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 i 11(7 1 ii-<c^ i^O- 

 
 EUSSELL 
 
 ON 
 
 CEIMES AND MISDEMEANOES 
 
 VOL. I. 
 SEVENTH EDITION
 
 A TREATISE 
 
 ON 
 
 CEIMES AND MISDEMEANORS 
 
 SIR WM. OLDNALL RUSSELL, KNT. 
 
 Late Chief Justice of Bengal 
 
 IN THREE VOLUMES 
 VOL I. 
 
 SEVENTH EDITION 
 
 BY 
 
 WILLIAM FEILDEN CRAIES 
 
 Of the Inner Temple and Western Circuit 
 Barrister-at-Law, Editor of "Archbold's Criminal Pleading," etc. 
 
 AND 
 
 LEONARD WILLIAM KERSHAW 
 
 Of the Inner Temple 
 Barrister-at-Law, Assistant Registrar of the Court of Criminal Appeal 
 
 WITH 
 
 CANADIAN NOTES 
 
 BY 
 
 ALFRED B. MORINE, K.C. 
 
 Of the Bar of Nova Scotia, Newfoundland and Ontario 
 
 LONDON 
 
 STEVENS AND SONS, Limited, 119 and 120 CHANCERY LANE 
 
 SWEET AND MAXWELL, Limited, 3 CHANCERY LANE 
 
 TORONTO 
 CANADA LAW BOOK COMPANY, Limited 
 
 PHILADELPHIA 
 CROMARTY LAW BOOK COMPANY, Limited 
 
 1910
 
 p.9 197£. 
 \9ll> 
 
 Copyright (Canada) 1910, by The Canada Law Book Company, Ltd.
 
 ia' 
 
 IL 
 
 h 
 
 PEEFACE TO THE SEVENTH EDITION. 
 
 Since the publication of the Sixth Edition of this work (in 
 1896) there has been a good deal of legislation with reference 
 to the criminal law, both as to crimes, punishments, appeals, 
 evidence and costs : but no apparent progress has been made 
 towards the codification of Criminal Law or Criminal Pro- 
 cedure for England or Ireland. In this respect the Imperial 
 Legislature has failed to profit by the example of the self- 
 governing dominions of the King, such as Canada, New 
 Zealand, Queensland and Western Australia, and of the 
 Crown Colonies, which have in numerous instances adopted 
 Criminal Codes framed on a model drafted by the late Sir 
 Robert S. Wright, and subsequently revised for the Colonial 
 Office. 
 
 Until Criminal Law and Procedure are re-arranged and sim- 
 plified ■ by codification it is still necessary to seek for them in 
 a mass of scattered enactments and a congeries of judicial 
 decisions of varying authority, and in the works of the old 
 writers on the common law. The bulk of these enactments 
 and decisions are embodied or referred to in this work. The 
 aim of the present Editors has been to revise and shorten 
 the text, and to re-arrange those materials which are of present 
 value in a manner which may render them more easy of 
 access and understanding. They have retained the char- 
 acteristic feature of former editions, of a fairly full state- 
 ment of the facts of the more important cases quoted, 
 which has been found convenient for persons who have not 
 the reports to hand: but it has been deemed desirable to 
 re-arrange the titles and chapters in a more systematic 
 manner than can be found in former editions. 
 
 The new arrangement follows the main lines of the Draft 
 
 . 736330
 
 vi Preface to the Seventh Edition. 
 
 Code of 1880 : but the Editors have followed the lead of the 
 author and former editors in omitting the subject of Treason 
 and Treason-Felony. 
 
 Decisions on repealed statutes, where of use as authorities 
 on the existing law, are incorporated with the text, and cases 
 overridden by legislation are omitted. Decisions of substantial 
 value or interest given since the pubhcation of the last 
 edition in 1896 have been included up to July, 1909. 
 
 The recent changes made in 1907 and 1908 with respect 
 to the punishment of crime have rendered it necessary to 
 set out, in Book I. Chapter VII., a fuller statement of the 
 law as to punishment. 
 
 The portions of the Sixth Edition which dealt with pro- 
 cedure have been collected in Book XIL, where also will be 
 found the legislation of 1907 and 1908 as to Appeal and Costs 
 in Criminal Cases. 
 
 The subject of evidence, treated in the earher editions by 
 Mr. E. Vaughan Williams, author of ' WiUiams on Executors,' 
 and afterwards a judge of the Common Pleas, is dealt with in 
 Book XIII., where in Chapter V. will be found the Criminal 
 Evidence Act, 1898. 
 
