons as shall have " them in their custody as aforesaid," such persons shall be guilty of felony, and suffer death without benefit of clergy .(w) ment, were only to continue to the the 24 Geo. III. c. 56. are to be Islof June 1787, and to the end of valid in relation to proceedings the then next session of parlia- ment; but they were afterwards continued by different acts, and then repealed by the 55 Geo. III. r. 156. s. 1. This act of the 55 Geo. 111. was however, by s. 19. to continue only till the 1st of May 1816; and the 24 Geo. HI. c. 56. would therefore have been in exist- ence again after that time : but the 55 Geo. Ill c 156. is conti- nued so far as relates to the repeal of llu"24 Geo. III. c. 56. by the 56 Geo. 111. c. 27 s. I. But this last act is by s. 21. to continue only to the 1st May 1821. By 8. 2. of the commenced before the 55 Geo. III. c. 156. (m) By s. 10. the provisions of the act, so far as they extended to authorize the removal of uiVenders to temporary places of tontiae- incnt, were to continue until the 1st June 1787, and from Ihence till the end of the then next session ; but they were afterwards conti- nued by the :J4 Geo. 111. c. 60. s. 2. 39 Geo. 111. c. 51. s. 2. 42 Geo, III. c. 28. s. :i. 46 Geo. 111. c. 28. s. 2. 53 Geo. 111. c. 39. 8. 2. 54 Geo. III. c. 30. s. 2. and lastly, by the 50 Geo. HI. c. 27. 8. 20. until the Ut SO Geo. ill.c. 27. the provisions of May 1821. CHAP. XXXVI.] Sentence of Transportation. 573 The statute then enacts, " that if any ofTender or oflendors their scn- « who shall be so ordered by such court as aforesaid (viz. ^'i."sons''r"scu- « any court competent for the trial of crimes in Scotland) ing thrm or « to be transported beyond the seas, or who shall agree to ^^ escape. " transport himself or herself on certain conditions, either " for life or any number of years, to any sucli place or " places, part or parts as shall be appointed by his majesty, " (as mentioned in the act) shall be afterwards at large in " Great Britain or Ireland., without some lawful cause, be- " fore the expiration of the term for which such offender or " offenders shall have been ordered to be transported be- " yond the seas, or shall have so agreed to transport himself " or herself as aforesaid," such offender, being at large as aforesaid, shall suffer death as in cases of felony, without benefit of clergy, (zy) A further provision empowers the king to order, or to authorize, two lords of justiciary to order the removal of male prisoners under sentence of death, but reprieved during pleasure, or under sentence of trans- portation from any gaol in Scotland to such place of con- finement within Great Britain, or the limits of any part of Great Britain, as his majesty or others legally authorized shall from time to time appoint ; (.r) and makes the overseer who shall have the custody of any such offender answerable for his escape as if he were a sheriff or gaoler; (j/) and fur- ther provides that " if any such offender shall break from, " or unlawfully escape from, the custody of such overseer ; " or if any person shall rescue, or attempt to rescue, or " assist in rescuing, any such offender from such custody ; " or shall convey, or cause to be conveyed, any disguise, " instrument, or arms, to such offender; every such offence " shall be punishable in the same manner as if such offender '' had been confined in a gaol or prison iu the custody of (w) 25 Geo. HI. c. 46. s. 3. The reward of 20/. is givea to persons trial may be ia Scotland (if the discovering and prosecuting such oflfender is found at large there) offenders, before any court which might have (x) Id. s. 4. tried the original offence ; and a (y) Id, s. 6. 574 Of Rcluni, Escape, S^c. after [book ii. " the sheritY, &c. for the crime of which such offender shall " have been convicted." (s) And after providing that if offender? cannot conveniently be transported to the place mentioned in their sentence, two judges of the court of justi- ciary may order them to be transported to any other place appointed by his majesty for the transportation of such offenders, the statute enacts, that " in case such offender, " so ordered for transportation, shall be afterwards at large " within Great Britain, without some lawful cause, before " the expiration of the term for which such offender shall " have been ordered to be transported," every such offender shall suffer death as in cases of felony, without clergy. («) 31 Geo Ill.c. By ^^^ ^^ Geo. III. c. 46. s. 7. it was enacted, that 46. s. 7. Per- offenders sentenced to transportation, or to whom the royal be transport- mercy should be extended on condition of transportation^ ed may |)c miorht be ordered to be imprisoned and kept to hard labour kc|)l to li.ird ^ , labour iu the in the gaol for the county wliere they had been convicted, county gaol. ^^^^-^^ ^j^^^ should be transported, or otherwise removed, or until by the expiration of their sentence, or otherwise, they should be entitled to their liberty ; and that the time of such confinement should be reckoned in discharge, or in part dis- charge, of the term of their transportation. Disposal and The proper disposal and employment of offenders sen- employment tenced to transportation, whom it was not always found of oflcnders ,. , , , ,, , • n sentenced to expedient to send beyond the seas, have occasionally occu- transporta- -^j ^^xq attention of the legislature, and been provided for tioi!, and re- » '^ • i a i movalofthcm by statutable enactments of a limited duration. (6) And a (c) 25 Geo, HI. c. 46. s. 7. (») The 16 Geo. III. c. 4.1. pro- (a) rd.s.8. The trial and cvi- vided for chanjjfins: the punishment dence are to be accordiiif; to the of transportation to hard lal)our, laws for the trial of oilier ollcndcru in cleansinj; the river '/"/jflnjes, or found at large within the kingdom to continenicnt within the county before Hie expiration of their sen- to hard labour. This statute was tences : and a reward of 20/. is continued by the 18 Geo. III. c. 62. given for prosecuting to convic- and the 19 Geo. 111. c. 54 to the tion 1st July HT'J : and by the 19 Geo. CHAP. XXXVI.] Sentence of Tranfiportatlon. 575 recent statute, 56 Geo. HI. c. 27. which makes many alter- to ulaccs of ations and amendments in the hiws reUiting to the transport- i^,"').;'"^'/"^^^^^^^ ation of oftenders, provides for their removal to places of JVaien. confinement in England or Wales, and their employment in such places: and also makes their escape, rescue, &c. punish- able in the same manner as it they were confined in a e^aol or prison. This statute, however, is also only of limited duration ; (c) but as its enactments are important, and may be continued, it is thought proper to state the substance of them in this place. This statute first makes provision respecting the trans- 56 Geo. III. c. portation of oftenders bejyond the seas. It enacts, that the '^Jj^^^cuSe* court before which any persons shall have been or shall be transported convicted, in England or Wales, of grand or petit larceny, ported be* or any other otfence for which such persons shall be subject yond the seas to such place to be transported, or any subsequent court tor the same as the kin"-, county, &c. may order and adjudge that such persons be wih the ad- transported beyond the seas for any term not exceeding the privy council, number of years or term for which such persons are liable appom by law to be transported ; and that in every such case his majesty, with the advice of his privy council, may appoint any other place beyond the seas in addition to such as had III. c. 74. to the end or other de- provisions respecting the transport- terininatioa of the terms for which ation of offenders, or their removal offenders were then confined under to places of confinement within the its provisions. The 19 Geo. III. c. kingdom; but its duration was only 7-1. s. 27. also provided for the to the 1st May 1S16, except as to changing the punishment of trans- its repeal of the 24 Geo. III. c. 56. portation to hard labour, in cleans- (ante, 511.) in which respect it is ing the Thames, or other navigable continued till the 1st May 1821, by rivers, ports, St.c. ia Engla7id : but the 50 Geo. III. c. 27. The punish- Ihis statute was temporary only, mont of persous in Ireland, liable and the 2Tth section, with many to transportation, by confinement others, after having been conli- and hard labour, was provided for nued for some time by different by 51 Geo. III. c. 03. acts, was allowed to expire •, ante, (c) By s. 2 1 . the act is to be in 570. note (n). A recent act, 55 force only to the 1st May 1S21, Geo. III. c. 156. also made many 576 Of Return, Escape, S^c. after [book ii. been theretofore, &c. appointed, to which such oftenders shall be transported : and such court is authorized and required to order such oftenders to be transferred to the use of any persons or their assigns, who shall contract for the Audoflendcrs due performance of such transportation. And that when convicted of ^j^g j^j^g ^\^y\\ extend mercy to any offenders convicted of cfuS fi^om any crimes excluded from the benefit of clergy, upon condi- clcr^y. to ^j^j^ ^j. transportation to any place beyond the seas, either whom the ' ~ . . c- \ ^\ kiii^ shall ex- for life or a term of years, and such intention ot mercy shall co" dZn ot" be signified by a principal secretary of state, the court may transporta- allow such offenders the benefit of a conditional pardon, th""scrrniav and order them to be transported for such terra of life or be ordered to yem-g 35 shall be specified in the condition, and may make he transport- " /. • 1 j i ^ ^i • j u ed according such order ot transfer as aforesaid ; and that the judge oe- to such cou- f whom the offenders are convicted, or any justice of the dition. T-^ • King's Bench, Common Pleas, or baron of the Exchequer, of the degree of the coif, in case such offenders are tried in £'w^/a/ir/, or any justice of Chester or JValeSy in case such offenders are tried within their jurisdictions, shall, on such intention of mercy being signified to him by a principal secretary of state, make an order for the immediate trans- portation of such offenders, and for such olFenders to be so transferred, in the same manner as if such intention of mercy had been signified during the continuance of the assizes or sessions at which such offenders were condemned ; and that the order shall be as effectual as any order of transportation made during the continuance of the assizes or sessions, (d) The statute then makes different provisions respecting the persons contracting for the transportation and the securities which they are to give for the due performance of it, before the offenders are delivered to them for that purpose ; (e) and Persons resell- enacts, " that the person or persons so contracting as aforc- m;; such of- ^. .^j ^^^^^j ^^ ^yi,^^^ a„y offender or offenders shall be deli- tenders, or as- ' •' »isiinj;thein " vored in order to be transported, or any person or persons fv'on.ThosV " directed by the justices (empowered to contract as inen- who have u tioiied in the act) or their assigns, may, in such manner as (fl) 56 Geo. III. C, 27. 5. 3. <<) M s. 3, 4, 5, 6. CHAP. XXXVI.] Sentence of Transportation. 577 " they shall think fit, carry and spcure the said offenders in them in cus- " and throu 7 J dered ior " part of Great Britain, without some lawful cause, before transporta- " the expiration of the term for which such oflTender shall H^"" '""I i^ afterwards " have been ordered to be transported, every such offender, heinij af large " being convicted, shall suffer death, as in cases of felony, ful cause ^is' " without benefit of clergy ; and shall be tried before such to*"'J'i^''" . , 1 • I I .1 -1 , ''<"3l'> without " judges, and in such manner, and the same evidence made clergy, trial, " use of for his or her conviction, as is, or shall be directed ^"^ evidence. " by the laws now in being, or hereaf\er to be made for the " trial of other oflfenders who shall be at large within this (/) 50 Geo. III. c. 27. s. 13. 2 p 2 5S0 Of Return, Escape, ^c. after [book ii. " kiiifjdom before tlie expiration of the term for which they " were ordered to be transported." (;«) 56 Geo. IIT. c.es.Coiivicts sentenced to transporta- tion may lie confined in tlie o;eneral Pei.itcntiary at JMillLank. By the bG Geo. 111. c. C3., which was passed for the pur- pose of regulating^ the general PenUenliary for convicts, lately erected (w) at Millbanl;^ in the county of Bliddlesex, it is enacted, that when the Penitentiary shall be completed for the reception of convicts, the king, by an order in writ- ing, to be notified by the principal secretary of state for the home department, may direct that any person under sen- tence or order of transportation for any offence committed in England or Jf'alcs, and who, having been examined by an experienced surgeon or apothecary, shall appear to be free from infectious distemper, and fit to be removed, shall be removed to the Penitentiary, there to continue for five years, in case such convict shall be under sentence or order of transportation for seven years only ; and for seven years, in case such convict shall be under such sentence or order for fourteen years ; and for ten years, in case such convict shall be under such sentence or order for life, (o) And cer- tain regulations are made as to the time of confinement in the Penitentiary, where the convicts have, previously to their removal thither, been kept confined in some other pri- son, during a part of their term of transportation, (p) The statute subsequently makes provision respecting such con- victs breaking prison or escaping, and respecting persons rescuing, or attempting to rescue them, or supplying means of escape. 5« Cfco. Ill, c. f.3. ft. Vi. Conviel.s ton- fined in the I'enilenti.iry breaking |»ri- By s. 43. it is enacted, " that if any convict who shall be " ordered to be confined in the said Pcnilentiarj/ shall, at any " trme during the term of such confinement, break prison, or " escape from the place of his or her confinement, or in his (m) 56 Geo. III. c. 27. s. l(i. A reward of 20/. is given for every ducli ofTender prosecuted to cou- Tiction. (n) It was erected under the pro- visions of the .V2 Geo. 111. c. 44. (o) 56 Geo. 111. c. 63. ». 13. {p) Id.s. 14. CHAP. XXXVI.] Sentence of Transportation. 581 " or her conveyance to such place of confinement, or from sonorcscap- *' the person or persons having: the lawful custody of such '"S-.^re to be ' * ^ •' j»uiii>lieu by " convict, he or she so breaking prison or escaping, shall be ■"> addition " punished by an addition of three years to the term for "o the^erm of " which he or she, at the time of his or her breach of prison *'>^''" confi"e- cc 1 • . . I /-I 1 •/> , . nient; aud, or escape, was subject to be confined ; and if such convict upona second " so punished by such addition to the term of confinement l^r^ach of pn- ,, , ,, rt , , . son or escape, shall afterwards be convicted of a second escape or breach to be guilty " of prison, he or she shall be adjudged guilty of felony, ^^tjjoyt^ " without benefit of clergy." clergy. By s. 44. it is enacted, " that if any person shall rescue 56 Geo. III. " any convict who shall be ordered to be confined within the ti" ^^' *' ^*' 1 iTsons res- " said Penitenliarj/, either during the time of his or her cuing con- " conveyance to the said Penitentiary, or whilst such con- JoVe con-"^^ *' vict shall be in the custody of the person or persons under fi"<*'.l ''i the *' whose care and charge he or she shall be so confined ; or or aidino- in *' if any person shall be aiding or assisting in any such res- *"*!" rescue, ... to be guilty of cue, every such person so rescuing, aiding, or assisting, felony, and " shall be guilty of felony, and may be ordered to be con- [he'penlten- " fined in the said Penitentiary, for any term not less than tiary. And " one year, nor exceeding five years ; and if any person f.fgX'c'li^^' " having the custody of any such convict as aforesaid, or tody of such " being employed by the person having such custody as a voluntarily" " keeper, under-keeper, turnkey, assistant, or guard, shall P^'""'tting ,, , ., . ' o 3 an escape, and voluntarily permit such convict to escape; or if any per- other person* " son whatsoever shall, by supplying arms, tools, or instru- Sjfi^g any " ments of disguise, or otherwise be in any manner aiding escape or res- " and assisting to any such convict in any e.scape, or in any ^"niy'^of fc- " attempt to make an escape, though no escape be actually '""J- ^"d «£ J L 11 J, , . . any person made, or shall attempt to rescue any such convict, or be having such " aiding and assisting in any such attempt, though no rescue ^^"['^'^y- ?"'s from the day of his discharge, and of giving security " so to do," and, upon giving the security required, had been discliarged, but had not complied with the other part of tlie condition, by transporting himself, it was doubted whether he could be convicted of a capital felony in being found at large, zcilhout any laxi:ful cause^ before the expira- tion of the terra, or whether he ought to be remitted to his former sentence. The former cases were cited as authori- ties that the prisoner's discharge was a lawful cause for his beinor at larsre, notwithstanding; he had forfeited the recoff- nizance of himself and his bail, by breaking the other part of the condition, in not transporting himself within the four- teen days : but one of the judges thought that, as the pri- soner had not complied with the terms on which he was par- doned, he must be considered as having been at large with- out lawful authority, as soon as the fourteen days had ex- pired. Another judge considered it as a doubtful question whether tlie non-performance of the condition had not ren- dered the whole pardon null and void : and he also thought that the offence with which the prisoner was ciiarged was not within the statute 16 Geo. II. c. 15.(6) because he had not agreed to transport himself to America ; and that it was not within the 19 Geo. III. c. 74. (c) because that act re- lates only to pardons granted to offenders who have been convicted of felonies by which they are excluded from clergy, (c?) (b) ^nte, 567, 568. large in Great Britain within the (r) Ante, 569, 570. term for which a convict, who was (d) Aickles's case. Old Bailey, liable to be transported to Ame- 1785. — cor. Gould, J. Hotham, B. rica, had received sentence to be and Adair, Recorder. The Re- transported beyond the seas. But corder thought, that the indict- he thought, that when the condi- ment was perfectly supported ua- tion of the king's pardon was bro- der the clause of the 16 Geo. II. c. ken, the pardon was gone. There 15. (ante, 567.) adopted by 19 Geo. being, however, a difference of III. c. 74. (ante, 569.) which makes opinion, it was intended to have it a capital felony to be found at submitted the case to the opinioa 588 Of Return, Escape, Sfc. [book ii. Poverty and In the last mentioned case one point was clearly agreed ill health namely, that as the prisoner had, at the time of his amount to a 1 ' • ' ' i • i • i • i lawful excuse discharge, a real intention to q^it the kingdom wjtltm the quVt\"ed^the'° ti'^^j '^"^ ^^^ been prevented from carr> ing it into execu- kiugdom. tion by the distress of poverty and ill health, these impedi- ments amounted to a lawful excuse, {e) of the twelve judges, if the pri- and sec Thorpe's case, id. ibid, note loncr had been found guilty. (a). {e) Aickles's case, 1 Leach 396, 589 CHAPTER THE THIRTY-SEVENTH. Of Incorrigible Rogues. XdLENESS, in any person whatsoever, has been consi- idle personi, dered as a high offence against the public oeconomy ; and ^^£^^§'^'^'1*** idle persons or vagrants are regarded in this, as in other against the countries, as offenders against the good order and welfare of community the community, (a) They are, by the statute 17 Geo. II. c. 5. which is commonly called the Vagrant Act, particularly described, and divided into three classes, namely, idle and disorderlj/ persons, rogues and vagabonds, and incorrigible rogues ; and, by that and other statutes, made punishable by summary proceedings before justices of the peace, which do not come within the limits of this treatise. (6) The statute 17 Geo. II. c. 5. contains, however, certain provisions, which may be properly noticed in this place, as in some cases they make the offences of an incorrigible rogue^ of the degree of felonv, and punishable by transportation. The ninth section of the statute enacts, that where any i7Geo.II.c.5. offender ag-ainst the act shall be committed, in the manner ^' ^,- l^<^S"es . o • ^ vaga- therein mentioned, to the house of correction, thereto re- bunds, and in- main until the next general or quarter sessions; and the *'"^'"'S"''^ rogues, raaj justices at such sessions shall, on examination of the circum- be confined in , c .t !• 1 1 the house of stances ot the case, adjudge such person a rogue or vaga- correction bond, or an incorrigible rogue ; they may, if they think con- ^"'^ whipped. venient, order such rogue or vagabond to be detained and kept in the said house of correction to hard labour, for any further time not exceeding six months ; and such incorrigi- (fl) 4Blac,Com. 168. Burn. Just, ^flfiyan**. ijj) For these proceedings see 5 590 Of Incorngible Rogues. [book ii. ble rogue, for any further time not exceeding two years, nor less than six months, from the time of making such order of sessions; and during the time of such person's confinement, to be corrected by whipping, in such manner, and at such times and places within their jurisdictions, as, according to the nature of such person's offence, they in their discretion shall think fit. And after providing for sending such per- son away by a pass, or into his majesty's service, if the jus- Ami if nil in- ^'*^^^ ^^ sessions shall think proper, it enacts that " in case corrigible " any such incorrigible rogue, so ordered by the said rojue so con- ' , • i u i i. • j i i ^ • lined break general or quarter sessions to be detained and kept in out. ores- « the said house of correction, shall, before the expiration cape, or ot- . . "^ fentl again in " of the time for which he or she shall be so ordered to be like manner, u ji^g^e detained and kept, break out or make his or her he IS to be ' ' ileemedguilty " escape from the said house of correction, or shall oft'end of felony and u • ' ^•^ ■ u i_ transported again in like manner; m every such case, every such per- " son shall be deemed and taken to be guilty of felony, and " being legally convicted thereof, shall and may be trans- " ported for any time not exceeding seven years, in the ** same manner as by the laws now in being other felons " may be transported." Bailie's case. It bas been holden in a case upon this statute, that a per- A party con- son committed as a roijue and vasabond, under an act of victed under ^ ^ ' a subsequent the 23 Geo. III. c. 88. (c) who breaks gaol, and, on being Geo III c 88 committed as an incorrigible rogue under this statute, breaks as a rogue and gaol a second time, and then commits a new act of vagrancy vagabond, , , , i • i- i ,. /> i i and ollendino- ^^ ^ 7'os^ue and vngaoona, may be indicted tor telony, and again, may be punished bv transportation, (r/) The indictment in this case mdicted on ' , , " , • this statute of stated, that the prisoner had been committed by a justice, 1/ Geo. 11. gjjjj convicted by the sessions as a rosrue and xahment as in cases of wilful perjury ; and such penalty and the not(»(10) (11), and the Car. II. c. 7. slaUili;»2 Geo. II. c. '2H. 12 Geo. II. (e) S, 2. e. m. 25 Geo. II. c. 36. s. 5. aud 16 CHAP. XXXVIII.] Of Gamwg. 595 *' to be recovered by snch person or persons as shall sue " for the same by such action as aforesaid." By the 18 Geo. II. c. 34. s. 8. « If any person shall win is Geo. II. c. ,, , , ... . , 34. s. 8. Any *' or lose at play, or by betting-, at any one time, the sum person win- ** or value of ten pounds, or within the space of twenty-four """g or iosinj ' ^ •'at any one *' hours, the sum or value of twenty pounds, such person time lo/. or " shall be liable to be indicted for such oflf^nce within six k'*""o^.! hours 20/. " montlis after it is committed, either before the justices may be in- " of the Kinsf's Bench, assize, gaol delivery, or great ses- ii„e(i five "sions; and being thereof legally convicted, shall be fined times the va- ^' five times the valup of the sum so won or lost ; which fine " (after such charges as the court shall judge reasonable " allowed to the prosecutors and evidence out of the same) *' shall go to the poor of the parish, or place where such of- *' fence shall be committed." There is then a provision, OfFenderdis- that if any person so offendincf shall discover any other per- <'ovennj any ' ^ ^ .' r other offender son so offending, so that such person be thereupon con- tobedis- victed, the person so discovering shall be discharged and *^*^''S^"- indemnified from all penalties, if such person so discovering has not been before convicted thereof, and shall be admitted as an evidence to prove the same, (f) It has been decided that a foot race, whether the race be Cases upon upon a o;iven distance, or ag'ainst a certain time, is a i>arae tjie lonstruc- *^ » ' & ' » tionofthe prohibited by 9 Ann. c. 14. (g) And a wager that a person statute of 9 did not find within such a time a man who should carry on ' ""^' *^' foot twenty-four stone weight ten miles in fifteen hours has been holden to be within the same principle, (h) But where A. betted B. that one C. would not run four miles in twen- ty-one minutes, it was adjudged not to be within the sta- tute, because as C. was not playing at such game, there could be no betting on his side within the statute ; for C. (/) 18 Geo. II. c. 34. s. 9. And Wils. 36. by s. 10. the act is not to repeal or (k) Brown v. Bcckley, Cowp. invalidate the 9 Ann. c. 14. 282. (s) Lynall v. Longbotham, 2 Q o *^ . Walter, 1 Wils. 220. (n) Bones v. Booth, 2 Blac. R. I2y(i. CHAP. XXXVIII.] Of Gaming. 597 and, of course, the defendant never tried upon it; for the grand jury may find another bill for the same offence, (o) It is also settled, that if a defendant be convicted on an information on this statute, (he fourt can only give judg- ment quod convicliis est, and cannot s-et a fine on the offend- er of five times the value, but that an action must be brought on the judgment to recover the penalty, (p) Upon the ground that the judgment of the court is only quod con- victus est, and is to be the foundation of an action to recover the penalty ; it was urged, in a recent case, that it is ne- cessary to prove the sum precisely as laid in the indict- ment but Lord Ellenborough, C. J. was of opinion that although, if the prosecutor had averred in the indictment that the defendants had won any bills of exchange of a spe- cified amount, the allegation must have been proved as laid; yet that since the sum only was averred, and that under a videlicet, the prosecutor was entitled to prove the winning of a smaller sum. (q)- (o) 1 Hawk. P. C. c. 92. s. 56. others, 1 Starkie R. 359. And see Anon. 8 Mod. 187. Rex v. Gilham, 6 T. R. 265. Rex (p) Rex V. Lookup, 2 Str. 1048. v. Burdelt, 1 Ld. Raym. 149. ante. The defendant was accordingly dis- 225. Rex v. Baynes, 2 Ld. Raym. charged without any fine or costs. 1265. (q) Rex I'. Hill, Darley and 598 CHAPTER THE THIRTY-NINTH. Of Usury and Illegal Brokerage. Usury a con- It was anciently Iiolden that the taking of any kind of tract lor ex- consideration for the loan or forbearance of money wasanof- orl)itaiit in- • i i i tcrestforthe fence of ecclesiastical cognizance, punishable by severe cen- use of money. ^^^^^ ^^^ forfeitures : («) but this notion, which appears to have proceeded from a mistaken construction of some pass- ages in the Mosaical law, (6) has long given way to the more reasonable doctrine that there is nothing improper in taking a moderate interest for the use of money. Any large and immoderate consideration for such use has, however, been justly deemed prejudicial to the welfare of society ; and the contract to receive any such exorbitant increase is that which is now generally understood by the odious appellation of usitrj/. OfTf-nce at ^* seems that, at common law, no indictment for usury common law. could be supported, unless it were of such an exorbitant kind as that taken by the Jews. Accordingly, it is laid down in the books, that usury, such as the Jews took, namely, forty per cent, per annum, or more, was an offence at common law ; and that, upon conviction, the usurer for- feited his goods to the king, and his lands to the lord of the fee, but tliat no other usury Avas so prohibited, (f) (a) 1 Hawk. P. C. c. 82. s. 4. ILirdr. 410. It is however staled (fr) Exod. c. 22. V. 25. Lcvil. that a very eminent barri.-iler, in r. 25. V. .36, 37. Dculer. c. 23. the year 1814, advised that, in a T. 19, 20. ; and sec I Hawk. P. C. case of clear and |)al|Kil)l<; usury, a c. 82. s. 7. 2 Blac. Com. 455. parly may be indiclcd at common (r) 2 Uol HOO, .3 Initl. 151, 152. law. 2 Chit. Crim. L. 549uote(/). fi Com. Wv^. Usury, {A.) Anan. 1 CHAP. XXXIX.] Statute 12 Ann. st. 2. c. 16. 599 Different rates of interest have been established by dif- oflft'nre by ferent nations. In this country also they have been regu- *^^'^"^"- lated by the legislature; and have varied and decreased for two hundred years past, according as the quantity of specie in the kingdom has increased by accessions of trade, the in- troduction of paper credit, and other circumstances. By the statute 37 Hen. VIII. c. 9. the rate of interest was fixed at 10/. per cent, per annum, which the statute 13 Eliz. c. 8. confirmed, and ordained that all brokers should be guilty of a premunire who transacted any contracts for more, and that the securities themselves should be void. The statute 21 Jac. I. c. 17. reduced interest lo eight per cent. ; and it having been lowered in 1650, during the usurpation, to six per cent., the same reduction was re-enacted after the res- toration, by the 12 Car. II. c. 13. ; and now, by the statute 12 Ann. st. 2. c. 16. it is reduced to five per cent. A con- tract, therefore, to take more than five per cent, is at this time usurious, and by the statute of Anne, totally void ; Jbesides which, the lender is made liable to the forfeiture of treble the money borrowed. This statute of Anne enacts, " That no person or per- 12 Ann. st. 2. *' sons whatsoever, upon any contract, take, directly or in- c. I6. s. 1. " directly, for loan of any monies, wares, merchandize, or no person " other commodities wliatsoever, above the value of five **'?^ ^K^ above bi. per " pounds for the forbearance of one hundred pounds for a cent, interest. " year, and so after that rate for a greater or lesser sum, " or for a longer or shorter time ;" and that all bonds, * 4 .h t II contracts, &c. whereby there shall be reserved or taken bonds, &c. for above the rate of five pounds in the hundred, as aforesaid, \^f.f,i shall be shall be utterly void ; " and that all and every person or ^^id. " persons whatsoever, which shall, upon any contract, take, "^ takin^^"^* accept, and receive, by way or means of any corrupt bar- above .W. for gain, loan, exchange, chevizance, shift, or interest of any ^^^.^ ^^ j'qq/ wares, merchandizes, or other thing or things whatsoever, forayearshall ' ' 06 ) forfeit treble (C u ii iC or by any deceitful way or means, or by any covin, en- the value of the " gine, or deceitful conveyance, for the forbearing or giving th^raomes, day of payment for one whole year, of and for their money 600 Of Usury. [book II.. " or other thing, above the sum of five pounds for the for- " bearing of one hundred pounds for a year, and so after " that rate for a greater or lesser sum, or for a longer or " shorter term, shall forfeit and lose for every such offence *' the treble value of the monies, wares, merchandizes, " and other things so lent, bargained, exchanged, or " shifted." S. 2. enacts that no scri- vener, &c. shall take above 5s. for 100/. for a year for brok- age, &c. : nor aboTel2rf.be- sides stamp duties for making or re- newing any bond, &c. ; on penalty of 20/. and costs, and iniprisoninent for 6 muaths. The second section of this statute further enacts, " that " all and every scrivener and scriveners, broker and brokers, " solicitor and solicitors, driver and drivers of bargains " and contracts, who shall take or receive, directly or indr- " rectly, any sum or sum? of money, or other reward or " thing for brokage, soliciting, driving, or procuring the " loan, or forbearing of any sum or sums of money, over " and above the rate or value of five shillings for the loan " or forbearing of one hundred pounds for a year, and so " rateably, or above twelve pence, over and above the stamp " duties, for making or renewing of the bond or bill for '•' loan, or forbearing thereof, or for any counterbond or " bill concerning the same, shall forfeit for every such of- " fence twenty pounds, with costs of suit, and suffer im- " prisonment for half a year; the one moiety of all which " forfeitures to be to the queen's most excellent majesty, her " heirs and successors, and the other moiety to him or them " that will sue for the same in the same county where the " several offences are committed, and not elsewhere, by ac- " tion of debt, bill, plaint, or information, in which '' no essoign, wager of law, or protection, shall be al- « lowed." As to an in- fliclinciit br- ill;^ sust^iin- thi* statute. The provisions of the 12 Car. II. c. 13. were similar to those of the statute of Anne, which have been just cited, except that the rate of interest was fixed by them at six per cent : iwul it is rej)ort('(l to havq been decided that no indictment would lie upon the statute of Car. II., and that it was necessary for the pai ty prosecuting to sue for the pe- nalties in a penal action 5 as being the method of proceeding CHAP. XXXIX.] Construction of the Statutes. 601 j I prescribed by the statute, (d) But iipon the principles whicli , have been stated in a former part of this work, as to an in- i dictment being sustainable where there is a general pro- hibitory clause in a statute, th(nioh there be afterwards a particular provision and a particular remedy given, it should seem that an indictment will lie upon the statute where an ' usurious transaction has been carried into eifect. (e) An in- ] dictment lor usury has not, however, been a frequent mode ' of proceeding-, as the party prosecuting has, in general, been I contented to sue for the heavy penalties given by the sta- ' tute : and it is clear that an indictment cannot be main- j tained for a corrupt agreement only; as where such an I agreement was stated in an indictment for usury, without , any loan, or taking excessive interest in pursuance of it, ; judgment was arrested. (/) | It was holden, that justices of the peace at their quarter Justices of sessions had no jurisdiction upon an indictment on the sta- iurisdict^on"° tute of 12 Car. II. (g) And with respect to an information ^^^^^ indict- on the statute of 12 Anne, it has been holden that the court usury. ' of King's Bench will not grant it after the time has elapsed As to anin- within which tlie common informer should institute his pro- the™our"of^ i ceedings ; on the ground that where a penalty has vested in ^B- ] the crown only, the court have no power to grant an inform- \ ation, but must leave it to the attorney-general to file one i if he shall think proper. (/O (d) Reg. V. Dye, (7 Anne,) 11 (e) Ante, 65. el sequ. And see Mod. 174. The case is very shortly 2 Chit. Crira. L. 649, note (/). reported, and does not state upon (/) Rex «. Upton, 2 Str. 816. which section of the statute the {g) Reg. v. Smith, (4 Anne.) 2 question was raised : hut the editor Salk. 680. 2 Lord Raym. 1144. of the Reports, {cd. 1796.) has cited S. C. many authorities in support of the (ft) Rex v. Hendricks, 2 Str. decision, as to the applicability of 1234. By the 31 Eliz. c. .5. s. 5. some of which qu. Reg. v. Dye the common informer is limited to is however cited as law in 7 Bac. a year after the offence committed; Abr. Usurji, (/.) aud, if no «uch suit is brought 602 Form of in- dictment. Evidence. Of Illegal Brokerage. [book ii. It is said that an indictment for usury, (supposinn^ it to be sustainable,) must contain all the requisites of a declaration for usury. (0 If the transaction were effected by means of some de- vice, or colourable pretence, it must be left to the jury to say whether the sum taken, though ostensibly for ano- ther purpose, was not in reality taken as usurious in- terest. (^0 17 Geo. III. The 17 Geo. III. c. ^6. s. fi. makes all contracts void c. 26. s. 6. ^hich are made, for the purchase of any annuity, with any m;ikes ton- * j -^ r n tracts for an- person under twenty-one years of age. And it turther en* any pers'^n' acts, « That if any person shall, either in person, by letter under 21 years u ar>7 u c taken as a an attorney, and having produced them,) 100/. by way ot fair charge, present, and 5/. per cent, on the whole sum, viz. 122/. 10.?. or as a divice ' ' '' . , . . • • i to avoid the Lord Kc»f/on, C. J. over-ruled the objection; and, upon staluie. ^^^ whole case, directed the jury to consider whether th« transaction were not a mere device and colour to receive the sum stated under different pretences, but in truth for the brokerage and soliciting of the loan, in fraud of the act of parliament. This decision was confirmed by the court, who were of opinion that the material question was, whe- ther more than ten shillings in the 100/. was taken by the defendant; and that it was not necessary to prove that h« (m) 17 Geo. III. C.26. 8.8. CHAP. XXXIX.] Stat. 17 Geo. III. c. 26. took the exact sura laid in the indictment, though it was not laid with a scilicet, {n) 605 (n) Rex V. Gillhara, 6 T. R. 265, Rex v. Burdett, 1 Lord Raym. and at N. P. 1 Esp. R. 285. As to 149. ante, 225.; and Rex v. Hill the point of the proof of the ex- and others, 1 Starkic, R. 359. ante, act sum not being necessary, see 597. 606 ofl'ence. CHAPTER THE FORTIETH. Of Offences relating to Dead Bodies. Taking up XT has been holden that it is an indictable offence to take dead bodies, i i i i ,- , ^ , ■ n even for the "P ^ deau "<>«}'? even tor the purpose ot dissection. Lpon purposes of gj, indictment for this offence it was moved, in arrest of uisseetion, is , an indictable judgment, that if it Mere any crime, it was one of ecclesias- tical co2;nizance only ; that it wa« not made penal by any statute ; and that the silence of Stamford, Hale, and /laze- lans, upon the subject, afforded a very stron«> argument to shew that there was no such offence cognizable in the cri- niinal courts. But the Court said, " that common decency " required that the practice should be put a stop to : tliat " the offence was coo^nizable in a criminal court, as being " highly indecent, and contra bonos mores ; at the bare idea " alone of which n iture revolted. Tiiat the purpose of " taking up the body for dissection did not make it less an " indictable offence : and that, as it had been the regular " practice of the Old Ballet/, in modern times, to try charges " of this nature, many of which had induced punishment, " the circumstance of no writ of error having- been brought " to reverse any of these jiidgnients, was a strong proof of " the universal opinion of the profession upon this subject ; " and they, therolbre, refused even to grant a rule to shew " cause, lest that alone should convey to the public an idea " that they entertained a doubt respecting the crime al- " leged." (a) (a) Rex V. Lynn, 2 T. 11. 733. milted the crime merely from ig- 1 Leach 497. '2 Kast I'. C. c. 16. s, norance, as no person h;id l)een be- S9. p. (ib2. The defendant was fore punislud lor tiie oflente in that only fined live marks, oi. the j;round court. In 1 Blae. Com. 236, 237. that be uiiglil possibly have com- vtculing a corpse is mcutioucd as a CHAP. XL.] OfOff'ences relating' to Dead Bodies. 607 The refusal or neglect to bury dead bodies by those whose '^''<^ refusal duty it is to perform the office, appears also to have been bliry dead bo- considered as a niisdenieanor. Thus Abney, J. in deliver- tl"'* 's a '"'s- ... ^ demeanor. ing the opinion of the court of Common Pleas, said, " The " burial of the dead is, (as I apprehend,) the duty of every " parochial priest and minister ; and, if he neglect or refuse *' to perform the office, he may, by the express words of the " canon 86. be suspended bj the ordinary for three months. " And if any temporal inconvenience arise, as a nuisance, *' from the neglect of the interment of the dead corpse, he " is punishable also by the temporal courts, by indictment " or information." (b) Provision has also been made by statute for the suitable 48 Geo. Ill, interment of such dead bodies as may be cast on shore from fortheTuYt-'^ the sea. The 48 Geo. III. c. 75. enacts, that the church- ^l^'e inter- wardens and overseers of parishes in England, in which any dead bodies dead body shall be found thrown in, or cast on shore from as may be cast . oil sliore irom the sea, shall, upon notice of the body lying within their the ski. parishes, cause the same to be forthwith removed to some convenient place ; and, with all convenient speed, to be de- cently interred in the church-yard or burial ground of such parishes : and if the body be thrown in, or cast on shore in any extra parochial place, where there is no churchwarden or overseer, a similar duty is imposed upon the constable or headborough of such place, (c) It is further enacted, that every minister, parish-clerk, matter of great indecency ; and the law of the Franks is mentioned, (as in Montesq. Sp. L. b. 30. ch. 19.) which directed, that a person who had dug a corpse out of the ground, in order to strip it, should be banished from society, and no one suffered to relieve his wants till the relations of the deceased sonsented to his re-admission. (p) Andrews v. Cawthornc, VVillcs 537, note (a.) Abney, J. cited a case H. 7 G. 1. B. R. where that court made a rule upon the rector of Davenlry, in J\''orthamplonshire, to shew cause why an information should not be filed, because he ne- glected to bury a poor parishioner who died in that parish. («) 48 Geo. HI. c. 75. s. 1. 608 Of Offences relating to Dead Bodies, [book ii. and sexton, of the respective parishes, shall perform their duties as is customary in other funerals, and admit of such dead body being interred, without any improper loss of time ; receiving such sums as in cases of burials made at the expence of the parishes, {d) The statute provides also as to the expenc.es of such burials, and the raising of money to defray them ; gives a reward of five shillings to the persons first giving notice to the parish ofticer, or the constable or headborough of an extra parochial place, of any dead body being cast on shore; and imposes a penalty of five pounds on persons finding dead bodies and not giving notice, and on parish officers neglecting to execute the act. (e) An ap- peal to the quarter sessions is also given to any person thinking himself aggrieved by any thing done in pursuance of the act. (/) The prevent- The preventing a dead body from being interred has also inpadcad j^ considered as an indictable oflence. Thus, the master nod) irc)n\ be- ' iiig interred is of a workhouse, a surgeon, and another person, wer^ in- dirt-ible of- dieted for a conspiracy to prevent the burial of a person who fence. imd died in a workhouse. (o-) And though Hyde, C.J. upon a question how far the forbearance to sue one who fears to be sued, is a good consideration for a promise, {h) cited a case where a woman, who feared that the dead body of her son would be arrested for debt, was holden liable, upon a promise to pay in consideration of forbearance, though she was neither executrix nor administratrix; (/) jet the other judges are said to have doubted of this : {k) and in a recent case, Lord F211cnborough, C. J. said, it would be impossible to contend that such a forbearance could be a good con- (rf) 48 Geo. III. c. 75. s. 2. (i) The name of the case is not (e) Id. ». I, 3, 4, 5, 6, 7, 8, 12, mentioned ; but it is .stated that 13, 14. Hyde, C. J. cited it as a case that )/) Id. «. 10. occurred in the court of Commoa (g-) Rex t'. Younp and others, Pleas, when he^sal there. cited in Hex i>. Ljnn, 2T. R. 7.'14. (A) Quickf. Copplcton, 1 Vent, (/i) Quick I'. Copplcton, 1 Vciit. IGl. IflJ. • CHAP. XL.] Of Offences rclal'mg to Dead Jiodics. 609 sideration for an assumpsit. (I) Lord Ellenborounli, C. J. continued, " to seize a dead body upon any such prelence " would be contra bonos mores, and an extortion upon the " relatives." And, in a subsequent part of the case, his lordship said, " As to the case ci(ed by Hyde, C. J. of a " mother wlio promised to pay on forbearance of the plain- " tiiF to arrest the dead body of her son, which she feared *' he was about to do, it is contrary to every principle of " law and moral feelins: : such an act is revoltins: to hunia- " nity, and illegal." There is one case in which the too speedy interment of a The inter- dead body may be an indictable offence; namely, where it J^^ofiv "f. is the body of a person who has died of a violent death. In s'>n ^li" has such case, by Holt, C. J. the coroner need not go ex ojjicio death before to take the inquest, but ought to be sent for, and that when ^^^ (oroner is iii'/'i 11 iiiiri- n ^^nl for is a the body is iresh ; and to bury the body beiorehe is sent lor, misdemeanor. or without sending for him, is a misdemeanor, (m) It is also laid down, that if a dead body in prison, or other place, whereupon an inquest ought to be taken, be interred, or suf- fered to lie so long that it putrefy before the coroner has viewed it, the gaoler or township shall be amerced, {n) (I) Jones f. Ashburnhara, 4 East. (ra) 2 Hawk. P. C. c. 9. s. 23. 460. And see an indictmcHt against a (;«) Reg. V. Clark, 1 Salk. 377. township for a misdemeanor, in Anon. 7 Mod. 10. 2 Hawk. P. C. burying a body without notice to c. 9. s. 23. note (4.) the coroner, 2 Chit. Crim. L. 230. 2k 610 CHAPTER THE FORTY-FIRST. Of going Armed in the Night-time, for the Destruction of Game. 37 Geo. IIT. c. 90. s. 1. — Persons found at certain times wilhin any forest, &c. with intent to destroy, &c. game ; and armed, to be deemed guilly of a misdemeauor, and may l)c lran>|)orled for seven J cars, or re- ceive ollur |iuiii»luuenl. And offenders rriijfiiinjj after irans- A RKCENT statute, 57 Geo. HI. c. 90. reciting that idle and disorderly persons go frequently armed in the night-time for the purpose of protecting themselves, and aid- ing and abetting, and assisting eacii other, in the illegal de- struction of game or rabbits ; and that such practices were found by experience to lead to the coiumission of felonies and murders ; for the more effectual suppression thereof, enacts, " That if any person or persons having entered into " any forest, chase, park, wood, plantation, close, or other " open or inclosed ground, with the intent illegally to de- *• stroy, take, or kill, game or rabbits, or with the intent to '• aid, abet, and assist, any person or persons illegally to " destroy, take, or kill, game or rabbits, shall be found at " night, that is to saj, between the hours of six in the even- " ing and seven in the morning, from the first day of Octo- *' ber to the first day of February ; between seven in the " evening and five in the morning from the first day of Fe- '• bruary to the first day of April ; and between nine in the " evening and four in the morning for the remainder of the " year ; armed with any gun, cross-bow, fire arms, blud- *' geon, or any other offensive weapon, every such person " so offending, being thereof lawfully convicted, shall be " adjudged guilty of a misdemeanor, and shall be sentenced " to trans])ortation for seven years, or shall receive such other punishment as may by law be inflicted on persons guilty of misdemeanor, and as the court before which such offenders may be tried and convicted shall adjudge : " and if any such offring quick with child, is guilty of a capital offence : and any per- son administering^ medicines to women not quick with child, M'ith intent to procure miscarriage, is guilty of felony, (r/) Where a child, having been born alive, afterwards died by reason of any potions or bruises it received in the womb, it seems always to have been the better opinion that it was murder in such as administered or gave them. (6) Bastard child- rcu. The murder of bastard childrm by the mother was consi- dered as a crime so difficult to be proved, that a special le- gislative provision was made for its detection by the statute 21 Jac. I. c. 27. which required that any such mother en- deavouring to conceal the death of the child, should prove, by one witness at least, that the child was actually born dead. But this law, which made the concealment of the death almost conclusive evidence of the child's being mur- dered by the mother, was accounted to savour strongly of severity, and always construed most favourably for the un- fortunate object of accusation ; and at length it was repealed, together with an Irish act upon the same subject, by a late statute (c), which provides " that the trials in England and " Ireland respectively, of women charged with the murder (z) 1 Hale 433. (a) 43 Geo. III. c. .58. (6) 3 Inst. 30. 