 The Editors have been able somewhat to reduce the bulk 
 of the text : but to effect this they have had to omit the 
 subject of Highway and Bridge indictments. The reason 
 which ultimately decided them to make this omission was, 
 that such indictments, though pubhc remedies, can no longer 
 be regarded as criminal proceedings : for they have been 
 assimilated to civil proceedings as to evidence (40 k 41 Vict, 
 c. 14), appeal (7 Edw. VII. c. 23 s. 20 (3)), and costs (8 Edw. 
 VII. c. 15 s. 9 (3)). 
 
 Keferences to the criminal law of the United States have 
 been advisedly reduced ; since those who wish to study that 
 law must necessarily refer to some standard American 
 writers on Crimes, such as Bishop, and to the Codes of the 
 States of the Union. 
 
 But the Editors have included references to decisions of 
 the Courts of Canada, Australia, and New Zealand, and of some 
 other colonies in which the English authorities have been 
 considered, and decisions have been given which may be of 
 
 II
 
 Preface to the Seventh Edition. vii 
 
 value with reference to certain parts of the Enghsh law, on 
 which that of the colony is based. 
 
 The Editors have been careful to retain the valuable notes 
 of Mr. C. S. Greaves, Q.C., editor of the Third and Fourth 
 Editions, and draftsman of the Criminal Law Consolidation Acts 
 of 1861. The cases marked MSS. C. S. G. are from his collec- 
 tion. Those marked MS. H. S. are from the collection of 
 Mr. Horace Smith, editor of the Sixth Edition. Those marked 
 MS. Bayley, J., are from a collection made by Mr. Justice 
 Bayley. 
 
 References to series of reports not mentioned in the text 
 have so far as possible been inserted in the Table of Cases. 
 Repealed statutes (save in a few special cases) are not 
 included in the Table of Statutes ; but in the notes to existing 
 Statutes will be found references to the former enactments 
 which they supersede. 
 
 The Editors have to thank Mr. H. D. Roome, Barrister-at- 
 Law, for valuable aid in preparing the Table of Cases. 
 
 W. F. CRAZES. 
 L. W. KERSHAW.
 
 vi Preface to the Seventh Edition. 
 
 Code of 1880 : but the Editors have followed the lead of the 
 author and former editors in omitting the subject of Treason 
 and Treason-Felony. 
 
 Decisions on repealed statutes, where of use as authorities 
 on the existing law, are incorporated with the text, and cases 
 overridden by legislation are omitted. Decisions of substantial 
 value or interest given since the pubhcation of the last 
 edition in 1896 have been included up to July, 1909. 
 
 The recent changes made in 1907 and 1908 with respect 
 to the punishment of crime have rendered it necessary to 
 set out, in Book I. Chapter VII., a fuller statement of the 
 law as to punishment. 
 
 The portions of the Sixth Edition which dealt with pro- 
 cedure have been collected in Book XIL, where also will be 
 found the legislation of 1907 and 1908 as to Appeal and Costs 
 in Criminal Cases. 
 
 The subject of evidence, treated in the earher editions by 
 Mr. E. Vaughan Williams, author of ' AVilliams on Executors,' 
 and afterwards a judge of the Common Pleas, is dealt with in 
 Book XIIL, where in Chapter V. will be found the Criminal 
 Evidence Act, 1898. 
 
 The Editors have been able somewhat to reduce the bulk 
 of the text : but to effect this they have had to omit the 
 subject of Highway and Bridge indictments. The reason 
 which ultimately decided them to make this omission was, 
 that such indictments, though pubhc remedies, can no longer 
 be regarded as criminal proceedings : for they have been 
 assimilated to civil proceedings as to evidence (40 & 41 Vict, 
 c. 14), appeal (7 Edw. VII. c. 23 s. 20 (3)), and costs (8 Edw. 
 VII. c. 15 s. 9 (3)). 
 
 References to the criminal law of the United States have 
 been advisedly reduced ; since those who wish to study that 
 law must necessarily refer to some standard American 
 writers on Crimes, such as Bishop, and to the Codes of the 
 States of the Union. 
 
 But the Editors have included references to decisions of 
 the Courts of Canada, Australia, and New Zealand, and of some 
 other colonies in which the English authorities have been 
 considered, and decisions have been given which may be of
 
 Preface to the Seventh Edition. vii 
 
 value with reference to certain parts of the Enghsh law, on 
 which that of the colony is based. 
 
 The Editors have been careful to retain the valuable notes 
 of Mr. C. S. Greaves, Q.C., editor of the Third and Fourth 
 Editions, and draftsman of the Criminal Law Consohdation Acts 
 of 1861. The cases marked MSS. C. S. G. are from his collec- 
 tion. Those marked MS. H. S. are from the collection of 
 Mr. Horace Smith, editor of the Sixth Edition. Those marked 
 MS. Bayley, J., are from a collection made by Mr. Justice 
 Bayley. 
 
 References to series of reports not mentioned in the text 
 have so far as possible been inserted in the Table of Cases. 
 Repealed statutes (save in a few special cases) are not 
 included in the Table of Statutes ; but in the notes to existing 
 Statutes will be found references to the former enactments 
 which they supersede. 
 
 The Editors have to thank Mr. H. D. Roome, Barrister-at- 
 Law, for valuable aid in preparing the Table of Cases. 
 
 W. F. CRAIES. 
 L. W. KERSHAW.
 
 COREIGENDA. 
 
 VOLUME I. 
 
 age 620 {g). 
 
 „ 620 {j). 
 
 „ 902 (n- 
 
 „ 902 (li). 
 
 „ 1027 {k). 
 
 „ 1032 (e). 
 
 „ 1040 [k). 
 
 For Daws v. Pindar read Daws v. Paynter. 
 
 For Dr. Tudor's case read Dr. Trevor's case ; and for Tuxton v. Morris 
 
 read Juxon v. Morris. 
 For Ince v. Cruikshank read ]\Iee v. Cruikshank. 
 For Hawkins v. Ellis read Rawlins v. Ellis. 
 After R. v. Middleton dele 1 Str. 177. 
 After R. v. Middleton read Fort. 201, and dele 1 Str. 77. 
 Read R. v. Dodd, Sess. Cas. 135 ; 93 E. R. 136.
 
 PHEFACE TO CANADIAN NOTES 
 
 The Caniada Criminal Code and the Canada Evidence Act 
 treat of the greater part of the subjects dealt with in the text 
 of Russell on Crimes. To set out these statutes herein would 
 make these volumes unwieldy; to accurately express the mean- 
 ing of the statutes more concisely would be impossible; and 
 therefore these notes are necessarily confined to references to 
 the statutory provisions and to judicial interpretations thereof. 
 
 As the Editors state in the preface, the text of Russell on 
 Crimes follows the arrangement of the English Draft Code, 
 which is not the same as that of the Canada Criminal Code. 
 These notes necessarily follow the order of the text, and as to 
 subject matter do not go beyond the text except in reference 
 to appeals in indictable offences, for which reasons there are no 
 notes upon summary convictions or appeals therefrom, and few 
 upon summary or speedy trials; but though the text contains 
 nothing about certiorari, and little comparatively about the 
 practice upon appeal, it has been considered advisable to refer 
 extensively to these subjects in these notes. 
 
 By permission of the publisher, the writer has drawn exten- 
 sively on the matter contained in "Canada Criminal Law," by 
 W. J. Tremeear, a work so excellent and complete that it would 
 be difficult to quote an important and relevant decision by 
 Canadian Courts not referred to therein, save those given since 
 that work was published. 
 
 Very valuable assistance in the preparation of these notes 
 has been given by my son, A. Nevill Morine, LL.B. 
 
 Alfred B. Morine. 
 Toronto, 
 
 Dec. 2nd, 1909.
 
 TABLE OF ('0NTEM8 
 
 OF 
 
 THE FIRST VOLUME. 
 BOOK I. 
 
 PRELIMINARY MATTERS. 
 
 CHAPTER PAGE 
 
 I. Of the Interpretatiox of Statutes Dealing with Crimes 1 
 
 II. Of Indictable Offences 8 
 
 Felony 8 
 
 Misdemeanor 10 
 
 Matters not indictable 14 
 
 Summary proceedings 17 
 
 III. Of Criminal Jurisdiction 19 
 
 General Rules 19 
 
 Offences in more than one county 20 
 
 ,, on a journey or voyage 20 
 
 ,, in detached parts of counties 22 
 
 ,, in counties of cities 25 
 
 Transitory Offences 26 
 
 Offences on land outside England 26 
 
 ,, by officials outside Great Britain 31 
 
 ,, in Admiralty jurisdiction 31 
 
 ,, ,, ,, ,, (Colonies and India) , 49 
 
 ,, initiated abroad 52 
 
 IV. Of Criminal Responsibility 58 
 
 Infancy 58 
 
 Insanity 62 
 
 Drunkenness 87 
 
 Compulsion or subjection to power of others .... 90 
 
 Ignorance and mistake 101 
 
 Corporate bodies 102 
 
 Aliens 103 
 
 V. Of Parties to the Commission of Crime 104 
 
 Section I. Preliminary 104 
 
 Innocent agents , 104
 
 X 
 
 Table of Contents of the First Volume. 
 