1 H:iwk. P. C. c. 31. 8. 16. 4 Blac. Com. 198. 1 East. P. C. c. 5. ». 14. p. 228. con- Ird I Hale 4.32. and Slauiulf. 21. but the reason on which Ihu opi- nions of the two Ia.st writers .seem t(i he founded, namely, tlie difli- cully of ascertaining the fact, can- not be considered as satisfactory, unless it he supposed that such fact never can be clearly ehtahUshcd. (o) 43 Geo. III. c. 58. s. 3. The Irish act was one of the 6 Ann. The 49 Geo. 111. c. 14. repeals an act of the parliament of Scotland, se.ss. 2. pari. 1. Giiil. and Mar. by wiiich a woman concealinj:^ her bc- injr with child during the wliolc space, and not calliu'^for and mak- ing use of assistance in the birtli, was to be reputed the murderer of the child, if it was found dcaJ or missing. CHAP. I.] Means of Killing. <)I^ " of any issue of their bodies, male or female, which being « born alive uould by hiw be bastard, shall proceed and be " governed by such and the like rules of evidence, and of " presumption, as are by law used and allowed to take " place in respect to other trials for murder, and as if the " said two several acts had never been made {d). The killing may be eifecled by poisoning, striking, starv- Of the mean* ing, drowning, and a thousand other forms of death by ■" which human nature may be overcome (e). But there must be some external violence, or corporal damage, to the party; and therefore where a person, either by working upon the fancy of another, or by harsh and unkind usage, puts him into such passion of grief or fear that he dies suddenly, or contracts some disease which causes his death, the killing is not such as the law can notice. (/) If a man however does an act, the probable consequence of which may be, and eventually is, death, such killing may be murder ; although no stroke be struck by himself, and no killing may have been primarily intended : {g) as where a person carried his sick father, against his will, in a severe season, from one town to another, by reason whereof he died ; (//) or where a harlot, being delivered of a child, left it in an orchard co- vered only with leaves, in which condition it was killed by a kite ; (/) or where a child was placed in a hogstye, where it was devoured. (/.) In these cases, and also where a child was shifted by parish officers from parish to parish, till it (rf) The statute further provides, mille figitrce. 1 Hale 431. 1 Hawk, that the Jury, if they acquit the P. C. c. 31. s. 4. prisoner of murder, may find that (/) 1 Hale 427. 429. 1 East, P. she was delivered of a hastard C. c. 5. s 13. p. 225. child, and endeavoured to conceal {g) 4 Blac. Com. 197. the birth, whereupon tlic court Qi) 1 Hawk. P. C. c.31. s. 5. 1 may adjudge her lo be committed. Hale 431, 432. for any time not exceeding- two (/) 1 Hale 431. 1 Hawk. P. C. years. See post, S. G. of this Chap- c. 31 s. 6. ter. \k) 1 East. P. C. c. 5. ». 13. p. {e) 4 Blac. Cora. 196, moriendi 226. 620 Of Murder. [book iir. 'died for want of care and sustenance, (/) it was considered that the acts so done, wilfully and deliberately, were of malice prepense. By negligence Upon the same principles, where there is found to be ac- and harsh ^ , . i .• usage towards tual malice, or a wiltul disposition to injure another, or an auappreiitice. obstinate perseverance in doing an act necessarily attended with danfi^er, without regard to the consequences, as if a master by premeditated negligence, or harsh usage, cause the death of his apprentice, it will be murder. Thus, where the prisoner, upon his apprentice returning to him from Bridewell, whither he had been sent for misbehaviour, in a lousy and distempered condition, did not take that care of him which his situation required, and which he might have done; not having suffered him to be in a bed on account of the vermin, but having made him lie on the boards for some time without covering, and without common medical care ; and the death of the apprentice, in the opinion of the me- dical persons who were examined, was most probably occa- sioned by his ill treatment in Bridewell, and the want of care when he went home ; and the medical persons inclined to think that, if he had been properly treated when he came home, he might have recovered ; the court under these cir- cumstances, and others in favour of the prisoner, left it to the jury to consider, whether the death of the apprentice was occasioned by the ill treatment he received from his master after returning from Bridewell, and whether that ill treatment amounted to evidence of malice ; in which case they were to find him guilty of murder, (w) And in a more modern case a prisoner was found guilty of murder in caus- ing the death of his apprentice, by not |)roviding him with sufficient food and nourishment. The prisoner Charles Squire, and his wile, were both indicted for the murder of a boy who was bound as a parish apprentice to the prisoner (/) Palm. 545. and sec the case more fully stated. (to) Self's ca»e, I East. P. C. c. in the Chapter on J/a«»/aui''i'f'r. i. «. \\i. p. 220, 7. 1 Leach 137. THAP. I.] Means of Killing. 621 Charles ; and it appeared upon the trial that both the pri- soners had used the apprentice in a most cruel and barba- rous manner, and had not provided him with sufficient food and nourishment ; but the surijeon who opened the body deposed that in his judgment the boy died from debility, and for want of proper food and nourishment, and not from the wounds, &c. which he had received. Lawrence, J., upon this evidence, was of opinion that the case was defec- tive as to the wife, as it was not her duty to provide the apprentice with sufficient food and nourishment, she being the servant of her husband, and so directed the jury, who acquitted her; but the husband was found guilty and exe- cuted. («) By the ancient common law, a species of killing was held Bj pcrjurr. to be murder, concerning which much doubt has been en- tertained in more modern times, namely, the bearing false witness against another with an express premeditated de- sign to take away his life, so as the innocent person be con- (n) Squire and his wife (case of) and nourishment to bring on hii 5/ajford Lent Assizes, 1799, MS. ; death, when the surgeon was seized and as to the principles upon which with a fainting fit, and, being taken the wife was acquitted, see the case out of court, did not recover suf- niore fully stated, ante, 24, 25. ficiently to attend again upon the After the surgeon had deposed that trial. The judge, after observiug, the boy died from debility, and that upon the evidence, as it then for want of proper food and nou- stood, he could iiot leave it to the rishment, and not from the wounds, jury to consider, whether the &c. which he had received, the wounds, &c. inflicted on the boy, learned judge was proceeding to had contributed to cause his death, enquire of him, whether, in his said, that if any physician or sur- judgment, the series of cruel usage geon were present who had heard the boy had received, and in which the trial, he might be examined a» the wife had been as active as her to tlie point intended to be en- husband, might not have so far quired into; but no such person broken his constitution as to pro- being present, lie delivered his opi- motc the debility, and co-operate nion to the jury, as stated iu the along with ihe want of proper food text. 622 Of Murder. [book hi. By savage auimals. demned and executed, (o) But a very lon<^ period has elapsed since this offence has been holden to be murder; and in the last instance of a prosecution for it, the prisoners havin;; been convicted, judgment was respited, in order that the point of law might be more fully considered upon a motion in arrest of judgment. (;)) The then attorney gene- ral, however, declining to argue the point, the prisoners were discharged of that indictment ; but it should seem that there are good grounds for supposing that the atforney ge- neral declined to argue this point from prudential reasons, and principally lest witnesses might be deterred from giving evidence upon capital prosecutions if it must be at the peril of their own lives, but not from any apprehen-^ion that the point of law. was not maintainable, {q) In foro conscienlice this offence is, beyond doubt, of the deepest ma- lignity. If a man has a henst that is used to do mischief, and he, knowing it, suffers it to go abroad, and it kills a man, this has been considered by some as manslaughter in the owner; (r) audit is agreed by all that such a person is "•uilty of a very gross misdemeanour: {s) and if a man pur- posely turn such an animal loose, knowing its nature, it is (o) Mirror, c. 1. s. 9. Brit. c. 52. Bract, lib. 3. c. 4. 1 Hawk. P. C. c. 31.S. 7. 3 Inst. 91. 4 Blac. Com. 196. (p) Macdaniel, Berry, and Jones (case of), Fost. 132. 1 Leach 44. This trial look iilace in 175fi. The prisoners wen" indicted for murder upon a conspiracy of the kind mentioned inllictext a;;ainst one Kidden, wlio lia(). 'J7, 100. Gylhin's cuhc. {a) I Hale 4,S5. (z) I Hale 438. iMowd. Com. {h) Post. l'ir». counsel of the accessory. CHAP. I.] Jccessories. 020 so that if a man advise a woman to kill lier child as soon as it shall be born, and she kills it when born in pursuance of such advice, he is an accessory to the murder, (c) It is a rule, that he who in any wise commands or coun- Cases where sels another to commit an unlawful act, is accessary to all the direct .md that ensues upon that unlawful act. Thus, if A. commands »'""HHliate cf- _, , , . , , ,. feet of the B. to beat C, and B. beat him so that he dies, A. being command or absent, B. is guilty of murder as principal, and A. as acces- sory ; the crime having been committed in the execution of a command which naturally tended to endanger the life of another, (d) And a fortiori, therefore, if a man command another to rob any person, and he in robbing him kill him, the person giving such command is as much an accessory to the murder, as to the robbery which was directly command- ed : and it is also said, that if one command a man to rob another, and he kill him in the attempt but do not rob him, the person giving such command is guilty of the murder, because it was the direct and immediate effect of an act done in execution of a command to commit a felony, (c) But if the crime committed be not the direct and imme- Cases where diate effect of the act done in pursuance of the command, not the direct or if the act done varies in substance from that which was ^"•^ imme- 111 • • 1 . .1 . *''3^^ effect of commanded, the party givmg the command cannot be deemed the command an accessory to the crime. Thus, if A. persuade B. to P/ *^^ounseI of •' . . "^^' person poison C, and B. accordingly give poison to C, who eats charged as part of it, and gives the rest to D., who is killed by it, A. ^"^^'"""y- is guilty of a great misdemeanour only in respect of D., but is not an accessory to his murder ; because it was not the direct and immediate effect of the act done in pursuance of the command, (y) And if A. counsel or command B. to beat C. with a small wand or rod, which would not' in all (c) 1 Hale 617. 2 Hawk. P. C. c. 29. s. 18. 4 Blac. Com. 37. c. 29. s. 18. 4 Blac. Com. 3T. Dy. (e) 2 Hawk. P. C. c. 29. s. 18. 185. (/) Id. Ibid. (d) I Hale 433. 2 Hawk. P. C. OoO Of Murder. [uook hi. human reason cause death, and B. beat C. >vith a great clul), or wound liim Avitli a sword, whereof he dies, it seems that A. is not accessary; because there was no command of death, nor of any thinj; that could probably cause death ; and B. departed from the command in substance, and not in circumstance. (^) But if the crime committed be the same in substance with that which was commanded, and vary only in some circumstantial matters ; as where a man advises another to kill a person in the night, and he kills him in the day; or to kill him in the fields, qnd he kills him in the town; or to poison him, and he stabs or shoots him ; the person giving such command is still accessary to the mur- der : for the substance of the thing cojnmanded was the death of the party killed, and the manner of its execution is a mere collateral circumstance. (//) Of arcessorics ,\,i ^^ccessovy of ler the fact, in murder,as in any other felony, may be where a person, knowing a murder to have been committed, receives, relieves, comforts, or assists the oftend- er; as to which kind of accessory some points are noticed in a former chapter. (/) It may be here observed, however, tliat if one wounds another mortally, and after the woimd given, but before death ensues, a person assists or receives the delinquent, this does not make such person accessary to the homicide; for till death ensues there is no felony com- mitted, (j) Clergy. C'lergy is taken away in all cases of murder and petit treason from accessories before, as well as principals, and lands and goods are forfeited ; ihe forfeiture in such case relating back to the stroke or other cause of death ; (/.) hut accessories alter the fact, either in petit treason or murder, are in no instance ousted of clergy. (/) (g) 1 Halo 4:}6. r. C. c. 29. s. ."^5. (h) 2 H.'iwk. I'. C. r. '20. s. i>0. 4 (A) I'oHt. 304, cl srqu. 1 TIrtle Bl.if. Com. ST. 4'JG. 1 Kast. 1'. C. 2\b. (i) Jnic, 4H, 49. (/) 2 Hale 342, 4. 1 East. P. C. U) 4 lilac. Com. S8. 2 Hawk. c. 5. s. 3. p. 218. In 1 Hawk. P. C. CHAP. I. §1.] ^ Provocalio7i. It has been before submitted, that a statement of the several instances of gross and direct wilful murder cannot be thought necessary. But there are a variety of cases of a less de- cided character, and some upon which doubts have arisen, which may properly be here considered. An apt arrange- ment of them is a matter of some difficulty ; but the follow- ing order seems to be appropriate : 1. Cases of provocation. II. Cases of mutual combat. III. Cases of resistance to officers of justice, to persons acting in theii aid, and to private persons lawfully interfering to apprehend felons, or to prevent a breach of the peace. IV. Cases where the killing takes place in the prosecution of some other cri- minal, unlawful, or wanton act. V. Cases whei-e the kill- ing takes place in consequence of some lawful act being criminally or improperly performed, or of some act per- formed without lawful authority. SECTION I. CASES OF PUOVOCATIOX. As the indulgence which is shewn by the law in some cases to the first transport of passion is a condescension to the frailty of the human frame, to the furot^ brevis, which, while the frenzy lasts, renders a man deaf to the voice of reason; so the provocation which is allowed to extenuate in the case of homicide must be something which a man is conscious of, which he feels and resents at the instnnt the fact which he would extenuate is committed, (m) Ail the circumstances of the case must lead to the conclusion, that the act done, though intentional of death or great bodily harm, was not the result of a cool deliberate judgment and c. 32. s. 11. it is said, that acces- But quare, wbetlicr that statute sorics, both before and after, in applifs lo accessories /^j/Ver the fact, petit treason, are debarred of cler- (m) Tost. 315. gy by 4 and 5 Phil, aud Mary, c. 4. r>3i 632 Of Murder. [book in. previous inaliijnity of heart, but solely imputable to human infirmity. (//) For there are many trivial, and some con- siderable, provocations, which are not permitted to exte- nuate an act of homicide, or rebut the conclusion of ma- lice, to Avhich the other circumstances of the case may lead. Words, gcs- No breach of a man's zcord or promise ; no trespass, either "'^"' *^' to lands or goods ; no affront by bare words or gestures, however false and malicious, and aggravated with the most provoking circumstances, will free the party killing from the guilt of murder, (o) And it is conceived that this rule w ill govern every case where the party killing upon such provocation makes use of a deadly weapon, or otherwise manifests an intention to kill, or to do some great bodily harm, (p) A. passing by the sliop of B. distorted his mouth, and smiled at him, and B. killed him : this was held murder ; for it was no such provocation as would abate the presump- tion of malice in the party killing, (q) If A. be passing along the street, and B. meeting him (there being a convenient distance between A. and the wall) take the wall of him, and thereupon A. kill B., this is mur- der ; but if B. had justled vV., this justling had been a pro- vocation, and would have made it manslaughter, (r) If there be a chiding between husband and wife, and the husband strike his wife thereupon with a pestle, so that she dies presently, it is murder ; and the chiding will not be a provocation to extenuate it to manslaughter, (s) (n) I K;m» T'.C.c. 5. ». 19.p.232. (r) I Hale, 455. But this case (o) Post. 290. 1 Hiiwk. P. C. probal-lysiipposcsconsidcrahUivio- c. SI «. 38. 1 Hale 455. Uncv :in«l insult in the Juslliiip. (p) VoHl. 2f!i0, 291. (*) Crompl./o/. 120, a. Sec als» (q) Itr.iii.'H rase. Hale 455. Cro. Kcl. G4. 1 Hale 436. Eliz. 778. Kcl. 131. CHAP. I. §1] Provocation. 633 A woman called a man, who was sitting drinking in an alehouse, " a son of a wliore^^'' upon which the man took up a broomstafF, and at a distance threw it at her and killed her ; and it was propounded to the judges whether this was murder or manslaughter. Two questions were made, 1. Whether bare words, or words of this nature, would amount to such a provocation as would extenuate the fact into man- slaughter. 2. Admitting that they would not, in case there had been a striking with such an instrument as necessarily would have caused death, as stabbing with a sword or shoot- ing with a pistol; yet whether this striking, so improbable to cause death, would not alter the case. The judges were not unanimous upon this case ; and, as the consequence of a resolution on either side was great, it was advised that the king should be moved to pardon the offender; which was ac- cordingly done. (0 In a case where it was decided that if A. give slighting words to B., and B. thereupon immediately kill him, such killing would be murder in B., it is also stated to have been holden, that words of menace or bodily harm would amount to such a provocation as would reduce the offence of killing to manslaughter, (m) But it should be observed, that in another report of the same case this latter position is not to be found, (ty) And it seems that such words ought at least to be accompanied by some act, denoting an im- mediate intention of following them up by an actual as- sault, (jc) Though an assault made with violence or circumstances Assault of indignity upon a man's person, and resented immediately by the party acting in the heat of blood upon that provoca- tion, and killing the aggressor, will reduce the crime to man- slaughter, yeX it must by no means be understood that the (0 1 Hale 455, 456. {w) Kel. 55. (u) Lord Motley's case, 1 Hale {x) \ East. P. C. c. 5- s. 20. p. 455. 233. 634 Of Murder. [book III, crime will be so extenuated by any trivial provocation which in point of law may amount to an assault ; nor in all cases even by a blow. Violent acts of resentment, bearing no proportion to the provocation or insult, are barbarous, pro- ceeding rather from brutal malignity than human frailty : and barbarity will often make malice, (t/) Stedmans case. There being an affray in the street, one Stedman, a foot soldier, ran hastily towards the combatants. A woman, see- ing him run in that manner, cried out, " You will not mur- der the man, will you ?" Stedman replied, " Wiiat is that to you, you bitch ?" The woman thereupon gave him a box on the ear, and Stedman struck her on the breast with the pommel of his sword. The woman then fled; and Stedman pursuing her, stabbed her in the back. It seemed to Holt, C. J. that this was murder, a single box on the ear from a x£oman not being a suffieient proxoeation to kill in such a man- ner, after Stedman had given her a blow in return for the box on the ear; and it was proposed to have the matter found specially : but it afterwards appearing, in the progress of the trial, that the woman struck the soldier in the face with an iron patten, and drew a great deal of blood, it was holden clearly to be no more than manslaughter, (s) The smart of the man's wound, and the effusion of blood, might possibly have kept his indignation boiling to the moment of the fact. («) Tranter and lleason'scasc. The following case is reported. Mr. Lutterel, being ar- rested for a small debt, prevailed on one of the officers to go with him to his lodgings, while the other was sent to fetch the attorney's bill, in order, as Lutterel pretended, to have the debt and costs paid. Words arose at the lodgings about civilitj/ moneij^ which Lutterel refused to give ; and he went up stairs, pretending to fetch money for the payment of the (y) IVr Lord Holt in Kcatc* MSS. Tracy and Denton 57. 1 Ea»t. ease, Comb. 408. P. C. c. 5. 8. 21 . p. 234. (z) Stedman's case, Foul. 202. («) Fost. 292. CHAP. I. §1 1.] Provocation 635 debt and costs, leavlti"^ the officer below. He soon returned with a brace of loaded pistols in his bosom ; which, at the importunity of his servant, he laid down upon the table, saying, " Me did not intend to hurt the officers, but he would not be ill used." The officer, who had been sent for the attorney's bill, soon returned to his companion at the lodg- ings; and words of anger arising, Lutterel struck one of the officers on the face with a walking cane, and drew a little blood. Whereupon both of them fell upon him : one stabbed him in nine places, he all the while on the ground, begging for mercy, and unable to resist them ; and one of them fired one of the pistols at him while on the ground, and gave him his death wound. And this is reported to have been holden manslaughter by reason of the first assault with the cane.(b) " This (says Mr. Justice Foster) is the case as reported by *' Sir John Strange ; and an extraordinary case it is ; that " all these circumstances of aggravation, two to one, he *' helpless and on the ground, begging for mercy, stabbed " in nine places, and then dispatched with a pistol; that all " these circumstances, plain indications of a deadly revenge " or diabolical fury, should not outweigh a slight stroke " with a cane." (c) As an assault, though illegal, will not reduce the crime Personalre- of the party killins; the person assaultina: him to man- **■■'"''* ^"^ . . \ , . coercion, slaughter, where the revenge is disproportionate and bar- barous, much less will such personal restraint and coercion as one man may lawfully use towards another form any ground of extenuation. Two soldiers came at eleven o'clock at night to a publican's, and demanded beer, which he re- fused, alleging the unseasonableness of the hour, and advised {b) Tranter and Reason (case of) the jury, in which the chief justice, 1 Stru. 499. upon other grounds than the first (c) Post. 293. where Mr. J. Fos- assault with the cane, told them ter states many circumstances of it could be no more than man- the case which the reporter had slauglitcr. See this case more fully omitted, and also the direcliou to stated /yosf, Chap. 07t3/fln>/aag-/i/cr. 636 Of Murder. [bookiii. them to go to their quarters ; whereupon they went away, uttering imprecations. In an hour and a half afterwards, Avhen the door was opened to let out some company, who had been detained there on business, one of them rushed in, the other remaimng without, and renewed his demand for beer ; to which the landlord returned the same answer : and on his refusing to depart, and persisting to have some beer, and offering to lay hold of the landlord, the latter at the same instant collared him ; the one pushing and the other pulling each other towards the outer door ; where when the landlord came he received a violent blow on the head with some sharp instrument from the other soldier, who had remained without, which occasioned his death a few days afterwards. Duller, J. held this to be murder in both, not- withstanding the previous struggle between the landlord and one of them. For the landlord did no more in attempt- ing to put the soldier out of his house at that time of the night, and after the warning he had given him, than he law- fully might; which was no provocation tor the cruel revenge taken : more especially as there was reasonable evidence of the prisoners having come the second time with a deliberate intention to use personal violence, in case their demand for beer was not complied with, {d) Provocation In cases of provocation of a slighter kind, not amounting kirid— mode *^ ^" assault, as the ground of extenuation would be that of resentment the act of resentment, which has unhappily proved fatal, did — and nature , „ ,. • •. c i_ ^ • of the instru- "ot procccd from malice, or a spirit or revenge, but was in- msntsuscd. tended merely for correction; so the material inquiry will be, whether malice must be inferred from the sort of punish- ment indicted, from the nature of the instrument used, and from the manner of the chastisement. (e) For if on any sud- den provocation of a slight nature one person beat another (rf) Willoiin;hbyandanolher(case (<•) 1 East. P. C. c, 5. s. 22. p. of), Bodmin Sum. An. 1791. MS. 235. and s. 23. p. 238,9. 1 Eaut. P. C. c. :>. s. 5tt. p. 288. CHAP. I. §1.] Provocation. ^^' in a cruel and unusual manner, so that he dies, it is murder by express malice; though the person so beating the other .; did not intend to kill him. (/) i Thus the case which has been before mentioned where. j upon a chiding between husband and wife, the husband ^ struck his wife with a pestle, (g) proceeded upon the ground of the pestle being an instrument likely to endanger life {h). And it is probable that the doubt which was felt by some of \ the judges in the case where a man, upon being called by a : woman a son of a whore, took up a broom staff and threw it , at her, and killed her, (0 arose from the consideration that the instrument was not such as was likely, when thrown ] from the given distance, to have occasioned death, or great . < ' bodily harm. (A) i ■I The nature of the instrument used has been much consi- Rowley'scase. j dered in the following case. The prisoner's son fought | with another boy, and was beaten ; he ran home to his father all bloody ; who presently took a cudgel, ran three quarters j of a mile, and struck the other boy upon the head, upon j which he died. (0 This was ruled manslaughter, because done in sudden heat and passion : but upon this case Mr. Justice Foster makes the following remarks, (m) " Surely j '' the provocation was not very grievous. The boy had J " fout'ht with one who happened to be an over-match for " him, and was worsted ; a disaster slight enough, and very " frequent among boys. If upon this provocation the «' father, after running three quarters of a mile, had set ; (/) 4 Blac. Cora. 199, the words arc, " and strikes C. that j ig) Ante, 632. he dies." Mr. Justice Foster, ia Qi) 1 East. P. C. c. 5. s. 22. p. citing the case, says, that the fa- I 235. ther, after running three quarters j (t) Ante, 633. of a mile, beats the other boy, 1 (fc) 1 East. P. C. c. 5. s. 22. p. " who dieth of this beating." Fost. 236. 294. (/) Rowley's case, 12 Rep. 87. (m) Fost. 994. S. C. 1 Hale 433. ia which report Go8 Of .Murder. [book hi. " his strength aijainst the child, had dispatched him with a " hpdge stake, or any other deadly weapon, or by repeated " blows with his cudgel, it must, in my opinion, have been " murder; since any of these circumstances would have " been a plain indication of malice: but with regard to these " circumstances, with what weapon or to what degree the " child was beaten, CoAe is totally silent. But Croke(«) " setteth the case in a much clearer light, and at the same " time leadeth his readers into the true ground*; of the judg- " ment. His words are, ' Rowly slruck the child with a " small cudgel, of which stroke he nfla^ards died.' T think " it may be fairly collected from Croke's manner of speak- " ing, and GodbolCs report, (o) that the accident happened " bi/ a single stroke with a cudgel not likelj/ to destroy, and " that death did not imniediately ensue. The stroke was " given in heat of blood, and not with any of the circum- " stances which import malice, and therefore manslaughter. " I observe, that Lord Raymond layeth great stress on this " circumstance : that the stroke zcas with a cudgel not likely « to kill:' (p) Hazel's case. '° ^ ^^^^ where upon a special verdict it was found that the prisoner, having employed her daughter-in-law, a child of ten years old, to reel some yarn, and finding some of the skains knotted, threw at the child a four-legged stool, which struck her on the right side of the head on the temple, and caused her death soon after the blow so given ; and it was also found that t!ie stool was of sufficient size and weight to give a mortal blow, but that the prisoner did not intend, at the time she threw the stool, to kill the child ; the matter was considered as of {jreat difiiculty, and no opinion was ever dflivered by the judges. (r.. (J/) 1 East. P. C. c, 5. «. '23. p. 239. {l>) Fust. 296. CHAP. I. § 1.] Provocation. 643 cation to which a man can be exposed, that of finding ano- ther in the act of adultery with his wife, though it wouhl be but manshiusfhter if he should kill the adulterer in tjje tirst transport of passion, yet if he kill him deliberately and upon revenge after the fact and sufficient cooling time, it would undoubtedly be murder, (r) " For let it be observed, that, *' in all possible cases, deliberate homicide upon a principle *' of revenge is murder. No man under the protection of *' the law is to be the avenger of his own wrongs. If they " are of a nature for which the laws of society will give hiiu " an adequate remedy, thither he ought to resort : but be " they of what nature soever, he ought to bear his lot with " patience, and remember that vengeance belongeth only to " the Most High."((/) With respect to the interval of time which shall be allowed for passion to subside, it has been observed that it is much more easy to lay down rules for determining what cases are without the limits, than how far exactly those limits extend, (e) In cases of this kind the immediate object of inquiry is, whether the suspension of reason arising from sudden passion continued from the time of the provocation received to the very instant of the mortal stroke given : for if from any circumstances whatever it ap- pear that the party i^eflected, deliberated, or cooled any lime before the fatal stroke given; or if in legal presumption there was time or opportunity for cooling; the killing will amount to murder ; as being attributable to malice and re- venge, rather than to human frailty, {f) And, from the cases which have been stated in the former part of this sec- tion, it appears that malice will be presumed, even though the act be perpetrated recently after the provocation re- ceived, if the instrument or manner of retaliation be greatly inadequate to the offence given, and cruel and dangerous in its nature : for the law supposes that a party capable of act- (c) Post. 296. 1 East. P. C. c. 5. (c) 1 East. P. C. c. 5. s. 30. p. 251. s. 20. p. 234. and «. 30. p. 251. (J) Oaeby's case, 2 Lord Rayiu. (8. and see ante, 622, 3. (/) 4 lilac. Com. 200. (A) 1 Hale 475. 3 Inst. 57. » East. P C. c. 5. s. 18. p. 831. CHAP. !.§+.] Unlawful, or Wanton Acts. 661 will be murder: as if A. shoot at the poultry of R. '\x\\.cr\(\- felonious m- ing to steal the poultry and by accident kill a man, this will be murder by reason of the felonious intention of stealing?. (/) And it has been holden, that if such offenders as are men- tioned in the statute de malepictoribus in parcis,(in) kill the keeper, &c. it is murder in all, although it appear that the keeper ordering them to stand assaulted them first, and that Y them as game- (p) 1 Hale 440, 441. keepers, may resist olVeuders in the (qi K-.'l. 127. 1 East. P. C. c. 5. night within their respective ma- s. 32. p. 257. 662 Of Murder. — Criminal, [book hi. join to do an posers in the commission of any breach of the peace, and to unlawful act. . . , . n ^ i i. • a execute it in such a manner as naturally tends to raise tu- mults and aflfravs, as by committing a violent disseisin with great numbers of people, or going to beat a man, or rob a park, or standing in opposition to the sheriff's posse, they must, when they engage in such bold disturbances of the public peace, at their peril abide the event of their actions. And therefore if in doing any of these acts they happen to kill a man, they are all guilty of murder, (r) But it should be observed, that in order to make the killing by any mur- der in all of those who are confederated together for an un- lawful purpose, merely on account of the unlawful act done or in contemplation, it must happen during the actual strife or endeavour, or at least within such a reasonable time afterwards as may leave it probable that no fresh pro- Vocation intervened, {s) The fact must And it should also be observed, that the fact must appear appear to , , . , . , . ,■ x- ^i have been to have been committed strictly in prosecution oj tlie pur- committed ^^^^ f^^ which the jvirtu urns assembled: and therefore, if slnctlv in ' -^ . prosecution divers persons be engaged in an unlawful act, and one of ° efo"'^ them, with malice prepense against one of his companions, which the finding an opportunity, kill him, the rest are not concerned semSk^r ^^ in the guilt of that act, because it had no connection with the crime in contemplation. (0 So, where two men were beating anotlier man in the street, and a stranger made some observation upon the cruelty of the act, upon which one of the two men gave him a mortal stal) with a knife ; and ^■^ both the men were indicted as principals in the murder ; although both wore doing an unlawful act in beating tlie man, yet as the deatli of the stranger did not ensue upon that act, and as it ap[)cared that only one of them intended fr) 1 II:mk. P. C. c. :<1. ». 51. Fo.sl. .S51. And seethe charge of Stauiidf. 17. 1 H;ilf 4.'i9, el xequ. Foster, J. on a special commission 4 lilac. Com. '200. J Ka.st. I'. C. r. lor the trial of Jackson and Others, 55. s. 33. p. 257. at Chichester, 9 St. Tri. (ed. by (») 1 East. P. C. c. ,'j. s. .T 1. |). 'i.-)l). llartjr.) 71 5, f/ scqn. (0 1 Hawk. P. C. c. ;n. s. r.y. GiiAP. I. 0.] Unlawful, or Wanton Ads. ^"^ any injury to the person killed, the judges were of opinion that the other could not be guilty, either as principal or accessory ; and he was acquitted. (?0 In a case where a party of smugglers were met and opposed by an officer of the crown, and during the scuffle which en- sued a gun was discharged by a smuggler which killed one of his own gang, the question was, whether the whole gang were guilty of this murder; and it was agreed by the court, that if the king's officer, or any of his assistants, had been killed by the shot, it would have been murder in all the gang ; and also, that if it had appeared that the shot was levelled at the officer, or any of his assistants, it would also have amounted to murder in the whole of the gang, though an accomplice of their own were the person killed, {w) The point upon which this case turned was, that it did not ap- pear from any of the facts found, that the gun was discharged in prosecution of the purpose for which the part ^ was assem- bled, (x) In another case the prisoners were hired by a tenant to assist him in carrying away his household furni- ture in order to avoid a distress. They accordingly assem- bled tor this purpose armed with bludgeons and other offen- sive weapons, and a violent affray took place between them and the landlord of the house, who, accompanied on his part by another set of men, came to prevent the removal of the goods. The constable was called in and produced his au- thority, but could not induce them to disperse : and, while they were fighting in the street, one of the company, but which of them was not known, killed a boy who was stand- ing at his father's door looking on, but totally unconcerned in the affiay. The question was, whether this was murder in all the company ; and Holt, C.J. and Pollexfen, C.J. were of opinion that it was murder in all the company, be- cause they were all engaged in an unlawful act, by proceed- ^) 1 Hawk. P. C. c. 31. s. 52. and Herberts case, 1 Hale HO^ (u)) Plummer's case, Kel. 109. 441, cited from Dy. 128, b. (x) Fost. 352. and see Mauscll 66^ Of JMurder. [book in. ing in the affray after the constable had interposed and com- manded them to keep the peace ; especially as the manner in which they originally assembled, namely, with offensive weapons and in a riotous manner, was contrary to law. (^) But the majority of the judges held, that as the boy was found to be unconcerned in the affray, his having been killed by one of the company could not possibly affect the rest; for the homicide did not happen in prosecution of the illegal act. (s) And it seems that this opinion proceeded upon the "■round that there was no evidence to shew that the stroke o by which the boy was killed was either levelled at any of the opposing party, or was levelled at him upon the suppo- sition that he was one of the opponents, and therefore that it was not given in prosecution of the purpose for which the party was assembled. («) SECTION V. CASES WHERE THE KILLING TAKES PLACE IN CONSE- QUENCE OF SOME LAWFUL ACT BEING CRIMINALLY OR IMPROPERLY PERFORMED, OR OF SOME ACT PERFORMED WITHOUT PROPER AUTHORITY. Due caution should be observed by all persons in the discharge of the business and duties of their respective sta- tions, lest they should proceed by means which arc criminal or improper, and exceed the limits of their authority. This will more especially require the attention of officers of jus- tice, and should be kept in mind by those who have to ad- (y) They cited Stamf. 17, 40. also Keilw. 161. and Bolhwick'a fitz. Cor. 350. C'lomp. 241. case, Doujjl. 20'2. (s) Hod;;sonand()tlicrs(cascof) (a) 1 East. P. C. c. 5. s. 3^. p, 1 Lcacli 6. Sec iMumiiu r's case, S.'iS, 2r)9, and see the rcmarkii of anlc,\\o\.e{w) 12 Mod. 629. Thonip- Lord Hale upon Ihe case oi" Man- ton's case, Kel. 6fi. Anon, cited sell and Herbert (Uy. 128, b.) iu 1 by Holt, C. J. 1 Leach 7. note (o). Hale 440, 441. and a cane Anon. 8 Mod. 165. Sec CHAP. I. § 5] Lawful Ads improperly performed. 605 minister correction in fore domeslico., and by persons era- ployed in those common occupations from which danger to others may possibly arise. It has been shewn in a former part of this chapter, {h) that Officer* of „.. ,-, . />i-/v justice actinc mimsters of justice, when m the execution or their othces, are improperly. specially protected by the law ; but it behoves them to take care that they do not misconduct themselves in the discharge of their duty, on pain of forfeiting such protection. Thus, though in cases civil or criminal, an officer may repel force by force, where his authority to arrest or imprison is resisted, and will be justified in so doing if death should be the conse- quence ;(c) yet he ought not to come to extremities upon every slight interruption, nor without a reasonable neces- sity, (rf) And if he should kill where no resistance is made, it will be murder : and it is presumed that the oflPence would be of the same magnitude if he should kill a party after the resistance is over and the necessity has ceased, pro- vided that sufficient time has elapsed for the blood to have cooled, (e) And again, though where a felon flying from justice is killed by the officer in the pursuit, the homicide is justifiable if the felon could not be otherwise overtaken; (f) yet where a party is accused of a misdemeanour only, and flies from the arrest, the officer must not kill him, though there be a warrant to apprehend him, and though he cannot otherwise be overtaken ; and if he do kill him it will in general be murder, {g) So, in civil suits, if the party against whom the process has issued fly from the officer endeavour- ing to arrest him, or if he fly after an arrest actually made, or out of custody in execution for debt, and the officer not being able to overtake him make use of any deadly weapon, and by so doing, or by other means, intentionally kill him (fc) Jntc^bO.et sequ. (/) 1 Hale 481. 4 Blac. Com, (c) jinte, 652. 179. Post. 271. {d) 4 Blac. Cora. 180. (g) Post. 271. 1 Hale 481. («) 1 Ea»t. P. C. c. 5. s. 6.1. p. 297. (566 Of Murder, [book hi. in the pursuit, it will amount to murder, (h) And also in the case of impressing seamen, if the party fly, it is con- ceived that the killing by the officer in the pursuit to over- take him would be manslaughter at least, and in some cases murder, according to the rules which govern the case of misdemeanours; paying attention, nevertheless, to those usa<^e3 which have prevailed in the sea-service in this re- spect, so far as they are authorised by the courts which have ordinary jurisdiction over such matters, and are not ex- pressly repugnant to the laws of the land. (0 If an officer make an arrest out of his proper district, or have no warrant or authority at all, he is no legal officer, nor entitled to the special protection of the law : and if he purposely kill the party for not submitting to such illegal arrest it will be murder in all cases, at least where an indif- ferent person acting in the like manner, without any such pretence, would be guilty to that extent. (A) Thus where a warrant had been directed from the Admiralty to Lord Danby to impress seamen, and one Browning his servant, without any warrant in writing, (/) impressed a person who was no seaman, and upon his trying to escape killed him, it was adjudged murder, (w?) And where the captain of a man of war had a warrant for impressing mariners, upon which a deputation was indorsed in the usual form to the (k) 1 Hale 481. Fost. 271. 1 (/) A verbal delegation of the EaBl. P. C. c. 5. s. 71. p. 306, 307. power to impress seamen was held Laying hold of the prisoner and bad iu Borlhwick's case, Dougl.207. pronouncing words of arrest, is an though it appeared to be the usage actual arrest ; or it may be made of the navy, and that the petty of- willionl actually laying hold of ficers had usually acted without him, if he submit to the arrest. any other authority than such ver- Horner v. Baltyn and another, l)al orders. Jintlhe usage was con- Bull. N. P. 62. and see 1 East. P. C. sidercd as dirc^ctly repugnant to c. 5. 8. 68. p. 300. ll>e laws of the land. {{) 1 East. P. C.c. 5. S.75. p.308. (m) O. B. 13th October 1690, Borlhwick'scasc, Dougl. 207. Rokeby's MS. ciU-d in Serjt. Fos- (fc) I East. P. C.c. 5. s. 78. p. 312. tcr's MS. and in 1 East. P. C. 312. CHAP. I. §5.] Lawful Acts improperly performed. 667 lieutenant ; and the mate, with the prisoner Dixon, and some others, but without either the captain or lieutenant, impressed one Anthony How, who never was a mariner, but was servant to a tobacconist, and upon How making some resistance, and for that purpose drawinj^ a knife, which he held in his hand, Dixon, with a large walking stick, about four feet long, and a great knob at the end of it, gave How a violent blow on the side of his head, of which he died in about fourteen days; it was adjudged murder. The cap- ture and detention of How were considered as unlawful on two accounts ; first, because neither the captain or lieute- nant were present, and Dixon was no lawful officer for the purpose of pressing, nor an assistant to a lawful officer; secondly, because How was not a proper object to be im- pressed. It was lawful therefore, under these circumstances, for How to defend himself; and Dixon's killing him, in con- sequence of an unlawful capture and detention, was mur- der. («) Gaolers and their officers are under the same special pro- Duress of ira- tection as other ministers of justice : but in regard to the P'"'S|>"™^°*''y great power which they have, and, while it is exercised in moderation, ought to have over their prisoners, the law watches their conduct with a jealous eye. If therefore a prisoner under their care die, whether by disease or acci- dent, the coroner, upon notice of such death, which notice the gaoler is obliged to give in due time, ought to resort to the gaol; and there, upon view of the body, make inquisi- tion into the cause of the death ; and if the death was owing to cruel and oppressive usage on the part of the gaoler or any officer of his, or, to speak in the language of the law, to duress of imprisotiment, it will be deemed wilful murder in the person guilty of such duress, (o) The person guiltj/ of such duress will be the party liable to prosecution, because, (k) Dixon's case, Kingst. Ass. in 1 East. P, C. c. 3. s. 80. p. 318. 1756, cor. Dennison, J. (said to be (o) Fost. 321. 1 Hale 465. 1738 in Serjeant Foster's MS.) cited 668 Of Murder. [book iil flioucjh in a civil suit, the principal may in some cases be answerable in damages to the party injured through the default of tlie deputy ; yet, in a capital prosecution, the sole object of which is the punishment of the delinquent, each man must answer for his own acts or defaults, (p) A gaoler, knowing that a prisoner infected with the small pox lodged in a certain rbom in the prison, confined ano- ther prisoner against his will in the same room. The second prisoner, who had not had the distemper, of which fact the gaoler had notice, caught the distemper, and died of it : this was holden to be murder. (9) Case of Hug- Huggins was warden of the Fleet prison, with power to Barne" execute the office by deputy, and appointed one Gibbon, who acted as deputy. Gibbon had a servant Barnes, whose business it was to take care of the prisoners, and particu- larly of one Arne ; and Barnes put Arne into a new-built room, over the common sewer, the walls of which were damp and unwholesome, and kept him without fire, cham- ber pot, or other necessary convenience, for forty-four days, when he died. It appeared that Barnes knew the unwhole- some situation of the room, and that Huggins knew the con- dition of the room fifteen days at least before the death of Arne, as he had been once present at the prison, and seen Arne under such duress of imprisonment, and turned away ; at which time Barnes shut the door of the room, in which Arne continued till he died. It was found that Arne had sickened and died by duress of imprisonment, and that dur- ing the time (^bbon was deputy Huggins sometimes acted as warden. I pon these facts the court were clearly of opi- nion tliat Barnes was guilty of murder. 15ut they tliought that Huggins was not guilty, as it could not be inferred from merely seeing the deceased once during his confine- (p) Post. .•J22. llupf;ins and cnsc of Castoll v. Bnmbrnlgc and Barnes (ra»oof)2 Str. ,SH2. Corbet (an appeal of murder), 2 (_q) Tost. 322. rdfrriiig to the Sir. b56. CHAP. I. i 5.] Lawful Acts improperly performed. 669 inent, that Iluggins knew that his situation was occasioned by the improper treatment, or that he consented to the con- tinuance of it : and they said, that it was material that the species of duress by which the deceased came to his death could not be known by a bare looking in upon him. Hug- gins could not know the circumstances under which he was placed in the room against his consent, or the length of his confinement, or how long he had been without the decent necessaries of life : and it was likewise material that no application was made to Huggins, which perhaps might have altered the case. And the court seemed also to think that as Barnes was the servant of Clibbon, and Gibbon had the actual management of the prison, the accidental pre- sence of the principal would not amount to a revocation of the authority of the deputy, (r) With respect to the duty of officers in the execution of Dutyofoffi- crirainals, it has been laid down as a rule, that the execution *^^" in the ' ' ^ execution ot ought not to vary from thejudginent, for if it doth the officer criminals. will be guilty of felony at least, if not of murder, (s) And in conformity to this rule it has been holden, that if the judg- ment be to be hanged, and the officer behead the party, it is murder ;(0 and that even the king cannot change the pu- nishment of the law by altering the hanging or burning into beheading, though, when beheading is part of the sentence, the king may remit the rest, (ii) But others have tliought more justly that this prerogative of the crown, founded in mercy and immemorially exercised, is part of the common law ; (to) and that though the king cannot by his prerogative vary the execution so as to aggravate the punishment be- yond the intention of the law, yet he may mitigate the pain or infamy of it : and accordingly that an officer acting upon (r) Huggins and Barnes (case of) (/) I Hale 433, 454, 466, 501. 2 2 Stra. 882. 2 Lord Raym. 1574. Hale 411. 3 Inst. 52. 4 Blue. Fost. 322. 1 East. P. C. c. 5. s. 92. Com. 170. p. 331,332. (M)3ln»t. 52. 2 Hale 412. («) 1 Hale 501. 2 Hale 411. 3 («•) Fost. 270. F. N. B. 244 h. Inst. 52, 211. 4 Blac. Com. 179. 19 Rjin. Feed. 2S4. 670 Of Murder. [book in. a warrant from the crown for beheading a person under sen* tence of death for felony would not be guilty of an/ offence. (j) But the rule may apply to an officer varying from the judgment of his own head, and without warrant or the colour of authority, (y) Correction in Parents, masters, and other persons having authority in Hco. foro domeslico, may give reasonable correction to those under their care ; and if death ensue without their fault, it will be no more than accidental death. But if the correction exceed the bounds of due moderation, either in the measure of it, or in the instrument made use of for that purpose, the death ensuing will be either murder or manslaughter, according to the circumstances of the case. Where the fact is done with a dangerous weapon, improper for correction, and likely (the age and strength of the party being duly considered) to kill or maim ; such as an iron bar, a sword, a pestle, or great staff; or where the party is kicked to the ground, his belly stamped upon, and so killed, it will be murder, (s) Thus, where a master had employed his apprentice to do some work in his absence, and on his return found it had been neglected, and thereupon threatened to send the apprentice to Bridewell, to which the apprentice replied, " I may as well work there, as with such a master;" upon which the master struck the apprentice on the head with a bar of iron which he had in his hand, and the apprentice died of the blow ; it was held murder : for if a father, master, or schoolmaster, correct his child, servant, or scholar, it must be with such things as are fit for correction, and not with such instruments as (x) Fo9t. 268. 4 Blac. Com. of the judgment was that they 405. 1 Eait. P. C. c. 5. s. 96. p. should be l)urnl in the lire till Vwi/ 335. ncrc dead. Fosl. '2G8. The WO {y) It was, however, the prac- Geo. 111. c. 48. now directs that tice, founded in humanity, when they shall be hanged as other women were condemned to he offenders. burned for treason, to strangle (2) i Hawk. P. C. c. 29. s. 5. them at the itake before the fire 1 Hale 463, 473. Keite's case, 1 reached Ibera, though the letter Lord Raym. 144. 2 CHAP. I. § 5^ 6.] Lawful Acts improperly/ performed. 671 may probably kill them ; otherwise, under pretence of cor- rection, a parent may kill his child ; and a bar of iron is no instrument of correction, (a) If persons, in pursuit of their lawful and common occupa- Persons fol- tions, see danger probably arising to others from their acts, ^^"r ^^*^'J ' = r .' o ' common oc- and yet persist, without giving sufficient warning of the cupationa. danger, the death which ensues will be murder. Thus, if workmen throwing stones, rubbish, or other things from an house, in the ordinary course of their business, happen to kill a person underneath, the question will be, whether they deliberately saw the danger, or betrayed any consciousness of it. If they did, and yet gave no warning, a general ma- lignity of heart may be inferred, (b) and the act will amount to murder from its gross impropriety, (c) So if a person driving a cart or other carriage, happen to kill, and it appear that he saw, or had timely notice of the mischief likely to ensue, and yet drove on, it will be murder, (c?) The act is wilful and deliberate, and manifests a heart regardless of social duty, (e) SECTION VI. OF THE INDICTMENT, TRIAL, &C. Although the prisoner may be charged with murder by Indictment, the inquisition of the coroner, it is usual also to prefer an indictment against him. And it is said to be proper to frame an indictment for the offence of murder in all cases wh^re the degree of the offence is at all doubtful ; questions of homicide being frequently of a complicated nature, and the prisoner, if charged with murder, having an advantage in (a) Post. 282. Gregg's case, Kel. 194. 1 East. P. C. c. i.s. 38. p.2««, 64. (rf) 1 Hale 475. Post. 26J. I (h) Ante, 660. East. P. C. c. 5. l. 31. p. 26S. (r) 3 Inst. i7. 4 BlaC. Com. (e) Fo»t. 269. 672 Of Murder. [boor hi. this respect, that an acquittal is a perpetual bar against any other indictment for the same death. (/) With respect to the place in which the indictment is to be preferred, it will be necessary to state some of the legislative enactments by which trials for murder are regulated. In what place Murder, like all other offences, must regularly, according must be io- ^^ ^^'^ common law, be enquired of in the county in which it dieted. ^vas committed. It appears however to have been a matter of doubt at the common law, whether, when a man died in one county of a stroke received in another, the offence could be considered as having been completely committed in cither county; (g-) but by the statute 2 and 3 Edw. VI. c. 24. s. 2. it is enacted, that the trial shall be in the county where the death happens. The fourth section of this statute also makes provision for the trial of an accessor?/^ where the raurdcr is committed in one county and the party is accessory thereto in any other county, and enacts, that an indictment against such accessory in the county where the offence of accessory is committed, shall be as effectual as if the princi- pal offence had been committed within the county where the indictment against the accessory shall be found. And autho- rity is given to the judges of gaol delivery, &c. or two of them, of the county where the offence of the accessory shall have been committed, on suit to them made, to write to the keeper of the records where the principal shall have been convicted, to certify them whether such principal be attainted, convicted, or otherwise discharged, which he is required to certify under his seal, (h) (/) J East. P. C. c. 5. 9. 105. p. same. 2 Hale 246. Holcroft's case, ."540. JvUrfois acquit would be a 4 lt«'p. 46 b. AimI aultufois acquit rood ])\ca to an indictment lor or iillaint upon an indictment for manslauf^hter of tbr same person ; uuirder, is a j^ood bar to an indict- but it is also laid down that if the mentfor petit treason for the same party ])c indicted for manslaughter fad, nwd so ^ converso, Fost. 329. and acquitted, he canuut be in- (f) 2 Hawk. P. C. c. 25. ». 36. 1 dieted for the same death as mur- East. P. C. c. 5. s. 128. p. 361. der, the criuu-H difl'erini^ only iu (/i) 2 and 3 Edw. VI. c. 24. 1. 4. degree, and the fact bciiij; the CHAP. I. § 6.] Indictment, Trial, Sgc. C73 If a person be stricken and die in the county of A., and the body be found in B., it is to be removed into A. for the coroner of that county to take the inquest. (/) By the statute 26 Hen. VIII. c. 6. it is enacted, that Trial. T^hen murder and other felonies committed in Wales may been- *'>^' '»"'■,'^*^,^'« ^ committed in quired of and tried upon an indictment in the next adjoin- Wales, in^ English county where the king's writ runneth : and Herefordshire has been holden to be the next adjoining English county to South Wales, and Shropshire to North Wales: (j) but it has been considered as a doubtful point in what place the trial ought to be, supposing the stroke given in an English county, and the death in Wales, (k) There are also statutes which relate to the trial of murder, and other offences which have been committed upon the sea, and either within the king's dominions or without. The 28th Hen. VIII. c. 15. s. 1. enacts, that all felonies, Whea it is murders, &c. committed upon the sea, or in any haven, upoli"the^ sea river, creek, or place where the admiral has or pretends to or in any ha- have power, authority, or jurisdiction, shall be enquired, where the ad- tried, &c. in such shires and places in the realm as shall be ™""?1 'las j"- 1- • J 1 11-5 • • -IIP -r- risdictioii; or limited by the king s commission, in like form as if such of- in forei<^D fences had been committed upon the land. The proceedings P"^** upon this statute and the extent of the admiralty jurisdiction have been already considered : (/) it may however be again mentioned in this place, that by the 15 Rich. II. c. 3. the ad- miral has jurisdiction given to him to enquire "of the death of Ante 56. Before this statute, the (J) Athos' case, (father and son,) coroner, super visum corporis, 8 Mod. 136. Parry's case, 1 Leach might have enquired at common 125. 1 Starkie Crim. Plead. 15. law, of all accessories or procurers (Ic) 1 East. P. C. c. 5. s. 129. p. before the fact, though the pro- 363. et sequ. where see a learned curement were iu another county. argument upon this point. And 1 Hale 427. see also I Starkie Crim. Plead. 14, (0 2 Hale 66. 1 MS. Sum. 54. 15. 1 East. P. C. c. 5. s. 187. p. 361. (/) Jnte, 144. 3 X 674 Of Murder. [book. hi. " a man, and of a mayhem done in great ships hovering in " the main stream of great rivers, only beneath the bridges *' of the same rivers, nisrh to the sea, and in none other " places of the same rivers." In a late case, at the Admi- ralty session, of a murder committed in a part of Milfoid haven, where it was about three miles over, about seven or ei"-ht miles from the mouth of the river or open sea, and about sixteen miles below any bridges over the river, a question was made, whether the place Avhere the murder was committed wa> to be considered as within the limits to which commissions granted under the statute 28 Hen. VIII. c. 15. extend by law : and upon reference to the judges, they were unanimously of opinion that the trial was pro- perly had. (m) With respect to accessories to felonies com- mitted upon the high seas, it is enacted by the 43 Geo. III. c. 113. s. 5 , that they shall be liable to be tried by such court and in such manner as is directed by the statute 23 Hen. VHI. c. 1j. for trying felonies committed upon the higli seas. («) By a late statute, the 4G Geo. III. c. 54. all murders and other oflences cojnmitted upon the sea, or in any haven, river, &c. where the admiral has jurisdiction, may be en- quired of and tried according to the common course of the laws of the realm, used for offences committed upon the land within tlie realm, and not otherwise, in any of his majesty's islands, plantations, colonies, dominions, forts, or factories U!ider the king's commission ; and the commissioners are to have the same powers for such trial within any such island. Sec. as any commissioners appointed under the statute 58 Hen. VHI. c. 15. would have for the trial of offences within the realm. The provisions of this act are extended by a more recent statute, the 57 Geo. HI. c. 53., to murders and manslaughters committed in places not within iiis majesty's dominions. It enacts, that murders and manslaughters committed on land at tlie settlement in the bay of Hon- (m) Bruce's case, 2 Lcacb 1093. anlc, 140. (n) Ante, 57. CHAP. I. §6.] Indictment, Trial, %c. 675 duras, by any person residing or being within the settle* ment, and in the islands of New Zealand and Otaheite, or within any other islands, countries, or places not within his majesty's dominions, nor subject to any European state or power, nor within the territory of the united states of America^ by the master or crew of any British ship or vessel, or any of them, or by any person sailing in or belonging thereto, or that shall have sailed in and belonged to, and have quitted any British ship or vessel to live in any of the said islands, &;c., or that shall be there living, may be tried and punished in any of his majesty's islands, plantations, colonies, &c. by the king's commission issued by virtue of the 46 Geo. III. c. 54. in the same manner as if such offences had been committed on the high seas, (o) With respect to murders and other capital crimes com- mitted in NewfoufidJand and the isles thereto belonging, it is enacted by the 10 and 11 W. III. c. 25. s. 13. that they may be tried in any county of England : and though the king is enabled by subsequent statutes, (p) to erect courts of civil and criminal jurisdiction in that country, it does not appear that those statutes take away the jurisdiction given by the statute 10 and 11 W. III. The 33 Hen. VIII. c. 23. enacts, that if any person being Trial.-— After examined before the king's council, or three of them, upon before"^e''° treasons, murders, &c. confess such offences, or the council or king's coua- Cli. threeof them, upon such examination, think any person so exa- mined to be vehemently suspected of any treason or murder, the king's commission may be made to such persons and into such shires and places as shall be named and appointed by the king for the speedy trial of such offenders ; and gives power to the commissioners to enquire and determine such offences within the shires and places limited by their commission, (o) 57 Geo. III. c. 53. s. 1. The (/>) 32 Geo. III. c. 46. 33 Geo. •econd section provides that the III. c. 76, continued by 34 Geo. IIL act shall not be construed to repeal c. 44. and 35 Geo. III. c. 25. the 33 Hen. VIII. c. 23. 2x2 675 Of Murder. [book hi. in whatsoever other shire or place, xcilhm the king' s domi' nions or ziithout, such offences so examined were done or committed. This statute did not extend to accessories; but by the A3 Geo. III. c. 113. s. 6. it is provided that its powers and aut'iorities shall be extended to the oflence of procuring, Sec. or otherwise becoming an accessory before the fact to any murder, (q) It was in one case objected that the statute 33 Hen. VIII. c. ^3. did not extend to murders committed out of the realm ; but the court over-ruled the objection, the statute being clear as to that point, (r) Trial. "Where Where a person was struck, &c. upon the high seas, and the wound, died upon shore, it Avas holden that the admiral had no etc. IS upon ' ' the sea, or cognizance of the oflence by virtue of his commission, (s) the death on "^"^ '^ ^^'^^ doubtful whether such offence could be tried at shore; or common law : (0 the statute 2 Geo. II. c. 21. has therefore where the . . „ , wound, &c. is niade provision for such cases. It enacts, " that where any upon the « person shall be feloniously stricken or poisoned upon the shore, and the * , . death at sea " sea, or at any place out of England^ and shall die of the or abroad. .] Indictment, Trial, Sfc. C^^ the time, it should be so alleged; and that regularly the instrument should be stated to be of a certain value, or of no value : but an able writer says that he could not find the grounds for the first of these averments, and that t!ie latter does not seem to be essential, {g) But it ought to be stated in what part of the body the wound was given : (//) and the length and depth of it should in general be shewn, (i) It should however be observed as to this subject, that though it is necessary to state the manner and place of the hurt, and its nature, in order that the indictment may be good as to its formality, yet if it appear upon the evidence that the party died of another kind of wound, in another place, the indictment will nevertheless be maintained. (A) It is how- ever necessary, in all cases, that the death by the means stated should be positively alleged, for it caimot be taken by implication : if, therefore, it is stated that the death was caused by any stroke, the indictment should proceed to aver that the prisoner thereby gave to the deceased a mortal wound or bruise Avhereof he died ; (/) and an indictment, setting forth that the prisoner choaked the deceased, qua sujjocotione obiit, instead of de qua suffocatione, &c. was adjudged to be erroneous, (m) And if the means of the death be alleged to be by poison, it should be averred, after stating particularly the manner in which the poison was administered, that the party died of the poison so taken, and the sickness thereby occasioned, (w) And an indict- ment, which stated the death to have been caused by means of ravishing an infant, but omitted to aver that a mortal wound or bruise was given, was liolden to be defective, (o) (g) 1 East. P. C. c. 5. s. 108. p. (/) 2 Hale 186. ' 311, 342. (m) 1 Roll. 137. 2 Hank. P. C. {h) 2 Hale 185. 2 Hawk. P. C. c. 23. s. 83. c. 23. S.80. (h) 1 East. P. C. c. 5. s. HI. p. (t) 2 Hale 186. 2 Hawk. P. C. 313. 2 Hawk. P. C. c. 23. b. 82, c. 23. s. 81. 83. (A-) Id. Ibid. (o) Lad's case, 1 Leach 8G. CSO Of Murder. [book in. Averment of It is necessary to state, that the act by which the death XkWi/. slate- was occasioned was done feloniously, and especially that it nient of time, ^^,^g done of malice aforet/ious;ht, (p) which, as we have place, &c. and . , *" , • ^- /•xi • r conclusion. already seen, is the great characteristic ot the crime or mur- der ; (q) and it must also be stated, that the prisoner DUir' dered the deceased, (r) If the averment respecting malice aforethought be omitted, and the indictment only allege that the stroke was given feloniouslj/, or that the prisoner mur- dered, &c. or Idlledj or slexo the deceased, the conviction can only be for manslaughter, {s) It is also necessary to allege the time and place, as well of the wound as of the death ; so that where the party is indicted in the county where the death happened, under the statute 2 and 3 Edw. VI. c. 24. (0 the stroke should be alleged in tlie county where it really was ; and by the same rule the offence must be alleged in the place where it was committed in indictments upon the sta- tutes 28 Hen. VIII. c. 15. and 33 Hen. VIII. c. 23. (u) for murders upon the sea, or in other places therein mention- ed, (.r) And the respective times of the wound and death must be shewn, that it may appear that the deceased died w ithin a year and a day from the stroke or other cause of death ; but though the day or year be mistaken, it is not material, if it appear by the evidence that the death hap- pened within the time limited, without which the law doe:3 not attribute the death to the stroke or poison. (3^) The indictment is concluded, by charging the murder upon the party by way of consequence from the antecedent matter, in a positive allegation tliat the prisoner in manner and by the means aforesaid, feloniously, wilfully, and of his malice afore- thouglit, did (poison,) kill, and murder, (s) And where the O) 2 ITalr IRfi, 187. Stauntl. P. (t) ^nlc, 672. C. 130. Hradleyt). Banks, Yclv. («) y/n/e, 673, 675. 205. (x) 1 East. P.C.c. 5.S. ns.p. 343. (q) Jnte, 6\3 el sequ. (p) 2 Hawk. P. C. c. 23. s. 90. (r) 2 Hawk. P. C. c. 23. i. 77. 2 Inst. 318. 1 East. P. C. C. 5. ». (*) 1 East. P. C. c. 5. (. 116. J). 112. p. 343. 345,346. 2Halcl86. (z) 1 East. P. C.C. 5.11. 117. p. 347. CHAP. I. §6.] Trial, Evidence, h^c. 681 stroke was at one time or place and the death at another, if the day be specially alleged, it should be that on which the party died, and not that on which he was stricken ; for until he died it was no murder, (a) Where the grand jury return the bill of indictment only a Of the fmdln'j ..,,0 11. 1- iiU j~ the bill of in- a true bill for manslaughter and ignoramus as to the murder, jiptn^gQi i,y it is stated to have been the usual course to strike out, in the grand i iirv« the presence of the grand jury, the words "maliciously" and "of malice aforethought," and " murder," and to leave only so much as makes the bill to be one for manslaughter ; (b) and this appears to be the practice at the present time upon some of the circuits : (c) but it has been thought to be the safer way, to present a new bill to the grand jury for man- slaughter, (d) Though the same indictment may charge one with murder and another with manslaughter, yet if it charge both with murder, the grand jury cannot find it a true bill against one, and manslaughter as to the other ; but a finding against one for murder will be good, and there ouo-ht to be a new bill against the other for manslaughter, (e) If, as is very commonly the case, there be an indictment Arraignment, for murder, and the coroner's inquisition for the same offence against the same person, at the same sessions of gaol deli- very, the usual practice appears to be to arraign and try the prisoner upon both, in order to avoid the plea of auterfois acquit or attaint; and to indorse his acquittal or attainder upon both presentments. (/) The evidence in cases of murder, will consist of the proof Of the evi- dence. (a) 1 EastP. C. c. 5. s. 117.p.347. assent or dissent of the grand jury, (6) 2 Hale 162. and that the bill itself is the indict- (c) Ex relat. Mr. Pugh, Clerk of mcut when affirmed. Assize on the 0.i/orvas com- niitted hv the party accused of malice aforethouirht. It should be observed however, that when the fact of killing is proved, all the circumstances of accident, necessity, or in- firmity, are to be satisfactorily shewn by the prisoner, unless they arise out of the evidejice produced aaainst him ; for the law piesumes the fact to have been founded in malice until the contrary appears. (5) Rule as to its It has been holden as a rule, that no person should be con- thatVe body victed of murder unless the body of the deceased has been of the de- found : and a very great judge says, " T would never con- ceased has . , 1 I i 1 .1 r> i beeu fouud. " vict any person ot murder or manslaughter, unless the tact " were proved to be done, or at least the body be found " dead." {h) But this rule, it seems, must be taken with some qualifirations; and circumstances may be sufficiently strong to shev the fact of the murder, though the body has never been fouud. Thus, where the prisoner, a mariner, was indicted for the murder of his captain at sea, and a witness stated that the prisoner had proposed to kill the captain, and that the witness being afterwards alarmed in the night by a violent noise, went upon deck, and there observed the prisoner take the captain up and throw him overboard into the sea, and that he was not seen or heard of afterwards ; and that near the place on the deck where the captain was seen a billet of wood was found, and that the deck and part of the prisoner's dress were stained with blood ; the court, though thoy admitted the general rule of law, left it to the jury to say, upon the evidence, wlicther the deceased was not kilUd before his body was cast into the sea; and the jury being of that opinion, the prisoner was convicted, and (the conviction being unanimously approved of by the judges) was afterwards executed, {i) (g) Fo9t. 255, .^n^f, 615, f)l6. II wa« urged on the prisoner's bc- (h) 2 Hale 290. half at the trial hy (larrow, (now (i) Hiiidinarsk's case, 2 Leach .')71. Mr. Baron Garrow,) thalhc was en- CHAP. I. § 6.] Trial, Evidence, Verdict, ^c. 683 It is better not to put forth more of the special circum- Proof ofthe r % • • J- i LP 1 the benefit of clergy in like manner and shall be subject to (m) Nicliolsons (Mary) case, I (/>) Post. Cliap. on Excusable East. P. C. c. ."). R. Ho. p. 340. Homicide. Fost. 279, 289. (n) Post. Book VII. upon Evi- {q) 1 East. P. C. c.3. 1.135. p. dcncc. 371. (o) 1 Ilalc 449. 2 Ilalc 302. Co. (r) Anle, 673. Lil. 282, a. CHAP. I. § 6.] Trial, Verdict, ^c. CSj the same punishment as if he had committed such man- slaughter upon land. And by the 43 Geo. III. c. 113. j s, 6. (s) in case any oflender shall, in pursuance of that act, j or the act of 33 Hen. VIII. c. 23. (0 be indicted for mur- der, and, upon the trial, shall appear to be guilty only of I manslaughter, the jury may, on such indictment, find the ' party guilty of manslaughter only; or, in case of doubt or difficulty, may find a special verdict, upon which there shall be the like proceedings, judgment, &c. as if the offence had been committed within any county of the realm, and the trial had been had and verdict been found upon an indict- , ment for murder, according to the course of the common j law, by a jury of the county within which the offence was i committed. j I In every case where the point turns upon the question The jury j . ^ . Mr' 11 J 1- should attend whether the homicide was committed wilruiiy and man- ^^ ^\^q direc- H ciously, or under circumstances justifying, excusing, or al- tionsofthe ■ leviating, the matter of fact, namely, whether the facts al- \ leged hy xcay of justification, excuse, or alleviation, are true, i is the proper and only province of the jury. But whether, i upon a supposition of the truth of the facts, such homicide be justified, excused, or alleviated, must be submitted to the ' judgment of the court ; for the construction which the law puts upon facts stated and agreed, or found by a jury, is in this, as in all other cases, undoubtedly the proper province of i the court. In cases of doubt and real difficulty it is com- ] monly recommended to the jury to state facts and circum- stances in a special verdict. But where the law is clear, ''. the jury, under the direction of the court in point of law, | matters of fact being still left to their determination, may, and if they are well advised, always will, find a general verdict, conformably to such direction. («) I I The statute 43 Geo. HI. c. 58. which repeals the 21 OfthcTcr- I («) Ante, 676. («) Fost. 255, 256. (0 »4rite, 675. '. 686 Of Murder. [bookiii. diet. &c. Jac. I. c. 27. and the Irish act 6 Anne, {id) provides that rrSoTthe" the trials, in England and Ireland, of women charged with murder of the murder of any issue of their bodies, which being born ^ildren are'^ alive would by law be bastard, shall proceed by the like ncquittcd of rules of evidence and presumption as are allowed to take andfoun"' place in respect toother trials for murder. And the sta- guilty of con- ^^^g further enacts, (.r) " That it shall and may be lawful cealing the , ,. . i j 'au birth. " for the jury, by whose verdict any prisoner charged with " such murder as aforesaid shall be acquitted, to find, in " case it shall so appear in evidence, that the prisoner was " delivered of issue of her body, male or female, which, if *' born alive, would have been bastard ; and that she did, " by secret burying, or otherwise, endeavour to conceal the " birth thereof; and thereupon it shall be lawful for the " court before which such prisoner shall have been tried " to adjudge that such prisoner shall be committed to the " common gaol, or house of correction, for any time not " exceeding two years." As to the con- By the repealed statute of 21 Jac. I. the concealment of the death of the bastard child by the mother made her guilty of a capital offence, unless she could prove that the child was born dead ; and it may be useful to mention some of the points which have been holden respecting such con- cealment, as they may assist in the construction of the sta- tute 43 Geo. III. as to the concealment of the birth of a bastard child. It has been holden, upon the statute 21 Jac. I. that if the mother called for help, or confessed her- self with child, she was not witiiin its construction: and, upon the same principle, evidence was always allowed of the mother's having made provision for the birth, as a circum- stance to shew that she did not intend to conceal it. {y) The presence even of an accomplice was holden to take a case out of that statute : so that where a woman was in- dicted for the murder of her bastard child, and the mother (w) Anle,(>\%. (J/) 1 East. P. C. c. 5. ». 15. p (X) S. 4. S28. cealment. CHAP. I. § 6.] Trial, Verdict, S^c. 687 of the woman was indicted at the same time for beinp; pre- sent aiding and abetting, and there wa«! no other evidence of guilt but the concealment by both the prisoners, they were acquitted, (c) If from the view of the child it were testified by one witness, by apparent probabilities, that it had not arrived at its debilum partus tcmpus, as if it wanted hair or nails, the case was considered as not being within that statute, on account of there being presumptive evidence that the child was born dead ; but under such circumstances it was left to the jury upon the evidence, as at common law, to say whether the mother was guilty of the death, (a) Probably it would be holden upon the 43 Geo. III. c. 58. that if the child were so far from its dehitum partus tempus, that it could not have been born alive, and that it was not therefore a being upon which the crime of murder could have been committed, the jury would not be authorized to find the mother guilty of an endeavour to conceal the birth ; on the ground that the act does not contemplate that sort of delivery, usually called a miscarriage^ which takes place before a woman can, according to the known rules of par- turition, be delivered of a live child, (b) {z) Peat's case, ExelerSvxm. Ass, prisoner ought to be put upon her 1793, cor. Heath, J. 1 East. P. C. c. trial for murder, but some evi- 5. s. 13. p.2'29. dence of a concealment, it is pro- (a) 2 Hale 289. per to find the bill for murder, in (ft) This statute only empowers order that the prisoner may be a jury to find the prisoner guilty tried for the concealment: and it of the concealment of the birth of certainly does seem to be a paia- a bastard child, when she is tried ful and severe proceedi.ig, when upon an indictment for the murder there is clearly nothing but a con- of such child, and does not make cealmeut of the birth, to send a the concealment an offence for mother to the bar, to answer to the which an indictment can be pre- dreadful accusation of having mur- ferred. In consequence much dif- dered her own offspring. The sta- ferenceof opinion and practice is tute 49 Geo. III. c. 14. which re- stated to have prevailed amongst peals ihe Scotch act of parliament, the gentlemen serving upon the relating to the murder of bastard grand juries of the country, upon children (an/f, 618, note (o) differs the question whether, when there fromthe ISGeo. 111. c. 58.anddoes clearly is no case upon which the not make the concealment a matter 2 ()SS Of Murder. [book hi. Whether the prisoner be charged with the murder of her bastard child by the coroner's inquisition, or by a bill of indictment returned hy the grand jury, she may be found guilty under this statute of the 43 Geo. III. of endeavour- ing to conceal the birth, (c) SECTION VII. OF JUDGMENT AND EXECUTION. The judgment in cases of murder is regulated by the statute 25 Geo. II. c. 37. which, reciting that this horrid crime had been of late more frequently perpetrated than formerly, was passed in order to add some further terror and peculiar marks of infamy to the punishment of death. Tinieofexe- By section 1. of this statute it is enacted, that " all per- caiioa. a sons who shall be found guilty of wilful murder, be exe- " cuted according to law on the day next but one after sen- " tence passed, unless the same shall happen to be Sundaj/, " and in that case on the Monday following." Disposal of The second section enacts, '• That the body of such mur- the hodusof ^^ jipj-er SO convicted shall, if such conviction and execution uiurUciers. " shall be in the county of Middlesex^ or within the city of " London, or the liberties thereof, be immediately conveyed " by the sheriff or sheriffs, his or their deputy or deputies, which can only be found by the " ing, the mother, bcinj^ lawfully jur\ upon the trial of an indict- " convicted thereof, shall be inipri- nienl for murder, but enacts (s. 2.) *' soned for a period not exceeding " that if any woman in ScoUand " two years, in such common gaol " Bhall conceal her being with " or prison as the court before "child during the whole period " which she is tried shall direct and *' of her pregnancy, and shall not "appoint." " call for and make use of help or (c) Cole's case, 3 Campb. 371. 8 ♦' assist-mce in the birth, and if tiic Leach lO'JS. •' child be found dead or he amisK- CHAP. I. § 7.] Judgment and Execution. 689 " and his or their ofiicers, to the hall of the surgeon's com- " pany, or such other place as the said company shall ap- " point for this purpose, and be delivered to such person *' as the said company shall depute or appoint, who shall *' give to the sheriff or sheriffs, his or their deputy or de- " puties, a receipt for the same; and the body so delivered " to the said company of surgeons shall be dissected and " anatomized by the said surgeons, or such person as they ** shall appoint for that purpose : and in case such convic- " tion and execution sliall happen to be in any other coun- " ty, or other place in Great Britain, then the judge or " justice of assize, or other proper judge, shall award the " sentence to be put in execution the next day but one after " such conviction (except as is before excepted) ; and the " body of such murderer shall, in like manner, be delivered " by the sheriff, or his deputy and his officers, to such sur- " geon as such judge orjustice shall direct for the purpose " aforesaid." The third section enacts, " That sentence shall be pro- Sentence to be " nounced in oi)en court immediately after the conviction P''^'i<>"'i^^" " of such murderer, and before the court shall proceed to " any other business, unless the court shall see reasonable " cause for postponing the same ; in which sentence shall " be expressed not only the usual judgment of death, but " also the time appointed hereby for the execution thereof, *' and the marks of infamy hereby directed for such offenders, " in order to impress a just horror in the mind of the of- " fender, and on the minds of such as shall be present, of " the heinous crime of IT; i.rder." By the fifth section, it is provided, " That it shall be in the The bodies " power of any such judge or iu^tice, to appoint the body <^* murderers . - , . , niav be hunjf or any such criminal to be hung in chains : but that in no in ciiains; but " case whatsoever, the body of any murderer shall be suf- "^^ °°* , ^* ' •' •' ounea unleii " fered to be buried, unless after such body ^hall have been atU^r dissec- "' dissected and anatomized as aforesaid j and every^ such 2 Y 690 Of Murder. [boor in. <•' judt^e or justice sliall and is hereby required to direct the " same either to be disposed of as aforesaid, to be anatomized, " or to be hung; in chains, in the same manner as is now " practised for the most atrocious offences." Torm of the It ap{>ears, that the form of the sentence or judgment to sea ence. |^^ pronounced, in conformity to the provisions of this statute, was made the subject of conference at a meeting of the judges (rf), and that tlie followiug- form was agreed upon: " That you he tahenfrom hence to the prison from whence *' i/ou ccnne, and that j/ou be taken from thence on the " dai/ of instant (or next) to the place of executiony " and that you he there hanged by the neck, till your hody be " dead ; and that your hody, when dead, be taken down, and be " dissected and aiiatomized.'''' There was some doubt whether either judgment of dis- section or bunging in chains might not be given ; and, if the lirst were pronounced, whether, if no surgeon would take the body, it might not be hung in chains : but, on debate, it was agreed by nine judges, that, in all cases within the act, the judgment for dissecting and anatomizing only should be part of the judgment pronounced ; and that, if it were thought ad- viseable, the judge might afterwards direct the hanging in chains by special order to the sheriff, pursuant to the proviso for that purpose in the statute (e) The slat. 25 G. It has been decided by the house of peers, that a peer, con- II. c 3'- "- victed of murder, ought to receive judgment according to tends to pctrs. ' o .i » o the provisions of tliis statute : and it was also decided in the same case that, supposing the day appointed by the judg- ment for execution should lapse before sucli execution done (rf) Swan and Jcircrjs, (rase of) (<0 Fosl. 107, 1 Ea.st. P, C. c. ."i. 1 Kast. I'. C. c. 5 s. 136. p. 373. s. 130. p. 374, where it is stated, citing ?crj. Foriler's MS. Ex rcla- that such is the practice, ^oac CUvc, J. I'ost. C. L. CHAP. I. § 7.] Judgment and Execntion. 691 (which, Jiowever, the law will not presume), a new time may be appointed for the execution either by the high court of parliament, before which such peer shall have been attainted, or by the court of King's Bench, the parliament not then sitting, the record of the attainder being properly removed into that court if). By the fourth section of the statute, it is enacted, that after Execution sentence pronounced, " in case there shall appear reasonable ^^ ' " cause, it shall and may be lawful, to and for such judge or *' justice before whom such criminal shall have been so tried, " to stay the execution of the sentence, at the discretion of '* such judge or justice, regard being always had to the true '' intent and purpose of this act." By the sixth, seventh, and eiijhth sections, certain regula- Treatment of •' ' ' '^ ' ° murderers tions are given, for the treatment of a murderer, after con- after conyic- viction. It is enacted, that such criminal shall be confined ^^^' in a separate cell, and that no person but the gaoler or his servants shall have access to him, without licence under the hand of the judge or sheriff: and that he shall, between sen- tence and execution, be fed with bread and water only (except on receiving the sacrament, or in case of necessaries administered medicinally by a professional man), under a penalty upon the gaoler of £20, and imprisonment till it be paid, and forfeiture of his office. But in case the judge or justice shall see cause to respite the execution, he may relax any or all of these restraints, by licence in writing, signed by him (g). Where two persons had been convicted of a barbarous mur- Sentence after derin Pembrokeshire at the ^cr^rc? assizes, being the next the indict- English county, and the indictment had been removed by '"*^"' ^^ *^^ . Kuio^'s Beach certiorari into the court of King's Bench, in order to ar- by certiorari. gue some exceptions which were overruled, that court de- (/) Earl Ferrers case, Fot. 138, {s) s- '^• 139. lEast.P.C.c,5,s, 136,p. 374. Sy2 692 Of Murder. [book III. cided, after some question made whether the prisoners ought not to be sent back to Herefordshire to receive sen- tence, that they had the same jurisdiction over facts com- mitted in Wales, as if committed in the next adjacent county in England; and the prisoners were therefore sentenced in the King's Bench, and were executed by the marshal (//)• But it seems to have been considered in a late cas?, that sentence pursuant to the statute, 25 Geo. II. c. 37. may be passed by a judge at nisi prius upon an indictment for mur- der, removed by certiorari into the court of King's Bench, and afterwards tried at 7iisi prius, without remitting the transcript of the record to the court of King's Bench (i). (h) Athos case (father and son) as cited in note (r). 1 Hale 463, where it is said, that the prisoners were executed at Kennington gal- lows, near Southwark. In Taylor's case, 5 Burr. 2797. the reporter saji, that he remembers this case, and that the defendants, being in the custody of the marshal, were executed at St. Tfwmas a fVater- ings, near the end of Kent Street. And see also the case in I Str. 553, and 8 Mod. 136. and see Sissing- hurst house case, ante, 658. note (uO. (0 Rex V. Thomas, 4 M. and S. 447. CHAP. II.] Of Petit Treason. 693 CHAPTER THE SECOND. Of Petit Treason. A ETIT Treason is a breach of the lower alleffiance of private and domestic faith ; and considered as proceeding from the same principle of treachery in private life as would have led the person, harbouring it, to have conspired in public against his liege lord and sovereign. At common law the instances of this kind of crime were more numerous than they are at present, and involved in some uncertainty:(fl) but, by the statute 25 Edw. IH. st. 5. c. 2. they were re- duced to the following cases : 1. Where a servant kills his master. 2. Where a wife kills her husband. 3. Where an ecclesiastical person, secular or regular, kills his superior, to whom he owes faith and obedience. The principles which have been laid down, with respect Principles re- to wilful murder, are also applicable to the crime of petit fu/^murder " treason, which, though it appears to have been sometimes are applicable regarded differently, (6) is substantially the same offence as j^^ murder, differing only in degree, (c) It is murder aggra- vated by the circumstance of the allegiance, however low, which the murderer owed to the deceased ; and in conse- quence of that circumstance of aggravation, and of that alone, the judgment upon a conviction is more grievous in one case than in the other ; though in common practice no (a) 1 Hale 376. (c) Fost. 323, 327, 336. 4 Blac. (t) By unwary people, as Mr. J. Com. 203. Foster says. Fost. 323. 694 Of Petit Treason. [book III. material dlfierence is made in the manner of the execution. (. d ness, or by the examination of the deceased before a magistrate, gg^, ^and^'ac- by virtue of the statutes of Philip and Mary, the prisoner quitted of the may be found guilty of murder, and acquitted of the trea- son: (0 and upon such an indictment the prisoner may be acquitted of the treason, and found guilty of man- slaughter (/??). The statute of the 25 Edw. III. has been construed so Servant kill- strictly that no case which could not be brought within the JJJfjj "j^/g^^*^ *^^ meaning of the words, however heinous in its nature, has been expounded to be within the equity of them ; and, there- fore, it has been held that the murder of a father by a son shall not be punished as petit treason, unless the son may by a reasonable construction come under the word servant. But, if he be bound apprentice to his father or mother, or is maintained by them, or does for them any necessary service, though he do not receive wages, he may be indicted by the (A) Ante, note {g). (0 Radbourne's case, 1 Leach (0 Edwards's (Penelope) case, 457. And see 1 Hale S05. 2 Haie cor. Lawrence, J. Stafford Ass. 284. Fost. 328. The statutes 1 & 2 MS. Ph. & M. c. IS, and 2 & 3 Ph. U lA. (fc) 1 Hale 378. 2 Hale 184,292. c. 10. extend only to felonies. Fost. 328. (m) 1 Hale 378- 696 Of Petit Treason. [book iir. description of servant (n) ; and a near relation, as a sister, maj be a servant within the meaninij of the statute, if she acts as such in the family. (o) The murder of a mistress, or of a master's wife, has been adjudged petit treason within the statute, on the j^round of tliose persons being within the meaning of the word master, which is used to signify any person to whom another stands related as servant (/}). And the murder of a person by one who was his servant, upon malice conceived during the service, though it be not within the express words of the statute, is within their meaning ; for it is but the execution of the treasonable intention of the party conceived while he was a servant C^'). Wife killing her husband. A wife, though divorced o mensa ellhoro, is still within the statute, because the vinculum matrimonii ^nh'i'x^i?,; but other- wise, if there be a divorce causa consanguinilatis, or prcecon- Iructus ; for then the vinculum is dissolved. (r) A wifede facto is not suHicient ; and therefore if A. be married to B., and during that intermarriage marry C, the second marriage be- ing merely void, C. is not a wife within this law; though per- haps she might, under circumstances, be considered as a servant, if she cohabit with A., and he finds her necessaries for her subsistence, {s) But a husband cannot be guilty of petit treason by killing his wife, for there is no reciprocity of obedience and subjection (0. rierjryman killing his luperior. A clergyman is understood to owe canonical obedience to the bishop who ordained him, to him in whose diocese he is beneficed, and also to the metropolitan of such suftragan or (n) 1 Hawk. P. C. c. 32. s. 2. 1 East. P. C. c. 5. s. 99. p. 336. At common law, the son would have been guilty of petit treason, though not a servant. I Hale 3.S0. (0) Edwards* case, anlv, note(j). (p) 1 Halc3fcO. 1 Hawk. P. C. c. 32. 8. 3. («/) 1 Hawk. P. C. c. 32. s. 4. 1 Hale 380. 1 East. P. C. c. 5. s. 99. p. 336. (r) 1 Hale 380. 1 Hawk. P. C. c. 32. s. 9. 4 lilac. Coin. '203. (*) 1 Hale 3H0. Bui the learned writer adds lamtn qucere. (t) 1 Hawk. P. C. c. 32. s. 9. CHAP. II.] Of Petit Treason. 697 diocesan l)i«hop ; and, therefore, to kill any of these is petit treason. And if he have livings in two dioceses, the bishops of both are his immediate ordinaries ; for he swears obe- dience to both (k). If a wife or servant procure a stranger to kill the husband Of principals .„' . , and accesso- or master, in the absence of such wife or servant, neither ries. the procurer nor actor are jjuilty of petit treason, but only of murder; as it is an allowed maxim that the offence of an accessory can never be of a higher kind than that of the principal. But, if the wife or servant be either actually present when the crime is committed, or present only in the judgment of the law by being in the same house, though not in the same room, such wife or servant will be deemed prin- cipals equally with the stranger, and they will be guilty of petit treason, and the stranger of murder (w). If a w ife procure a servant to kill the husband, she being absent, it will be petit treason in the servant, and the wife will be an accessary (x) : and it seems, that if a stranger procure a wife or servant to kill the husband or master, such stransrer raav be indicted as an accessory to petit treason (j/). [f a servant and a stranger, or if a wife and a stranger, conspire to rob the husband or master, and the servant or wife be present when the master happens to be killed in prosecution of the original design, the wife or servant will be guilty of petit treason (s). And if a wife or servant in- tending to poison or kill a stranger, the wife by mistake poison or kill her husband, or the servant his master, this, which would have been murder if it had taken effect airainst the stranger, becomes petit treason in the death of the husband or master, (a) («) 4 Blac. Com. 203. 1 East. East. P. C. c. 5. s. 102. p. 338. P. C. c. 5. s. 101. p. 338. 1 Hale (j,) l Hawk. P. C. c. 32. s. 8. 381. 1 Hawk. P. C. C.32. s. \0. («) 1 Hale 379. (Dy. 128, a.) 1 (w) 1 Hav.k. P. C. c. 32. s. 7. 1 East. P. C. c. 5. s. 102. p. 338. Hale 373, 379. (a) 1 Kale 379. Plowd. Com. i^jr) 1 Hawk. P. C. c. 32. s. 8. 1 47 3, b. ^98 Of Petit Treason. [boor iii. The same rule holds throughout, mutatis mutandis, for an inferior clergyman in relation to his superior (h). Of the judo-- The judgment in petit treason is, that the criminal be ment and ex- jp-^^j, (on a hurdle), and hanged until dead (c). It was for- fcution. , „ ' , ,• , , merly different in the case of women, who were ad]udged to be drawn and burned : but this was altered by the statute 30 G. III. c. 48. by which they are subjected to the same judgment in all respects as men, and particularly with re- spect to the provisions of the statute 25 G. II. c. 37. And it has been resolved by the judges that the judgment for dissecting and anatomizing, and touching the time of execu- tion, ought to be pronounced in cases of petit treason, though murder only is mentioned in the statute, and in that case too that the time of execution should be part of the judgment (rf). (*) lEast. P. C.c.5.s.l02.p.338. and the body be divided into four (r) The sentence in liigh treason quarters, is made similar to this by a late (,d) 1 East. P. C. c. 3. s. 136. p. statute, 54 0. III. c 146. with the 372, and the case of Swan and addition that afterwards the head Jefferys, id. p. 373. shall be severed from the body, cuAP. III. ] Manslaughter . 090 CHAPTER THE THIRD. Of Manslaughter. XNtliis species ofhomicide, malice, which has been shewn(rt) is the main ingredient and characteristic of murder, is con- sidered to be wanting; and though manslaughter is in its de- gree felonious, yet it is imputed by the benignity of the law to human infirmity ; to infirmity which, though in the eye of the law criminal, is considered as incident to the frailty of the human constitution (6). The punishment appointed for it is proportionably lenient ; as (with the exception only of one sort of manslaughter, which by the stat. 1 Jac. I. c. 8. commonly called the statute of stabbing, is made a capital crime,) the offender is admitted to the benefit of clergy. In order to make an abettor to a manslaughter a principal of aiders and in the felony, he must be present aiding and abetting the af>ettors, and . . of accessories. fact committed, (c) But there cannot be any accessories before the fact in manslaughter, because it is presumed to be altogether sudden, and witliout premeditation, {d) Thus, if the indictment be for murder a2:ainst A. and that B. and C. were counselling and abetting as accessories before only, (and not Zi% present aiding and abetting, for such are princi- pals,) if A. be found guilty only of manslaughter, and ac- quitted of murder, (he accessories before will be thereby (fl) Ante, 613, e/ sequ. presence, aiding and abetting. {b) Post. 290. 