 CHAPTER PAGE 
 
 Section II. Principals and accessories in felony . . . 106 
 
 Principals in first degree 106 
 
 ,, ,, second degree 108 
 
 Accessories before the fact 116 
 
 after „ „ 126 
 
 ,, III. Misprision of felony 129 
 
 ,, IV. Trial and pnnisliment of accessories . . . 130 
 
 ,, V. Abettors in misdemeanor 138 
 
 VI. Of Attempting, Conspiring and inciting to commit Crimes . 140 
 
 (rt) Attempts 140 
 
 (&) Criminal conspiracies 146 
 
 (c) Soliciting or inciting to commit crimes 203 
 
 VIT. Of Punishments 205 
 
 Section I. Death 205 
 
 ,, II. Exile, banishment, and expulsion .... 208 
 
 ,, III. Transportation and penal servitude • . . . 209 
 
 ,, IV. Imprisonment 211 
 
 „ V. Whipping 215 
 
 „ VI. Fine 217 
 
 „ VII. Recognisances and sureties ...... 218 
 
 „ VIII. Probation of offenders 219 
 
 (rt) Release of convicts on licence . . . 219 
 
 (6) Police supervision 224 
 
 (c) Probation of Offenders Act, 1907 . . 227 
 
 ,, IX. Punishment of persons under 16 230 
 
 ,, X. Detention of juvenile adults 237 
 
 ,, XI. Preventive detention of habitual criminals . 240 
 
 ,, XII. Detention of habitual drunkards .... 244 
 
 ,, XIII. General rules as to other punishments . . . 247 
 
 ,, XIV. Obsolete punishments 250 
 
 ,, XV. Civil effects of conviction 250 
 
 ,, XVI. Pardon or remission or mitigation of punish- 
 ment 252 
 
 {a) Pardon 252 
 
 (b) Respite and reprieve 254 
 
 BOOK II. 
 
 OF OFFENCES RELATING TO THE LAW OF NATIONS. 
 
 I. Of Piracy 255 
 
 Section I. Piracy jure gentium 255 
 
 ,, II. Piracy by municipal law 259 
 
 ,, III. Accessories and punishment 264 
 
 ,, IV. Jurisdiction and procedure 267 
 
 IL Of Dealing in Slaves, &c 271 
 
 Section I. The Slave Trade Acts 271 
 
 „ II. The Pacific Islanders Protection Acts ... 283
 
 Table of Coyitents of the First Volume. 
 
 XI 
 
 CHAPTER PAGE 
 
 III. Of Serving Foreign States and Breaches of Neutrality 285 
 
 {a) Common law and earlier statutes 285 
 
 (6) The Foreign Enlistment Act, 1870 288 
 
 IV. Or Publications Calculated to Interfere with Peaceful 
 
 Kelations with Foreign States 297 
 
 V. Of Violation of Diplomatic Privileges 299 
 
 BOOK III. 
 
 OF OFFENCES AGAINST THE SECURITY OF THE STATE. 
 
 I. Of Sedition 301 
 
 (c/) General definition of the offence 301 
 
 (6) Publications against the King 311 
 
 (c) Publications against the Constitution 313 
 
 {(I) Publications against Parliament 313 
 
 [e] Publications against the Government 31-i 
 
 II. Of Wrongfully Obtaining or Disclosing Public Secrets 317 
 
 III. Of Seducing Soldiers and Sailors to Mutiny 321 
 
 IV. Of Aiding the Escape of Prisoners of War 323 
 
 V. Of Unlawful Oaths, Combinations and Confederacies . 325 
 
 Section I. Voluntary oaths 325 
 
 ,, II. Oaths to commit treason, felony, &c. . . . 327 
 ., III. Combinations against public tranquillity and 
 
 the Government 332 
 
 BOOK IV. 
 
 OF OFFENCES RELATING TO THE RIGHTS AND REVENUES 
 OF THE CROWN. 
 
 I. Of Offences Eelating to Precious Metals and Treasure 
 
 Trove 339 
 
 («) Precious metals ... 339 
 
 {h) Treasure trove . . 339 
 
 (c) Bullion and plate 340 
 
 II. Of Offences Relating to Coin . 343 
 
 Section I. Definitions and general provisions .... 313 
 
 ,, II. Punishment and venue 348 
 
 ,, III. Counterfeiting coin 349 
 
 («) British 349 
 
 (b) Foreign 352 
 
 ,, IV. Impairing and defacing current coin . . . 352 
 
 ,, V. Importation of counterfeit coin 353 
 
 „ VI. Exporting counterfeit current coin .... 355
 
 xii Table of Contents of the First Volume. 
 