1. Hale 466. (rf) 1 Hale 437. 1 Hawk. P.O. (f) 1 Hale 438, 439, and see ante, c. 30. s, 2. r)27, et sequ. as to what will be a o coo Of Manslaughter. [book hi. discharged (e) There may, however, be accessories after the fact in manslaugliter. (/) The several instances of manslaughter may be considered in the following order : — I. Cases of provocation. II. Cases within the statute of stabbing, 1 Jac. 1. c.8. III. Cases of mutual combat. IV. Cases of resistance to officers of justice, to persons acting in their aid, and to private persons lawfully in- terfering to apprehend felons, or to prevent a breach of the peace. V. Cases where the killing takes place in the prosecution of some other criminal, unlawful, or wanton act. VI. Cases wliere the killing takes place in consequence of some lawful act being criminally or improperly per- formed, or of some act performed without lawful authority. SECTION I. CASES OF PROVOCATION, Whenever death ensues from, sudden transport of passion, or heat of blood upon a reasonable provocation, and without malice, it is considered as solely imputable to human in- firmity ; and the offence will be manslaughter (g). It should (e) 1 Hale 437, 450. feet of lliat statute seeing to haTc (/) I Hale 450. \ East. P. C. c. leniovetl the douhl. 5. 8. 123. p. 353. This seems to {g) I Halo 466. 1 Hawk. P. C c. have been doubted before the 30. Fost. 290. 4 Blac. Com. 191. statute 1 Ann. stat. 2. c. 9. s. 1. (2 1 East. P. C. c. 5. s. 19. p. 232. Hawk. P. C. c. 29. h. 84): but the ef- CH4P. III. § 1.] Provocation. 701 be remembered that the person sheltering himself under this plea of provocation must make out the circumstances of alleviation to the satisfaction of the court and jury, unless they arise out of the evidence produced against him ; as the presumption of law deems all homicide to be malicious, until the contrary is proved (h). It has been shewn that the most grievous words of re- Wordiofpro- proacli, contemptuous and insulting actions or gestures, or ^<*^^*'<*"' trespasses against lands or goods, will not free the party killing from the guilt of murder, if upon such provocation a deadly weapon was made use of, or an intention to kill, or to do some great bodily harm, was otherwise manifested (0. But if no such weapon be used, or intention manifested, and the party so provoked give the other a box on the ear, or strike him with a stick or other weapon not likely to kill, and kill him unluckily and against his intention, it will be only manslaughter (A). It is, indeed, said to have been held in one case that words of menace of hodilt/ harm are a sufficient provocation to re- duce the offence of killing to manslaughter {I) ; but it has been considered that such words ought, at least, to be accom- panied by some act denoting an immediate intention of fol- lowing them up by an actual assault {m). But, though words of slighting, disdain, or contumely, will not of themselves make such a provocation as to lessen the crime into manslaughter; yet, it seems that if A. give indecent language to B., andB. thereupon strike A., but not mortally, and then A. strike B. again, and then B. kill A., that this is but manslaughter. The stroke by A. was (h) Ante, 615. The same case is mentioned in (i) Ante, 632. Kel. 55 ; but no such position it (fc) Fost. 291 . 1 East. P. C. c. 5. there stated. I. 20. p. 233. (w) I East. P.C.C.5. ». 20. p. 233. (/) Lord Morley's case, I Hale 455. 702 Of Manslaughter. [book hi. deemed a new provocation, and the conflict a sudden falling out ; and on those grounds the killing was considered as only manslaughter {n). Provocatiou Where an assault is made with violence or circumstances ) assault. ^j. j^jigpity ypon a man's person, as by pulling him by the nose, and the party so assaulted kills the aggressor, the crime will be reduced to manslaughter, in case it appears that the assault was resented immediately, and the aggressor killed in the heat of blood, ike furor brexis occasioned by the provocation (o). So if A. be passing along the street, and B. meeting him (there being convenient distance between A. and the wall) take the wall of him and justle him, and there- upon A. kill B. it is said that such justling would amount to a provocation, which would make the killing only man- slaughter. And again it appears to have been considered that where A. riding on the road, B. whipped the horse of A. out of the track, and then A. alighted and killed B., it was only manslaughter {p). But, in the two last cases, it should seem that the first ag- o-ression must have been accompanied with circumstances of great violence or insolence ; for it is not every trivial provo- cation which, in point of law, amounts to an assault, that will ofcourse reduce the crime of the party killing to manslaughter. Even a blow will not be considered as sufficient provocation to extenuate in cases where the revenge is disproportioned to the injury, and outrageous and barbarous in its nature; but, where the blow which gave the provocation has been so violent as reasonably to have caused a sudden transport of passion and heat of blood, the killing which ensued has been regarded as the consequence of human infirmity, (re) 1 Hale 455, where it is said, opinion of himself and some others. Ihattbiswasheldto boiuanslaugh- (o) Kcl. 135. 4 Blac. Com. 191. Id, according to the proverb, " the 1 East. P. C. c. 5. .s. 20. p. 233. second blow makes the affray ;" and (y) I Halc 455. laaurc'K casc. Lord Iluk says, thai Ihiii was the CHAP. III. § 1.] Provocation. 703 and entitled to lenient consideration. Thus, where a woman, after some words of abuse on both sides, gave a soldier a box on the ear, which the soldier returned, by striking her on her breast with the pommel of his sword ; and the woman then running away, the soldier pursued, and stabbed her in the back with his sword; Holt, C. J. at first considered it to be murder : but, upon its coming out in the progress of the trial, that the woman had struck the soldier with a patten on the face with great force, so that the blood flowed, it was holden clearly to be no more than manslaughter (^r). In this case, the smart of the soldier's; wound, and the effusion of blood, might possibly have kept his indignation boiling to the moment of the fact (r). Where a man has been iniuriously restrained of his li- Provocation . by roslraining berty, the provocation has been considered sufficient to ex- apcrsonofhb tenuate; as where a creditor placed a man at the chamber ^'"^'"^y- door of his debtor, with a sword undrawn, to prevent him from escaping, while a bailiff was sent for to arrest him : and the debtor stabbed the creditor, who was Discoursing ] with him in the chamber (5). And the same doctrine was I held in a case, where a Serjeant had put a common i soldier under an arrest, who thereupon killed the Serjeant with a sword; and upon the trial, no authority was shewn I in the Serjeant to make such arrest, the articles of war not being produced, nor any evidence given of the usage of the army. (t). \ I Where a man finds another in the act of adultery with his ProvocatioM j {q) Stedman's case, Old Bailey. Assiz. I "184, cor. Buller, J. after- Apr. 1704, MS. Tracy and Denton, wards before all the judges in M. T. 57 Post. 292. 1 East. P. C. c. 5. s. 25 G. III. MS. Gould and Buller 21. p. 234. cited, I East. P. C! c. 5. s. 20. p. 233. (r) Post. 292. See the case more This case is also cited as to a point fully stated ante, 634. of evidence in Holts case, 2 Leach, (a) Buckner's case, Sty. 467. 594. (0 Wither's case, Stafford Suin, 70:t Of Manslaitghter. [book in, by detectitK' \y'\^o. and kills him in the first transport of passion, he is only ati adulterer, guilty of manslaiij;hter, and that in the lowest desrree («) : for the provocation is g^rievous, such as the law reasonably, concludes cannot be borne in the first transport of passion. But it has been already shewn, that the killing of an adul- terer deliberately, and upon revenge, would be murder (k'). Piovocations There are instances, where slight provocations have been of a slight considered as extenuating the guilt of homicide, upon the kind, which r> s have been al- ground, that the conduct of the party killing upon such pro- len^uHte*** ^^ vocations might fairly be attributed to an intention to chas- ■nhere the (jge, rather than to a cruel and implacable malice. But, in !)artT killinjr «,...,. i ^i • > ia« "not acted cases of this kind, it must appear, that the punishment was with cruelty, ^^^ urffcd with brutal violence, nor greatly disproportionate or used dan- ® u i • gerous instru- to the offence ; and the instrument must rot be such as, trom '"^"''" its nature, was likely to endanger life (x). Thus, where A. findin"- a trespasser on his land, in the first transport of his passion, beat him, and unluckily happened to kill him, it was holden to be manslaughter : but it must be understood, that he beat him not with a mischievous intention, but merely to chastise for the trespass, and to deter him from committing it again (y). And of the case of the keeper of a park, who, finding a boy stealing wood in his master's ground, tied him to a horse's tail, and beat him, upon which the horse running away, the boy was killed (z), it is said, that if the chastisement had been more moderate, it had been but manslaughter ; for, between persons nearly connected together by civil and natural ties, the law admits the force of a provocation done to one to be felt by the other («). And, a fortiori, if the master had himself caught the tres- passer, and beat him in such a manner as shewed a desire (u) Manning's case, T. Rajm. (x) Post. 291. 4 Blac. Com. 200. 912. 1 Vcntr. 159. And the court (_y) Post. 291. 1 Hale 473. an/f, directed the burning in I lie hand to 639. be inflicted gently, because there («) Halloway's case, Cro. Car, could not be a greater iirovocu- 131. I Hale 453. 1 Hawk. P. C. tion. «• 31- »• 42. Post. 292, ante, 639. (») Ante, 643. (a) I East. T.C, c. 5. i. 22. p. ast. CHAP. III. § 1.] Provocation. 705 only to chastise and prevent a repetition of the offence, but had unfortunately, and against his intent, killed him, it would only have been manslaughter (b). Where a person, whose pocket had been picked, encou- Ducking a raged by a concourse of people, threw the pickpocket into P' ^ an adjoining pond, in order to avenge the theft, by ducking him, but without any apparent intention to take away his life, and the pickpocket was drowned, it was ruled to be only manslaughter ; for though this mode of punishment is highly unjustifiable and illegal, yet the law respects the in- firmities and imbecillities of human nature, where certain provocations are given (c). In a case where the prisoner's son having fought with Father taking another boy and been beaten ran home to his father all "P the quarrel •' 01 his son. bloody, and the father presently took a cudgel, ran three quarters of a mile, and struck the other boy upon the head, upon which he died; it was ruled to be manslaughter, be- cause done in sudden heat and passion (d) ; but the true grounds of the judgment seem to have been that the accident happened by a single stroke given in heat of blood, with a cudgel, not likely to destroy, and that death did not imme- diately ensue (e). Several other cases are reported, in which the nature of Kature of the the instrument used led to a lenient consideration of the used"b\^°the homicide, on the ground that such instrument was not likely party killing. to endanger life. Thus, where a man, who was sitting drinking in an alehouse, being called by a woman " a son of a whore," took up a broomstafF, and threw it at her from a distance, and killed her; the judges were not unanimous, and a pardon was advised : and the doubt appears to have (ft) I East. P. C. c. 5. s. 22. p. (d) Rowley's case, 12 Rep. 87. 237. 1 Hale 453. (c) Fray's case, Old Bailey, 1785. () 1 Hide 490. Post. 318. remarked, that it does not readily 1 sons. CHAP. III. § 4.] Resisting Officers and Others. 725 however, it might perliaps be well contended, that a person arrestinn- another with the knowledijc of the indictment hav- ing been found, cainiot be properly considered as acting upon his own private suspicion or authority ; and ought, therefore, to have the same protection as the ollicers of justice. And it seems agreed, that the indictment found is a good cause of arrest by private persons, if it may be made without the death of the felon (/i) : but it is said, that, if he be killed, their justification must depend upon the fact of the party's guilt, which it will be incumbent on them to make out ; otherwise, they will be guilty of manslaughter (/). Even in the case of a constable, it was formerly supposed to be necessary, that there should have been a felony committed in fact, which the constable must have ascer- tained at his peril : but it has since been determined, that a peace officer may justify an arrest on a charge of felony, on reasonable cause of suspicion, without a warrant ; al- though it should afterv^ards appear that no felony had been committed (in). And where a private person suspecting another of felony, has laid his grounds of suspicion before a constable, and required his assistance to take him, the con- stable may justify killing the party, if he lly, and cannot otherwise be taken, though in truth he were innocent. But in such case, where no hue and cry is levied, the party sus- pecting ought to be present, as the justification must be that the constable did aid him in taking the party suspected : and the constable ought to be informed of the grounds of suspi- cion, that he may judge of the reasonableness of it (n). occur, why officers only can take complete justification, it is con- notice of a charge on record, 1 East, ceived, that the bill of indictment P. C. c. 5. s. 68. p. 300. found by the grand jury would, (fc)Dalt. c. 170. s. 5. lEast. P.C for that purpose, be primd facie c. 5. s. 68. p. 301. evidence of the fact. (0 2 Hale 83, 92. and see 1 East. (in) Samuel r. Payne, Dougl. 359. P.C. c. 5. s. 68. p. 301, where it is (n) 2 Hale 79, 80, 91, 92, 93. said, that if the fact of the guilt 3lnst. 221. 1 East. P.C. C..5. s. 69. •f the party be necessary for their p. 301. 126 Of Manslaughter. [book III. Authority arrest and prison ill f l>f lllisdl'- nicauori. to iin- iUSl'S A cons(able, or other known conservator of the peace, may hiwfully interpose upon his own view to prevent a breach of the peace, and to quiet an affray ; and if he or any of his assistants, whether commanded or not, be killed, it will be murder in all who take part in the resistance ; there being cither implied or express notification of the character in whicli he interposed (o). It has, however, often been ques- tioned, how far a constable or other peace officer is au- thorized to arrest a person upon a charge by another of a mere breach of the peace, after the affray is ended, and peace restored, without a special warrant from a magistrate ; and it appears to be the better opinion, that he has no such authority (;;). Rut if one menace another to kill him, and complaint be made thereof to the constable forthwith, such constable may, in order to avoid the present danger, arrest the party, and detain him till he can conveniently bring him to a justice of the peace () that a eonsUible luay tike sur«'tv of the peace by obligation. I-ord H;tle and some later authori- ties liave liasl. H. 460. sec an elaborate arj^uinent dcliver- I F.a«l. I'.C. c. 5. s. 7 J. p. 307. The ed by Mr. J. Foster, ns recorder of same termi occur also in the war- Brintol, in Hupjiorl of the legality rant in Broadfoot's case. Fosl. 15C. of impressing seamen. CHAP. III. § 4^.] Bcsistiiig Officers and Others. "^^l case) not to be intrusted to any person but a commissioned officer, the execution of it by another person will be ille- gal. As in a case where the lieutenant of a press-gang, to whom the execution of a warrant was properly deputed^ remained in King Road, in the port of Bristol, while his boat's crew went some leagues down the channel, by his di- rections, to press seamen. This was illegal ; and when, in the furtherance of that service, one of the press-gang was killed by a mariner in a vessel which they had boarded with intent to press such persons as they could meet with, it was ruled to be only manslaughter, though no personal violence had been offered by the press-gang, (g) And upon the same principles, where the mate of a ship and a party of sailors, without either the captain who had the press-warrant or the lieutenant who was regularly deputed to execute it, im- pressed a man, and upon his making some resistance, one of the party struck him a violent blow with a large stick, of which he died some days after, it was adjudged murder. (//) And, in another case, the delegation of the power of im- pressing by a lieutenant (to whom the warrant had been di- rected) to a petty officer and several others, to whom he had given verbal orders to impress certain seafaring men, of whom he had received intelligence, was decided to be clearly bad ; though it was found to be the constant usage and inva- riable custom of the navy for all commissioned officers, having in their custody such press-warrants, to give verbal orders to such petty officers whom they might think fit to em- ploy upon the impress service, and that such petty officers usually acted without any other authority than such verbal orders. (/) (g) Broadfoot's case, Post. 154. p. 312. Bui if a warrant be directed to se- (i) Borthwick's case, Doiigl. '207. Tcral, ouc of them may execute it. The warrant enjoined all mayors, 1 Hale 459. &c. to aid and assist the officer to (A) Dixon s case, 1 East. P. C. c. whom it was directed, and those 5. s. 80. p. 313. and see also Brown- emploi/edhy him in the execution ing's case, 1 East. P. C. c. 5. s. 80. thereof. 732 Of Manslaughter. [boor III. The authority to arrest and imprison can only be exer- cised by a Ic^al officer ■wilhia the proper dis- trict. The party taking upon himself to execute process, whether by writ or warrant, must be a legal officer for that purpose, or his assistant : and if an officer make an arrest out of his proper district, or have no warrant or authority at all, or if he execute process out of the jurisdiction of the court from whence it issues, he will not be considered as a legal officer entitled to the special protection of the law: and therefore, if a struggle ensue with the party injured, and such officer be killed, the crime will be only manslaughter, (k) Thus, if the constable of the vill of A. come into the vill of B. to suppress some disorder, and in the tumult the constable be killed in the vill of B., this will be only manslaughter, because he had no authority in B. as constable. (0 But it seems, that if the constable of the vill of A. have a particular precept from a justice of peace directed to him by name, or by his name of office as constable of A., to suppress a riot in the vill of B., or to ap- prehend a person in the vill of B. for some misdemeanor within the jurisdiction and conusance of the justice of peace, and in pursuance of that warrant he go to arrest the party in B., and in executing his warrant be killed in B., this will be murder. For though in such case it seems that the constable was not bound to execute the Avarrant out of his jurisdiction, nor could do it virtute officii as constable of A., yet he might do it as bailiff or minister, by virtue of the warrant ; since a justice of peace may, for a matter within his jurisdiction, issue his warrant to a private person or servant : but then such per- son must shew his warrant, or signify the contents of it. (?») (k) 1 Hale 457, 458, 459. 1 East. P. C. c. 5. 8. 80. p. 312, 314. (/) 1 Half 4,i0. (m) 1 Hale 459. 2 Hawk. P. C. c. 13. H. 27, .SO. It shouhl seem that a constable out of his Jurisdiction, or a private person, wlien directed to execute a particular warrant, ought to be specially sworn for the purpose. Every act which a con- stable does within his jurisdiction, is done under the oblij^alion of his oath of office ; and it would seem to be even more requisite and pro- per that if, when acting out of his jurisdiction, he is to be entitled to the same protection, he ought to act under the same sacred obliga- CHAP. III. § 4.] Rcsistiiig Officers and Others. "^33 It may be observed, that if a warrant be directed to several persons, any of them may execute it. («)• Where an officer endeavourins: to execute process is re- Astothele^a- , ^ lityofthepro- sisted and killed, the crime will not amount to murder, un- cess. less the process is legal; but bj this is to be understood only that the process, whether by writ or warrant, must not be defective in the frame of it, and must issue in the ordinary course of justice from a court or magistrate having jurisdic- tion in the case, (o) Therefore, though there may have been error or irregularity in the proceeding previous to the is- suing of the process, it will be murder if the sheriff or other officer should be killed in the execution of it ; for the officer to whom it is directed must, at his peril, pay obedience to it. (p) And for this reason, if a capias ad satisfaciendum, fieri facias, writ of assistance, or any other writ of the like kind issue, directed to the sheriff, and he or any of his of- ficers be killed in the execution of it, it is sufficient, upon an indictment for this murder, to produce the writ and warrant, without shewing the judgment or decree. (//) So, though the warrant of a justice of peace be not in strictness lawful, as if it do not express the cause with sufficient particularity ; yet, if the matter be within his jurisdiction, the killing of the officer executing the warrant w ill be murder ; for it is not in the power: of the officer to dispute the validity of the war- rant, if it be under the seal of the justice. (?) It may be Hon. It may be here mentioned, clerk in his o^vn cause, is legal pro- thai by 24 Geo. II. c. 44. s. C. if a cess : for it was held, thai in issuing warrant is irregular in the frame of it the county clerk acted merely in it, the officer executing it ministe- a niinislcriai capacity, and not as rially is indemnified against any Judge in his own cause. Baker's action for dam-igcs by the party case, 1 Leach 112. injured, tliough the magistrate by ( ;») Fost. 3 1 1 . 1 Ilalc 457. whom it was issued exceeded his (g) Rogers's case, Cornwc// Sum. jurisdiction. Ass. 1735, ruled by Lord Ilard- (n) 1 Hale 459. wicke. Fost. 311, 3X2, tinte, 6S3. (o) Fost. 311. An attichment is- (r) 1 Hale 459, 460. It is said, sued, and signed by the county however, that this must be under- rs4 Of Manslaughter. [book III. observed also, that in all kinds of process, both civil and cri- minal, the falsity of the charge contained in such process >vill afibrd no matter of alleviation for killing the officer ; for every man is bound to submit himself to the regular course of justice: (s) and therefore, in the case of an escape warrant, the person executing it was held to be under the special protection of the law, though the warrant had been obtained by gross imposition on the magistrate, and by false information as to the matters suggested in it. (0 Process dc- tVctivc ill the frame of it. But if the process be defective in the frame of it, as if there be a mistake in the name or addition of the person on whom it is to be executed ; or if the name of the officer or the party be inserted without authority, and atler the issuing of tlie process ; and the officer endeavoaring to execute it be killed ; this will amount to no more than manslaughter in the person whose liberty is so invaded. (?/) Ofthclllega- litv (if blank warrants. Stuckley'it case. It appears to have been formerly a very common practice to issue i/awA- mtrrantsy notwithstanding their illegality; a practice exceedingly reprehensible, and which, in the fol- lowing case, affi)rded, to a desperate and atrocious offender, a shelter from the capital punishment which he well merited, by extenuating his crime of killing the person who assisted in executing the warrant to manslaughter. The prisoner Stockley, about Lady-day 1753, had been arrested by Welch, the deceased, at the suit of one Bourn, but was rescued; and he afterwards declared, that if Welch offered to arrest him a'niin, he would shoot him. A writ of rescue was made out at the suit of Bourn, and carried to the office of a IMr. Deacle (who acted for the undersheriff of Staffordshire) to have warrant;^ made out upon such writ. The custom of •tood of a warrant containing all the e«»ential requisites of one. 1 Kast. P. C. c. 5.8.78. p. 310. (i) 1 Ka»t. P.C. c. ft. 8. 8. p. 310. sec Foit. 312. (u) 1 Hale 457. 1 Hawk. P. C. c. 31 . s. 64. FoHl. 312. 1 East. P. C. c. 5. 8. 78. p. .^10. Sir Henry Fcr- (0 Curtus case, Fost 135. And rcrs't case, Cro. Car. 371. CHvr. III. § 4.] Reslstltif^ Officers and Others. 735 the under-sheriff was to deliver to Deacle sometimes blank warrants, sometimes blank pieces of paper, under the seal of the office, to be afterwards filled up as occasion required. Deacle made out a warrant against Stockley upon one of these blank pieces of paper, and delivered it to Welch, who inserted therein the names of Thomas Clewes and William Davil, on the 12th July, 1753. On the 19th of September following, Welch, Davil, Clewes, and one Howard, the person to whom Stockley had declared he would shoot Welch, went to arrest Stockley on this warrant. Clewes and Davil, having the warrant, went into Stockley's house first, and called for refreshment ; but, an alarm being given that Welch was coming, the door was locked : upon which Clewes arrested Stockley on this illegal warrant, who thereupon fell upon Clewes, and thrust him out of doors, but kept Davil within, and beat him very dangerously, he crying out murder. On hearing this, Welch and Howard endeavoured to get into the house ; and Welch broke open the window, and had got one leg in, when Stockley shot and killed him. Stockley then absconded, and was not apprehended till December, 1771. At the Lent Assizes following he rvas tried for murder, when the jury expressly found that the deceased attempted to get into the house to assist in the arrest of Stockley. Howard, Clewes, and Davil, being dead, their depositions before the coroner were read, and minutes were taken of the above facts for a special verdict ; but, to save expence, the case was referred to the judges of the King's Bench ; who cer- tified that the offence amounted, in point of law, only to man- slaughter, {w) This practice of issuing blank warrants was reprobated ^^^^^ *^.^* in a more recent case, where the sheriff having directed a jrality of warrant to A. by name, and all his other officers, the name ^^""'^ ^^'^'^" of another of the sheriff's officers B. was inserted after the warrant was signed and sealed by the sheriff; and, therefore, (w) Stocklej's case, 1772, Serjt. 78. p. 310, 311. The case was so Forster'g MS. 1 East. F. C. c. 5. s. decided withuut argument. 736 Of Manslaughter. [book hi. an arrest by B. was holden illegal, (x) And in another case it was considered that the arrest was illegal, where the war- rant was filled up after it had been sealed, {i/) But where a niao^istrate who kept by him a number of blank warrants ready signed, on being applied to, filled up one of them, and delivered it to the officer, who, in endeavouring to arrest the party, was killed ; it was held that this was murder in the person killing the officer, and he was accordingly exe- cuted, (s) It may be proper to remark a circumstance in the preceding case of Stockley, which has been thought to deserve consi- deration, (a) namely, that he had before deliberately resolved upon shooting Welch in case he offered to arrest him again, which in all probability it might be his duty to do. It cer- tainly resembles a fortner case, where, upon some officers breaking open a shop door to execute an escape warrant, the prisoner, who had previously sworn that the first man that entered should be a dead man, killed one of them im- mediately by a blow with an ax. A iew of the judges to whom this case was referred, were of opinion that this would have been murder, though the warrant had not been legal, and though the officers could not have justified the breaking open the door, upon the grounds of the brutal cruelty of the act, and of the deliberation manifested by the prisoner, who, lookina: out of a window with the ax in his hand, had sworn, before any attempt to enter the shop, that the first man that did enter should be a dead man. (6) But in another case, prior to cither of these, where the cruelty and the deliberation were of a similar kind, tlio crime was con- sidered as extenuated by the illegality of the officer's pro- ceeding. A baiiiif having a warrant to arrest a person upon a capias ad satisfaciendum, came to his house, and gave him (x) Housinw. Barrow, GT.ll. liiiJ. H. 454, who Ihcrc mentions it as a (y) Stevenson's case, 10 St. Tr. cascdetcrniinedbytlic judges some 4ti2. years before. (z) Per Lord Ken J on, inRexi>. («) 1 East. P. C c. 5. s. 78.p.311. The Inbabitanls of Wiuwick, 8 T. (b) Curlis's case, 1756. Fost. 135. CHAP. III. § 4.] Resisting Officers and Others. 7S7 notice; upon which the person menaced to shoot him if he did not depart : the bailiff did not depart, but broke open the window to make the arrest, and the person shot him, and killed him. It was holden that this was not murder, because the officer had no right to break the house; but that it was man- slaughter, because the party knew the officer to be a bailiff, (c) The parties whose liberty is interfered with, must have As to notice due notice of the officer's business ; or their resistance and "itv to a'rrest" killing of such officer will amount only to manslaughter (d). Thus, where a bailiff pushed abruptly and violently into a gentleman's chamber early in the morning, in order to arrest him, but did not tell his business, nor use words of ' arrest, and the party not knowing that the other was an officer, in the first surprise, snatched down a sword, which hung in his room, and killed the bailiff; it was ruled to be manslaughter (e). But it will be otherwise, if the officer : and his business be known ; (/) as where a man said to a j bailiff who came to arrest him, " Stand off, I know you well ; enough, come at your peril," and upon the bailiff taking 1 hold of him, ran the bailiff through the body and killed him, it was held to be murder, (g) This will apply as well to a I special bailiff as to a known officer : but where the party I does not shew by his conduct that he is acquainted with the j officer and his business, material distinctions arise as to i notice of a known officer, and one whose authority is only special. With regard to private persons interfering, as they may do, in case of sudden affrays, in order to part the combatants, and prevent bloodshed, it is quite necessary that they should give express notice of their friendly intent ; otherwise the persons engaged may, in the heat and bustle of the affray, imagine that they come to act as parties, (h) (c) Cook's case, 1 Hale 458. 1657. And see Kel. 136. Cro. Car. 53T. W. Jones 429. (/) Mackally's case, 9 Co. 69. (d) 1 Hale 458, ef seg«. 1 Hawk. (g-) Pew's case, Cro. Car. 183. p. C. c. 31. s. 49, 50. Post. 310. 1 Hale 458. (e) 1 Hale 470, case at Newgate, (ft) Fort. 310, 311. 3b 738 OfJJanslaughter. [boor in. As to notice With regard to such ministers of justice as, in right of by oflicers 111- ^^ • Q(]r,(,pg j^,.g conservators of the peace, and in that terposing in ' ... the case of i ight alone interpose in the case of riots and affrays, it is fraVs^" ^ necessary, in order to make the offence of killing tJiem amount to murder, that the parties engaged should have some notice of the intent with which they interpose ; for the reason which was mentioned in relation to private persons ; lest the parties engaged should, in the heat and bustle of an affray, imagine that they come to take a paxt in it (/). But, in these cases, a small matter will amount to a due notifica- tion. It is sufficient if the peace be commanded, or the officer, in any other manner, declare with what intent he interposes. Or if the officer be within his proper district, and known, or but generally acknowledged, to bear the office he assumes, the law will presume that the party killing had due notice of his intent ; especially, if it be in the day time. (A) In the night some further notification is necessary; and commanding the peace, or using words of the like import, notifying his busi- ness, will be sufficient. (/) The saying of a learned judge, " that a constable's staff will not make a constable," is ad- mitted to be true : but if a minister of justice be present at a riot or affray within his district, and in order to keep the peace produce his staff of office, or any other known ensign of authority, it is conceived that this will be a sufficient noti- fication of the intent with which he interposes ; and that, if re- sistance be made after this notification, and he or any of his assistants killed, it \^ill be murder in every one who joined in fiucli resistance, (ni) For it seems, that in the case of a (0 Fost. 310. Kel. 66. 115. thai he came with the justice's (/f) 1 Halo 460, 461. Fost. 310, warrant. :J. Because, after his 311. So in the case of Sissinghurst- retreat, ami before the man shiiii, house, 1 Hale 402, 463, it was re- he comniandcd tlie peace, aiul, solved, that there was sufficient no- notwithstanding, the rioters fell on ticc that it was the constable hefor*; and killed the party. Seethe case the man was killed : — I . Because he fully stated, aiile, 663, ct sequ. was constable of the same vill. (/) 1 Hale 461. Fost. 311. 2. Because he notified his business (;«) Fost. .'511. at the door before the assault, viz. CHAP. in. § 4.] Resisting Officers and Others. 739 public bailiff", a bailiiTjuratiis et cog;nitus, acting in his own district, his authority is considered as a matter of notoriety ; and upon this ground, though the warrant by which he was constituted bailiff* be demanded, he need not shew it ; («) and it is sufficient if he notify that he is the constable, and arrest in the king's name, (o) And this kind of noti- fication by implication of law will hold also in cases where public officers, having warrants, directed to them as such, to execute, are resisted, and killed in the attempt, (p) Thus, where a warrant had been granted against the prisoner by a justice of peace for an assault, and directed io the constable of Paitishal^ and delivered by the person who had obtained it to the deceased, to execute, as constable of the parish, and it appeared that the deceased went to the prisoner's house in the day time to execute the warrant, had his con- stable's staff' with him, and gave notice of his business, and further, that he had before acted as constable of the parish, and was generally known as such; it was determined that this was sufficient evidence and notification of the deceased being constable, although there were no proof of his ap- pointment, or of his being sworn into the office, (q) It is laid down in one case, that if, upon an affray, the To what per- . . , ii • 1 • • i. X -4. sons ill auaf- constablc, or others in his assistance, come to suppress it, j- notice and preserve the peace, and be killed in executing their of- shall beheld /» • • 1 • I tocxtcnd;and fice, itis murder in law, although the murderer knew not of notice in the party killed, and though the affiay were sudden; be- |!^^ j^^^rsons (n) 1 Hale 458, 461, 583. Mack- warrant; neither is a constable, aUy's case, 9 Co. 69, a. But it is whether acting within or without otherwise as to the writ or process his jurisdiction. 1 MS. Sum. 250. against the party. Both a public 1 East. P. C. c. 5. s. 84. p. 319. and private bailiff, where the party (o) 1 Hale 583. submits to the arrest and demands (p) 1 East. P. C. c. 5. s. 81. p. 315. it, are bound to shew at whose suit, {q) Gordon's case, J\,"orlhampton forwhatcausc,and out ofwhat court Spr. Ass. 1789, cor. Thomson, B. the process issues, and where re- afterwards considered at a confer- turnable. 5 Co. 54, a. 9 Co. 69, a. ence of all the judges, 26lh June, But in no case is the bailiff required 1789. See 1 East. ^. C. c. 5. 9, 81. to part with the possession of the p. 315. 3b2 the case of j S I interposing;. 1 40 OfManslaiigJiter. [bookiii. cause he set himself against the justice of the realm, (r) It is said, however, tliat, in order to reconcile this with other autho- rities, it seems that the party killing must have had implied notice of the character in vt^hich the peace officer and his as- sistants interferedjthougli not a personal knowledge ot'them. (5) For it is elsewhere laid down, that if there be a sudden alTray, and the constable come in, and, endeavouring to ap- pease it, be killed by one of the company who knew him, it is murder in the party killing, and in such of the others as knew the constable, and abetted the party in the fact ; but only manslaughter in those who knew not the constable : (0 and that others continuing in the affray, neither knowing the constable nor abetting to his death, would not be guilty even of manslaughter, (w) But these positions do not apply to an affray deliberately engaged in by parties determined to make common cause, and to maintain it by force, {w) It is however agreed, that if a bailiff, or other officer, be resisted in the regular discharge of his duty in executing process against a party, and a third person, eveji the servant or friend of the party resisting, come in and take part against the officer, and kill him, it will be murder, though he knew him not. (.r) But it is suggested, that, in this case, in order to make it murder in the servant or friend, the party whom they came in to assist must have had due notice of the officer's authority ; and that if the offence would not have been murder in tlie party himself resisting for want of such notice, neither would it in the servant or friend under the like ignorance. {ij) The law upon this point may, per- haps, hardly seem to be rcconcileablc with that above-men- (r) Young's case, 4 Co. 40, b. 3 perhaps over cautiously, if iu truth Inst. 52. tlicrc were uo abetment. («) I East. V. C. c. 5. 8. 82. p. .'J 10. {w) Sec as to cases of that kind, (0 I Ilalc 438, 446, 4G1. Kel. rt«/e, p. 31, .'12. 115, lift. {x) 1 Hawk. P. C. c.31. ,s. 57. (u) 1 Hale 446. Lord Hale adds, Keb. 87. 4 Co. 40. b. 1 East. P. quod liiwcn (jua're, hut (as itissiiid C c.5 s. 82. p. 316. 1 Kasl. I*. C. c. 5. s. 8'2. p. 3l'i.) (j/) 1 Kiul. P. C. c, 5. s. 82. p. 316. CHAP. III. § 4.] licsisllng Officers and Others. 741 tioned, of a person not knowing {]\e constable, and killing- him in an affray ; but it is defended on the principle, that every person wilfully engaging, in cool blood, in a breach of the peace, by assaulting another instead of endeavouring to assuage the dispute, is bound first to satisfy himself of the justice of the cause he espouses at his peril. (:::) And, upon this principle, if a stranger, seeing two persons engaged, one of them a bailiff attacking the other with a sword and the other resisting an arrest by such bailiff, interfere between them without knowing the bailiff, for the express purpose of defending the party attacked against the bailiff, he must abide the consequences at his peril ; but if he interfere, not for the purpose of aiding one party against the other, but with intent onJtj to preserve the peace and prczent mischiefs and in so doing happen to kill the bailiff, the case would possibly fall under a different consideration, (a) In all cases, whether criminal or civil, where doors may Notice before re open. be broken open in order to make an arrest, there must be a r^"\^ ^^^ previous notification of the business, and a demand to enter on the one hand, and a refusal on the oilier, before the par- ties proceed to that extremity, {b) The question as to what should be considered as due notice, was much considered in a case where two otHcers went to the workshop of a person, against whom they had an escape warrant, and, finding the shop door shut, called out to the person, and informed him that they had an escape warrant against him, and required (2) 1 Hn^k. P C. c. 31. s. 59. 1 ported by Kelyng; and Kcble, re- East. P. C. c. 5. s. 82. p. 316, 317, porting the same case very shortly, where the grounds upon which the sajs, — It was adjudged, that if any law in each of these cases may be casually assist against the laW, and supported, and considered as re- kill the bailiff, it is murder, espe- concileable, are more fully stated. cially if he knew the cause. 1 Kcb. (a) Scethccaseof Sir C. Standlie 584. and sec 1 East. P. C. c. j. s. and Andrews, Sid. 159, where An- S3, p. 318. drews, under similar circumstances, (6) Fost. 320. 2 Hawk. P. C. c, was holden not to beguiily of mur- 14. s. 1. der. This case is differently re- T4r2 Of Manslaughter'. [book nr, him to surrender, otherwise they said they would break open the door ; and upon the person's refusing to surrender, they broke open the door, and one of their assistants was immediately killed. Nine of the judges were of opinion, that no precise form of words was required in a case of this kind ; and that it is sufficient if the party has notice that the officer comes not as a mere trespasser, but claiming to act under a proper authority. The judges who differed, thought that the officers ought to have declared, in an ex- plicit manner, what sort of warrant they had ; and that an escape does not, ex vi termini, nor in the notion of law, imply any degree of force, or breach of the peace; and, con- sequently, that the prisoner had not due notice that they came under the authority of a warrant grounded on a breach of the peace ; and that for want of this due notice, the officers were not to be considered as acting in discharge of their duty, but as mere trespassers, (c) ?a°tc baillf£"' I" *^^ ^^^^ o^^ privale or special bailif, either it must ap- pear that the party knew that he was such officer, as where the party said, " Stand off, I know you well enough ; come at your peril;" or, that there was some such notification thereof that the party might have known it, as by saying, " I arrest you." These words, or words to the like effect, give sufficient notice ; and if the person using them be a bailiff, and have a warrant, the killing of such officer will be murder, (d) A private bailiff ought also to shew the warrant upon which he acts, if it is demanded: (c) and with respect to the writ or process against the party, both the public and private bailiff, in case the party submit to the arrest and make the demand, are bound to shew at whose suit, and for (r) Curlift'scase, Post. 13f., 137. iqion the arrest, 1 Hale 458. And (rf ) 1 Hale 40 1 . Mar kally's case, sec 1 Hale 459, where it is .said that 9 Co. 69. b. a justice of peace may issue his (e) I FIalc.58,'J. That is, lln- war- warrant to a private person; hut rant by which he is consliliilcd tlien such person must shew his h!iii;n"; which a hailirt" or ofliccr, warrant, or signify the contents Juralus cl cognitus, need not shew of it. CHAP. III. § 4.] Resisting Officers and Others. 743 what cause, the arrest is made, out of what court the process issues, and when and where returnable. (/) In no case, however, is he required to part with the warrant out of his own possession; for that is his justification, (g") It may be observed generally, that where an officer, in As to the re- executing- his office, proceeds irregularly, and exceeds the ^j^^ proceed- limits of his authority, the law gives him no protection in i"g- that excess; and if he be killed, the offence will amount to no more than manslaughter in the person whose liberty is so invaded, (h) He should be careful, therefore, to execute process only within the jurisdiction of the court from whence it issues ; as, if it be executed out of such jurisdiction, the killing the officer attempting to enforce the execution of it, will be only manslaughter, (i) But if the process be exe- cuted within the jurisdiction of the court or magistrate from whence it is issued, it will be sufficient, though it be exe- cuted out of the vill of the constable, provided it be directed to a particular constable by name, or even by his name of of- fice, (k) And the officer must also be careful not to make an arrest on a Sunday/, except in cases of treason, felony, or breach of the peace ; as, in all other cases, an arrest on that day will be the same as if done without any autho- rity. (/) But process may be executed in the night time, as well as by day. (m) The right of officers to break open windows or doors, in Right of of- order to make an arrest, has been a subject of some litiga- open windows tion ; but many of the points have been settled, and require or doors to - * make au ar- rest. (/) 1 Hale 458, note (g). 6 Co. (/) 29 Car. II. c. 7. 1 East. P. C. 54, a. 9 Co. 69, a. c. 5. s. 88. p. 324, 325. The statute (g-) 1 East. P.C. C.5. s. 83. p. 319. makes void all process, warrants, {h) Post. 312. &c. served and executed on a Sun- (/) 1 Hale 458, 459. 1 East. P. day, except in the cases mentioned C. c. 5, s. 80. p. 314. in the text. (A) 1 Hale 459. 2 Hawk. P. C. (m) 9 Co. 66, a. 1 Hale 457. 1 c. 13. s. 27, 30. 1 East. P. C. c. 5. Hawk. P. C. c 31. s. 62. i'iO. p. 314. f^ 44 Of Manslaughter. [book iii. to be shortly noticed. In the first place, however, it may be observed as a general rule, that in every case, whether criminal or civil, in which doors may be broken open in order to make an arrest, there must be a previous notifica- tion of the business, and a demand to enter on the one hand, and a refusal on the other, before the parties proceed to that extremity, (n) Where a felony has been committed, or a dangerous wound given, the party's house is no sanctuary for him ; and the doors may be forced, after the notification, demand, and refusal, which have been mentioned, (o) So, where a minister of justice comes armed with process, founded on a breach of the peace, doors may be broken. (/?) And it is also settled, upon unquestionable authorities, that where an injury to the public has been committed, in the shape of an insult to any of the courts of justice, on which process of contempt is issued, the officer charged with the execution of such process may break open doors if necessary, in order to execute it. (q) And the officer may act in the same manner upon a capias utlagatum, or capias pro fine, (r) or upon an habere facias possessionem, (s) The same force may be used where a forcible entry or detainer is found by inquisition before justices of peace, or appears upon their view; (/) and also where the proceeding is upon a warrant of a justice of peace, for levying a penalty on a conviction grounded on (n) Post. 320. 2 Hawk. P. C. c. Hawk. P. C. c. 14. s. 3. Curtis's 14. 8. 1. 1 East, P. C. c. 5. s. 87. case, Post. 135. p. 324. (q) Biirdctt r. Abbott, 14 East. (o) Post. 320. 1 Hale 459. And 157. v.licre tlio process of con- sec 2 Hawk. P. C. c. 14. s. 7. where tempt proceeded upon the order of it is said that duorti may be broken the House of Commons ; and see open, wliere one known to have Scmaynes' case, Cro. Eliz. 909. and committed a treason or felony, or Brigg's case, 1 Rol. Rep. 336. to have given another a dangerous (r) 1 Hale 459. 2 Hawk. P. C. c. wound, is pursued, either with or 14. s. 4. williout a warrant, by a constable (*) I Hale 458. 5 Co. 95, b. or private person. (0 2 Hawk, P. C. c. 14. s. 6. ante, (p) lust. 320. 1 Hale 459. 2 425, 2 CHAP. III. § 4.] Resisting Officers and Others. 745 any statute, which gives the whole or any part of such penalty to the king, (u) But in this latter case the ofTicer executing the warrant must, if required, shew the same to the person whose goods and chattels are distrained, and suffer a copy of it to be taken, (w). But though a felony has been actually committed ; yet a bare suspicion of guilt against the party will not authorize a proceeding to this extremity, unless the officer comes armed with a w arrant from a magistrate, grounded on such suspicion. Cr) For where a person lies under a probable suspicion only, and is not indicted, (^) it is said to be the better opinion, that the breaking open doors without a war- rant, in order to apprehend him, cannot be justified: (z) or must at least be considered as done at the peril of proving that the party, so apprehended on suspicion, is guilty, (a) But a different doctrine appears to have formerly prevailed upon this point; by which it was held that if there were a charge of felony laid before the constable, and reasonable ground of suspicion, such constable might break open doors, though he had no warrant. (6) It is said, that if there be an aff*ray in a house, the doors of which are shut, whereby there is likely to be manslaugh- ter or bloodshed, and the constable demand entrance, and be refused by those within, who continue the affiay, the constable may break open the doors to keep the peace, and prevent the danger :(c) and it is also said, that if there be dis- orderly drinking or noise in a house at an unseasonable time of night, especially in inns, taverns, or alehouses, the con- stable or his watch demanding entrance, and being refused, may break open the doors to see and suppress the disor- (ii) 2 Hawk. P. C. c. 14. s. 5. (a) 1 East. P. C. c. 5. s. 87. p. 322. (w) 27 Geo. II. c. 20. (ft) 1 Hale 583. 2 Hale 92. 13 (x) Fosl. 321. Ed. IV. 9, a. {y) Jnte, 724, 725. (c) 2 Hale 95. (s) 2 Hawk. P. C. c. 14. «. 7. 746 Of Manslaughter. [book hi. der. (d) And further, tliat where an affray is made in a house in the view or hearing of a constable, or where those w iio have made an affray in his presence fly to a house, and are immediately pursued by him, and he is not suffered to enter in order to suppress the affray in the first case, or to apprehend the affrayers in either case, he may justify break- ing open the doors, (e) In civil cases But this mode of proceeding, by breaking the doors of a mans house ^j^ party, is founded upon the necessity of the measure for IS his casllc r JJ i J the public weal, and is not permitted to the particular in- terest of an individual. In civil suits, therefore, the prin- ciple that a man's house is his castle, for safety and repose to himself and his family, is admitted; and, accordingly, in such cases, an officer cannot justify the breaking open an outward door or window to execute the process, (f) If he do so, he will be a trespasser ; and if the occupier of the house resist him, and in the struggle kill him, the offence will be only manslaughter ; (g) or if the occupier of the house do not know him to be an officer, and have reasonable ground of suspicion that the house is broken with a felonious intent, the killing such officer will be no felony. (//) It has been considered, however, that this rule of every man's house being his castle has been carried as far as the true principles of political justice will warrant, and that it will not admit of any extension. (/) It should be ob- served, therefore, that it will apply only to the breach of nutisard doors or windows; to a breach of the house for the purpose of arresting the occupier or any of his family ; and to arrests in the first instance. () Cooke v. Birt, 5 Taunt. 765. (m) Leet). Gansel, Cowp. I. Johnson v. Leigh, 6 Taunt. 240. («) RatdiflFe v. Burton, 3 Bos. Post. 748. and Pull. 223. (g) Baker's case, 1 Leach. 112. T48 Of Manslaughter. [book hi. And to eases This personal privilege of an individual, in respect to his house is outer door or window, is confined also to cases where the broKeo, in breach of the house is made in order to arrest the occupier order to ar- -7 i i > • i • rest the occu- or any of his family^ who have their domicile, their ordinary pier, or an tf of residence there: for if a stranger, whose ordinary residence hajamili/. . is elsewhere, upon a pursuit, take refuge in the house of another, this is not the castle of such stranger, nor can he claim in it the benefit of sanctuary. (?) But it should be observed, that in all cases where the doors of strangers are broken open, upon the supposition of the person sought being there, it must be at the peril of finding him there ; unless, as it seems, where the parties act under the sanction of a magistrate's warrant. (.9) And an officer cannot even enter the house of a stranger, though the door be open, for the purpose of taking the goods of a defendant, but at his peril as to the goods being found there or not; and if they be not found there, he is a trespasser. (0 And it has been decided that a sheriff cannot justify breaking the inner doors of the house of a stranger, upon suspicion that a defendant is there, in order to search for such defendant, and arrest him on mesne process, (u). And also, to And the privilege is also confined to arrests in the first in- first instance ^^^'^^^- ^^^ ^^ ^ man, being legally arrested, (n) escape from the officer, and take shelter, though in his own house, the oflicer may, upon fresh suit, break open doors in order 1 East. P. C. c. 5. s. S7. p. 323. It (.v) 2 Hale 103. Fost. 321. 1 •hoiild ])c observed, that in this East. P. C. c. 5. s. 87. p. 324. ca.sc there was proof of a previous (/) Cooke r. Blrt, 5 Taunt. 765. resolution in the prisoner to resist («) Johnson «'. Leigli, 6 Taunt, the officer, whom he afterwards 246. Jnle, 747. killed in attcmpliiitj to attach his (tv) Layinj^ hold of the prisoner, goods in his dwt Hill}; hoii«*e, in or- and prt)iiounciiig the words of ar- der to compel an appearance in the rest, is an actual arrest. Fosl. 320. county court. The point reserved But bare word.s will not make an related to the legality of the at- arrest : the oflicer must actually tachment. touch the prisoner. Geuner v. (r) Fost. 320. 5 Co. 93. Sparkes, 1 Salk. 79. CHAP. III. § 4.] Resisting Officers and Others. 749 to retake him, having first given due notice of his business, and demanded admission, and been refused, (.r) If it be not, however, upon fresh pursuit, it seems that the officer should have a warrant from a magistrate: and it should be observed, that the officer will not be authorized to break open doors in order to retake a prisoner in any case where the first arrest has been illegal, (j/) Therefore, where an officer had made an illegal arrest on civil process, and was obliged to retire by the party's snapping a pistol at him several times, and afterwards returned again with assistants, who attempted to force the door, when the party within shot one of the assistants ; it was ruled to be only manslaughter, (z) In all cases where the officer or his assistants, having en- tered a house in the execution of their duty, are locked in, they may justify breaking open the doors to regain their liberty, (a) It has been deemed a question worthy of great consideration Interference how far thi^d persons, especiallu mere strangers, interposinsr ^^ l ^^^^' r ^ r J . t t5 sons, where in behalf of a party illegally arrested, are entitled to insist the arrest is upon the illegality of the arrest, in their defence, as ex- * ^^^ ' tenuating their guilt in killing the officer. The point was raised in the following case : — One Bray, Tooleys caic. who was a constable of St. Margaret's parish in West- minster, came into the parish of St. Paul Covent Garden, where he was no constable, and consequently had no autho- rity ;(&) and there took up one Ann Dekins, under suspicion of being a disorderly person, but who had not misbehaved her- (x) Post. 320. Genneru.Sparkes, East. P. C. c. 5. s. 87. p. 324. 1 Salk. 79. 1 Hale 459. 2 Hawk. (i) One judge only thought that P.C. c. 14. s. 9. Bray acted with authority, as he (y) 1 East. P. C. C.5. S.87. p. 324. shewed his staft', aud that, with re- (z) Stevenson's case, 10 St. Tr. spect to the prisoners, he was to b« 462. cousidcred as coastable de/acta, (a) 2 Hawk. P.C. C.14. s. 11. 1 750 . Of Manslaughter. [book in. self, and against whom Bray, had no warrant. The pri- soners came up ; and, though they were all strangers to the woman, drew their swords, and assaulted Bray, for the pur- pose of rescuing the woman from his custody ; upon which he shewed them his constable's staff, declared that he was about the queen's business, and intended them no harm. The prisoners then put up their swords; and Bray carried the woman to the round house in Covent Garden. A short time afterwards, the woman being still in the round house, the prisoners drew their swords again, and assaulted Bray, on account of her imprisonment, and to get her discharged. Bray called some persons to his assistance, to keep the woman in custody, and to defend himself from the violence of the prisoners: upon which a person named Dent came to his assistance ; and before any stroke received, one of the prisoners gave Dent, while assisting the constable, a mortal w ound. This case was elaborately argued ; and the judges were divided in opinion ; seven of them holding, that the offence was manslaughter only, and five that it was mur- der, (c) The seven judges who held that it was manslaugh- ter thought that it was a sudden action, without any prece- dent malice or apparent design of doing hurt, but only to prevent the imprisonmentofthe woman, and to rescue her who was unlawfully restrainedof her liberty ; and that it could not be murder, if the Moman was unlawfully imprisoned: (rf) and they also thought tliat the prisoners, in this case, had suf- ficient provocation ; on the ground that if one be imprisoned upon an unlawful authority it is a sullicient provocation to all people, out of conjpassion, and much more where it is done under a colour of justice; and that, where the liberty of the subject is invaded, it is a provocation to all the subjects of En'Hand. But the five judges who differed thought that, the woman being a stranger to the prisoners, it could not be a provocation to them ; otherwise, if she had been a friend or (c) Toolcy and Others (case of ) 40. was cited; and Mackally's case, 2 Lord Raym. 1296. 9 Co. 65. ( be manslaughter, " and if any one against the law put the point upou an endeavour " imprison a man, he is an of- to rescue. *' fender against magna charla." CHAP. III. § 4.] Resisting Officers and Others. 753 " the laws; and in this frenzy to have drawn upon the con- " stable, and stabbed his assistant. It is extremely difficult " to conceive that the violation of magna charta, a fact of " which they were totally ignorant at that time, could be the " provocation which led them into this outrage. But, ad- " mitting for argument sake that it was, we all know that " words of reproach, how grating and offensive soever, are " in the eye of the law no provocation in the case of volun- " tary homicide : and yet every man who hath considered " the human frame, or but attended to the workings of his " own heart, knows that affi'onts of that kind pierce deeper, " and stimulate the veins more effectually, than a slight in- *' jury done to a third person, though under colour of justice, " possibly can. The indignation that kindles in the breast *' in one case is instinct, it is human infirmity ; in the other " it may possibly be called a concern for the common rights " of the subject : but this concern, when well founded, is " rather founded in reason and cool reflection, than in human *' infirmity; and it is to human infirmity alone that the law " indulges in the case of a sudden, provocation." He then proceeds further : " But if a passion for the common rights " of the subject, in the case of individuals, must, against all '' experience, be presumed to inflame beyond a personal " affront, let us suppose the case of an upright and deserving " man, universally beloved and esteemed, standing at the " place of execution, under a sentence of death manifestly " unjust. This is a case that may well rouse the indigna- " tion, and excite the compassion, of the wisest and best " men : but wise and good men know that it is the duty of " private subjects to leave the innocent man to his lot, how " hard soever it may be, without attempting a rescue; for " otherwise all government would be unhinged. And yet, " what proportion doth the case of a false imprisonment, for " a short time, and for which the injured party may have an " adequate remedy, bear to that I have now put." (m) (m) Fost. 315, 316, 317. 3 c 754 Of Manslaughter. [book in. Adey'icase. In a more recent case, the prisoner, who cohabited with a person named Farmello, killed an assistant of a constable, who came to apprehend Farmello, as an idle disorderly person, under the statute 19 G. 1 1, c. 10. Farmello, though he was not an object of the act, did not himself make any resistance to the arrest; but the prisoner, immediately upon the constable and his assistant requiring Farmello to go along with them, without making use of any argument to induce them to desist, or saying one word to prevent the intended arrest, stabbed the assistant. And Hotham, B., with whom Gould, J. and Ashhurst, J. concurred, held the offence to be murder : a special verdict, however, was found; (w) and the case was argued in the Exchequer cham- ber, before ten of the judges; but no opinion was ever pub- licly delivered, (o) SECTION V. CASES WHERE THE KILLING TAKES PLACE IN THE PRO- SECUTION OF SOME OTHER CRIMINAL, UNLAWFUL, OR WANTON ACT. Heedless and It has been shewn, that where from an action, unlawful Lets" '^ " '" itself, done deliberately, and with mischievous intention, death ensues, though against or beside the original inten- (n) The court advised the jury " but no opinion was ever pub- to find a special verdict, on the "licly given; and quaere whether ground of the difference of opinion " the prisoner did not escape pend- whicli had been entertained in " ing tho opinion of the judges, Toolev's case, and the case of " when the saol was burnt down Huggft, ante, 749. 751. " in 1780, and was never retaken." (0) Adey's case, 1 Leach 206. And sec also I East. P.O. c. 5. s. 89. And see id. p. 212. where it is said, page 329. note (a), where it is said, that the prisoner laid eighteen *' Upon inquiry, however, it ap- inonths in gaol, and was then dis- '' pears that, pending the consider- charged: — but the following note is " ation of the case by the judges, added, " it is said, that the judges "she escaped during the riots in " held it to be manslaughter only, " 1780, and was never retaken.' CHAP. III. § 5.3 Cnminal, Unlazvful, or Wanton Acts. 755 i tion of the party, it will be murder: (p) and it may be here I observed, that if such deliberation and mischievous inten- I tion does not appear, (which is matter of fact, and to be col- lected from circumstances,) and the act was done heedlessly and incautiously, it will be manslaughter, (q) ' i Where an injury, intended against one person, mortally Blow aimed i affects another, as where a blow aimed at one person lights kills another, upon another and kills him, the inquiry will be whether, if the blow had killed the person against whom it was aimed, the offence would have been murder or manslaughter. For if a blow, intended against A., and lighting on B., arose from a sudden transport of passion, which, in case A. had died by it, would have reduced the offence to manslaughter, i the fact will admit of the same alleviation, if it shall have j caused the death of B. (r) 1 i There are many acts so heedless and incautious as ne- Actsgenerally cessarily to be deemed unlawful and wanton, though there ^cautious. , may not be any express intent to do mischief: and the party j committing them, and causing death by such conduct, will be guilty of manslaughter. As if a person, breaking an un- ; ruly horse, ride him amongst a crowd of people, and death ensue from the viciousness of the animal, and it appear clearly to have been done heedlessly and incautiously only, 1 and not with an intent to do mischief, the crime will be j manslaughter. (.reed danger, or that it was done with a mischievous intent, (c) D^athhap- Where sports are unlawful in themselves, or productive F*vrf"f ^ or"9 ®^ danger, riot, or disorder, so as to endanger the peace, and death ensue in the »>-ursuit of them, the party killing is (w) Burtuirs case, 1 Sir. 481. (x) ^n/e, 660, 061, (j^) fust. 25H. Thousli i-ord Coke Kccmti lo think othci w'uc, .S Ihst. 36. (z) Post. 258, S.'iQ. I Hale 475. (a) 1 East. P. C. c. 5. s. 32. p. 256, 257. 1 Hale 39. (ft) 1 IlaleSy. (c) lEasl.l».C. c.i. ».S2. p.857. CHAP. III. § 5.] Criminal, Unlawful, or Wanton Ads. 757 guilty of manslaughter, (rf) Such manly sports and exercises as tend to give strength, activity, and skill in the use of arms, and are entered into as private recreations amongst friends, are not, however, deemed unlawful sports : (c) but prize-fighting, public boxing matches, or any other sports of a similar kind, which are exhibited for lucre, and tend to encourage idleness by drawing together a number of di>or- derly people, have met with a different consideration, {f) For in these last-mentioned cases the intention of the parties is not innocent in itself, each being careless of what hurt may be given, provided the promised reward or applause be obtained : and meetings of this kind have also a strona: tend- ency in their nature to a breach of the peace, {g) There- fore, where the prisoner had killed his opponent in a boxing match, it was holden that he was guilty of manslaughter ; though he had been challenged to fight by his adversary for a public trial of skill in boxing, and was also urged to en- gage by taunts ; and the occasion was sudden, (/z) The custom of cock-throwins; at Shrovetide has been con- sidered as an idle, dangerous, and unlawful sport; and ac- cordingly, where a person throwing at a cock missed his aim and killed a child who was looking on, Mr. J. Foster ruled it to be manslaughter; and speaking of the custonj, he says, " it is a barbarous unmanly custom, frequently productive " of great disorders, dangerous to the by-standers, and " ought to be discouraged." (/) So throwing stones at another wantonly in play, being a dangerous sport without the least appearance of any good intent, or doing any other such idle action as cannot but endanger the bodily hurt of some one or other, and by such means killing a person, will be manslaughter. (A;) (d) Fo8t. 259, 260. 1 East. P. C. (/i) Ward's case, 0. B. 1789, cor. c. 5. s. 41. p. 268. Ashhurst, J. 1 East. P. C. c. 3. s. 42. (e) Post, Chap, on Excusable p. 270. Homicide. (i)Fost261. (/) Post. 260. (fc) 1 Hawk. P. C. c. 29. s. 5. (ff) 1 East. P. C. C. 5. s. 42. p. 270. 758 Of Manslaughter. [book in. Though the sports be not in their nature unlawful ; yet, if the weapons used be of an improper and deadly nature, the party killing; will be guilty of manslaughter : as was the case of Sir John Chichester, who unfortunately killed his man-servant as he was playing with him. Sir John Chi- chester made a pass at the servant with a sword in the scab- bard, and the servant parried it with a bed-staff, but in so doing struck off the chape of the scabbard, whereby the end of the sword came out of the scabbard; and the thrust not being effectually broken, the servant was killed by the point of the sword. (/) This was adjudged manslaughter : and Mr. J. Foster thinks, in conformity with Lord Hale, that it was rightly so adjudged ; on the ground that there was evidently a want of common caution in making use of a deadly weapon in so violent an exercise, where it was highly probable that the chape might be beaten off, which would necessarily expose the servant to great bodily harm, (m) Shooting at deer in another's park, without leave, is an unlawful act, though done in sport, and without any felonious intent ; and therefore if a bystander be killed by the shot, such killing will be manslaughter. («) Where several It has been shewn, that where a bodv of persons resolv- join to do an _ • "^ unlawful act. ing generally to resist all opposers in the commission of any breach of the peace, and to execute it in such a manner as naturally tends to raise tumults and affrays, happen to kill any one in the prosecution of this unlawful purpose, they (I) Sir John Chichester's cnse, 1 " not to be an unlawful act; for it Hale 472, 473. Alleyn 12. Kail. " is not a dangerous weapon likely 108. •' to occasion death, nor did it so (m) 1 Hale 473. Fost. 260. 1 " in this case, but by an unforeseen East. P.C C.5. 8.41 p.269. But see ♦* accident; and therein differs from in Hale 473, the following note : — " the case of justing, or prize-fight- " This seems a very hard case: and " ing, wherein such weapons are ** indeed the foundation of it fails; "made use of as are fitted and " for tlie pushing with a sword in *' likely lo give mortal wounds." " the scabbard, by conseul, seems («) 1 Hale 475. CHAP. III. §6.] Lawful Acts improperly performed. 759 i will be guilty of murder, (o) Yet, in one case, where divers i rioters, having forcibly gained possession of a house, after- ; wards killed a partisan of the person whom they had ejected, as he, in company with a number of others, was endeavour- ing in the night forcibly to regain the possession, and to j fire the house, they were adjudged guilty only of man- slaughter, (p) It is said, that perhaps it was so adjudged i for this reason, that the person slain was so much in fault I himself. (9) | i SECTION VI. CASES WHERE THE KILLING TAKES PLACE IN CONSEQUENCE ' OF SOME LAWFUL ACT BEING CRIMINALLY OR IMPRO- PERLY PERFORMED, OR OF SOME ACT PERFORMED WITH- OUT LAWFUL AUTHORITY. I I I An act, not unlawful in itself, may be performed in a manner so criminal and improper, or by an authority so defective, as to make the party performing it, and in the prosecution of his purpose causing the death of another j person, guilty of murder, (r) And as the circumstances of ! the case may vary, the party so killing another may be guilty ; only of the extenuated oflfence of manslaughter. ; \ Thouffh officers of iustice are authorised to execute their Officersofjus I , . , 1 . -ii. X J- tice acting ' duties m a proper and legal manner, notwithstanding any improperly. ! resistance which may be made to them ; (^ yet they should not come to extremities upon every slight interruption, nor ! unless there be a reasonable necessity. Therefore, where a , collector, having distrained for a duty, laid hold of a maid j servant who stood at the door to prevent the distress being carried away, and beat her head and back several times against the door-post, of which she died ; although the court i (0) Ante, 661 , 662. (?) 1 Haivk. P. C. c. 31. 8. 53. (p) DraytoQ Basset, (case of) (r) Jnte, 664, et sequ. i Crom. 28. I Hale 440. («) ^"'f. 65X, 665. \ I T60 Of Manslaughter. [book hi. held her opposition to the officer to be a sufficient provoca- tion to extenuate the homicide, yet they were clearly of opi- nion that lie was guilty of manslaughter in so far exceeding the necessity of the case. (0 Case of Tran- There is a case reported in Strange, as a case of man- ,Qjj slaughter, which, if the circumstances of it were as stated in that report, does not seem to have been entitled to so fa- vourable a construction. Mr. Lutterel, being arrested for a small debt, prevailed on one of the officers to go with him to his lodgings, while the other was sent to fetch the attor- ney's bill, in order, as Lutterel pretended, to have the debt and costs paid. Words arose at the lodgings about civility money, which Lutterel refused to give ; and he went up stairs, pretending to fetch money for the payment of the debt and costs, leaving the officer below. He soon returned with a brace of loaded pistols in his bosom, which, at the importunity of his servant, he laid down on the table, say- ing, " He did not intend to hurt the officers, but he would not be ill used." The officer who had been sent for the attorney's bill, soon returned to his companion at the lodg- ings ; and, words of anger arising, Lutterel struck one of the officers on the face with a walking cane, and drew a little blood. Whereupon both of them fell upon him : one slabbed him in nine places, he all the while on the ground begging for mercy y and unable to resist them; and one of them fired one of the pistols at him while on the ground, and gave him his death's wound, (m) This is reported to have been holden manslaughter, by reason of the first assault with the cane: but Mr. Justice Foster thinks it a very extraordinary case, as thus reported ; and mentions the following additional cir- cumstances, which are stated in anotlier report, (w). 1. Mr. Lutterel had a sword by his side, whicli, after the affray was over, was found drawn and broken. 2. When Mr. Lutterel laid the pistols on the table, he declared that lie brought (0 Goffes case, 1 Ventr. 216. (u>) G St. Tri. 195. 16 St. Tri. (by (u) Tranter and Reason (caic oO Howell)!. Stra. 499. CHAP. in. § 6.] Lawful Acts improperly performed. 761 them down, because he would not be forced out of his lodg- ings. 3. He tljreatened the officers several times. 4. One of the officers appeared to have been wounded in the hand by a pistol shot (for both pistols were discharged in the af- fray,) and slightly wounded on the wrist by some sharp pointed weapon : and the other was slightly wounded in th« hand by a like weapon. 5. The evidence touching Mr. Lut- terel's begging for mercy was not, that he was on the ground begging for mercy ; but that on the ground he held up his hands, as if he was begging for mercy. Upon these facts the chief justice directed the jury, that if they believed Mr. Lutterel endeavoured to rescue himself, which he seemed to think Avas the case, and which very probably was the case, it would be justifiable homicide in the officers. And as Mr. Lutterel gave the first blow, accompanied with menaces to the officers, and the circumstance of producing loaded pis- tols to prevent their taking him from his lodgings, which it would have been their duty to have done if the debt had not been paid, or bail given, he declared it would be no more than manslaughter, (jc) Though resistance be made to an officer of justice ; yet if officers of the officer kill the party, after the resistance is over, and justice acting the necessity has ceased, the crime will at least be man- ance. slaughter, {j/) Where a felony has been committed, or a dangerous Or upon the wound given, and the party flies from justice, he may be flight of the . , • , , pifiy arrest- killed in the pursuit, if he cannot otherwise be overtaken, ed. And the same rule holds, if a felon, after arrest, breakaway as he is carrying to gaol, and his pursuers cannot retake without killing him. But If he may be taken in any case without such severity, it is, at least, manslaughter in him who kills him ; and the jury ought to enquire, whether it (x) Post. 293, 294, were time for the blood to have {y) MS. Burnet 37. 1 East. P. cooled, it would, it is conceived, C. c. 5. 8. 63. p. 297. And if there amount to murder, ante, 642. 762 Of Manslaughter. [book hi. were done of necessity or not. (s) In makino- arrests in cacps of misdemeanor and breach of the peace, (with the exception, however, of some cases of flaijrant misde- meanors,) it is not lawful to kill the party accused if he fly from the arrest, though he cannot otherwise be overtaken, and though there be a warrant to apprehend him ; and, ge- nerally speaking-, it will be murder: but, under circum- stan«es, it may amount only to manslaughter, if it appear that death was not intended, (n) Tn civil suits, if the party against whom the process has issued fly from the officer en- deavouring to arrest him, and be killed by him in the pur- suit, it has been said that it will be murder, (b) But it is rather to be considered as murder, or manslaughter, as cir- cumstances may vary the case ; for if the officer, in the heat of the pursuit, and merely in order to overtake the party, should trip up his heels, or give him a stroke with an ordi- nary cudjrpl, or other weapon not likely to kill, and death should unhappily ensue, this will not amount to more than manslaughter, if, in some cases, even to that offence, (c) Pressing for the sea ser- vice. In cases of pressing for the sea service, if the party fly, the killing by the officer in the pursuit to overtake him will be manslaughter at least, and in some cases murder, according to the rules which govern the case of misdemea- nors ; paying attention, nevertheless, to those usages which have prevailed in the sea service in this respect, so far as they are authorised by the courts which have ordinary ju- risdiction over such matters, and are not expressly repug- nant to the laws of the land. An officer in the impress ser- vice put one of his seamen on board a boat belonging to one William Collyer, a fisherman, with intent to bring it under the stern of another vessel, in order to see if there were any fit objects of the impress service on board. The boat steered away in another direction ; and the officer pursued (t) 1 Eairt. P. C. c. 5. 8. 67. p. 298. (u) Post. 271. 1 East. P. C. c. 6. •. 70. p. 302. (b) By Lord Hale, 1 Ilale 481. (c) Foil. 271. CHAP. III. § 6.] Lawful Acts improperly/ performed. '763 in another vessel for three hours, firing severnl shots ;\t her with a musket loaded with ball for the purpose of hittiiij? the hallyards and brinjjinji^ the boat to, which was found to be the usual way ; and one of the shots unfortunately killed Col- Ijer. The court said, it was iiupo-'sible for it to be more than manslauijhter. (d) Tt is presunifd, that this decision pro- ceeded on theo-round that the musquet was not levelled at the deceased, nor any bodily hurt intended to hint. But in- asmucli as such an act was calculated to breed danjrer, and not warranted by law, thouo^h no bodily hurt were intended, it was holden to be manslaughter, and the defendant was burned in the hand, (e) It may here be observed, however, that by the 8t^tutes for the prevention of smngglirfg, it is pro- vided, that if suspected vessels shall not bring to when chaced by any cutter, or other vessel in the service of the navy, having a proper pendant hoisted, or in the servics of the customs or excise, having the pendant and ensign hoisted which ii used by vessels in such service, the person having the command of such cutter, or other vessel, may shoot at, or into, the vessel not bringing to : after the colours shall have been so hoisted, and a gun fired, by the cutter or other vessel, as a signal. (/) Where an officer makes an arrest out of his proper dis- Officer arrest- , , ing out of his tnct, or without any warrant or authority, (g) and purposely proper dis- kills the party for not submitting to such illegal arrest, the *^"*^*' crime will, generally speaking, be murder : that is, in all cases at least where an indifferent person acting in the like manner, without any such pretence, would be guilty to that extent, (h) In the case of private persons using their en- (d) Phillips's «ase, Cowp. 830. aid, is brought before any magi- (e) 1 East. P. C. c. 5. s. 75 p. 308. strate on that account, the magi- (/) 24 Geo. III. c. 47. s. 23. And strate is required to admit to bail. if any person is wounded, maimed, And see 47 Geo. 111. sess. 2. c. 66. or killed, in consequence of such s. 32. firing, and the commander of the (g) Ante, 666. cutter, or other person acting in his (/•) 1 East. P. C. c. 5. s. 80. p. 3 1 2. '7^64 Of Manslaughter. [book hi. deavours to bring felons to justice, caution must be used to ascertain that a felony has actually been committed, and that it has been committed by the party arrested or pursued upon suspicion ; as, if the suspicion be not supported by the fact, the person endeavouring to arrest or imprison, and killing the party in the prosecution of such purpose, will be guilty of manslaughter, (i) Gaoler*. Gaolers, like other ministers of justice, are bound not to exceed the necessity of the case in the execution of their oflSces ; therefore an assault upon a gaoler, which would war- rant him (apart from personal danger) in killing a prisoner, must, it should seem, be such from whence he might reason- ably apprehend that an escape was intended, which he could not otherwise prevent, (k) And if an officer, whose duty it is to execute a sentence of whipping upon a criminal, should be so barbarous as to exceed all bounds of moderation, and thereby cause the party's death, he will at least be guilty of manslaughter. (/) Correction in Moderate and reasonable correction may properly be foro domes- given by parents, masters, and other persons, having autho- rity in Jbro domestico^ to those who are under their care ; but if the correction be immoderate or unreasonable, either in the measure of it. or in the instrument made use of for that purpose, it will be either murder or manslaughter, ac- cording to the circumstances of the case. If it be done with a dangerous weapon, likely to kill or main), due regard being always had to the age and strength of the party, it will be murder : but if w ith a cudgel, or other thing not likely to kill, though improper for the purpose of correction, it will be manslaughter, (m) (0 Post. 318. gaul, assault llie gaoler, ho may be (fr) 1 East P. C. c. 5. s. 91. p. 331. lawfully killed by him in Iheafl'iay. citing 1 MS. Sum. 11'). semb. Pull. (/) I iiawk. P. C. c. 29. s. 5. 120, Vi\. And see I Flawk P. C. c. (/n) Fost. 2fi'2. 1 Hale 454. Keitc's 28. s. 13. where it is said, that if a ca»e, 1 Ld. Raym. U4. crimiual endeavouring to break Ihc CHAP. in. § 6.] Lawful Acts hnpi^operlj/ performeil . 765 In the following- ca?3 the nature of the instrument used, Hazel's case. and the probability of its causing death, or great bodily harm, when used in the manner stated in the case, occasioned much doubt. The prisoner having employed her daug-hter- in-law, a child of ten years old, to reel some yarn, and finding some of the skeins knotted, threw at Mie child a four- legged stool, which struck her on the rig^ht side of the head? on the temple, and caused her death soon afterwar'a. "^fhe stool was of sufficient size and weight to give a mortal blow ; but the prisoner did not intend, at the time she threw it, to kill the child. These facts were stated in a special verdict ; but the matter was considered of great difficulty, and no opinion was ever delivered by the judges, (w) In the foregoing case, the counsel for the prisoner cited Wiggs's case, the following case. A shepherd boy had suffered some of the sheep, which he was employed in tending, to escape through the hurdles of their pen. The boy's master, the prisoner, seeing the sheep get through, ran towards the boy; and taking up a stake that was lying on the ground, threw it at him. The stake hit the boy on the head, and fractured his skull, of which fracture he soon afterwards died. The learned judge, (o) in his directions to the jury, after statino- that every master had a right moderately to chastise his ser- vant, but that the chastisement must be on just grounds, and with an instrument properly adapted to the purposes of cor- rection, desired them to consider, whether the stake, which, lying on the ground, was the first thing the prisoner saw in the heat of his passion, was or was not, under such circum- stances, and in such a situation, an improper instrument. For that the using a weapon from which death is likely to ensue, imports a mischievous disposition ; and the law im- plies that a degree of malice attended the act, which, if death actually happen, will be murder. Therefore, if the (re) Hazel's case, 1 Leacli 368, (») Nares, J. tnte, 638, 639. 766 Of Manslaughter. [book hi. jury should think tlie stake was an improper instrument, they would further consider whether it was probable that it was used with an intent to kill : that if they thought it was, they must find the prisoner guilty of murder; but if they were persuaded it was not done with an intent to kill, the crime would then amount at most to manslaughter. The jury found it manslaughter, (p) In this case it is presumed, that the learned judge must be understood as meaning, that if the jury should think the instrument so improper as to be dangerous, and likely to kill or maim, the age and strength of the party killed being duly considered, the crime would amount to murder ; as the law would in such case supply the malicious intent ; but that if they thought that the in- strument, though improper for the purpose of correction, was not likely to kill or maim, the crime would only be manslaughter, unless they should also think that there was an intent to kill. Nature of the Though the correction exceed the bounds of moderation, considered in ^^^ court will pay a tender regard to the nature of the pro- a case where a vocation, where the act is manifestly accompanied with a killed by the good intent, and the instrument not such as must, in all correction of probability, occasion death, though the party were hurried the parent. *^ "" 7 o r j to great excess. A father, whose son had frequently been guilty of stealing, and who, upon complaints made to him of such thefts, had often corrected the son for them ; at length, upon the son being charged with another theft, and resolutely denying it, though proved against him, beat him, in a passion, with a rope, by way of chastisement for the oft'ence, so much that he died. The father expressed the utmost horror, and was in the greatest affliction for what he ■had done, intending only to have punished him with such severity as to have cured him of his wickedness. The learned judge, by whom the father was tried, consulted his colleague in office, and the principal counsel on the circuit, (P) Wigg8'» case, Norfolk Sum. A«»iz. 1784. 1 Leach 378. note (a). CHAP. III. § 6.] LaxDful Acts improperly performed. 767 who all concurred in opinion, that it was only manslaughter; and so it was ruled, {q) Cases may occur in which the correction is not inflicted by Self's case- means of any active and personal violence, but by a system Correction by ... ' ' ■ •' a system of of privation and ill treatment. The foUowino- case seems to be privation and of this nature : — The prisoner, upon his apprentice returning- ''* *''<^**'"^"*- to him from Bridewell, whither he had been sent for misbe- haviour, in a lousy and distempered condition, did not take that care of him which his situation required, and which he might have done; the apprentice not having been suflered to lie in a bed on account of the vermin, but being made to lie on the boards for some time without covering, and with- out common medical care. In this case, the medical persons who were examined were of opinion, that the boy's death was most probably occasioned by his ill treatment in Bride- well, and the want of care when he went home; and they inclined to think, that if he had been properly treated when he came home, he might have recovered. But, though some harsh expressions were proved to have been spoken by the prisoner to the boy, yet there was no evidence of any personal violence having been used by the prisoner : and it was proved that the apprentice had had sufficient sustenance ; and the prisoner had a general good character for treating his apprentices with humanity ; and had made application to get this boy into the hospital. Under these circumstances, the Recorder left it to the jury to consider whether the death of the boy was occasioned by the ill treatment he received from his master, after returning from Bridewell ; and whether that ill treatment amounted to evidence of malice, in which case they were to find him guilty of murder. At the same time they were told, with the concurrence of Mr. Justice Gould and Mr. Baron Ilotham, that if they thought otherwise, yet, as it appeared that the prisoner's conduct towards his apprentice was highly blameable and {q) Anon. Worcester Spr. Ass. c. 5. s, 37. p. 261. 1775. Serj. Foster's MS. I East.P.C. 76S Of Manslaughter. [book hi. improper, they might, under all these circumstances, find him guilty of manslaughter; which they accordingly did. (r) And upon the question being afterwards put to the judges, whether the verdict were well found, they all agreed that the prisoner should be burned in the hand and discharged.(5) In a note upon the foregoing case Mr. East says, " I have " been the more particular in stating the ground of the " decision in this case, because Mr. Justice Gould's note of " the case, from whence this is taken, is evidently different " from another report (0 of the opinion of the judges in this " case, from whence it might be collected, that there could " be no gradation of guilt in a matter of this sort, where a " master, by his ill conduct or negligence, had occasioned or " accelerated the death of his apprentice, but that he must ^' either be found guilty of murder or acquitted; a conclusion " which, whether well or ill founded, certainly cannot be " drawn from this statement of the case. The same opinion, " however, is stated, in the Old Bailey Sessions papers, to " have been thrown out by the Recorder in Wade's case." {u) Persons fol- Where persons employed about such of their lawful oc- lowiug their cupations, from whence danger may probably arise to others, common oc- , , i- ^- •. -n i i i cupalious. neglect the ordinary cautions, it will be manslaughter at least, on account of such negligence. («y) Thus, if work- men throw stones, rubbish, or other things, from a house, in the ordinary course of their business, by which a person underneath happens to be killed, if they did not look out and give timely warning to such as might be below, and there was even a small probability of persons passing by, it will be manslaughter, {jc) It was a lawful act, but done in (r) Self's cast, O.K. 1770, MS. (u) Wade's case, O. B. Feb. 1784, Gould, J. I East. P. C. c. 3. m. 13. Sess. Pap. p. 226, 227. (w) Post. 262. 1 East. P.C. c. 5. («)Ea8terT. 16G. III. DeCrey, 8.38. p. 2G2. C. J. and Ashhurst, J. being absent. (x) Post. 262. 1 Hale 475. (/) 1 Leach 137. CHAP. III. § 6.] Lawful Acts improperiz/ performed. 769 an improper manner. It has indeed been said, that if this be done in the streets of London, or other populous t' -vns, it will be manslaughter, notwithstandino^ such caution be used. (?/) But this must be understood with some limitation. If it be done early in the morning, when few or no people are stirring, and the ordinary caution be used, the party may be excusable : but when the streets are full, such ordinary caution will not suffice; for, in the hurry and noise of a crowded street, few people hear the warning, or sufficiently attend to it. (s). So if a person, driving a cart or other carriage, happen to kill another, and it appears that he might have seen the danger, but did not look before him, it will be manslaugh- ter, for want of due circumspection, (a) Upon this subject the following case is reported : — A. was driving a cart with four horses in the highway at Whitechapel ; and he being in the cart, and the horses upon a trot, they threw down a woman, who was going the same way with a burthen upon her head, and killed her. Holt, C. J., Tracy, J., Baron Bury, and the Recorder Lovel, held this to be only misadventure. But by Holt C. J., if it had been in a street where people usually pass, it had been manslaughter. (6) But upon this case the following observations have been made : " It must " be taken for granted from this note of the case, that the " accident happened in an highway where people did not " usuallj/ pass ,■ for otherwise the circumstance of the driver's " being in his cart, and going so much faster than is usual " for carriages of that construction, savoured much of neg- " ligence and impropriety : for it was extremely difficult, " if not impossible, to stop the course of the horses suddenly, " in order to avoid any person who could not get out of the " way in time. And, indeed, such conduct, in rf driver of " such heavy carriages, might, under most circumstances, (1/) Hull's case, Kel. 40. (ft) Anon. O. B. 1704. I East P. (a) Fost. 263. C. C, 5. 9. 38. p. 263. (a) Fost. 263. 3 D 770 Of Manslaughter. [book in. '* be tliou^ht to betoken a want of due care, if any, though " but few, persons might probably pass by the same road. " Tlie greatest possible care is not to be expected, nor is it " required; but whoever seeks to excuse himself for having *• unfortunately occasioned, by any act of his own, the death " of another, ought at least to shew that he took that care " to avoid it, which persons in similar situations are ac- " customed to do."(c) There is one species of criminal negligence, punishable by the provisions of the statute law, which may be men- tioned in this place, though the offence is not made man- slaughter. By the 10 Geo. II. c.31. if any waterman, be- tween Gravesend and Windsor, receive into his boat or barge a greater number of persons than the act allows, and any passenger be then drowned, such waterman being thereof lawfully convicted, is guilty of felony, and liable to be transported as a felon, (f/) SECTION VII. OF THE INDICTMENT AND JUDGMENT. Indictment. 'J^'^ie indictment for manslaughter differs from the indict- ment for the higher crime of murder, in the omission of any statement as to malice, and of the conclusion that the party accused did kill and " murder:" and we have seen that a bill of indictment for murder may be converted into one for manslanghter, by striking out such statement and conclusion, (c) (c) I East. P. C. c. 5. 8.38. p. 263, bor of whom are regulated by act 964. of parliament. 1 Kasl. P. C. c. 5. s. {'alifactores in parcis. " If a forester, parkcr, or warrener, find any trespassers wandering within liis liberty, intending to do damage therein, who will not yield, after hue and cry made to stand unto the peace, but do continue their malice, and disobeying the king's peace, do flee or defend themselves with force and arms, ii' such forester, parker, or warrener, or their assist- ants, kill such offenders, either in arresting or taking them, they shall not be troubled for the same, nor suffer any punishment." (y) But they cannot kill persons who come to take only decayed wood.(:;) It is also enacted, that owners of deer in any inclosed land, or any persons under (it) 1 Hawk. P. C, c. 28. s. 1 1. and see Fost. '272. I'oph. 121. 11 was so rt'solvcd I13 all llio judges in Easier Term, .3!) Kliz. lhoiif;li Ihey thou{;hl it more discrcel for every one in such a case to attend and as- sist the kin;;'* officers in |)rfscrvinp the peace And, certainly, if jiri- \-aU: persons interfere to suppress a riot, Uity must give uolicc of their intention. {x) Fost. 32 1 . 1 Hale 48 1 . 496. iy) 21 Ed, I. Stat. 2. (z) 1 MS. Sum. 145. 175. Sum. 37. 46. cited 1 East. P.C. c. 5. s. 3 1 . p.256. Palm. 540. 2 Roll R. 120. And there is a special warning in ilie statute, that the foresters act not from malice or malicious pretence, ii. 2. CHAP. IV. § 3.] In Preventing Crimes. *J^89 them, may resist offenders, in like manner as in ancient parks, (a) And by another statute, lords of manors, or any others authorized by them as game-keepers, may resist offenders in the night, nithin their respective manors or royalties, in the same manner and with equal indemnity as if the fact had been committed in any ancient chase. (6) Sir William Hawkesworth being weary of life, and willing to be rid of it by the hand of another, having first blamed his keeper for suffering his deer to be destroyed, and commanded him to execute the law, cauie himself into his park at night as if with intent to steal the deer; and being questioned by the keeper, who knew him not, and re- fusing to stand or answer, he was shot by the keeper. This was decided to be excusable homicide by the statute de malefactoribus in parcis. (c) A man may repel force by force in defence of his person, Homicide in habitation, or property, against one wlio manifestly intends !• * {""^^^^'i- and endeavours, by violence or surprise, to commit a known forcible ,• d felony upon either. In these cases he is not obliged to re- 'cr[<*n ' '"* treat, but may pursue his adversary till he finds himself out of danger; and if, in a conflict between them, he happens to kill, such killing is justifiable, (d) But it has been holden, that this rule does not apply to any crime unaccompanied with force, as picking of pockets, (e) It seems, therefore, that (a) 3 and 4 W. & M. c. 10. s. 5. act, which has express reference to (b) 4 and 5 W. & M. c. 23. s. 4. the powers given by the stat. 21 I It has been doubted whether an as- Ed. 1. ajid that statute extends in ' sistaut to a legal gamekeeper could terms to assistants. 1 East. P. C. I justify seizing a fishing net, under c. 5. s. 31. p. 256. this statute, s. 5. and whether the (c) 1 Hale 40. authoritywere not personal. Anues- ( Fo»t. 299. ('/) Mawgridgc's case, Kel. 128, (n) 1 Halo 42. 129. ante, 647. (o) 1 Ea»t. P.C. c,5.«. lG.j).274, (r) By Lord Holt. Kel. 128,129. 8 case CHAP. IV. § 3.] In Preventing Crimes. 