 CHAPTER PAGE 
 
 Section VII. Uttering, tendering, &c. counterfeit coin . . 355 
 
 [a) Common law and former statutes . . 355 
 
 (6) British coin 356 
 
 (c) Foreign coin 363 
 
 ,, VIII. Buying, selling, &c. counterfeit coin below 
 
 rate which its denomination imports . . 364 
 „ IX. Making, &c., or possessing instruments for 
 
 coining 365 
 
 III. Of Offences against the Eevenue Laws 371 
 
 (a) Customs 371 
 
 (6) Excise 387 
 
 (c) Assessed taxes 389 
 
 BOOK V. 
 
 OF OFFENCES AGAINST RELIGION AND PUBLIC WORSHIP. 
 
 I. Or Blasphemy 393 
 
 II. Of Disturbances in Churchyards or Places of Public 
 
 Worship 401 
 
 BOOK VI. 
 
 OF DISTURBANCES OF THE PUBLIC PEACE. 
 
 I. Of Eiots, Routs, Unlawful Assemblies, and Affrays , . 409 
 
 Section I. Riots 409 
 
 (a) Common law 409 
 
 (&) Statutes as to riots 414 
 
 II. Routs 422 
 
 ,, III. Unlawful assemblies 422 
 
 (a) Common law 422 
 
 (6) Under statute 424 
 
 IV. Affrays 427 
 
 „ V. Indictment, &c 429 
 
 „ VI. Suppression of riots, &c 431 
 
 II. Of Challenging to Fight 439 
 
 III. Of Forcible Entry and Detainer 441 
 
 Section I. At common law 441 
 
 ,, II. Under the statutes of Forcible Entry . . 442 
 
 BOOK VII. 
 
 OF OFFENCES AGAINST THE DUE ADMINISTRATION OF JUSTICE. 
 
 I. Of Perjury and Cognate Offences 455 
 
 Section I. Perjury generally ... 455 
 
 „ II. Perjury under 5 Eliz. c. 9 525
 
 Table of Contents of the First Volume. 
 
 Xlll 
 
 PAGE 
 
 Section III. Subornation of perjury 527 
 
 „ IV. False oaths not amounting to perjury . . 528 
 
 „ V. Fabrication of evidence 530 
 
 ,, VI. False statutory declarations 531 
 
 II. Of Impugning, Obstructing, Defeating, and Perverting 
 
 THE Administration op Justice 537 
 
 Section I. Contempts of Court 537 
 
 ,, II. Publications aiJecting fair trial of pending 
 
 cases 540 
 
 ,, III. Interference with witnesses 541 
 
 „ IV. Disobeying judicial orders 542 
 
 III. Of Obstructing or Resisting the Execution of Legal 
 
 Process 549 
 
 Section I. Obstructing process 549 
 
 ,, II. Rescue of property lawfully seized . . . 551 
 
 IV. Of Escapes 555 
 
 (a) General rule 555 
 
 (&) Escapes by the party 555 
 
 (c) Escapes suffered by officers of the law 556 
 
 V. Of Prison Breaking 563 
 
 VI. Of Rescue and Aiding Escape from Custody 567 
 
 VII. Of Escape or Being at Large while under Sentence of 
 
 Penal Servitude 573 
 
 VIII. Of Compounding Offences 579 
 
 IX. Of Barratry, Frivolous Arrests, Maintenance, 
 Champerty, Buying and Selling Pretended Titles 
 
 AND Embracery 585 
 
 Section I. Barratry 585 
 
 II. Frivolous arrests 586 
 
 III. Maintenance 587 
 
 IV. Champerty 594 
 
 V. Buying and selUng pretended titles . . . 597 
 
 VI. Embracery 598 
 
 BOOK VIII. 
 
 OF OFFENCES WITH RESPECT TO PUBLIC OFFICE AND 
 ELECTIONS AND OF BRIBERY AND CORRUPTION. 
 
 I. Of Misconduct in Office 601 
 
 Section I. General rule 601 
 
 ,, II. Oppression 601 
 
 III. Fraud 612 
 
 IV. Extortion 613 
 
 ,, V. Refusal to serve a public office .... 617 
 
 II. Of Buying and Selling Public Offices 619
 
 xiv Table of Contents of the First Volume. 
 