793 to: thereupon they drew their swords upon Mr. Ford and bis company, and Mr. Ford drew his sword, and killed one of them : and this was adjudged justifiable homicide. (?) For if several attack a person at once with deadly weapons, as may be supposed to have happened in this case, though they wait till he be upon his guard, yet it seems, (there being no compact to fight) that he would be justified in killing any of the assailants in his own defence; because so unequal an attack resembles more a desire of assassination than of combat. (0 But no assault, however violent, will Unless a fclo- justifjj killing the assailant under the plea of necessity, un- "'ous iiitent less there be a plain manifestation of a felonious intent, (m) ed, an assault. And it may be further observed, that a man cannot in any lenT^MMlhlot case justify killing another by a pretence of necessity, unless justify killing he were wholly without fault in bringing that necessity upon An/t^iVne- himself; for if he kill any person in defence of an injury cessity must done by himself, he is guilty of manslaughter at least : as brought upon in the case where a body of people wrongfully detained a Jj»i"self by the n J party killui'^. house by force, and killed one of those who attacked it and endeavoured to set it on fire, {is) Mr. Justice Foster was of opinion, that, upon the same principle upon wlsich Mawgridge's case was decided, and possibly upon the rule touching the arrest of a person who has given a dangerous wound, the legislature, in the case of the Marquis de Guiscard, who stabbed Mr. llarkij sitting- in Council, discharged the parties who were supposed to have (s) Ford's case, Kel. 51. judgment, namely, that the killing (0 1 East. P. C. c. 5. s. 47. p. 276. by Mr. Ford in defeticc of his own and see 1 East. P. C. c. 5. 9. 25. p. possession of Ike room zvas Justi- 2 43. where Ford's case is observed Jiable, which, under those circum- upon-, and it is said that the memo- stances, might be fairly questioned: randum, in the margin of Kelyiig, as on that ground it mio-ht bave to inquire of this case, and the been belter ruled to be manslaugh- qucere used by Mr. Justice Foster ter. in citing it, were probably made on («) i East. P. C. c. 5. s. 47 p. 277. the ground of the reason suggested (w) i Hawk. P. C. c. 28. s. 22. I in the margin of Kelyng for the Hale 40.'>, 440, 411. 794- Of Justifiable Ilomiciih. [book hi. given the iNIarquis the mortal wound from all manner of pro- secution on that account, and declared the killing to be a lawful and necessary action, {x) Interference b) third per- sons to pre- vent felonies. Where a known felony is attempted upon any one, not only the party assaulted may repel force by force, but his servant attending him, or any other person present, may interpose to prevent the mischief ; and if death ensue, the party so interposing will be justified, (y) So, where an at- tempt is made to commit arson, or burglary, in the habita- tion, any part of the owner's family, or even a lodger, may lawfully kill the assailants, in order to prevent the mis- chief intended, (s) Interference by third per- sons in cases of mutual combats and affrays. But in cases of mutual combats or sudden affrays a per- son interfering should act with much caution. Where, in- deed, a person interferes between two couibatants with a view to preserve the peace and not to take part with either, giving due notice of his intention, and is under the neces- sity of killing one of them in order to preserve his own life or that of the other combatant, it being impossible to pre- serve them by other means, such killing will be justifiable : (a) but, in general, if there be an affray and an actual fighting and striving between persons, and another run in, and take part with one party, and kill the other, it will not be jus- tifiable homicide, but manslaughter. (/>) Time within It should be observed, that as homicide committed in the cidf will be prevention of forcible and atrocious crimes is justifiable justifiable. Q^\y ypon the pica of necessity, it cannot be justified unless the necessity continue to the time when the party is killed. {x) 9 Ann. c. Hi. Fost. 275. (If) 1 Hale 4HI, 484. Fost. 274. And in Ilandcork r. Baker and others, 2 Bos. & Pul. 2fi"). Chani- bre, J. said, " 11 is lawful for a " private person to do any thiii}; lo *' prcveut the perpetration of a fc- " lony." (s) Fost. 274. (a) 1 Hale 484. I East. P. C c. 5. H. 58. p. 290. (<») 1 East. P.O. c. 5. s-.W. p. 291. ^nle, 719, and see also ante. Book 11. Chap. .XXV n. OJJffrays, p. 392. CHAP. IV. § 3.] In Preventing Crimes. 795 Thus, though the person upon whom a felonious attack is first made be not obliged to retreat, but may pursue the felon till he finds himself out of danger; vet if the felon be killed after he has been properly secured, and when the ap- prehension of danger has ceased, such killing will be mur- der : though perhaps, if the blood were still hot from the contest or pursuit, it might be held to be only manslaughter, on account of the high provocation, (c) (c) 1 East. P. C. c. 5. s. 60. p. 293. 4 Blac. Com. 185. 1 Hale 485. 796 CHAPTER THE FIFTH. Of Destro7/i)ig Infants in the Mother'' s Womh. Common law W E have already seen, that an infant in its mother's offence. womb, not being in rerura natura, is not considered as a person who can be killed within the description of mur- der. («) An attempt, however, to effect the destruction of such an infant, though unsuccessful, appears to have been treated as a misdemeanour at common law : (b) and a sta- tute has lately been passed, by which certain acts, intended to procure the miscarriage of a woman with child, are made highly penal. 43 Geo. III. The 43 Geo. HI. c. 58. s. 1. after reciting that certain *^ ^^ t* rin«^'^ heinous offences, with intent to procure the miscarriage of poison, &c. women, had been of late frequently committed, and that no cause the mis" adequate means had been provided for tlieir prevention and carriage of a punishment, enacts, that if any person or persons shall, ZuhM/d!\e- either in England or Ireland, " wilfully, maliciously, and lony without a unlawfully, administer to, or cause to be administered f ler^y. " to, or taken by any of his majesty's subjects, any deadly " poison, or other noxious and destructive substance or " thing, with intent such his majesty's subject or subjects " thereby to murder, or thereby to cause and procure the *' miscarriage of any woman then being quick with child," the person or persons .'^o offending, their counsellors, aiders, and abettors, knowing of and privy to such offence, shall be («) ^Inte, 617. meanor at common law in 3 Chit. (b) See a precedent of an indict- Crira. Law 798. procured from the mcnt for this offence as a misde- Crown Office, Mich. T. 42 Geo. III. CHAP, v.] Of Destroying Infants in the Womb. 797 felons, and shall suffer death, as in cases of felony, without benefit of clergy. Upon an indictment on this section of the statute, the The words, woman, in point of fact, was in the fourth month of her preg- ^.\^^[^'^ are to nancy; but she swore that she had not felt the child move be construed •1-7 I r- 1 • T • according to Within her before taking the medicine, and that she was not the common then quick with child. The medical men, in their examina- }'°d<^'"stand- * _ ' ing, m which tions, differed as to the time when the fcetus may be stated they signify to be quick, and to have a distinct existence; but they all Inanha^sTdt agreed, that, in common understanding, a woman is not con- the child sidered to be quick with child till she has felt the child alive jj^^ and quick within her, which happens with different women in different stages of pregnancy, although most usually about the fifteenth or sixteenth week after conception. And Lawrence, J. said that this was the interpretation that must be put upon the words, " quick with child," in the statute ; and, as the woman had not felt the child alive within her before taking the medicine, he directed the jury to acquit the prisoner, (c) The second section of tlie statute recites that it might 43 G. III. c sometimes happen that poison or some other noxious and •' ^» 11 ^ mmistenng destructive substance or thing might be given, or other medicines&c. , .^, . , , . . . , ,. to women n<»< means used, with intent to procure miscarriage or abortion, guickwUh where the woman might not be quick with child at the time, ^'"^<^' "^'th m- tent lo pro- or it might not be proved that she was quick with child: cure miscar- and enacts, " that if any person or persons sluill wilfully and '"'"sF; f , /' ' . . punishable by " maliciously administer to, or cause to be administered to, imprison- " or taken by any woman, any medicines, drug, or other ^•hi'lpin^or " substance or thing whatsoever, or shall use or employ, or transporta- ,, X 1 1 11- tion for four- cause or procure to be used or employed, any instrument teen years. " or other means whatsoever, with intent thereby to cause " or procure the miscarriage of any woman not being, or " not being proved to be, quick with child at the time of ad- (c) Rex V. Phillips, Monmouth 3 Campb. 77. Suram. Ass. 1812. cor. Lawrence, J. 798 Of Dcstroi/ing Infants in the Womb, [book hi. " ministering such things, or using such means, that then *' and in every such case, the person or persons so offending, " their counsellors, aiders, and abettors, knowing of and " privy to such offence, shall be and are hereby declared to " be guilty of felony, and shall be liable to be fined, im- " prisoned, set in and upon the pillory, publicly or privately *' whipped, or to suffer one or more of the said punishments, " or to be transported beyond the seas, for any term not ex- " ceeding fourteen years, at the discretion of the court, " before w hich such ofVender shall be tried and convicted." (f/) It is observable, that the using an instrument, &c. with in- tent to procure a miscarriage, thus made a felony within clergy, is not noticed in the former section of the statute, which relates to the procuring the miscarriage of a woman being quick zcifh child. An infusion A n indictment Upon this section of the statute charged or dfcoclion . .,,.,.. , , of a shrub are ^"^ prisoner with having administered to a woman a accoc- ejusdem gene- ^/^n of a certain shrub called savin; and it appeared upon rh. The f| lies- ' ' . ' tionupouihe the evidence that the prisoner prepared the medicine which serond sec- j^g administered, by pourin": boilinsr water on the leaves of a tioii of the ^ J i o » statute, is shrub. The medical men who were examined stated tliat mailer or" such a preparation is called an infusio)?, and not a decoctiov, thing was ad- (which is made by boiling the substance in the water) upon ministered to , . , , . , i • • i . i • i i procure abor- ^^hich the prisoner s counsel insisted that he was entitled to tion. yp acquittal, on the ground that the medicine was misde- scribed. But Ijawrence, J. overruled the objection, and said that iiiftisiou ami decoction are fjusdem generis, and that the varianc;' was immaterial: that the question was whether the prisoner administered any matter or thing to the woman to procure abortion, (e) () And he mentioned a case, which he recollected, of an in- dictment for a rape, where the woman had sworn that she did not perceive any thine: come from the man, and that, though she had many children, she never was in her life sensible of emission from a man ; and that this was ruled not to invalidate the evidence which she gave of a rape having been committed upon her. In a case where the party ravished had died before the trial, her deposition, corrobo- rated by other evidence of actual force and penetration, was held sufficient to warrant a convictioil, though there did not appear to be any direct evidence of emission. Tt was left to the jury to determine whether the crime had been com- pleted by penetration and emission ; and they were directed that they might collect the fact of emission from the evi- dence, though the unfortunate girl was dead, and could not therefore give any further account of the transaction, than (c) 1 East. P. C. c. 10. s. 3. p. ter, Spr. Ass. 1787, 1 East. P. C. c. 436,437. Post. 274. 10. s. 3. p. 440. The indictment (rf) The majority of the jiidpcs was for an assault with intent to iDHill'scase,fln<^, notc(ft),thoiifrht ravish ; and the learnedjudse or- the question of emission was a fart dered the defendant to be ac- for the jury; and see the opinion of quitted of that charge, upon the Bathurst, J. anie, 804, and see 1 evidence appearing to amount to East. P. C. c. 1 0. » 3. p. 440. proof of an actual rape. (*•) Harmwood's case, fVinchcs- CHAP. VI. §1.] Of Rape. 807 that which was contained in her deposition before the ma- gistrate. (/) It appears always to have been admitted, that emissio se- minis of itself makes neither rape nor sodomy ; but it is spoken of as prima facie evidence of penetration, {g) As the absence of previous consent is a material ingre- Of the in- dient in the offence of rape, it must be averred in the in- dictment ; where it is usually expressed by stating that the fact was done " against the will" of the party, (li) It is es- sential to aver, that the offender did feloniously " ravish" the party; and the omission of the word ravished will not be supplied by an averment that the offender " did carnally know," &c. (0 It has been considered, that the words " did carnally know" are not essential, on the ground that rapere signifies legally as much as carnaliter cognoscere: (k) but they are at any rate appropriate in describing the nature of the crime, and appear to be generally used. (/) The omis- sion of them would not, therefore, be prudent, (m) The in- dictment usually concludes " against the form of the sta- tute ;" but as the offence was anciently, as has been shewn, («) a capital felony, such a conclusion has been thought ta be unnecessary, (o) (/) Flemming and Windham (/) See the Precedents referred to, (case of), 2 Leach 854. ante, note (A). (g-) lUale628. iHawk.P.C.C. (ttj) 1 East.P.C.c. 10. s.lO.p.448. 4. s. 2. 3 Inst. 60. But qucere how 2 Stark. Crim. Plead. 409. note (//). far it can be taken as evidence of 3 Chit. Crira. Law 812. It is laid penetration. down generally, in some of the (A) Cro. Circ. Corap. 401. 2 books, that the indictment must be Stark. Crira. Plead. 409. 3 Chit. rapuit et carnaliter cognovit, 1 Crim. Law, 815. Hale 628, 632. (0 1 Hale 628, 632. (n) Jnte, 600. (fc) 2 Inst. 180. and see 2 Hawk. (o) 1 East. P. Cc. 10. s. 10. p. 448, P. C. c. 25. s. 56. Staundf. 81. Co. but see 2 Stark. Crica. Plead. 409, Lit. 137. note {q). 808 Of Rape. [book in. The party ra- It is clear that the party ravished is a competent witness : vished IS a j • j i i • competent «*nd indeed she is so much considered as a witness of neces- witness. gjjy^ ^jjgj where a husband has been charged with having assisted another man in ravishing his own wife, the wife has been admitted as a witness against her husband, {p) ?."* ^"5''^' But though the party ravished is a competent witness, the dibihty IS to o r ^ r ' belefttothe credibility of her testimony must be left to the jury, upon concun-*inff^^ *^^ circumstances of fact which concur with that testimony. circum- Thus, if she be of good fame; if she presently discovered the offence, and made search for the offender ; if she shewed circumstances and signs of the injury, whereof many are of that nature that women only are proper examiners ; if the place where the fact was done were remote from inhabitants or passengers ; if the party accused fled for it ; these, and the like, are concurring circumstances, which give greater probability to her evidence, {q) But if, on the other hand, the witness be of evil fame, and stand unsupported by others; if, without being under controul,or the influence of fear, she concealed the injury for any considerable time after she had the opportunity of complaining ; if the place where the fact is alleged to have been committed, was near to persons by whom she might probably have been heard, and yet she made no outcry ; if she has given wrong descriptions of the place ; these, and the like circumstances, afford a strong though not conclusive presumption that her testimony is feigned, (r) Great caution qpi^e application of these and other rules upon this diflS- the trial of cult subject should always be made with due regard to the "* °"*'^*^c. cautious observations of a great and experienced judge. Lord Hale says, " It is true, that rape is a most detestable (p) Lord Castlehavcn's case, 1 C. c. 10. ». 7. p. 445. St. Tri.S87. 1 Hale 029. Hutt. (r) 4 Blac. Com. 213, S14. 1 116. J Str. es.*?. Ante,H(Y2. East. P. C. c. 10. s. 7. p. 445, 446. (9) 4 Blac. Com. 213. 1 East. P. CHAP. VI. § 1] Of Rape. 809 « crime, and therefore ought severely and impartially to be " punished with death : but it must be remembered, that it " is an accusation easily to be made and hard to be proved, " and harder to be defended by the party accused, though <« never so innocent." {s) He then mentions two remarkable cases of malicious prosecution for this crime that had come ■within his own knowledge; and concludes, " I mention these " instances, that vve may be the more cautious upon trials of " offences of this nature, wherein the court and jury may, " with so much ease, be imposed upon without great care " and vigilance; the heinousness of the offence many times " transporting the judge and jury with so much indignation, " that they are over hastily carried to the conviction of the " person accused thereof, bj the confident testimony, some- " times, of malicious and false witnesses." (0 It has been already mentioned, that this offence is sub- Punishment. jected to capital punishment : being made felony without benefit of clergy, by 18 Eliz. c. 7. (w) Where there is no reason to expect that the facts and cir- Of an assault . ' . ., with intent to cumstances of the case, when given in evidence, will esta- ravish. Wish that the crime of rape has been completed, the proper course will be, to prefer an indictment at common law, for an assault with intent to ravish ; which offence, though only a misdemeanour, yet is one of a very aggravated nature, and has, in many instances, been visited with exemplary pu- nishment, (w) But this proceeding should not be adopted (s) 1 Hale 635. (0 1 Hale 636. (u) Jnte,m\. (w) To the extent of fine, im- prisonment, and pillory, and find- ing sureties for good behaviour for life, 1 East. P. C. c. 10. s. 4. p. 441. The punishment of the pillory could not now be imposed for such ofifcQce, in coasequeace of the 56 Geo. III. c. 138. and with re- spect to sureties for good beha- viour for life, it is observed, that such part of the sentence is not consonant to the practice of our present constitution in the appor- tionment of discretionary punish- ment ; as tending to imprisoameut for life. East. P. C. ibii. 810 Of the Carnal Knowledge of Children, [book hi. where there is any probability that the higher offence will be proved ; as where, upon an indictment for an assault with intent to commit a rape, the prosecutrix proved a rape ac- tually committed, a learned judge directed an acquittal, on the ground that the misdemeanor was merged in the fe- lony, {x) SECTION II. OF THE UNLAWFUL CARNAL KNOWLEDGE OF FEMALE CHILDREN. The carnal In rape, as we have seen, the carnal knowledge must be ^c^M^^nA^T ^Sf^^^^^t ih^ ^^11 ^^ ^"^^^ ^^^^y- but, by the fourth section of ten years old, the statute 18 Eliz. c. 7. carnal knowledge of any woman J f 1 without oler- child under the age often years, is made felony without be- gy,byi8Eliz. nefit of clergy ; and this without any reference to the con- sent or non-consent of the child, which must therefore be considered as immaterial. The statute enacts, " that if any " person shall unlawfully and carnally know and abuse any " woman child under the age of ten years, every such un- " lawful and carnal knowledge shall be felony ; and the of- " fender, thereof being duly convicted, shall suffer as a felon " without allowance of clergy." The rarnnl I* appears at one time to have been thought, that the knowl worth, about twelve miles from Oxford, between one and two o'clock in the morning. Mrs. Lee stated, that she frequently remonstrated with the prisoners in the course of the journey ; and | articularly told Lockhart (Jordon that it was " a most infernal measure, " and a breach of hosjjitaiity :" and repeatedly asked him for a chaise to take her back to London ; making the appli- CHAP, viii.] Construction of the Statute 3 //. VII. c.2. 825 cation principally to him, because he seemed to have taken the lead in the whole business. But it appeared, as well from her own admissions as from the evidence of the post- boys, that she never called tor assistance at the inns, turn- pike-gates, or other places; and one of the post-boys stated, that, at Wycombe, one of the prisoners asked her, whether she would stay there or go on to Tetsworth or Oxford, and that her answer was, " I don't care." Mrs. Lee also ad- mitted, that a ring was put upon her finger in the course of the journey by Loudon Gordon ; and that during the jour- ney, but whether before they got to Uxbridge or after- wards she could not tell, she took a steel necklace, with a camphire bag attached to it, from her neck, and threw it out of the window of the chaise, saying, " That was my " charm against pleasure ; I have now no occasion for it." She said, that she used the word " charm," as alluding- to the supposed medical property of camphire in quietino- the nerves, and calming the passions, particularly the passion which a person of one sex feels for a person of the other; and that she was in the habit of wearing it as a sedative : that at the time she used the expression she gave herself up but that she afterwards expostulated. And she also ad- mitted, that during the journey she made some enquiries concerning Loudon Gordon's health ; and might, perhaps, have enquired how long it was since he had been acquainted with a person of her own sex. At Tetsworth the parties got out of the chaise, and supper and beds were ordered to be prepared. Mrs. Lee stated, that she eat a good supper, and that there was a good deal of cheerful conversation during the repast; the whole of which she did not recollect, but that part of it related, as she be- lieved, to Egyptian hieroglyphics and architecture. A ques- tion was then put to her, whether the whole of what passed might not have induced Loudon Gordon to have believed that he might approach her bed ; to which she answered, "It might; I was in desperation." She admitted, that she might have told Loudon Gordon to see that the sheets were 825 Of the Forcible Abduction of Females, [book ni. M-ell aired ; but said that if she had had the perfect exercise of her judgment, and her mind had been free from force, she should have been more inclined to have ordered a chaise than to have gone to bed. After she had gone up stairs into the bed- room, the chiimbermaid asked her, when she should be in bed, and when the gentleman should come up; to which she replied, " In ten minutes." Upon this state- ment of Mrs. Lee's, in her examination, the following ques- tion was put to her, " What induced you to send such a niessao^e ?" and it was objected to by the counsel for the prison- ers, on theground thatit was not a question as to a fact, but to somethinff existing in the mind of the witness. Lawrence, J. overruled the objection ; but said, that whether the answer would be evidence or not must depend upon the nature of it; that if Mrs. Lee should answer, " 1 thought my life in danger; "for Lockhart Gordon told me, if I did not let Loudon " Gordon come to bed to me, he would blow my brains out ;" such answer would certainly be evidence, though the appre- hensions of the witness, unsupported by words used by the prisoners, or facts, would not. The question was then put ; and iNIrs. Lee answered, " I was under the impression that " my life was in danger from Lockhart Gordon ; and I was " apprehensive of some serious scufile at the inn, in which " lives might be lost." Mrs. Lee then stated, that shortly after the chambermaid left the room Loudon Gordon came to bed to her, and remained with her all the night ; and that the intercourse took place between them, which usually takes place between husband and wife. These were the material facts of the case, with the addi- tion, that it was proved by the woman with whom the pri- soners lodged in London, that, previous to the time when this transaction took place, Lockhart Gordon was pressed for monev, and backward in his payments, and tliat Loudon Gordon had admitted to her that he was in distressed cir- cumstances. 'I'he learned counsel for the prisoners was pro- ceediu"- in his cross-examination of Mrs. Lee, to question her as to her religious principles; and she had just admitted; CHAP. VIII.] S H. VIJ. C.2. — Indictment — Evidence. 8^ that she seldom went to any place of worship, and was in- clined to doubt the Christian religion, when Lawrence, J., after having enquired of the counsel for the prosecution, whether they had any further evidence to offer of force in the county of Oxford, and been told by them that they had not, said, that he was of opinion that the case should not proceed any further. The learned judge then addressed himself to the jury, and told them, that, in order to consti- tute the offence with which the prisoners were charged, there must be a forcible taking, and a continuance of that force into the county where the defilement takes place, and where tiie indictment is preferred : that in the present case, though there appeared clearly to have been force used for the purpose of taking the prosecutrix from her house, yet it appeared also, that in the course of the journey she con- sented ; as she did not ask for assistance at the inns, turn- pike gates, &c. where she had opportunities; and that, as she was unable to fix times or places with any precision, this consent probably took place before the parties came into the county of Oxford; and that they must therefore acquit the prisoners. (A). It has been resolved, that an indictment for this offence must Necessary expressly set forth that the woman taken away had lands or the indlct- goods, or was heir apparent ; and that the taking was against '"^'**- her will; and that it was for lucre; and also that she was married or defiled ; such statements being necessary to bring a case within the preamble of the statute, to wliich the en- acting clause clearly refers, when it speaks of persons taking away a woman " so against her will." (/) But it is said not to be necessary to state in the indictment, that the taking was with an intention to marry or defile the party, because the words of the statute do not require such an intention, nor does the want of it in any way lessen the injury, (jn) (k) Gordons' case (Lockhart and (/) 1 Hawk. P. C. c.41. s. 4, 1 Loudon) cor. Lawrence, J., Oxford Hale 4G0. 4 Blac.Com. 2. Lent Ass. 1804, MS. ('«) I Hawk. P. C- c 41. $.6. It is 2 828 Of the unlaicfid taking ax^ai/ of Females, [book hi. Of the evi- dence of the ■woman when taken away, and nnarried. There is no doubt but tliat the woman taken away and married may be a witness against the offender, if the force were continuing upon her till the marriage ; and that she may herself prove such continuing force : {n) for, tiiougjj the offender be her husband rfey?/r/o, he is no husband dejure, in case the marriage was actually against her will, (o) It seems, however, to have been questioned, how far the evi- dence of the inveigled woman can be allowed, in cases where the actual marriage is good by her consent having been obtained after her forcible abduction. (p) But other au- thorities appear to agree, that it should be admitted, even in that case ; esteeming it absurd that the offender should thus take advantage of his own wrong, and that the very act of marriage, which is a principal ingredient of his crime, should (by a forced construction of law) i)e made use of to stop the mouth of the most material witness against him. (q) And where the marriage was against the will of the woman at the time, there does not seem to be any good ground upon which her competency can be objected to, though she may have given her subsequent assent, (r) It also appears to have been ruled upon debate, in a modern case, that a wife is a competent witness for, as well as against, her hus- band, on the trial of an indictment for this offence, although she has cohabited with him from the day of her marriage. (.?) said, however, in 1 Ilalc 660, that the words ed intenlione ad ipsam marilanilarn are usually added in iiidictnients upon this statute, and that it is safest so to do. (n) Fullwood"s case, Cro. Car. 488. Brown s case, 1 Ventr. 243. Swendscn's case, 5 St. Tr. 456. (o) 1 Hale 660, 661. 4 Blac. Com. 209. (p) 1 Hale 661, where the author observes upon Brown's case, {anlr, note (n)) that some of the reasons why the woman was sworn and gave evidence were, that there was no cohabitation, and that there was concurring evidence to prove the whole fact; l)ut that if she had freely, and without constraint, lived with the person who married her for any considcrtible time, her exa- mination in evidence might be more questionable. (q) 4 Black. Com. 209. (r) 1 East. P. Cell. s. 5. p. 451. («) Perry's case, Bristol, 17 9 -J, 1 Hawk. P. C. c. 41. s. 13. and in 1 Kast. P.C.c. 1 1. S.5. p. 455. the learn- ed author says, " 1 conceive it to be " now settled, that iii all cases of 1 CHAP. VIII.] Statute 4 and 5 Ph. and M. c. 8. 829 The statute 4 and 5 Ph. and M. c. 8. makes provision for Statute 4 and . , ,. „. p ,, ... .1 . , . , 5 Ph. and M. the punishment or an onence or the same kind as that which ^ g. we have been consideriiii^ upon the statute of Hen. VII. but inferior in degree, and differing also in tliis, tliat the taking away of the woman need not be attended with force. The second section of this statute enacts, '• that it shall * ajid 5 Ph. ' and M. c. 8. " not be lawful to any person or persons, to take or convey s. 2. prohibits " away, or cause to be taken or conveyed awav, any maid, "^ "^ '"»• , •^ ' ■' .' 5 . J 5 away a maid " or woman child unmarried, being under the age of six- under 16 „ . , . , years from " teen years, out or or trom the possession, custody, or go- (^^ custody *' vernance, and against the will of the father of such maid of the father or guardian. " or woman child, or or such person or persons to whom the " father of such maid or woman child, by his last will and " testament, or by any other act in his lifetime, hath or shall " appoint, assign, bequeath, give, or grant the order, keep- " ing, education, or governance of such maid or woman " child, except such taking and conveying away as shall be " had, made, or done, by or for such person or persons, as " without fraud or covin be, or then shall be, the master or " mistress of such maid or woman child, or the guardian in " socage, or guardian in chivalry, of or to such maid or " woman child." The third section of the same statute enacts, " that if any 4 and 5 Ph. " person or persons above the a«je of fourteen years, shall ^, *^' ^' *^ ^ ^ -^ ' s. 3. any per- " unlawfully take or convey, or cause to betaken or con- son taking /- 1 • ] 111 • 1 1 ■ • 1 . away a maid '• veyed, any maid or woman child unmarried, being within under 16 from " the age of sixteen years, out of or from the possession, the possession ,. , . , -11 <• 1 ,. . . ot the father '• and against the will ol, the lather or mother of such or mother, or "child, or out of or from the possession and against guardian, to * ® be imprisoned "the will of such person or persons as then shall hap- fortwoyears; " pen to have, by any lawful ways or means, the order, ""^ " keeping, education, or governance of any such maiden •' personal injuries committed by " admissible witness against the *' the husband or wife against each " other." And see post, Book oa " other, the injured partj is an Evidence. 530 Of the unlawful taking away of Females, [book hi. " or woman child ; that then every such person and per- " sons so olVending, being thereof lawfully attainted or " convicted by the order and due course of the laws of this " realm, (other than such of whom such person taken away " shall hold any lands or tenements by knights' service) " shall have and suffer imprisonment of his or their bodies, " by the space of two whole years, without bail or main- " prise, or else shall pay such fine for his or their said of- <' fence, as shall be assessed by the council of the queen's " highness, her heirs or successors, in the star chamber at " Westminster." 4 and 5 Ph. The fourth section further enacts, " that if any person or r4. ^uy per- "persons shall so take away, or cause to be taken away, son so taking u jjg jg aforesaid, and deflower any such maid or woman flowlr^n^ any " child as is aforesaid, or shall against the will, or unknow- 8uch maid, or u j^^^ ^f ^j. ^q jj^e father of any such maid or woman child, aeainsl the ° . ,.„ . i -n i • .• will or know- " if the father be in life, or against the will, or unknowing ot ledp of the ^ ^j^^ niother of any such maid or woman child (having the father, &c. -^ . . , „ j contracting " custody or governance of such child, if the father be dead) wiurany"uch " ^y secret letters, messages, or otherwise, contract matri- niaid, to be « mony with any such maiden or woman child, except such for'^five years, " contracts of matrimony as shall be made by the consent of or pay a fine, a g^j^j^ person or persons, as by the title of wardship shall " then have, or be entitled to have, the marriage of such " maid or woman child ; that then every such person or " persons so offending, being thereof lawfully convicted as ^' is aforesaid, shall suffer imprisonment of his or their bo- " dies, by the space of five years, without bail or mainprise, •' or else shall pay such fine for his or their said oftence, as " shall be assessed by the said council in the said star cham- "bcr; the one moiety of all which forfeitures and fines " shall be to the king and queen's majesties, her heirs and " successors, the other moiety to the parties grieved." I'ointHupon It has l)ccn decided, that the taking away a natural tion'of ili?r daui^/iler, under sixteen years of age, from the care and stuiuic. custody of her putative father, is an offence within this i HAP. VIII.] Construction 0/ 4 ^ 5 Ph. ^ M. c. 8. 831 statute. (0 Tt has also been holden that a mother retains her authority, notwithstanding her marriage to a second husband ; and that the assent of the second husband is not material. (i<) In the last case it was also ruled, that the fourth section of the statute extends only to the custody of the father, or to that of the mother where the father has not disposed of the custody of the child to others, (v) In a case where a w idow, fearing that her daughter, who was a rich heiress, might be seduced into an improvident marriage, placed her under the care of a female friend, who sent for her son from abroad, and married him openly in the church, and during canonical hours, to the heiress, before she had attained the age of sixteen, and without the consent of her mother, who was her guardian ; it was holden that in order to bring the offence within the statute it must appear that some artifice was used ; that the elopement was secret ; and that the marriage was to the disparagement of the family, (w) But upon this case it has been remarked, that no stress ap- pears to have been laid upon the circumstance of the mother having placed the child under the care of the friend, by whose procurance the marriage was effected; and that it deserves good consideration before it is decided, that an of- fender, acting in collusion with one who has the temporary custody of another's child, for a special purpose, and knowing that the parent or guardian did not consent, is not within the statute ; for that then every schoolmistress might dispose, in the same manner, of the children committed to her care.(x) It has been said, that there must be a continued refusal of the parent or guardian ; and that if they once agree it is an assent within the statute, notwithstanding any subsequent dissent: (y) but this was not the point in judgment; and it has been observed, that it wants further confirmation, (z) (0 Rex r.Cornforth, 2 Sir. 1 162. {w) Hicks v. Gore, 3 Mod. S4. 1 iHawk. P.C. c. 41.S. 14. Rex r. Hawk. P. C. c. 41. s. 11. Sweeting, I East. P.C. c. 11. s.6, (x) lEastP C. c. il. s. 6. p.457. p. 437. (j^) Callbojpe v. Axtell, 3 Mod. (u) Ratcliffe's case, 3 Co. 39. 169. (t)) Id. ll/id. {%} 1 East. P. C. c. 1 1. 8. i>. p. 457. S32 Of the unlawful taking away of Females, [book hi. It seems that it is no leg:al excuse for this offence tliat the defendant, bcinj:^ related to the lady's father, and frequently invited to the house, made use of no other seduction than the common blandishments of a lover, to induce the lady secretly to elope and n)arry him, if it appear that the father intended to marry her to another person, and so that the taking was against his consent, (o) Ofthepro- Though the statute only gives authority to the star-cham- this statute!^" ber and justices of assize, to hear and determine the of- fences mentioned in it, yet it is settled that an information or indictment will lie thereon in the court of king's bench ; for as there are no negative words, the jurisdiction of that court is not excluded, {b) It seems also that an information by the master of the crown office will lie for this offence, as at common law; as the statute does not create any new of- fence, but only aggravates the punishment, (c) It is agreed that an indictment will lie by the rule of the common law, upon the general prohibitory clause contained in the second section of the statute, on the ground that where a thing is prohibited to be done by statute, and a penalty annexed to it by a separate substantive clause, the prosecutor is not bound to pursue the latter, but may indict on the prior general clause, as for a misdemeanor. (7. S. C. 1 Sid. 387. 2 Keb. qu. how far this is an offence at 32. 1 Hawk. P. C. c. 41. s. 10. common law, and see ah/^, 817. (i) I Hawk.P. C. C.4I. S.7. The ■ {d) Moor's case, 2 Mod. 130. I court of hlai-chamber was dis- East. P. C. c. 1 1. s. 9. p. 459. See the solved bv 16 Car. 1. c. 10. s. .1. Ju- principle slated ante, 65. risdiction is j^ivoti to the justices of ic) 1 East, ibid, astizc by 4 & & Ph. & M. c. 5. s. 5. CHAP, viir.] Of Clandestine Marriages, 26 G. 11. c. 33. 83^^ mother, &c." tiie word, hcins^ is a siifilcicnt averment of the facts which follow. (/') The sixtli section of the statute provides, that a female 4&jPii.&M. above tlie aije of twelve, and under sixteen, conscntinp^ to a f,.„iVle con- contract of matrimony, contrary to the statute, shall forfeit scnlin^toan HI 1 1.1 ' ± r ^ • 1 • .1 1-r n i i Unlawful con- all iier lands to her next of kin, during the life of her iius- tract, forfeit* i)and : so tiiat as these stolen niarria"es, under the a.] S38 Of Kidnappin S- [book III. Forcible ab- duction of persons, and sendin ■) J ' Ihem behind, " fully leave him behind in any of his majesty's plantations, &c. liable to " or elsewhere, or shall refuse to bring home with him again Jl^'^^f;™^^* * " all such of the men which he carried out with him as are in meat. " a condition to return, when he shall be ready to proceed " in his homeward-bound voyage ; every such master shall, " being thereof legally convicted, suffer three months' im- " prisonment, without bail or mainprize." (c) SECTION II. OF CHILD STEALING. The Statute 51 Geo. III. c. 101. reciting that the practice 54 Geo. III. of carrying away young children, by forcible or fraudulent *"• '°*- *'"'*" means, from their parents, or other persons having the care taking away, and charge or custody of them, commonly called child u,^de"?oJe'r5 stealing, had of late much prevailed and increased, enacts, old,orreceiv- I 11 1- • 1 • 1 1 ingandhar- " that if any person or persons shall maliciously, either by bouring such ^' force or fraud, lead, take or carry away, or decoy or entice ^^^^'^^ ^° ^^^ (c) This act was made perpetual by 6 Geo. I. c. 19. s. 3. S40 Of Child Stecdmg, 54 G. III. c. 101. [uook ui. punishment of jicTsons convicted of jjrand lar- ceuv. *• away, any child under the age of ten years, with intent to '• deprive its parent or parents, or any other person having '• the lawful care or charge of sucli child, of the possession *' of such child, by concealing and detaining such child from '• such parent or parents, or other person or persons having '• the lawful care or charge of it; or with intent to steal '■' any article of apparel or ornament, or other thing of value '• or use, upon or about the person of such child^ to whom- '• soever such article may belong; or shall receive and har- '• hour with any sucli intent as aforesaid any such child, ■■' knowing the same to have been so by force or fraud led, '• taken or carried, or decoyed or enticed away as aforesaid ; " every such person or persons, and his, her, and their *' counsellors, procurers, aiders, and abettors, shall be '•' deemed guilty of felony ; and shall be subject and liable '• to all such pains, penalties, punishments, and forfeitures, " as by the laws now in force may be inflicted upon, or are " incurred by, persons convicted of grand larceny." S. '2. The act The second section of the statute provides, " that nothing is not to ex- u j^^ ^j.jg yj,^ gj^^^jj extend, or be construed to extend, to any lend to the " fathers of illc- " person who shall have claimed to be the father of an ille- chiidnMi *' gitimate child, or to have any right or title in law to the " possession of such cliild, on account of his getting posses- " sion of such child, or taking such child out of the posses- " sion of tiie mother thereof, or other person or persons " having the lawful charge thereof." S, 3. Act nut It is also provided by the third section, that the act shall to extend to ^ ^ i * c *; / !!coiland. "^^ extend to ^cotlcma. 841 CHAPTER THE TENTH. Ofallempts to Murder ; of Mayhem, or Maiming ; and of doing or attempting some great Bodilj/ Harm. Attempts to commit murder appear to have been OflFencesat . 1 , ^ , . . ., ,. c i„ u..* coraraoa law, considered as felonies in the earlier ages ot our law: but that doctrine did not long prevail ; and such attempts be- came, and still remain, at common law, punishable only as high misdemeanors, (a) Where an indictment is pre- ferred for an assault with intent to murder, it seems that the intent as laid must be fully established, in order to support tlie indictment : thus, where a defendant was so charged in the first count of the indictment, Lord Kenyon^ C. J., being of opinion, upon the facts given in evidence, that if death had ensued it would only have been man- slaughter, directed the jury to acfjuit the defendant upon that count, (b) 3Iaj/Jiem, or the maiming of persons, was probably at one time an offence at common law, of the degree of felony ; as the judgment was membrum pro membro. (c) But this judg- (a) Staund. 17. 1 East. P. C. c. 8. s. 5. p. 41 1 . Bacon's case, 1 Lev. 146. 1 Sid. 230. where the defend- ant, having been convicted for ly- ins in wait to kill Sir Ilarbottlc Grimstoue, the Master of the Rolls, was sentenced by fine and impri- sonment, tlie finding surety for his good behaviour for life, and ac- knowledging his offence at the bar of the Court of Chancery. And see two precedents of indictments at common law, for misdemeanours in attempting to murder by poison, 3 Chit. Crira. L. 796. {b) Mitton's case, Adjourned Sit- tings at fFestiiiinster, Octob. 1788. 1 East. P.C c. 8. s. 5. p. 411. (c) 3 Inst. 118. 1 Hawk. P. C. c. 55. s. 3. 4 Blac. Com. 206. 842 Of Attempts to Murder, Maiming, 5fc. [book hi. ment afterwards went out of use ; partly because the law of retaliation is at best an inadequate rule of punishment ; and partly because, upon a repetition of the offence, the punish- ment could not be repeated, {d) The offence, therefore, appears to have been considered, in later times, as in the nature of an aggravated trespass ; and the only judgment which now remains for it at common law, is fine and impri- sonment, (e) It is, however, a misdemeanour of the highest kind, and spoken of by Lord Coke as the greatest offence under felony, (f) A bodily hurt whereby a man is rendered less able, in fighting, to defend himself or to annoy his adversary, is pro- perly a maim at common law. {g) Therefore the cutting off, or disabling, or weakening a man's hand or finger, or striking out his eye or foretooth, or depriving him of those parts, the loss of which, in all animals, abates their courage, are held to be maims : but the cutting off his ear, or nose, or the like, are not held to be maims at common law ; be- cause they do not weaken a man, but only disfigure him. {h) In order to found an indictment of mayhem the act must be done maliciously, though it matters not how sudden the oc- casion. (0 A person It is laid down that, by the common law, if a person maiming him jj^ajfu himself in order to have a more specious pretence self may be i • i • • i punished. for asking charity, or to prevent his being impressed as a sailor, or enlisted as a soldier, he may be indicted ; and, on (d) 4 Blac. Com. 206. (g) Staund. P. C. 3. Co. Lit. 126. (c) Id.ihid. 1 Hawk.P.C.c.55.s. 3 lust. 62, 118. 1 Hawk. P. C. c. bn. 3. 1 East. P.C. c. 7.S. 1. p.393. But s. 1. 4 Blac. Cora. 205. 1 East. P. it is observed, that perhaps mayhem C. c. 7. s. 1. p. 393. by ca.stratioii might have continued (A) 1 Hawk. P. C. c. 65. s 2. 4 an offence of higher degree, as all Blac. Com. 205, 20G. 1 East. P. C. our old writers held it to be felony. c. 7. s. 1. p. 393. 4 Bac. Ab. Mailiem 4 Blac. Com. 206. (A.) (/) Co. Lit. 1 27, a. (0 1 East. P. C. C. 7. 8. 1. p. 393. CHAP. X.] And of doing great Bodily Harm. 8^^ conviction, fined and imprisoned, {k) For as the life and members of every subject are under the safeguard and pro- tection of the king ; so they are said to be in manu regis, to the end that they may serve the king and country when oc- casion shall require. (/) It should seem that there can be no accessories before No accesio- 1 .1 1 xi ries iQ may- the fact in mayhem, at common law ; though there appears ^^^^ to have been some difference of opinion, or rather misappre- hension, upon the subject. (?«) For, supposing the offence to be in the nature of an aggravated trespass only, the rule will apply, that in crimes under the degree of felony there can be no accessories, but that all persons concerned therein, if guilty at all, are principals, (n) It does not appear to have been any where supposed, that there can be accesso- ries after the fact in mayhem, (o) Attempts to murder, maiming, and the doing or attempt- offences by ing great bodily harm, have been made highly penal by the statutes. enactments of several statutes, which may be mentioned in the order of time in which they were passed. The statute 5 Hen. IV. c. 5. reciting that offenders did 5Hea.IV. c. (Ar) 1 Hawk. P. C. C.55. s. 4. and (m) Lord Hale states, that there Co. Lit. 127, a. where Lord Coke are no accessories before in may- says, " In ray circuit, anno 1 J«- hem, but that they are in the same ^'coM regis, in the county of Lei- degree as principals, 1 Hale 613. " cester, one Wright, a young, Hawkins, on the contrary, says, " strong, and lustie rogue, to make that it seems there may be acces- " himself impotent, thereby to hare series before the fact in mayhem. " the more colour to begge, or to 2 Hawk. P. C. c. 29. ». 5. In I East. " be relieved without putting him- P. C. c. 7. s. 7. p. 401. there is a " self to any labour, caused his learned argument, to shew that the " companion to strike off his left latter opinion proceeded on a mis- " hand ; and both of them were in- take. " dieted, fined, and ransomed." (n) Ante, 44. (0 Co. Lit. 127, a. Bract, lib. 1. (o) I Hawk. P. C. c. 55. s. 13. and fol. 6. Pasch. 19 Ed. I. cor. Reg. 2 Hawk. P. C. c. 29. s. 5. 1 East. P. Rot. 36. Northt. C. c. 7. s. 7. p. 401. 844 Of Attempts to Murder, Maiming, S^c. [book hi. 5. Cutiingj daily beat, wound, impri^:on, and maim divers of the king's nuUin"^*ont ^'^^e pf'ople, and after purposely cut their tongues, or put eyes, made fe- out their eyes, enacts " that in such case the offenders that " so cut tongues, or put out the eyes of any the king's liege " peo})le, and that duly proved and found that such deed " was done of malice prepensed, they shall incur the pain of " felony." The words " of malice prepensed," are ex- plained to mean voluntarily and of set purpose, however sudden the occasion, {p) This statute was intended to put a stop to a cruel practice of cutting the tongues, or putting out the eyes of persons beaten, wounded, or robbed, in order to prevent them from giving evidence against the of- fenders ; and it appears to have had the desired effect, {q) 37 Hen. Ylll. Xext in order of time is the statute 37 Hen. VIII. c. 6. the c. 6. Persons „ , . n ^ • i . .i • • ^ A^ i. cuttino- off fourth section oi which, amongst other provisions, enacts, that ears are to a if any person or persons maliciously, willingly, or unlaw- forfeil treble •^' ' /vi « damages, and " fully cut or cause to be cut oft the ear or ears of any of pay a fine ot a ^\^q king's subjects, otherwise than by authority of the " law, chance medley, sudden affray or adventure," every such offender shall not only forfeit to the party grieved treble damages, to be recovered by action of trespass, but shall also forfeit to the king for every such offence ^^10. in the name of a fine. 22 and 23 Car. A more severe and effectual statute, S2 and 23 Car. 11. vcntrvAct) c. I. was afterwards passed, upon the subject of malicious Malicious maiming. It is usually called the Coventnj act ; having been ade fi^onv occasioiicd by a violent attack upon Sir John Covcntrjj in maiminj: ma without bene- fit of clergy (p) 3 Inst. 62. And as to the he observes, " Of all stiitutes those meaning of the word malice, sec " are to l)e preferred, which prc- flu/*, 613, el sequ. " ventodences, before they bedone, (fl) 3 Inst. 62. where the learned " before those which punish them writer states, that this law did so " after tliey be done. And there- terrify offenders, thai there ap- '' fore, in tin; making of this law, peared to have been hardly any " there was salutaris severitas et prosecutions for the oflcnce: and " bcata sccuritan." CHAP.x.] Coventry Act,22 and 23 Car. II. c. 1. 