 CHAPTER PAGE 
 
 III. Of Bribery and Corruptiox 627 
 
 Section I. Bribery of public officers 627 
 
 „ II. Corruption in municipal affairs .... 628 
 
 ,, III. Corruption of agents in business .... 629 
 
 IV. Of Offences with Referexce to the Registratiox of 
 
 Electors and Conduct at Elections 633 
 
 Section I. Offences in connection with the preparation 
 
 of electoral registers 633 
 
 ,, II. Official misconduct with reference to elections 634 
 
 (a) Misconduct by the returning officer 
 
 and his staff 634 
 
 (b) Neglect or delay in deUvering Parha- 
 
 mentary election writs 634 
 
 „ III. Corrupt and illegal practices at elections . . 636 
 
 (a) Definition of corrupt practices, &c. . 636 
 
 (6) Bribery 638 
 
 (c) Treating 641 
 
 (d) Undue influence 642 
 
 (e) Personation 642 
 
 (/) False answers by voters 643 
 
 (g) Illegal practices 646 
 
 (h) Offences relating to nomination and 
 
 voting papers 646 
 
 {i ) Offences after an election .... 647 
 
 (/) Indictment and procedure .... 647 
 
 BOOK IX. 
 
 OF OFFENCES AGAINST THE PERSONS, STATUS, AND 
 REPUTATION OF INDIVIDUALS. 
 
 I. Of Homicide 655 
 
 Part I. — Of murder and felo de se 655 
 
 Section I. Definition, &c. of murder 655 
 
 II. Felo de se 660 
 
 ,, III. The party kilhng and the party killed . . . 662 
 
 ,, IV. The means of killing 665 
 
 ■„ V. Time of death. Treatment of wounds . . 690 
 
 VI. Provocation 692 
 
 VII. Mutual combat 710 
 
 ,, VIII. Resistance to the law 721 
 
 ,, IX. Killing in the prosecution of criminal, 
 
 unlawful, or wanton purpose .... 755 
 „ X. Killing in consequence of some lawful act 
 being criminally or improperly performed, 
 or of some act performed without lawful 
 
 authority 763 
 
 Part II. — Of concealment of birth 773
 
 Table of Contents of the First Volume. xv 
 
 CHAPTER PAGE 
 
 Part III. — Of manslaughter 779 
 
 Section I. Definition and punishment 779 
 
 ,, II. Killing in the prosecution of some unlawful 
 
 or wanton purpose 780 
 
 „ III. Killing in consequence of some lawful act 
 being criminally or improperly performed 
 or of some act performed without lawful 
 
 authority 789 
 
 Part IV. — Of excusable and justifiable homicide 807 
 
 Section I. (a) Excusable homicide by misadventure . 808 
 
 ib) Excusable homicide in self-defence . . 809 
 
 ,, II. Justifiable homicide 813 
 
 Part V. — Of indictments and evidence on trials for homicide . . 818 
 
 Section I. Indictment 818 
 
 ,, II. Coroner's inquisition 821 
 
 „ III. Evidence 822 
 
 ,, IV. Convictions of offences not specifically 
 
 charged 826 
 
 II. Of Procuring or Attempting Abortion 829 
 
 III. Of Conspiracy, Incitement, and Attempts to Murder : 
 AND OF Wounding and causing Grievous Bodily 
 
 Harm 835 
 
 Section I. Conspiracy and incitement to murder . 835 
 
 ,, II. Attempts to commit murder 839 
 
 „ III. Unlawful acts, causing or intended or calcu- 
 lated to cause bodily harm 852 
 
 (a) Common law 852 
 
 (b) Statutes 853 
 
 ,, lY. Unlawful wounding 859 
 
 ,, Y. Setting engines calculated to destroy hu- 
 man life or inflict grievous bodily harm 859 
 
 ,, YI. Causing bodily harm by furious driving, 
 
 &c 860 
 
 YII. Procedure, &c 861 
 
 lY. Of Attempting to Choke or to Injure by Poison or 
 
 Explosives 863 
 
 Section I. Attempting to choke, &c., and using drugs 
 
 in order to commit offences 863 
 
 ,, II. Use of poison to commit crime .... 864 
 ,, III. Use of explosives, corrosives, &c., for 
 
 criminal purposes 865 
 
 Y. Of Offences Relating to Railways and Passengers 
 
 Thereon 871 
 
 VI. Of Assault and Battery 879 
 
 Section I. Definition and punishment 879 
 
 ,, II. Certain aggravated assaults 891 
 
 ,, III. Summary proceedings for assault .... 896
 
 xvi Table of Contents of the First Volume. 
 
 CHAPTER PAGE 
 
 VII. Of False Imprisonment, Kidnapping, and Child-stealing 901 
 
 Section T. False imprisonment 901 
 
 11. Kidnapping 902 
 
 III. Child stealing 904 
 
 ,, IV. Illegally leaving merchant seamen behind . 905 
 VIII. Of Neglect and Ill-Treatment of the Young, the Help- 
 less and the Insane 907 
 
 Section I. Common law 907 
 
 ,, II. Ill-treatment of apprentices and servants . 909 
 
 „ III, Dangerous performances by young persons . 910 
 ,, IV. Exposing or abandoning children under two 911 
 
 V. Cruelty to children 912 
 
 ,, VI. Offences "wath reference to lunatics . . . 924 
 IX. Of Eape, and of the Defilement or Corruption of Females 931 
 
 Section I. Rape 931 
 
 „ II. Unlawful carnal knowledge of idiot, imbecile 
 
 and lunatic females 946 
 
 ,, III. Unlawful carnal knowledge of girls under 
 
 sixteen 948 
 
 „ IV. Indecent assault on females 955 
 
 „ V. Procuring the defilement or prostitution of 
 
 women and girls 955 
 
 X. Of Abduction of Females 959 
 
 XI. Of Offences Against Nature 973 
 
 Section I. Incest 973 
 
 ,, II. Sodomy, &c 975 
 
 XII. Of Offences Relating to Marriage 979 
 
 Section I. Bigamy 979 
 
 „ II. False statements made to obtain or prevent 
 
 marriage 1012 
 
 ,, III. Offences with respect to solemnization, 
 
 registration, &c 1015 
 
 XIII. Or Criminal Libels 1021 
 
 Section I. Preliminary 1021 
 
 II. Defamatory libel 1021 
 
 III. Trial 1026 
 
 IV. Punishment 1027 
 
 V. Indictment 1028 
 
 VI. Evidence 1032 
 
 VII. Matters of defence 1039 
 
 Privilege, absolute 1041 
 
 Privilege, quaUfied 1047 
 
 Fair comment 1055 
 
 Truth 1057 
 
 Evidence in aggravation or mitigation 1059 
 
 VIII. Special provisions as to libels in newspapers 1060 
 
 fl
 
 A TREATISE 
 
 ox 
 
 CRIMES AND MISDEMEANORS. 
 
 BOOK THE FIRST. 
 
 r E E L I M I X A R Y M A 'I' T E R S , 
 
 CHAPTER THE FIRST. 
 
 INTERPRETATION OF STATUTES DEALING WITH CRIMES. 
 
 The object of this work is to treat of crimes — i.e. of those acts or omis- 
 sions involving breach of a duty to which by the law of England a sanction 
 is attached by way of punishment or pecuniary penalty in the public 
 interest. The same acts or omissions may give a cause of civil action to 
 an individual injured thereby. But in the case of crime the ordinary 
 remedy is by indictment (a) — i.e. by accusation made by twelve 
 or more grand jurors, and by trial thereon before a petty jury of 
 twelve, unless statutory provision is made for jjunishing the offence in 
 a summary or a different mode. 
 
 The general canons of construction ajiplicable to statutes which 
 create or punish criminal offences, or deal with criminal procedure, are 
 in substance the same as those applicable to other statutes. There are 
 numerous authorities in which it is said that penal statutes must be 
 construed strictly, a rule founded on the plain principle that the power 
 of punishment is vested in the Legislature, in which lies the authority 
 to define crimes and ordain punishment (6). The true rule is that stated 
 in the Gauntlet (c). ' No doubt all penal statutes are to be construed 
 strictly — that is to say, the Court must see that the thing charged as 
 an offence is within the plain meaning of the words used ; must not strain 
 the words on any notion that there has been a slip, that there has been 
 a casus omissus ; that the thing is so clearly within the mischief tliat 
 it must have been intended to be included, and would have been included 
 if thought of. On the other hand, the person charged has a right to say 
 that the thing charged, though within the words, is not within the spirit 
 of the enactment. But where the thing is brought within the words 
 and within the spirit, there a penal enactment is to be construed, like 
 any other instrument, according to the fair common-sense meaning 
 
 (a) Vide post, pp. fi, 17, .and Bk. xii. c. ii. in giving the judgment of the Judicial 
 
 (b) Att.-Gen. v. 8illem [1863], 2 H. & C. Committee (MclHsh, L.J., James, L.J., 
 431, 509, Pollock, C.B. and Sir James Colville and Sir Montague 
 
 (c) L. R. 4 P.C. 184, 191, per James, L.J., Smith). Cf. 2 H. & C. 531, Bramwell, B. 
 VOL. I. B
 
 2 Inter f relation. [book i. 
 
 of the language used ; and the Court is not to find or make any doubt 
 or ambiguity in the language of a penal statute where such doubt or 
 ambiguity would clearly not be found or made in the same language 
 in any other instrument ' {d). 
 
 Observance of this canon is chiefly invoked to prevent the creation 
 of offences bv construction — i.e. to restrain the Courts from usurping 
 the function of the Legislature by extending the words of a statute to 
 acts or omissions not within its plain terms or manifest intention. But 
 it does not debar the judges from reading into a statute creating an 
 offence words omitted but obviously necessary to complete the clear 
 intention of the Legislature (e). 
 