8+5 the street, and slitting his nose, in rcveng;e (as was sup- posed) for some obnoxious words uttered by him in parlia- ment, (r) The seventh section enacts, " that if any person " or persons, on purpose and of malice forethought, and by " lying in wait, shall unlawfully cut out or disable the " tongue, put out an eye, slit the nose, cut off a nose or lip, '• or cut off or disable any limb or meml)er of any subject " of his majesty, with intention, in so doing, to maim or " disfigure, in any the manners before mentioned, such his " majesty's subject ; that then and in every such case, the per- " son or persons so offending, their counsellors, aiders, and " abettors, (knowing of and privy to the offence as aforesaid) " shall be and are hereby declared to be felons, and shall " suffer death, as in cases of felony, without benefit of " clergy." But by the subsequent section, no attainder of such felony is to extend to corrupt the blood, or forfeit the dower of the wife, or the lands, goods, or chattels of the offender. Several points have been holden upon the construction of Construction ' ' ot the statute this statute, which may be considered, as they relate, 1. to 22 and 23 Car. the " purpose and malice forethought;" 2. to the lying in '^^^^^^■ wait ; 3. to the kind of maiming or disfiguring ; and, 4. to the intention to maim or disfigure. It is not thought ne- cessary to state them much in detail, as offences against this act appear to be included in the more general provisions of a recent statute, 43 Geo. III. c. 56. which will be presently mentioned. With respect to the "purpose and malice forethought," As to the pur ^ 1 • ^ / pose :iiul raa it may be observed, that it must be substantiated by proving lice fore- a deliberate and premeditated design to do a personal in- jury to another, of the sort described in the statute (s) It (r) 4 Blac. Com. 207. And see (s) 1 East. P. C. c. 7. s. 3. p. 394. for the history of this transaction, citing 1 MS. Sum. 122. Andsee as to Burnet Hist .Vol. I. p. 269. fol. and malice aforethought, ante,&\3, et 7 Hume's Hist. 468, 469. scqu. thought. S46 Of Attempts to Murder. Maiming, S^c. [book hi. does not, however, seem necessary, that the malicious inten- tion should be directed against any particular individual : for if it be conceived against all persons who may happen to fall within the scope of the perpetrator's design, the par- ticular mischief done to any one will be connected with the general malignant intent, so as for the statute to attach upon the offenders. (0 And it seems clear that, if a man striking another, with such an evil intent as would make him guilty of mayhem if the person struck at should be maimed, happen to miss ) By Eyre, B. in Mills's case, 847. 1 Leach 259. (w) 2 Hawk. P. C. c. 23. ». 1 6. and CHAP. X.] Coventry Act, 22 and 23 Cor. II. c. L 847 some thieves who had made an attempt to rob the cart, near the same place, on the precedinj^ evening, the case was left to the jury upon the question of lying in wait. And the learned judge desired them to consider whether the fact were deliberately and intentionally done by lying in wait for that purpose, on the account suggested, or from any other malicious and deliberate motive ; or whether it were a sudden violent impulse of rage, not in the previous con- templation of the parties ; in which latter case, it was not within the statute : but he laid stress on the expression ut- tered by some of the gang — " Where are jour knives ?" as explanatory of a previous design to do such a mischief, (.r) In another case, where a gentleman, having detected a boy in picking his pocket, had seized him, and was carrying him along the street, and the prisoner, who was lurking there- abouts, came up to them, and after walking for some little time, sometimes before and sometimes after them, at last struck the gentleman a severe blow across the face with a knife, saying, "Damn you. Sir, let the boy go;" the two judges who inclined most to a strict construction of the words " lying in wait," &c. yet were of opinion that the circumstance of the prisoner passing before the gentleman, and waiting till he came up, and then giving him the wound, was a lying in wait within the statute, (j/) But if the mischief be done in a sudden attack, without any premeditated design against the person, there will not be a lying in wait within the statute. Thus, where the prisoner was stealing turnips in a field, and, being found by the servant of the owner of the field in the very act of tak- ing them, struck tlie servant immediately, with a sharp in- strument, and slit his nose ; it was holden that this was not an offence within the statute: all the judges holding that there was not sufficient evidence of a Ivinjj in wait: and o (x) Mills's case, 1 East. P. C. c. East. P. C. c. 7. s. 3. p. 394. 395. 7. s. 5. 1 Leach 259. and id. s. 5. p. 397. citing MS, (5') Carrol and King (case of) I Gould, J. 848 Of Attempts to Murder, Maiming, Sfc. [boor iir. some of them considering that the having the instrument, and usin"- it, was with intent to escape, and not to murder or maim. (:;) And the lying in wait must be with the view, and for the purpose, described in the statute. Thus, where the commander of a press-gang maimed a man, whom lie casually met, and who resisted being pressed, and against whom it appeared that he had an old grudge : though the jury found that the wounding was of malice aforethought, yet the judges, upon a reference to them, were of opinion that there was no lying in wait, so as to bring the oftence within the intent and purview of the statute, (a) As to the The maiming or disfiguring must also be of such a nature lt!n?J;L nr as the statute describes. Thus, where a husband, who had in ti 1 in I II *r or disfigurino:. lived a long while separate from his wife, visited her again. and, having persuaded her to let him sleep with her, took an opportunity, during the night, and while she Avas asleep, to make a wound across her throat, about three inches in length, with a razor, which he had procured, and concealed for the purpose ; it was ruled that the offence Avas not complete, there not being such a maim as the act requires, (b) But it has been decided that a large transverse wound across the nose, so wide and deep as (o render the bone visible, is a slitting of the nose, within the statute, although the nostril be not thereby per- forated, (c) And in another case, where there was a deep cut across the nose, which separated the flesl), and went quite through into the nostril, an ol)jection that the nose (s) TickiKT s case, reserved for ror. Parker, C. B. 1 Hawk. P. C . Ihe opinion »»f llie twelve judjjcs, 0.35. s. 10. The same case is rr- from the (Jld IJailcy Scss. 177S. 1 ported in J Leach 51. But the Hawk. P. C. c. 55. s. 12. 1 Leach grounds on wliicii llw coiirl rnhd 187. 1 East. P. C. c. 17. s. 6. p. ."igs. tlial the offence was not within the (fl) Rex V. Mackeyand Arri<;oni, statute, arc not tliere stated. Kingston Spr. Ass. 1778. 1 East (c) Carrol and Kiii<; (case of) 1 P. C. c. 7. ». 6. p. .399. Leach 5.'). 1 East. P. C. c. 7. s. ."J (b) Lees case, Old Bailey nfi.}, p. .394, ao.'i. CHAP. X.] Coventry Act, 22 Ss 23 Car. II. c. I. 8i9 could not be said to be slit because the edge of it was not cut through, was overruled. ((/). The words in the statute are " with intention in so do- As to the in- t jntion to " insr to maim or disfiffure :" but these words have been maim or Ji»- considered as merely auxiliary to the preceding words, " on ^^^^' " purpose and of malice aforethought," confining the crime to an intended violence, (e) So that it has been ruled, that if a man attack another, of malice aforethought, in order to murder him with a bill, or any other such like instrument, which cannot but endanger the maiming him, and in such attack happen not to kill, but only to maim him, he may be indicted on this statute : and that it shall, in such case, be left to the jury, upon the evidence, whether there was a de- sign to murder by maiming, and, consequently, a malicious intent to maim as well as to kill ; in which case the offence is within the statute, though the primary intention was murder, (f) This statute of 22 & 23 Car. II. expressly extends to Of aiders and counsellors, aiders, and abettors, knowing of and privy to the offence : it includes, therefore, all accessories before. But in a case where it appeared that one of the prisoners, though present at the fact, and guilty of a trespass and as- sault, was nevertheless altogether ignorant of any intention to maim or disfigure, the court directed that he should be acquitted in the first instance, before the guilt or innocence of the perpetrator was ascertained, {g) (d) Rex V. Coke and Woodburn, ence of the judges on another case 6 St. Tri. 212, et sequ. (Carrol's, ante, note (c) ) Willes, J. (e) 1 East. P. C. c. 7. s. 6. p. 399, and Eyre, B. expressed some dis* 400. satisfaction with this case; and (/) Rex V. Coke and Woodburn, thought at least that the construc- ante, note (d), 1 Hawk. P. C. c. 55. tion ought not to be carried further. 9.8. 4 Bac. Ab. J/ai^jem (B). 4 (g-) Rex r. Mackcy and Arrigoni, Blac. Com. 206. note (k). 1 East. 1 East.P.C. c.7. s. 6. p.399. and s.7. P. C. c. 7. 8. 6. p. 400. in which last p. 401. book it is said, that on the coafer- 3 1 850 Of Attempts to Murder, Maiming, S^c. [boor iii. Qftheiudict- An indictment upon this statute must pursue the words ""^"*' of it, and allege the oftence to have been committed " on " purpose, of malice aforethought, and by lying in wait ; " and state that the act was done with the intent mentioned in the statute. But as the words of the statute are in the dis- junctive, an averment either that the act was done with in- tent to maim^ or with intent to disfigure, according lo the subject matter, seems to be sufficient, (h) 9 Anne, c. 16. r^j^^ j^g^^^. g^atute in the order of time is the 9 Anne, c. 16. Attempting to , ^ , • i . „ . kill, assault- which was passed for the more especial protection of privy *"?' &c. a counsellors in the execution of their office ; and was made on pnvv counsel- lor, "felony the occasion of Mr. Secretary Harley being stabbed by ^Jp^tT Anthony de Guiscard, who was at the time under examina- tion before the privy council. It enacts, " that if any per- *' son or persons shall unlawfully attempt to kill, or shall ** unlawfully assault, and strike, or wound, any person be- " ing one of the most honourable privy council, when in *' the execution of his office of a privy counsellor, in council, ** or in any committee of council, that then the person or " persons so ofl'ending, being thereof convicted in due form " of law," shall be felons, and sulfer death without benefit of clergy. 9 G. I. c. 22. The statute 9 G. I. c. 22. relates to the offisnce of wilfully Maliciojisly ^^j maliciously shootins: at any person in any dwelling- shooliiigat - , . ■ any i»crson, house, or other place ; an olVence of which the probable con- out'clcrtv' sequence may be either the killing or maiming such person. It enacts, that if any person or persons " shall wilfully and " maliciously shoot at any person in any dwelling-house, *' or other place ;" or shall by gift, or ])roinise of money, or other reward, procure any subject to join him or them, in any such unlawful act; every person so offisnding, and be- ing convicted, shall be adjudged guilty of felony, and suffer death without benefit of clergy. (fc) 1 Eait P. C. C. 7. •. 8. p. 402. icrgy. n CHAP. X.] 9 Ann. c. 16. ^ the Black Act, 9 G. I. c.22. 851 This statute contains enactments concerning many other Construction offences besides that which has been above set forth, and is oitl"* statute, commonly called the Black Act ; a part of it relating to offences committed by persons in disguise, or having their faces blacked : but it is settled that it is not necessary for the completion of the offence now under consideration that the offender should have his face blacked, or be in any other manner disguised. (/) It has been determined that this statute extends not only it extends to to the person or persons who actually shoot at another, fn^^anj assist. but also to every person who is present, aiding and assist- inj ing, to commit the offence : for as the statute creates a new felony, the consequences incidental to a felony at common law follow of course: and the rule attaches, that every per- son present, aiding and assisting, is a principal in the second degree. (Ar) An objection, therefore, which was taken in a prosecution upon this statute, that three persons could not be guilty of the same act of shooting, and that, as the in- dictment charged the act to have been done by three, one only could not be convicted, (/) does not appear to be well founded : for, as has been observed upon this case, if it is settled that under a charge for doing an act a person may be convicted as a principal in the second degree, there is no in- consistency in alleging an act to be done by several which could, in its immediate operation, be only committed by one; and the legal construction of the averment is only that they have done such acts as subject them to be punished as (0 Arnold's case, 8 St. Tri. 313. Wiggs. 1785. 1 Leach 359. 1 East. I Hawk. P. C. c. 55. Of Shooting, P.C.c.8. s. 7.p.413. Thisobjectioa Sfc. s. 4, 1 East. P. C. c. 8. s. 6. was not formally determined, the p. 412. prisoner having been convicted of {k) Coalheavers' case, 0. B. 1768. another capital oflfence at the same Cas. Cr. L.fil. 1 Leach 64. 1 Hawk. time: but the opinion of the jiidg«s P. C. c. 55. Of Shooting, ifc. s. 1 1. 1 was probably against the objection; East. P. C. c. 8. 8. 6. p. 413. and see and Buller, J. iu Rex t;. Young, 3 ante,29.€tsequ. 37, 38. T. R. 105. speaks of the case as (/) Rex V. Gibson, Mutton and having been so decided. { 3i2 " ^ 852 Of Attempts to Murder, Maiming, &,'c. [boor iir principals in the offence, (w) And in a subsequent case, -where the indictment charged that the prisoner and divers others unknown shot at the prosecutor ; and, in a second count, that a person unknown shot at the prosecutor and that the prisoner was present aiding- &c. ; and upon the evi- dence, it appeared, that the shot was probably not fired by the prisoner ; Ashhurst, J. told the jury that if thej were of opinion that the prisoner and the other persons were in a confederacy together to make an attack upon the house of the prosecutor's master, and came armed with an intention to oppose all resistance, and that, in the prosecution of that purpose, the prisoner or any of his associates shot at the prosecutor, they should find the prisoner guilty, (w) The shooting The words of the statute are " if any person or persons "uciom!" """" " shall wilfully and malicious/?/ shoot, &c ;" thereby making malice an essential ingredient in the offence. No act of shooting, therefore, will amount, under this statute, to a capital offence, unless it be accompanied with such circum- stances as, in construction of law, would have amounted to the crime of murder, if death had ensued : and it follows, that neither an accidental shooting, nor a shooting in a transport of passion excited by such a degree of provoca- tion as would have reduced the homicide, if it had ensued, to the offence of manslaughter, are within the meaning of the statute (o) And the in- It has been said, that upon an indictment on this statute, struniont j^. j^ uecegyarv to shew that the Instrument was loaded with must be load- •' (m) 5 Evans, Col. Slat. CI. C. p. thnl tlie Coalheavers' case (ante, :J99, note (12) and see utile, 37, 38. 37, 38. and 851.uotc (k)) was good (n) Wells's ca.se, Kent Spr. Ass. law. 1786. 1 East. P. C. c. 8. s. 7. p. 414. (o) Gastincaux's case, 1 Leack The jury found the prisoner ;;iiilty ; 417. 1 Hawk. P. C. c. 55. Of and upon rcft-rence to the jii(l<.';cs, Sltoolin;:;, i)C. 8.7. 4 Blac. Com. the) were all of opinion, that the 207. note (2). 1 Bast. P. C. c. 8. «. direction was right, and the con- 6. p. 412. viction proper. And they said, CHAP. X.] Black Act, 9 G. I. c. 22. S53 gunpowder, and also with a bullet, slu^, or other deadly cdwithabul- 1 , . . n- . .-, , r. t, let, &t. and substance ; but that it is suihcient it such lacts appear troin |,e levelled at the general circumstances of the case, (p) In a case where the party. it did not appear whether the wounds, which the prosecutor had received in his neck and chin, were given by the wad- ding, or by a ball from a pistol, except that the prisoner, who was endeavouring to effect an escape at the time, ex- claimed with an oath, " Let me pass, or I will blow your " brains out," and immediately fired, and the prosecutor said, that he apprehended the wounds must have been given by a ball, from the sensation he felt at the time, and because it took him in one place, and another witness said, that the report was very strong, for so small a pistol ; it was con- tended that there was not sufficient evidence that the pistol was loaded with a leaden bullet. But the court thought that there was sufficient evidence of that fact to go to the jury : and the jury found the prisoner guilty, (g) [t is ne- cessary also that the shooting should be with an instrument levelled at the party. So that where the prosecutor, who was landlord oi' the premises occupied by the prisoner, had come in the night to bring provisions for a roan whom he had put into possession of tlie prisoner's goods under a dis- tress for rent, and had got over the pales of the garden for that purpose, but, upon being met by the prisoner and se- verely beaten, was making his retreat, in the dark, over another part of the pales, more than five yards' distance from the place at which he entered, when the prisoner levelled a gun at the place where the prosecutor got into the garden, and immediately fired it ofi^; the gun being thus fired in a different direction from that in which the prosecutor Avas going, the court held that it was not a shooting at the pro- secutor within the meaning of the statute, (r) (p) 1 Hawk. P.C. c. 55. OfShool- (r) Empsoii's case, 1 Leach 224. ing, S)C. s. 9. citing Rex v. Elliott, 1 Hawk. P. C. c. 55, Oj'Shooling, Old Bailey 1787. ^c. s. 10. (g) Wcstoa's case, 1 Leach 247. 85i Of Attempts to Murder, Maiming, 4'c. [book hi. The shooting An objection was taken, upon an indictment on this paKv-'s^wa^'^ statute, that the prisoner, having fired at the party within house. his own house, was not within the meaning of the statute ; but it was overruled. (5) Of the indict- ment. The words of the statute " wilfully and maliciously" have been considered as so far descriptive of the offence, that an indictment, where the act was laid to be done " un- lawfully maliciously and feloniously," the word wilfuUy be- ing omitted, was held to be insufficient, {i) It seems that if the indictment be for shooting "in a dwelling house,'* and state the name of the owner of the house, it will be ne- cessary to prove the name as stated : as in a case where the prisoner was indicted for shooting in the dwelling house of James Brewer and John Sand?/, and it appeared upon the evidence that the names were in fact Jo/tn Brewer and James Sandj/, the variance was ruled to be fatal, (u) (s) Harris's case, 1 East. P. C. c. 8. 9. 8. p. 415. and Addend, xviii. (t) Davis's case, 1 Leach 493. 1 East. P. C. c. 8. s. 8. p. 414, 415. The point was resen'ed for the con- sideration of the jud^^es, and was •very much dchated. Some of the judges tliought that the word wilful was implied in the word malicious : but a great majority were clearly of opinion, that as the legislature had, by the sprci;il penning of the act, used Iiolh the words, " wilfully and maliciously,'''' they must be un- derstood as a description of the of- fence; and they thought that they were bound by former precedents in analogous cases. And si'c the cases colii'cted in note (a) to this ciiKe, I Leach 491, as to the rule lh;it though an indictment need not re- cite a general penal statute, it must bring the fact within the ex- press prohibition of it. (k) Durour's case, 1 Leach 351. 1 East. P. C. c. 8. s. 8. p. 41 5. The court said, that perhaps the aver- ment was not necessary to the va- lidity of the indictment, as the statute says, " who shall raali- " ciously shoot at any person in *' any dwelling house, or other " place ;'■ but that as the averment was made, it must be proved as stated. However, in two subse- quent cases of indictments for rob- bing in the dwelling houses of par- ticular persons who were named, the convictions were held to be proper ; though in one of them it (lid not iijipear who was the owner of the liouse, and in the other the Christian name (»f the owner of the house could not be proved. Pye's CHAP. X.] Black Act, 9 G. I. c. 22. 8s 26 G. II. c. 19. 855 By the fourteenth section of the statute the offences de- The trial may ■' . , . he in any scribed in it may be " tried and determined in any county county in « in Eno-land, in such manner and form as if the fact had England. « been therein committed ;" and it has been holden, that it is not necessary for the king to grant a special commission for such trial ; but that a private prosecutor may prefer his indictment in such county in England as may appear to him to be most conducive to the ends of justice, (w) He cannot, however, exercise this right for the purposes of injustice and oppression, as the statute expressly gives it for the better and more impartiul trial of the indictment, (x). The fourteenth section also provides, that no attainder Attainder not for any of the offences made felony by the act shall work ^^p^;;)^^;?'- corruption of blood, loss of dower, or forfeiture of lands or blood, &c. chattels. The statute 26 Geo. IT. c. 19. was passed for the purpose 26 Geo. II. c. of repressing the enormities occasionally practised upon ^^3^1)1^0^ persons shipwrecked. The first section enacts, " that if any wounding . ,, 1 , 1 -lv. • i. ir i i,:il personsship- « person or persons shall beat or wound, with intent to kill ^^ecked with " or destroy, or shall otherwise wilfully obstruct the escape intent to kill J' 1 !•/• r them, &c. or " of any person endeavouring to save his or her lite trom putiing out " such ship or vessel, (i. e. any ship or vessel of his majesty's j^/i'^^^'^-jj^^'p*'* " subjects or others, which shall be in distress, or which into danger, « shall be wrecked, lost, stranded, or cast on shore, in any ^^^I^XTgy^ « part of his majesty's dominions) or the wreck thereof; or " if any person or persons shall put out any false light or " lights with intention to bring any ship or vessel into dan- " ger ; then such person or persons so oflending shall be " deemed guilty of felony ; and being lawfully convicted « thereof, shall suffer death, as in cases of felony, without " benefit of clergy." (^) case, Warwick 1790. cor.Thomson, Blac. R. 733. 1 East. P. C. c. 8. s. B. lEast. P. C. c. 16. s. 168. p. 785. 9. p. 415. and Johnstone's case, 17 93. cor. Ash- (x) Id. Ibid. hurst, J. Id. c. 16. 9. 168. p. 786. (y) By s. 18. the act is not to ex- (is) Mortis's cascj 1 Leach 73. 9 tend to Scotland. S56 Of Attempts to Murder, Maiming, 5fc. [book in. 43 Geo. III. The statute 43 Geo. III. c. 58. (which is commonly called ?n<^at. or at- ^<^'"^ EUenborough' s act) reciting, that divers cruel and bar- tempting to harous outrages had been wickedly and wantonly committed, bino-or cut- i" divers parts of England and Ireland^ upon the persons of ting any per- jjjg Hiaiesty's subjects, either w ith an intent to murder, or to son, within- "^ . ,. , ,• , , . , ' tent to mur- roD, or to maim, dishgure, or disable, or to do other grievous der, maini. bodily harm to such subjects, enacts, " that if any person or &c. or to do •' J ■> •> J tr grievous bo- '' persons shall, either in England or Ireland^ Avilfully, raa- ifo'L^SwfU " I'ciously, and unlawfully, shoot at any of his majesty's apprehension, " subjects, or shall wilfully, maliciously, and unlawfully, o^ut"ciergy.* " pj'^sent, point, or level any kind of loaded fire-arms, at " any of his majesty's subjects, and attempt by drawing a '• trigger, or in any other manner, to discharge the same at " or against his or their person or persons, or shall wilfully, *' maliciously, and unlawfully stab or cut any of his raajes- " ty's subjects, with intent in so doing, or by means thereof, " to murder, or rob, or to maim, disfigure, or disable, such " his majesty's subject or subjects, or with intent to do some " other grievous bodily harm to such his majesty's subject " or subjects, or with intent to obstruct, resist, or prevent " tlie lawful apprehension and detainer of the person or '• persons so stabbing or cutting, or the lawful apprehen- " sion and detainer of any of his, her, or their accomplices, " for any offences for which he, she, or they may respectively " be liable by law to be apprehended, imprisoned, or de- " tained, or shall wilfully, maliciously, and unlawfully admi- ^' iiister to, or cause to be administered to, or taken by, any " of his majesty's subjects, any deadly poison, or other nox- " ious and destructive substance or thing, with intent such " his majesty's subject or subjects thereby to murder, the " person or persons so offending, their counsellors, aiders, *' and abettors, knowing of and privy to such offence, shall *' be, and arc hereby declared to be felons, and shall suffer " death, as in cases of felony, w ithout benefit of clergy : Bui if the " Provided always, that in case it sliall appear on the trial »Lil>l»ing or " of any person or persons indicted for the wilfully, mali- cutling w<;re •' ' ' Mi rouiinitti d " ciously, and unlawfully shooting at any of his majesty's )?udViLS'il "su'^jects, or lor wilfully, maliciously, and unlawfully pre- CHAP. X.] Lord Ellenborough's Act, 43 G. III. c. 58. 857 *' senting, pointing, or levelling-, any kind of loaded fire- would not n^vc DGcn " arms, at any of his majesty's subjects, and attempting by murder, the " drawing a trijjffer, or in any other manner, to discharge P^'^y/^"^'^ged o oo 7 J y ^ |g to be ac- *' the same at or against his or their person or persons, or quitted. " for the wilfully, maliciously, and unlawfully stabbing or " cutting any of his majesty's subjects, with such intent as " aforesaid ; that such acts of stabbing or cutting (z) were " committed under such circumstances as that, if death had " ensued therefrom, the same would not, in law, have " amounted to the crime of murder, that then, and in every " such case, the person or persons so indicted shall be " deemed and taken to be not guilty of the felonies whereof " they shall be so indicted, but be thereof acquitted." This statute is more extensive in its application than the Construction 22 and 23 Car. II. c. 1. (the Coventry act) which has been of the statute, before mentioned, (a) as it does not make any l?/ing in wait necessary to the completion of the offence : (b) nor need the intention of the oftender be confined to a purpose o? maim- ing or disfiguring the party ; (c) as the words of the statute expressly include an intent to " disable, or do grievous bo- dily harm." But it seems, that though these words com- prehend any severe injury done to any part of the body, yet, in the case of stabbing or cutting at least, the harm must be of such a nature and description that death might have en- sued from it; and the act must be done under such circum- stances, that, if death had ensued, the crime would have amounted to murder. («) Either the words " of stab- bing or cutting," should have been omitted, or words to the following efiFect should have been inserted io their stead; — " Of shooting at, " presenting, pointing, or levelling " and attempting to discharge such *' fire-arms as aforesaid, or such " acts of stabbing or cutting." From a MS. note in the late Mr. J. Grose's copy of the MS. Summary, which has been communicated to the author, it appears, that it was the opinion of that learned judge, that the words " of stabbing or cutting'' should have been omitted. (a) Ante, 844, el scqu. (b) Ante, 846. (c) Ante, 849. 858 Attempts to Murder, Maiming, S^c. [book hi, Akenhead's A reported case upon tliis act states the following circum- A^*t th stances. The prosecutor and some other men had got hold words "^riev- of a woman, who, as they conceived, had been using another '' haJmr alid person ill, and said, that she deserved to be ducked in a the sort of trough which was near : but it did not appear that they in- injurv con- , , , , , mi • i * j- templated by tended to ducli her. The prisoner, who was at some dis- the statute. tance at the time, on being informed that they were using the woman ill, exclaimed, " I have got a good knife," rushed immediately to the place where she was, entered among the crowd, and instantly struck the prosecutor on the shoulder with a knife. The prosecutor turned round upon him ; a struggle ensued between them ; and in that struggle the prosecutor received other wounds. After they had fought for some time, the prisoner dropped the knife, and ran away. The wound upon the prosecutor's shoulder was about seven inches long and two deep ; and the lap of one of his ears was cut. There was likewise a slight wound on the gland of his neck, and a cut on his left arm. Upon this evidence the counsel for the prisoner objected, that the first count of the indictment, which stated an intent to mur- der, &c. and the second count, which stated an intent to maim, disfigure, and disable, could not be supported ; and that the only question was upon the third count, which stated an intent to do some grievous bodily harm. And upon this question he submitted, that the wounds were not of that kind from which grievous bodily harm could ensue; that the transaction was a scuffle in which a knife was used accidentally, without any settled design to " maim, disfigure, or disable," or to do " other grievous bodily harm" to the prosecutor; and also that the wounds were not inflicted in a part of the body which could produce such a consequence. Bayloy J. entertained some doubts on the case ; which ap- pear to have proceeded, principally, on the grounds that the wounds were not in a vital part; that it was questionable whether the injury done was a grievous bodily harm con- tcmphitod by the act; and whether, if death had ensued, the crime would have been more than manslaughter. And, CHAP. X.] Lord Ellenborough's Act, 43 G. III. c. 58. 859 taking all the circumstances of the case into consideration, he directed the jury to acquit the prisoner, (d) The words " stab or cut " in the statute relate only to As to the such wounds as are made by a sharp instrument ; stabbing or cut." being properly a wounding with a pointed instrument, and cutting being a wounding with an instrument having a sharp edge. Thus, though a striking over the face with the sharp or claw part of a hammer has been holden to be a sufficient cutting within the act ; yet it would have been otherwise, if the striking had been with the blunt end. (e) A blow with a square iron bar, which inflicted a contused or lacerated wound, has been holden not to be a cutting within the act. (f) And it was ruled, that a blow with the handle of a windlass was not a cutting within the act, though it made an incision, (g) The cutting must be expressly laid with the intent stated in the act ; as it has been holden that an indictment for cutting with intent to do some grievous bo- dily harm, without saying. " in so doing, or by means there- of." was not sufficient, (h) Where the offence is charged to have been committed R'cketts's with intent to obstruct, &c. a lawful apprehension, it must Where the be shewn that the offender had some notification of the pur- ^o""^'"? » IS charged to pose for which he was apprehended before he inflicted the be done with wound. Upon an indictment on this statute, it appeared struct &c. a that, in the morning of the day mentioned in the indictment, lawful appre the prisoner stole some wheat from an outhouse belonging must appear to one Spilsbury ; and that, the wheat beinjr soon after l^ '*, *^? "I' " fender had found concealed in an adjoining field, Spilsbury Webb and some noiifi- catiou of the (rf) Rex V. Akenhead, Norlhum- {g) Anon. cor. Dallas, C. J. and fcer/awrf, 1816, 1 Holts N. P. R. 469. Burton, J. at Chester, 5 Evans's (e) Atkinson's case, York Spr. Col. Stat. Part V. CI. iv. p. 334. note Ass. 1806, 4 Blac. Com. 208. (ed. (2). 1809,) note (1). (/t) Anon. cor. Dallas, C. J. and (/) Adams's case, cor. Lawrence, Burton, J. at Chester, Id. Ibid, note J. Old Bailey, Jan. Sess. 1808. (3), S60 Of Attempts to Murder, Maiming, ^c. [book hi. purpose for others Watched near the spot, expecting that the thief would which he was . . , , , i , , , , , apprehended, come to carry it away, and that they should thus be able to discover and apprehend him. In the course of the day the prisoner and another man walked into the field, and lifted up the bag containing the wheat. They were immediately pursued ; and Webb seized the prisoner, without desiring him to surrender, or stating for what reason he was appre- hended. A scuffle ensued, during which, before Webb had spoken, the prisoner drew a knife, and cut him across the throat. Upon these facts Lawrence, J. held that, as Webb did not communicate to the prisoner the purpose for which he seized him, the case did not come within the statute; for if death had ensued, it would only have been manslaughter. But he said, that if a proper notification had been made before the cutting, the case would have assumed a different complexion. The prisoner was accordingly acquitted. (/) Dysons case. It is also necessary, in proceeding upon the same clause W^it^rc the wounding is ^^ ^he statute, to shew that the person apprehending acted charged to be under proper authority. For, in a case where it appeared done with the . . . , same intent, that the prisoner having previously cut a person on the It IS also nc- cheek, several others, who were not present when the trans- cessary to ^ ' ^ shew that the action took place, went to his house to apprehend him, with- henTi'no^;KtP(i ^^^ ^'^^ warrant, and that upon their attempting to take iindf-r proper him into cu.^tody, he inflicted the wound upon which the in- authority. r i i t t-«i t r. • • i dictment was founded; L/e lifanc, J. was of opmion, tliat the prosecution could not be sustained. He said, that to constitute an offence within this branch of the statute, there must be a resistance to a person having a lawful authority to apprehend the prisoner, in order to which the party must either be present when the offence is committed, or he must be armed with a warrant ; and that this branch of the statute was intended (o protect officers, and others armed (jj Ilex 1'. Rickelts, ff^orccslcr, terwards found giiilty of larceny in Sura. Ass. 1811, cor. Lawrence, J. stealing the wheat. 3 Cainpb. 6S. The prisoner was af- CHAP.x.] Lord Ellenborough's Act, 43 G. III. c. 58. 861 with authority, in the apprehension of persons guilty of rob- beries or other felonies. (A) It has been suggested, that where an ineflectual exchange Shooting ia a of shots takes place in a deliberate duel, both the parties may be guilty of the offence of malicious shooting within this statute ; and the seconds be also guilty as principals in the second degree : but this is mentioned as not having been any where expressly decided. (/) This chapter may be concluded with the mention of the Conspiring or Irish statutes 36 Geo. III. c. 27. and 38 Geo. III. c. 57.; by pe^uading to •' murder in the former of which the conspiring to murder any person, Ireland. and by the latter of which, the proposing, soliciting, encour- aging, persuading, or endeavouring to encourage or per- suade to murder, are made capital felonies. (7n) {k) Rex V. Dyson, cor. Le Blanc, (0 3 Chit. Crim. L. 848. note (i»). J. York Spr. Ass. 1816, 1 Starkie (m) 5 Evans's Col. Stat. PartV. N. P. R. 246. CI. iv. No. 19. in the note. 862 CHAPTER THE ELEVENTH. Of Common and Aggravated Assaults. SECTION T. OF COMMON ASSAULTS. Definition of x*.N assault is an attempt or offer, with force and violence, an assault to do a corporal hurt to another; as by striking at another with a stick or other weapon, or without a weapon, though the party striking misses his aim. So drawing a sword or bayonet, or even holding up a fist in a menacing manner, throwing a bottle or glass with intent to wound or strike, presenting a gun at a person who is within the distance to which the gun will carry, pointing a pitchfork at a person who is within reach, or any other similar act, accompanied with such circumstances as denote at the time an intention, coupled with a present ability, of using actual violence against the person of another, will amount to an assault, {a) No words will But it appears to be now quite settled, though many an- assTul't^ ^'^ '^'^ ^'^"^ opinions were to the contrary, that no words whatso- ever, be they ever so provoking, can amount to an assault.(i) And the words used at the time may so explain the inten- tion of the party as to qualify his act, and prevent it from (a) 1 Hawk. P. C. c. 62. s. 1. 1 C. c. 8. 8. 1. p. 400. Bull. N. P. 15. liac. Ab. Jssault and Datlcrj/, (A). Sclw. N. P. Assault and Battery , I. S Blac. Com. 1^0. I Hurii. Juiit. {h) 1 Hawk. P. C. c. 62. s. 1. 1 Jtiault and Battery, 1. 1 East. P. Bac. Ab. Assault and Battery (A). CHAP. XI.] Of Common Assaults, %c. 863 being deemed an assault : as where A. laid his hand upon his sword, and said, " Tf it were not the assize time, I would not take such language from you," it was holden not to bean assault, on the ground that he did not design to do the other party any corporal hurt at that time, and that a man's inten- tion must operate with his act in constituting an assault.(c) A battery is more than an attempt to do a corporal hurt Of a battery. to another : but any injury whatsoever, be it ever so small, being actually done to the person of a man, in an angry or revengeful, or rude, or insolent manner, such as spitting in his face, or in any way touching him in anger, or violently jostling him out of the way, is a battery in the eye of the law. (d) For the law cannot draw the line between differ- ent degrees of violence, and, therefore, totally prohibits the first and lowest stage of it ; every man's person being sa- cred, and no other having a right to meddle with it in any the slightest manner, (e) It should be observed that every battery includes an assault, (f) The injury need not be effected directly by the hand of The injury the party. Thus there may be an assault by encouraging a j Tf* dog to bite ; by riding over a person with a horse ; or by wil- the hand of fully and violently driving a cart, &c. against the carriage saultin'<^^ ^^ of another person, and thereby causing bodily injury to the persons travelling in it. (g) And it seems that it is not ne- cessary that the assault should be immediate; as where a defendant threw a lighted squib into a market place, which, being tossed from hand to hand by different persons, at last hit the plaintiff in the face, and put out his eye, it was ad- (c) Turberville «. Savage, 1 Mod. Hawk. P. C. c. 62. s. 1. 1 Bac. Ab. 3. S. C. 2 Keb. 343. ^ss. &; Batt. (A) (d) 1 Bac. Ab. Asa. 6f Bat. (B) 1 {g) See the precedents for as- Hawk. P. C. c. 62. s. 2. saults of this kind in Cro. Circ. (e) 4Blac.Com. 120. Comp. 65. 3 Chit. Crim. L. 823, (/ ) Termes de la ley, Battery, I 824, 823. 2 Starkie 38S,38i>. §64 Of Common Assaults. [boor hi. judged that this was actionable as an assault and battery, (h) And the same has been holden where a person pushed a drunken man against another, and thereby hurt him : (i) but if such person intended doing a right act, as to assist the drunken man, or to prevent him from going along the street without help, and in so doing a hurt ensued, he would not be answerable, (k). Assault by ex- posing ano- ther to the inclemency of the wea- ther. There may be an assault also by exposing a person to the inclemency of the weather. Thus, in a case where an in- dictment against a mistress for not providing sufficient food and sustenance for a female servant, whereby the servant became sick and emaciated, was ruled to be bad, because it did not allege that the servant was of tender years, and under the dominion and controul of her mistress ; it was suggested that the indictment also charged that the defend- ant exposed the servant to the inclemency of the weather; and it was holden that such exposure was an act in the na- ture of an assault, for which the defendant might be liable, whatever was the age of tl>e servant. (/) An assault An unlawful imprisonment is also an assault; for it is a may be by an wrong done to the person of a man, for which, besides the prlsonment private satisfaction given to the individual by action, the law also demands public vengeance, as it is a breach of the king's peace, a loss which the state sustains by the con- finement of one of its members, and an infringement of the good order of society, (m) To constitute the injury of false (ft) Scott V. Shepherd, 2 Blac. Rep. 892, by three judges; Black- stone, J. contra, 3 Wilsi. 403. S.C. (i) Sh«rt I'. Lovejoy, cor. Lee, C.J. 1752. BuI.Ni.Pri. 16. (k) Id. Ibid. (/) Rex I'. Ridley, cor. Lawrence, J. Salop Lent Ass. 1 8 1 1 . 2 Caiupb. 650, fi33. The counsel for the prosecution admitted that Uicy could not prove this charge in the indictment to any extent; and the defendant was accordingly ac- quitted. That negligence and harsh usage may be a means of commit- ting murder, see ante, 620, 621. (m) lHawk.P.C.c.60.!».7.4Blac. Com. 21 H. And see precedents of indictments for assaults and false imprisoamcnt. Cro. Cite. Corop- CHAP. XL §1.] B^ Unlawful Imprisonment. 86^ imprisonment, there must be an unlawful detention of the person. With respect to the detention, it may be laid down that every confinement of the person, whether it be in a common prison, or in a private house, or by a forcible detaininjj: in the public streets, will be sufficient. («) And such detention will be unlawful unless there be some suffi- cient authority for it, arising either from some process from the courts of justice, or from some warrant of a le«ral officer, having power to commit under his hand and seal, and ex- pressing the cause of such commitment ; or arising from some other special cause sanctioned, for the necessity of iiie thing, either by common law or by act of parliament, (o) And the detention will be unlawful, though the warrant or process, upon w hich it is made, be regular, in case they are executed at an unlawful time, as on a Sunday; or in a place privileged from arrests, as in the verge of the king's court. (p) Especial provision is made concerning the arrest of foreign ambassadors, or other foreign public ministers, and their ^g- mestics, or domestic servants, by the statute 7 Ann, c. 12. which makes any process against them, or their goods and chattels, altogether void; and provides, that the persons prosecuting, soliciting, or executing, such process, shall be deemed violators of the law of nations, and disturbers of the public repose ; and shall suffer such penalties and corpo- ral punishment, as the Lord Chancellor, and the two Chief Justices, or any two of them, shall think fit. But no trader within the description of the bankrupt laws, who shall be in the service of any ambassador, or public minister, is to be privileged or protected by this act ; nor is any one to be punished for arresting an ambassador's servant, unless the name of such servant be registered in the office of one of 61,62. 2 Stark. 385, 386. 3 Chit. 127. Crim. L. 835, el sequ. As to such (o) 3 Blac. Coni^ 127. false imprisonment as amounts to (p) Id. ibid. 29 Car. II. c. 7. And Kidnapping, &c. see an/f, SSI, el see further as to unlawful imprison- ^equ. meats, 4 Com. Dig. Imprisonment. («) 2 Inst. 589. 4 Cora. Dig. - (H) 6Bac. Ab. Trespass (0)3. % Imprisonment. (G) 3 Blac. Com. Selw. N. P. Imprisonment. 3 K SG6 Of Common Assaults. [book in. the principal secretaries of state, and by In'ni transmitted to the sheritfs of London and Middlesex, or their iindersherifls or deputies, {q) Every impn- jj has been supposed that every imprisonment includes a soiiment does "^ ' • ' not include battery ; (r) but this doctrine was denied in a recent case, a atterj. v\'here it was said by the court that it was absurd to contend that every imprisonment included a battery. (s) The intention Whether the act shall amount to an assault must, in with which every case, be collected from the intention. Thus, in an the act IS , •' ' done is mu- action for an assault, where it appeared that the defendant teria m the ^^^ another person were fiohtinir, when the plaintiff came inquiry ' "^ -^5 i whether it up and took hold of the defendant by the collar, in order to loauassault. separate the combatants, upon which the defendant beat the plaintiff, it Mas objected to the counsel for the plaintiff, who offered to enter into this evidence, that it ought to have been specially stated in the replication to the plea of son assault demesne : but the objection was overruled, on the ground that the evidence was not offered by way of justification, "but for the purpose of shewing that there was not any as- sault, and that it was the quo animo which constituted an assault, which was matter to be left to the jury. (0 So to lay one's hand gently on another whom an officer has a warrant to arrest, and to tell the officer that this is the man he wants, is said to be no battery, {u) And if the injury committed were accidental and undesigned, it will not amount to a battery. Thus, if one soldier hurts another by discharging a gun in exercise, it will not be a battery, (r) (7) See as to t'lie orcasion of pass- \\vr Uiis act, 3 Blac Com. 254, S-OS, 25(j. and, as to the ronstnution of it, the cases collected in 2 Kvanss Col. Stat. I'artlV.CI. 111. No.yi. (r) Hull. .\.P. c. 4. p. '22. and the opinion was adopted by Lord Ken- yon, in Oxley t'. Flower and another, 2 Sclw. N. 1*. Irnprisotnnciil, I. (s) Eminctti'.Lyne, i New. Rep. 255. (/) ClrilTin /-.Parsons, Gloucester Lent Ass. 1754. Selw. N. P. Ahs.^ Bal. 3.'{. Note(l). («) 1 Hawk. P. C. c. 62. s. 2. I Hac.Ah. .Iss. cS Ba//.(B) (u) Weaver v. Ward, Hob. 134^ 2 Roll. Ab. 5 18. 1 Bac. Ab. Asi. iS CHAP. XI. § 1.] When Justijiable. 867 And it is no battery if, by a sudden fright, a horse runs away with his rider, and runs ao^ainst a man. (w) So wliere upon an indictment for throwing down skins into a man's yard, being a public way, by which a person's eye was beaten out, it appeared by the evidence, that the wind blew the skin out of the way, and that the injury was caused by this circumstance, the defendants were acquitted, (x) It seems also that if two, by consent, play at cudgels, and one happen to hurt the other, it would not amount to a battery, as their intent was lawful and commendable, in promoting courage and activity. (?/) In some cases force used against the person of another Cases where may be justified, and will not amount to an assault and niav be^h"ti- battery. Thus, if an officer having a warrant against one fi'd, and will who will not suffer himself to be arrested, beat or wound "u assault. him, in the attempt to take him ; or if a parent, in a reason- able manner, chastise his child ; or a master his servant, be- ing actually in his service at the time ; or a schoolmaster Bat. B. But if the act were done without sufficient caution, the sol- dier would be liable to an action at the suit of the party injured: for no man will be excused from a tres- pass, unless it be shewn to have been caused by inevitable neces- sity, and entirely without his fault, Dickenson u. Watson, Sir T.Jones, 205, Underwood v. Hewson, 1 Str. 595. 2 Blac. R. 896. Selw. N. P. Asa. Si'Bat. 34. {w) Gibbons v Pepper, 4 Mod. 405. But if the horse running against the man were occasioned by a third person whipping him, such third person would be the tres- passer 1 Bac. Ab. Ass. 8>- Bat. (B) And, upon the principles which have been before-mentioned, such an act in a third person, causing death to any one, may, under certain cir- cumstances, amount to felony. Ante., 755. (.r) Rex V. Gill and another, 1 Str. 190. (y) 1 Bac. Ab. Ass. tV Batt. B. referring to Dalt. c. 22. Bro. Co- ron. 229. But in the notes to Bac. Ab. ub. sup. the case of Boulter r. Chirk, Abingdon Ass. cor. Parker, C. B. Bui. N.P. 16. is referred to, in which it was ruled that it was no defence to allege that the plaintiff and defendant fought together by consent, the fighting itself being unlawful : and Ihecase of Matthew V. Ollcrton, Comb. 218. is also re- ferred to as an authority, tliatif one license another to beat him such licence is no defence, because it is against the peace. And see ante, 756, et sequ. as to the criminality of some games or .sports. k2 868 Of Common Assaults. [book. hi. his scholar ; or a gaoler his prisoner ; or if one confine a friend v.ho is mad, and bind and beat him, «S:c. in such a manner as is proper in such circumstances ; or if a man force a sword from one who offers to kill another therewith ; or if a man gently lay his hands upon another, and thereby stay him from inciting a dog against a third person ; no as- sault or battery will be committed by such acts. (:;) So if A. beat B. (without wounding him, or throwing at him a dangerous weapon,) who is wrongfully endeavouring, with violence, to dispossess him of his lands, or of the goods, either of himself or of any other person, which have been delivered to him to be kept, and will not desist upon A.'s laying his hands gently upon him, and disturbing him ; or if a man beat, wound, or maim, one who is making an assault upon his own person, or that of his wife, parent, child, or master ; or if a man fight with, or beat, one who attempts to kill any stranger ; in these cases also it seems that the party may justify the assault and battery. («) It has been holden that a master may not justify an assault in defence of his servant, because he midit have an action for the loss of his ser- vice : (Ij) but a different opinion has been entertained on this point ;(c) and in a modern case Lord Mansfield said, " 1 " cannot say that a master interposing, when his servant is " assaulted, is not justifiable under the circumstances of the "case; as well as a servant interposing for his master : it " rests on the relation between master and servant." {d) It is said, that a servant may not justify beating another in de- fence of his master's son, though he were commanded to do so by the master, because he is not a servant to the son : and that for the like reason a tenant may not beat another in defence of his landlord, (c) A wife may justify an as- sault in defence of her husband. (/) (a) 1 Hawk. P. C. c. 60. s. 23. 1 N. P. 18. Bac. Ab. Ass. fif Bal. (C) (c) 1 Hawk. P. C. c. 60. s. 21. (a) 1 Hawk. P. C. c. 60. 8. 23. {d) Tickrl r. Head, Lofll. 215. and llic iiiiincroiis aiithoritie; Bal. (C) (/) Lcward v. Basclcy, 1 Ld. (/') Leward v. Basdey, 1 Ld. Raym. 62. Kaym. 62. 1 Salk. 407. Bull. CHAP. XI. § I.] When Justifiable. 869 It has been lioklen that a defendant may justify even a maihan^ if done by him as an officer in the army, for dis- obeying orders ; and that he may give in evidence the sen- tence of a council at Mar, upon a petition against him by the plaintiff; and that if, by the sentence, the petition is dis- missed, it will be conclusive evidence in favour of the defendant, {g) It should be observed, with respect to an assault by a Where there 1 •.!• 1- pu-ij is a trespass man on a party endeavouring to dispossess Inm or nis Jand, without ac- that where the injury is a mere breach of a close, in contem- tual violence, 1 • .1 1 1 /> » • -f 1 -iU there must be plation ot law, the defendant cannot justify a battery with- a request to out a request to depart ; but it is otherwise where any ac- depart or de» tual violence is committed, as it is lawful in such case to force is used, oppose force to force: therefore, if a person break down the gate, or come into a close ~ci et armis, the owner need not request him to be gone, but may lay hands on him imme- diately ; for it is but returning violence with violence. (A) So if one come forcibly and take away another's goods, the owner may oppose him at once, for there is no time to make a request. (/) But, in general, unless there be violence in the trespass, a party should not, either in defence of his person, or his real or personal property, begin by striking the trespasser, but should request him to depart or desist, and if that is refused, should gently lay his hands upon hini {g) Lane v. Degberg, 1 1 W. III. assault demesne, and the plaintiff per Treby, C.J. Bull. N. P. 19. replied that he was possessed of a (/j) Green v. Goddard, 2 Salk. certain close, and that the defend- 641. In a case of this kind, how- ant broke the gate and chased his ever, it should seem that the vio- horses in the close, and that he, for lence must be considerable, and the defending his possession, moUi- continuing, in order to justify the ter insuUum fecit upon the dcfeud- application of force by the owner, ant, the replication was adjudged without some previous request to to be bad; and that it should have depart; at least, if the force applied been molUtcr mauus imposuit, as the l)e more than would be justified plaintiffcouldnot justify an assault um\cr-dmollilermanus imposuit: (or iu defence of his possession. Le- ia a case of assault and battery, ward d. Baseley, 1 Ld. Raym. 62. » ■where the defendant pleaded son (0 Green v. Goddard, Il>id. 870 Of Common Assaults. [book III. in the first instance, and not proceed with greater force than is made necessary by resistance, (k) Thus, where a church- warden justified taking off the hat of a person who wore it in church, at the time of divine service, the plea stated, that he first requested the plaintiff to be uncovered, and that the plaintiff refused. (/) And in all cases where the force used is justified, as not amounting to an assault, under the particular circumstances of the case, it must appear that it was not greater than was reasonably necessary to accom- plish tiie lawful purpose intended to be effected, (m) There- fore, though an offer to strike the defendant, first made by the prosecutor, is a sufficient assault by him to justify the defendant in striking, without waiting till the prosecutor had actually struck him first; yet even a prior assault will not justify a battery, if such battery be extreme ; and it will be matter of evidence whether the retaliation by the defend- ant were excessive, and out of all proportion to the neces- sity or provocation received. («) Indictment. The party injured may proceed against the defendant by action and indictment for the same assault, and the court in which the action is brought will not compel him to make his election to pursue either the one or the other ; for the fine to the king, upon tlie criminal prosecution, and the damages to the party in the civil action, are perfectly distinct in their natures, (o) One indict- ment may he prffcrrcd for !is>>aiilliiii^ two perbOMH. It appears to have been formerly holden that a person could not be prosecuted upon one indictment for assaulting two persons, each assault being a distinct oflence. (p) But the case has been subsequently treated as one whicji was not well considered ; and the court said, " Cannot the king (k) Weaver r. Biisli, HT. R. 78. I Selw. N.P. /tsH. Is; Bat. 39, 40. (/) Hawe t>. Pl.inner, 1 Saund. 13. (m) I East. P. C. c. 8. s. 1 . p. 406. (n) Bull. \.P. !«. 1 East. P. C. C.8. ». 1. p. 406. (o) Jones 1'. Clay, 1 Bos. >V be sizes to answer such indictment as might be preferred again'^t tried, w.thout ... eiileriii) 3 Inst. 140. 4Blac.Com.125. '• (quoth he) if my right hand be {q) Staundf. 38. 3 Inst. 140, 141. '• spared, 1 may hereafter do sucli 1 Hawk, P. C. c. 21. s. 3. 4 Blac. " good service to his grace as shall Com. 125. 1 East. l\ C. c. 8. s. 3. " please him to appoint. Ofthissub* p. 408. " mission and retiuesl the justices (r) Id. Ibid. CHAP. XI. § 2.] In Courts of Justice. 877 by shewing that the person so struck by him gave the first assault, (s) In a case of modern occurrence, the three first counts of J'jj""^ ^''"""^^ " the information set forth a special commission for the trial Noli prosequi of Arthur O'Connor and others for high treason; and that, atioJ,*iey'ge-^ pending the sessions^ after the acquittal of O'Connor, and neral as to before any order or direction had been made by the court ofaiuputa- for his discharge, the defendants, in open court, &c. made *>""> ^<^- a great riot, and riotously attempted to rescue liim out of the custody of the sheriff, to whose custody he had been as- signed by the justices and commissioners; and, the better to effect such rescue and escape, did, at the said sessions, in open court, and in the presence of the said justices and com- missioners, riotously, &c. make an assault on one J. R., and did then and there " beat, bruise, zoound,'' and ill treat the said J. R., and thereby impede and obstruct the said jus- tices, &c. There were two other counts in the information; the one for riotously interrupting and obstructing the jus- tices in the holding of the session, and the other for a com- mon riot. (0 Two of the defendants having been found guilty generally, considerable doubt was intimated by Lord Kenyon, whether the court were not bound to pass the judg- ment of amputation, &c. for the offence, as laid in the three first counts ; and the matter stood over for consideration. But before the defendants were again brought up to receive judgment, the attorney general said, that he had received the royal command and warrant under the sign manual, whereby he was authorised to enter a noli prosequi, as to those parts of the information on which any doubt had arisen, or might arise, whether the judgment thereon were dis- cretionary in the court, and pray judgment only on such charges as left the judgment in their discretion : and, ac- cordingly, a noli prosequi was entered on the three first (s) 1 Hawk, P. C. c. 21. s. 4. formation, 2 Chit. Crim. L. 208. et (t) See the precedent of this in- sequ. 878 Of Aggravated Assaults ypo7i Privi/ [book iir. Rcscuino^ a prisoner from such courts without striking. counts; and on the others the court gave judgment ao-ainst the defendants, of fine, imprisonment, and sureties, (u) A person who rescues a prisoner from any of the courts which have been mentioned, without striking a blow, is pu- nished with perpetual imprisonment, and forfeiture of goods, and of the profits of lands during life; for this offence is in its nature similar to the other : but as it differs in this, that no blow is actually given, the amputation of the hand is ex- cused. (©) And, for the like reason, an affray or riot near the said courts, but out of their actual view, is punishable by fine and imprisonment during pleasure, but not with the loss of the hand, (x) Inferior courts. Indictment. Though an assault in any of the king's inferior courts of justice would not subject the offender (o lose his hand ; (i/) yet, upon an indictment for such an assault, the circumstances under which it was committed would, doubtless, be consi- dered as matter of great aggravation. And any affray, or contemptuous behaviour in those courts, is punishable with a fine, by the judges there sitting. (~) It is said that, in order to warrant the higher judgment, the offence must be charged to have been committed in the presence of the king, or of the justices, (o) And it seems, also, that in order to warrant such judgment, the indictment ought expressly to charge a stroke ; though it does not ap- pear whether any technical word be necessary to be used for that purpose. (Z») (u) Rex V. Lord Tbanet and 21.s. 10. others, B. R. Trin. 39 G. 1 1 1. 1 East. r. C. c. H s. S. J). 40H, 109, 410. (M-) 1 Hawk. P. C. c. 21. 8. 5. 4 Blac. Com. 125. (x) 1 Hawk. P. C. c. 21.8.6. 4 Blac. Com. 125. yinte, 389. (J/) 3 Inst. 141. 1 Hawk. I'. C. c. (z) 4 Blac. Com. 126. 1 Hawk. P. C. c. 21. s. 10. {a) 1 East. P. C. c. 8. s. 3. p. 410. 1 UiVfk. P. C. c. 21. s. 3. (b) 1 East. P. C. c. 8. s. 3. refer- ring to I Sid. 211. CHA-P. XI. § 2.']Counsellors,J\Ienibcrs ofPmilament, Sec. 879 The statute 9 Anne, c. \Q. makes the assaultinir andstrik- ^ Anne, c. i6 ' ... Assaullnijjand ing a 'privy coumellor, in the execution of his oflice, highly strikin<;, &c. penal. It enacts, " that if any person or persons shall un- '^y//^/^'^i,^7h" " lawfully attempt to kill, or shall unlawfully assault and execution of " strike or wound any person, being one of the most honour- " able privy council of her majesty, her heirs, or success- " ors, when in the execution of his office of a privy coun- " sellor, in council, or in any committee of council," the person or persons so offending, being convicted, shall be felons, and shall suffer death, as in cases of felony, without benefit of clergy. The statute 11 tJen.VI. c. 11. enacts, " that if any assault H Hen. VI. c. 11 As TO T C« " or affray be made to any lord spiritual or temporal, knight saults upon *' of the shire, citizen, or burgess, come to the parliament, or lords and '. . ' members of " to the council of the king, by his commandment, and there parliament: « being and attending at the parliament or council," that and^Hen.IV. i^ ^ * ' c. 6. as to as- then proclamation shall be made for three several days in saults upon the most open place of the town, where the assault or affray onnembers shall be made, that the offender yield himself before the of parliament* king in his bench within a quarter of a year, if it be in the time of the term, otherwise at the next day in term after the quarter; and if he do not, that he be attainted of the deed, pay double damages to the party aggrieved, and make fine and ransom at the king's will : and that if he come, and be found guilty, that he shall pay to the party grieved his double damages, and make fine and ransom at the king's will. A prior statute, 5 Hen. IV. c. 6. had made a provision nearly similar for the punishment of persons who should as- sault the servants of members of parliament. The beating a clerk in orders, or clergyman, is also an as- Assaulting a sault of an aggravated nature, on account of the respect and q^kT"^ ii" 3 reverence due to the sacred character of such person, as the minister and ambassador of peace. And it may be visited with severe penalties ; for, as the statute 9 Edw. II. c. 3. enacts that, if any person lay violent hands upon a clerk, the amends for the peace broken shall be before the king, that 8S0 Of Aggravated Assaults, [book hi. is, by indictment in the king's courts ; and, as the assailant may also be sued before the bishop, that excommunication or bodily penance may be imposed ; it appears that a person assaulting a clergyman is subject to three kinds of prosecu- tion, all of which may be pursued for one and the same of- fence, namely, an indictment for the breach of the king's peace, a civil action for the special damage, and a suit in the ecclesiasti«al court, (c) Assault with intent to com- mit a robbery. 7G. II. C.21. Amongst the principal of those assaults, the aggravated nature of which may be said to arise from the great crimi- nality of the object intended to be effected, is an assault upon a person with a felonious intent to commit a rohhery. This offence was, at common law, punishable only as a misde- meanour ; but the statute 7 Geo. II. c. 21. makes it a felony punishable by transportation. That statute enacts, " that " if any person or persons shall, with any offensive weapon •■^ or instrument, unlawfully and maliciously assault, or shall, " by menaces, or in or by any forcible or violent manner, " demand any money, goods, or chattels, of or from any *• other person or persons, with a felonious intent to rob or *' commit robbery upon such person or persons:" all such offenders being lawfully convicted, shall be adjudged guilty of felony, and be subject and liable to be transported as in cases of felony, for the space of seven years. Such offend- The second section enacts that if any such offenders, ers returninf^ " who shall be ordered for transportation by virtue of the iroin trans- ' •' portatioii to " act, shall break gaol, or escape, before such transporta- suffiT death ,, .• u 11 1 • l l cr^-n •,. • t without bene- *'^"' ®'' ^"^'' return into any part ot (jreat lintain or Ire- fit of clcr^. " land, before the expiration of the said seven years," they (c) 4 Rlac. Com. 217. where it is said that the suit in the ecclesiasti- cal court is, first, pro correctione et salute anima?, hy tnjoimnfi; penance ; and then apiin for such sum of money as sliall f>c agreed upon for laUin^ off the penance enjoined ; it being usual in tliose courts to exchange their spiritual censures for a round compensation in money; perhaps because poverty is generally es- teemed by moralists the best me- dicine pro salute animo?. CHAP. XI. § 2.] With intent to Rob. SSI shall, upon being- thereof lawfully convicted, suffer death as felons, and have execution awarded against them as persons attainted of felony without benefit of clergy. It seems that the statute describes two distinct offences; Construction the one, where a person, with an offensive weapon or instru- Twooffn*^"**' ment, unlawfully and maliciously assaults another, with a thc-newhere felonious intent to rob; and the other, where a person, an olFensive bv menaces, or in or by any forcible or violent manner, de- ^eap"" n"- mands any money, goods, &c. irom another, with a felonious maiiriouslv intent to rob. In a case where the indictment stated that ^^suults with intent to rob ; the prisoners "in and upon one A. G. unlawfully, miili- the other " ciously, and feloniously, did make an assault, and him the !y '^[f,' ^^'^' •i ' .* ' ■' sun liv iiiC- *' said A. G. then and there unlawfully and maliciously did naces, or in *' menace, by then and there threatening and menacing to cihleorVio- " blow the said A. G.'s brains out, with a felonious in- ^eut manner, demands any " tent the monies of the said A. G. iVom the person and money. &c. « against the will of him the said A. G.. then and there felo- f'th intent P to rob. "niously to steal, take, and carry away, against the statute, Case of Jack- " &c.," it was moved in arrest of judgment, that the offence Raadali was not properly described ; that the statute created two distinct species of this offence of an intent to commit rob- bery ; namely, first, when that intent is manifested by a ma- licious assault with an offensive weapon or instrument; and, secondly, where it is manifested by a demand of money or goods, made either by menaces, or in any forcible or violent manner. The judgment was respited, and the case sub- mitted to the consideration of the judges, upon the point " whether an indictment under this statute, in describing the " manner in which the offence was committed, must not ne- " cessarily state, either that the assault was made witli aa " offensive weapon, with a felonious intent to rob, &c. ; ovy " that by menaces, or in or by a forcible or violent manner, " a demand of monies or goods was made w ith a felonious " intent, &c." the words of the act being throughout in the disjunctive. The opinion of the judges was afterwards de- clared to be " that the indictment was insufficient in not " having stated that the assault was made with an offensive Sl 882 Of Aggravated Assaults, [book hi. " weapon, or that an) deirand was made of money or g^oods; " and that therefore no judgment could be given upon it : " for that it is necessary, in point of law, that an indictment " on any particular act of parliament should strictly follow " the words of the act; and that theconrt cannot supply, from " any other circumstances, a sufficient description of the of- " fence." (t/) So where a defendant was committed, for that "with force " and arms he made an assault on the prosecutor with intent " teloniously to steal, take, and carry away, from the per- *' son, &c." it was moved to discharge him on bail, because the commitment did not specify any offence within this sta- tute ; as it did not charge him either with having made an assault with an offensive weapon, or with having by menaces, or in a violent manner, demanded money. Sec. of the prose- cutor, which were the offences mentioned in the act : and it was stated that the latter part of the commitment was also objectionable, in not charging the defendant with a felonious intent to rob, but merely with an intent feloniously to steal, take, and carry away. And the court, after some consider- ation, ordered the defendant to be bailed, (e) As to the of- With respect to what shall be deemed " an offensive wea- fensive\\eii- ^ instrument" within this statute, several cases will poa or mstru- r j nient. ^PP^V which have been cited in a former part of this work, upon the construction of the words "offensive weapon," in a st.itute relating to offences against the revenue laws. (/") It may here be added, that from a case upon the statute now under consideration, where the indictment was for assaulting with a certain offensive weapon called a wooden staff, and the evidence proved a violent blow from a great stone, as it (J) Jackson and RhiuIuII, (case (c) Rex r. Remnant, 5 T. R. of; 0. B. 1783. 1 Leach. 207. 1 169. 2 Leach 58.1. 1 Hawk ?. Co. East. P. C. c. 8. 9. le. p. 419, 420. .55. s. 7. and itee I Eaut. P. C. c. 8. i. 11. p. (/) Ante, 167. «I7. CHAP. XI. § 2.] With intent to Rob, 883 was holden that the conviction of the prisoner was proper, {g) it seems to follow that both a wooden sta(Fand a great stone are offensive weapons or instruments, -.vithin the meaning- of the statute. The "ground upon which the jtidges held, in this case, that the evidence was sufficient to maintain the charofe in the indictment was, that the weapon laid in the indictment and the weapon proved produce the same sort of mischief, namely, by blows and bruises; and that the description would have been sufficient, upon an indictment for murder, {h) It seems that the words "unlawfully and maliciously" Thewordsan- . . lawfully and form an essential part of the description of the offence of maliciously assaultino; with an off*ensive weapon with intent to rob. An seem to be aa ^ ... essential part indictment stated, that the prisoner, " with a certain offen- ofthedescrip* " sive weapon or instrument called a stick, in and upon t'onoftheot- •^ ' "^ fence of as- " J. R. feloniously did make an assault, and did then and saultins^, wittl " there, in a forcible and violent manner, feloniously de- ^" " ^°*'«.uU ' ' -^ weapon, wita " mand the goods, &c. of him the said J. R. with a felo- iatenttorob. " nious intent to rob him, &c. and his goods, &c. from his " person, and against his will feloniously to steal, take, and *^ carry away against the statute, &c." The facts were, that the prisoner met the prosecutor in the highway, held up a laro-e club to him, and bid him " stand and deliver;" that he was resisted, and afterwards ran away : and upon these facts he was found guilty. But as the indictment, in charging him with having assaulted the prosecutor with an offensive weapon, did not lay it to have been done " unlawfully and maliciously," judgment was respited in order to submit the point to the consideration of the judges. Their opinion was, that the conviction was right ; the act being in the dis« junctive, and an offence within the statute being well laid (g) Sharwin's case, Oakham, 1785, in Monteth's case, post. 888, the in* 1 East. P. C. C. 8. s. 13. p. 421.po«t. dictment stated the assault to have 886, 887. been made with an offensive wea« (ft) Id. Ibid. In Pegge's case, pon called a stick. which immediately follows, and 3l!2 ^84 OfAggravaitd Assaults, [book in. in the latter part of the indictment, without the words un- lawfulK and maliciously. (/) But it is observed, upon this case, that it seems to admit, that where the assault is the only offence charged within the act, it must be laid to be done unlawfulff/ and malicioush/, as well as feloniously, (k) The assault It must appear, that the assault was made upon the must be made .^^^ intended to be robbed ; as was decided in the fol- upon the per- " son intended lowing case. The prisoner was indicted for assaulting one to be robbed, i i t •i\ «' • 'ii. • ^ ^ 2. i Thomass John J^owe, witli an ottensive weapon, with intent to rob "'«• him. Mr. Tjowe's evidence was, that between ten and eleven o'clock at night, he was travelling along the road in a post- chaise, when the chaise suddenly stopped, and he saw a man with his arm extended towards the pns(-bnj/, and heard him swear many bitter oaths with great violence, but did not hear him make any demand of money ; and the post-hoy swore, that the prisoner followed the chaise for some time, and at last presented a jiistol at hhn^ and bid him stop, using at the same time many violent oaths ; that he immediately stopped the chaise, and the prisoner turned towards it, but perceived that he was pursued, and immediately rode away without saying or doing any thing to Mr. Lowe, who was in the chaise. The court held, that this evidence did not support the indictment, which charged an intent to rob Mr. Lowe, the gentleman in the chaise. Another indictment was then preferred against the prisoner, laying the assault with intent to rob the post-ho?/ : but the same evidence being again given on the second trial, the court held that it would not maintain the indictment; that it was clear that the pri- soner did not mean to rob the post-boy, for when he pre- sented the pistol to him, and bid him stop, he made no demand upon him, hut went towards the person in the chaise. (/) (1) Veggrfi case, 1 E;iiit. I'. C. c. Leach ^30. 1 Rast. P. C. c. S. s. 1 1, 8. ». 12. p. 420. p lis. where it is observed, that (/(•) 1 Kast. P C.c. 8. s. 12.p. 420. perliaps this may he agreeable to and «re Davis's case, ante, H54. tlie strict construction of the sta- (/; Thomas's case, O. B. 1784, 1 tute, Aviiich has the word of refer- CHAP. xr. § 2.] IVitk intent to Rob. 885 A case is reported, which would seem to lead to the oi>n- Where the ia- clusioii, tijat even upon an indictment for the offence first ^'ctment is »• 1 • .1 1 . 1 • . ^ for an assault mentioned in the statute, namely, the assault With an ofTen- with an ofTeu- fcfve weapon with intent to rob, it is necessary to shew that '".^? weapon , . ' '' with an intent intent by proving an actual demand of money, &c. to have to rob, it is been made by the prisoner. The indictment was for assault- T^ "ecessary ■^ ' to prove an ing the prosecutor with a pistol, with intent to rob him ; actual de- and, by the evidence, it appeared that the prosecutor, a ireJ"or^oth°r coachman, was driving his coach along the road, and property, that the prisoner presented a pistol at him while he sat on his box, and called out to him to stop; but did not expressly make any demand of money. And upon this it is said, that the court held that the case was not within the meanins: of the act; that a demand of money, or other property, must be made to constitute the ofl'ence; and that though a de- mand may be made by action as well as speech, as by a deaf and dumb man stopping a carriage, and putting his hat into it with one hand, and holding at the same time a pistol of^ fensively with the other, yet the action must be plain, and unequivocally import a demand; and that in the present case no motion or offer to demand the prosecutor's property was made, {m) But this case has been doubted; (;z) and it iiB observed, that the words of the statute are in the disjunc- tive ; and that where it is proved that the prisoner assaulted the prosecutor with a felonious intent to rob him (which is a question for the jury) the case is brought expressly within the words, as well as the spirit, of the act. {o) It is sug- gested also, upon this case, that as the prosecutor was a coachman^ and the indictment charged an intent to rob him, it might have appeared to the court that he was not the party intended to be robbed; {p) and we have seen that it ence such. And in 1 Hawk. P. C. Leach 19. 1 East. P. C. c. 8. s. 1 1. c. 55. 4. Thomas's case is cited, p. 416, 417. 1 Hawk. P.C. C.55.S.3. and the expression such person re- (n) 1 East. P. C. c. 8. s. 11. p. 417. lied upon in support of the same (o) Id. Ibid. Jackson and Ilan- coustruction. dall, (case of) ante, 881, 882. (m) Parfail's case, O. B. 1740, 1 (ja) 1 East. P. C. c. 8.«. ll,p.418. 2 g85 Of Aggravated Assaults, [book iii. 13 necessary that the assault should bo made upon the person intended to be robbed, (q) Other cases, however, appear to put the construction in this matter hryond doubt, and shew that an actual demand of money. &c. is not necessary upon the first clause of the statute. Two men were in- dicted for a felonious assault upon the prosecutor, with a certain offensive weapon called a pistol, with a felonious in- tent to rob him. The evidence was, that the prisoners rushed out of a hedge upon the prosecutor, who was the driver of a returning chaise, as he was passing along the road;' and one of them, presenting a pistol to him, bid him stop, which he did, but called out for assistance; upon which one of the prisoners threatened to blow his brains out if he called out any more : but he continued to call, and presently obtained assistance, and took the men, wJw had made no demand of monei/. Upon this evidence the pri- soners were convicted, and transported, (r) In a subsequent case, the indictment against the prisoner charged him with having, with an offensive weapon, feloniously made an as- sault upon the prosecutor, with a felonious intent to rob him. The evidence was that, while the prosecutor and another person were riding together in the highway, the prosecutor received a violent blow from a great stone, which was throwa by the prisoner from the hedge ; that the pri- soner then ran across a field, and was followed by the pro- secutor, who asked him how he could be such a villain as to throw the stone ; on which the prisoner threatened the prosecutor, ran to him, and struck him violently with a staff, till at length he was overcome and secured. The pri- soner's face was blacked, and he denied his name; but on being questioned afterwards as to his motive, he said he was very poor, and wanted half a guinea to pay his brewer. He did not ask for money or goods. This case was sub- mitted to the judges, upon a question relating to the form (q) Thomas's case, anle,Hh\. 0. B. 1783, 1 East. P. C. c. 8. s. 11. (r) HfX r. Trusty autl Howard, p. 418, 419. CHAP. XI. §2.] JVil/i intent to Rob. 887 of the indictment, and they held the conviction proper; (s) but no objection was taken on behalf of the prisoner, on the ground of its bein;^ necessary to prove an actual demand of money, or other property, (t) Even in cases where it may be necessary to prove a demand, And it seems as where the indictment proceeds upon the second clause of ^..^^^!ti ^iiero a the statute, and charges the prisoner with assaulting, and J*i">'i"f' '""st 1 • , /. •. 1 • . . I)e proved, an by menaces, or in or by any lorcible or violent manner, de- actual orex- mand'ms; money, &c. with a felonious intent to rob, it seems V'^''*'* ^^"\'*"*^ . , ") words IS to be the better opinion, that an express demand of money not necessary. bywords is not necessary; and that the fact of stopping another on the highway, by presenting a pistol at his breast, is, if unexplained by other circumstances, suilicient evi- dence of a demand of money to be left to the jury, it is observed, that the unfortunate sufferer understands the lan- guage but too well ; and the question is put, " Why must " courts of justice be supposed ignorant of that which com- " mon experience makes notorious to all men V\u) The sta- tute too seems to include a demand made by such menaces or forcible violent demeanour, as may explain the purpose and intent of the party, though they may not be directly expressed in words. And in one case the court appears to have considered, that an actual demand is not necessary; and that whether there was a demand or not, is a fact for the consideration of the jury, under all the circumstances of the case, {w) The intent to rob is a material part of the offences upon The intent to («) Ante, 882, 883. that any demand was made : Ihere- (0 Sharwin's case, OaMawi, 1785, by clearly impl\ing, that a state- cor. Gould, J. 1 East. P. C. c. 8. s. meal of an assault w ith an oft'ensive 13. p. 421. And see also the case of weapon, with intent, kc. would Jackson and Randall, anle, 882. in have been sufficient. which an indictment was holden to («) 1 East. P. C c. 8. s. 1 1 . p. 4 1 7. be insufficient, because it did not (it) Jackson and Itandall (case state, either that the assault was of), 1 Leach 269, an/e, 881, 822. made with an offensive weapon, or sss Of Aggravated Assaults, [book hi. ?ied ill Ihc indictment. ro.'- is a mate- this statute, and it must be properly alleged in the indict- rial |i:irtot n^euL In a case where the indictment stated the assault to the utl iit'es, and must l)e Imve been made with a certain offensive weapon called a fe^^ed ill ihc ^vooden stick, with intent the goods, monies, &c. of the pro- secutor, " from his person and against his will feloiiiously " to s.'eu/, take, and carry away," it was holden to be bad, as it did not contain a statement of force and violence. The prisoner was accordingly discharged from this indictment, and a new one was preferred against him, laying the assault as before, but stating the intent to be, the monies of the prosecutor, " from his person and against his will, felo- " niously and violently to steal, take, and carry away ;" upon which indictment he was convicted, {x) So, in a case which has been already mentioned, of a commitment for an offence against this statute, one of the objections upon which it was moved that the prisoner might be bailed was, that the com- mitment did not cliarge the defendant with a felonious intent to roh^ but merely with an intent feloniously to steal, take and carry away, {i/) Assault with Another species of aggravated assaults is, where an as- intent to , . 1 • 1 • i X i •! 1 11/. jipoil "^ar- sault IS made with intent to spoil the garments or cloaths ot ments. 6G. I. the person assaulted. The statute 6 Geo. T. c. 23. s. II. C. 23. 8. II, . . provided for the punishment of this offence; and the enact- ment is .said to have been occasioned by the insolence of certain weavers and others, who, upon the introduction of some Indian fashions, prejudicial to their own manufactures, made it their practice to deface them, either by open out- rage, by privily cutting, or by casting aqua forth in the fitreet.s upon such as wore them. (;:) The statute enacts, *' that if any person or persons shall wilfully and maliciously *' assault any person or persons in the public streets or high- *' ways, with an intent to tear, spoil, cut, burn, or deface, (*) Monleth'u ca«c, O. H. 1795, 2 Leach 583, fl»/^, 882. 1 Hawk. P. 2 Leach 702. 1 Eant. P. C. c. 8. 8. C. c. 55. 8. 8. J 2. p. 420, 421. (z) 4 Blac. Com. 216. is) Rex w.Remnant,5 T.R.I 69. €HAP. XI. §2.] With intent to Spoil Garments. 889 " and shall tear, ppoil, cut, burn, or deface the garments or " cloaths of such person or persons, that then all and every " person and persons so offendinir, being thereof lawfully " convicted, shall be, and be adjudged to be guilty of fe- " lony ; and every such felon and felons shall be subject and "liable to the like pains and penalties, as in case of fe- " lony ; and the courts by and before whom he, she, or " they shall be tried, shall have full power and authority of " transporting such felons for the space of seven years, upon " the like terms and conditions as are given, directed, " or enacted, by this or the before recited act (4 Geo. I. c. " 11.)" Though it is nearly a century since the statute was made, Construction the books furnish only one case upon the construction of e s u e. this section of it ; and a reason for referring that case, in the year 1790, to the consideration of the judges, is stated to have been, that it was the first that had occurred upon the act of parliament, (a) In that case the prisoner was indicted for an assault of ^'I'lams's \ case. the kind mentioned in the statute upon a Miss Anne Porter. The primary The evidence, in substance, was, that the prisoner had fre- |^|fs"\',e"a quently, before the time of the assault, accosted the prosecu- tearing, spoiU trix, and her sister IMiss Sarah Porter, when he happened ^cofthe*' to meet them, insulting them, and using the most indecent clothes, and language; that on the day of the assault the Miss Porters inirofthe were walking up St. James's street, when he came imme- P'^"*^'*- diately behind Miss Sarah Porter, muttered gross language, and, upon her making an exclamation of alarm, gave her a violent blow on the back part of her head ; that the Miss Porters then ran as fast as possible towards the door of their own house, which was at a short distance, and while Mi.ss Sarah Porter was ringing the bell, the prisoner, who had followed them, stooped down, and struck Miss Anne Porter with great violence upon the hip; and that the blow was (a) Williams's case, 1 Leach 533. S90 Of ^4 ggr abated Assaults J [book iii. ^iven with somo sharp instrument, which tore and cut quite througli her clothes, and gave her a very severe wound. BuUer, J. told the jury that in order to constitute an offence within the statute, it was necessary, first, that the assault should be made in a public street or highway ;{h) secondly, that it should be made wilfully and maliciously ; thirdly, that it should be made with an intent to tear, spoil, cut, &c. the garments or clothes of some person ; and, fourthly, that the garments or clothes of such person should be actually torn, spoiled, cut, &c. And upon the third point he stated, that if the intent of the prisoner was to cut both the clothes and the person, and in carrying such intention into execu- tion the clothes alone were cut, it would clearly be within the meaning of the act ; or if the intention was to injure the person only, and not to cut the clothes, yet if, in carrying such intention into execution, the assault was made with such an instrument, or under such circumstances as plainly shewed, that the execution of the intention to injure the person must unavoidably tear, spoil, cut, &c. the clothes, they might consider whether a person who intends the end does not also intend the means by which that end is to be attained. The jury found the prisoner guilty : but llie question of in- tention, and another point which arose upon the form of the indictment, were submitted to the judges for their consi- deration ; and a majority of them were of opinion that the case was not within the statute. They thougiit that, in order to bring ai case within the statute, the primari/ iv.tetilion must be the tearing, spoiling, cutting, &c. of the clothes; whereas in the present case the primary intention of the pri- soner appeared to have been the wounding of the person of the prosecutrix, (c) (6) This id also considered as the taincd the opinion which he gave to construction necessarily rcsulling the jury at the consultation of the from the words of the act in Field- judges, and to have thought the ing's Treat, on the penal laws rclat- case within the statute, upon the ing to the metropolis, p. 317. and authority of Hex v. Coke and in I Hawk. P. C. c. 54. s. 2. Woodburn, (fln/<',849) He thought (c) Buller, J. appears to have re- the case within the statute, be- CHAP. XI. §2.]0w Persons Saving Vessels, Sgc. Wrecked. 891 It should be observed, Iiowever, that the other point, upon The indict- ment nuist the form of the indictment, is said to have been that on allege ihal the which the judgment, in this case, ultimately turned. The clothetwere J f^ ' ' ■' torn, spoiled, indictment stated, that the prisoner, on the 18/// daj/ of cu\, Kc. at Jaminrj/, in the year, &c. made the assault, with intent to ['l^^^'ihAi {he tear, spoil, cut, &c. and that on the said \9thdai/ ofJanuari/^ assault was he did tear, spoil, cut, &c. And all the judges agreed that it intent to cut was bad, because it did not allege that the clothes were cut ai them. the same time that the assault was made with intent to cut them; that, for any thing that appeared to tlie contrary on the face of the indictment, the assault might have been made on one part of the day and the tearing the clothes on another part of the day : and that it should have alleged, after stating .the assault at the time and place mentioned, that the pri- soner then and there tore, spoiled, cut, &c. the clothes of the prosecutrix, {d) The statute 26 Geo. 11. c. 19. relating to attempts to kill 26G.II.c.l9. , , . , . , ,. , . s. 11. Assault- and destroy persons endeavouring to escape Irom a vessel in jno- persons on distress, or wrecked, has been already mentioned, (e) A account of subsequent section of the statute makes the assaulting per- char<^e of sons on account of their discharging their duty in the salvage their dutym .... , the salvage or preservation of any vessel in distress, or of any vessel or of vessels in goods which may be wrecked, stranded, &:c. an offence ^'stress, orof o J J 1 vessels.goods, to be punished by transportation for seven years. It enacts, &c. wrecked, " that if any sheriff, or his deputy, justice of the peace, ' " mayor, or other magistrate, coroner, lord of a manor, tause he considered the intent of Newgate, and eight indictments the prisoner to have been to wound were preferred against him for this the party by cutting through her outrage, and others of a similar clothes, and therefore that he nature, upon seven other ladies, as must have intended to cut her for misdemeanors at common law. clothes; and that the jury, whose Evidence was given upon tliree of sole province it was to find the in- them; and being convicted, he was tent, had expressly so found it. 1 sentenced to two years' imprison- East. P. C. c. 8. s. 1 8. p. 424. ment on each, and at the end of the (d) Williams's case, lLeach.529. six years, to find sureties for hi;; 1 East. P. C. c. 8. s. 18. p. 424, 425. good behaviour for seven years. The prisoner w.-;? remanded to (c) ^nte, 855, 892 Of Aggra-jatcd AssaulU, [book. hi. 11&12W.III. c. 7. Persons laying hands on the com- mander of a shij) to hinder him from tigliling are to suffer death. 33 G. III. c. 67. 8. 2. Ob- structing sea- men, or as- saulting them with intent to obstruct and prevent them from pursu- ing their law- ful occupa- tions. " coQimissioner of the land tax, chief constable, or petty " constable, or other peace officer, or any Custom-house or " Excise officer, or other person lawfully authorized, shall " be assaulted, beaten and wounded, for or on account of " the exercise of his or their duty, in or concerning the " salvage or preservation of any ship or vessel in distress, " or of any ship or vessel, goods or effects, stranded, wrecked, '' or cast on shore, or lying under water, in any of his ma- "jesty's dominions; then any person or persons so assault- " ing, beating and wounding, shall, upon trial and convic- " tion, by indictment at the assizes, or general gaol delivery, " or at the general or quarter sessions for the county, " riding, or division, where such offence shall be committed, " be transported for seven years to some of his majesty's " colonies in America ; and shall be subject to such subse- " quent punishment, in case of return before that time, as other " persons under sentence of transportation are by the law '•' subjected unto." (/) The ] 1 & 12 W. 111. c. 7. s. 9. enacts that « if any person " shall lay violent hands on his commander, whereby to " hinder him from fighting in defence of his ship and goods, " committed to his trust," he shall be adjudged to be a pirate, felon, and robber; and being convicted, shall suffer death and Joss of lands, goods, &c. as pirates, felons, and robbers, upon the seas, ought to suffer, (g) The 33 Cm. III. c. 67. provides for the punishn«ent of per- sons obstructing seamen, keelraen, casters, and shipcarpen- ters, and preventing them from pursuing their lawful occu- pations. The second section enacts, that if any seaman, keelinun, caster, shipcarpenter, or other person, shall un- lawfully, and with force, prevent, hinder, or obstruct, any seaman, keelman, castor, or shipcarpenter, from working at, employing himself in, or exercising his lawful trades, busi- (f) 2fi Geo. II. c. 19. s. 11. By (f) See this statute more atlarges s lb. the act i» not to extend to ante, 136, 137. Scollanil CHAP. XI. § 3] On Commanders of Ships, Seamen, 850. ^95 ness or occupation respectively, or shall wilfully and ma- liciously assault, beat or wound, or use or commit any bodily violence or hurt to or upon any seaman, keelman, &c. vi'ith the intent to deter, prevent, hinder, or obstruct, such seaman, keelman, Szc. from working; at, employing himself in, or exercising his lawful trade, business, or occu- pation, respectively, every seaman, keelman, &c. and other person, being lawfully convicted of any such oftences, upon any indictment, in any court of oyer and terminer, or general or quarter sessions for the county, shire, riding, division or district, wherein the offence was committed, shall be com- mitted either to the common gaol for the same county, &c. there to continue, or to the house of correction for the same county, &c. there to continue, and to be kept to hard labour, for any term not exceeding twelve nor less than six calen- dar months. The third section enacts, that if any seaman, keelman, &c. S.3. a subse- . 11 1 • ^ 1 n c ±\. a- quent offence or other person, shall be convicted of any ot the ottences ^j-^jj^ ^^^^^ aforesaid, in pursuance of this act, and shall afterwards kind made ..... . 11 felony. offend again in like manner, every such seaman, keelman, &c. and other person so offending again in like manner, and being lawfully convicted thereof, upon any indictment, in any court of oyer and terminer, or general or quarter ses- sions for the county, «fec. wherein the offence was committed, shall, for such second and every subsequent offence, be ad- judged guilty of felony, and shall be transported to some of his majesty's dominions beyond the seas, for any space of time or term of years, not exceeding fourteen years, nor less than seven years. The act contains a provision that no person shall be pro- Limitation of secuted by virtue of it for any of those offences, unless the prosecutions, prosecution be commenced within twelve calendar months after the offence committed, {h) (fc) 33 Geo. III. c. 67. s. 8. This it was made perpetual by the 41 actwasat first only temporary; but Geo. III. c. 19. 8.4. sot Of Aggravated Assaults, [book iii, SF.liz. c. 4. The 5 Eliz. c. 4. s. ?1, enacts, that if any servant, work- woVkmnn &c ™^"' ^'^ labourer, nhall wilfully or maliciously make an assaulting assault or affray upon his master or mistress, or upon any treM &c"' other having charge or oversight of such servant or labourer, or over the work wherein he is hired to work, and sliall thereof be convicted before any two justices, or other head officer as aforesaid, by confession or oath of two witnesses, he shall be imprisoned for a year or less, by the discretion of two justices, out of a town corporate, and, in a town corporate, of the mayor or other head officer, with two others of the discreetest persons of the same corporation; and if the offence shall require further punishment, then to re- ceive such other open punishment, so as it extend not to life or limb, as the justices in sessions, or the mayor or other head officer, and six or four at least of the discreetest per- sons of the corporation, shall think convenient for the quality of the offence. 12 G.I. C.34. The 12 G. I. C.S4. s. 6. enacts, " that if any person or ^ ^on'manu-*^ " persons shall assault or abuse any master woolcomber or facturcrs, for " master weaver, or other person concerned in any of the hl* ptiisuaiit to general, there would be inconsistent judgments on the seve- the- statute ral counts, one on the special counts on the statute which |..j| yenfict of prescribed a positive punishment, and the other on the count ?'".'*>, upon 11-1 I- • / T^ ''" iutli<"tiiicat for the common assault which was discretionary. (/) But containin<; the rule was afterwards abandoned, and sentence was passed ^"" '"ou'its *^ on the sla- upon the defendant pursuant to the directions of tiie sta- tuieandone . . . ^ fur a comnion tute. (m) assault. (t) Upon this point the case of 103. was referred to. Rex V. Young and others, 3 T. R. (m) Rex v. Darlcj. \ Ea»t. 174. Sn t-MIMTKV UY J. AMD T. CLARES, ^B, hT. JOIIIv'8-f<<2U ARE, LWNDOK. END OF VOL.. I. ii&l?mf^>^> I, •^rr,. ^^■«%s#//// '««/>«v. FAril ,-r.. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. JUN 1 1 1982 286! '^ . j ppe^i .^. -rrf ..VCr^ Eaw' Ijhrafy R«6t Way 2 ^ \mz Form L9-Series 4939 ' r * ¥m 0^ m ^. tjT sr '^I'^^lm