 The presumption against giving a retrospective operation to statutes 
 operates most strongly in the case of statutes creating crimes (/). 
 
 An important rule of construction which has been applied to criminal 
 statutes is that there is no vested right in procedure. Sect. 27 of the 
 Prevention of Cruelty to Children Act, 1904 (4 Edw. VIL c. L5), which 
 was passed on August 15, 1904, and came into force on October 1, 1904 
 (sect. 33 (3)), directed that six months should be substituted for three 
 months as the limit of time for instituting prosecutions for carnally 
 knowing a girl of the age of thirteen and under sixteen (48 & 49 Vict, 
 c, 69, s. 5 (1) ). C. D. was tried in January 1905 on an indictment 
 charging the commission of such offence on July 15, 1904. The pro- 
 ceedings were instituted on December 27, 1904. It was held that sect. 27 
 dealt only with procedure, and came into force at a time when the 
 accused was liable to prosecution, and extended the time during which 
 he continued liable {g). 
 
 Certain definitions of terms often used in statutes creating crimes 
 are included in the Interpretation Act, 1889 (52 & 53 Vict. c. 63) [h). 
 Of these the more important are as follows : — 
 
 Gender and Number. — By sect. 1 : ' (1) In this Act and in every 
 Act passed after the year one thousand eight hundred and fifty, whether 
 before or after the commencement of this Act (January 1, 1890), unless 
 the contrary intention appears, [a) words importing the masculine gender 
 shall include females, and {b) words in the singular shall include the 
 plural and words in the plural shall include the singular. 
 
 ' (2) The same rules shall be observed in the construction of every 
 enactment relating to an offence punishable on indictment or on summary 
 conviction when the enactment is contained in an Act passed in or before 
 the year one thousand eight hundred and fifty.' 
 
 (d) See Hardcastle on Statutes (4th ed.. And see R. v. Plowden, Ex parte Braith- 
 by Craies), pp. 425-432. waite [1909], 2 K.B. 269. 24 T. L. R. 
 
 (e) R. V. Vasey [1905], 2 K.B. 748, 430: 73 J. P. 266. R. v. Ettridge [1909], 
 decided on s. 13 of the Salmon Fishery Act, 2 K.B. 24. 
 
 1873 (36 & 37 Vict. c. 71), which amends (/) R. t;. Griffiths;[1895], 2 Q.B. 145, 148, 
 
 s. 32 of the Malicious Damage Act, 1861, Coleridge, C. J., as to the penal clauses in the 
 
 by incorporating words which cannot be Bankruptcy Act, 1890 (53 & 54 Vict. c. 71). 
 
 grammatically read into the earlier enact- {g) R. v. Chandra Dharma [1905], 2 Q.B. 
 
 ment. In R. ■;;. Palin [1906], 1 K.B. 7, the 355. Secus, if the prosecution had been 
 
 words ' any document ' in the second part statute barred under the old enactment 
 
 of s. 1 of the Falsification of Accounts Act, before the new enactment came into 
 
 1875 (38 & 39 Vict. c. 24), were limited, by operation. I.e. 339, Channell, J. 
 
 reference to the preamble, to documents {h) This Act repeals Brougham's Act (13 
 
 belonging to the employer of the accused. & 14 Vict. c. 21).
 
 CHAP. I.] Interpretation Act, ] 889. 3 
 
 By sect. 2 : ' (1) In the construction of every enactment relating 
 to an offence punishable on indictment or on summary conviction, 
 whether contained in an Act passed before or after the commencement 
 of this Act, the expression " person " shall, unless the contrary intention 
 appears, include a body corporate ' (i). 
 
 ' (2) Where, under any Act, whether passed before or after the com- 
 mencement of this Act, any forfeiture or penalty is payable to a party 
 aggrieved, it shall be payable to a body corporate in every case where 
 that body is the party aggrieved.' 
 
 By sect. 3 : 'In every Act passed after the year one thousand eight 
 hundred and fifty, whether before or after the commencement of this 
 Act, the following expressions shall, unless the contrary intention appears, 
 have the meanings hereby respectively assigned to them, namely : 
 
 ' The expression " month " shall mean calendar month ' (j). 
 
 ' The expressions " oath " and " affidavit " shall, in the case of 
 persons for the time being allowed by law to affirm or declare instead 
 of swearing, include affirmation and declaration, and the expression 
 "swear" shall, in the like case, include affirm and declare.' 
 
 By sect. 4 : 'In every Act passed after the year 1850 and before 
 the commencement of this Act (January I, 1890) the expression 
 "county" shall, unless the contrary intention appears, be construed as 
 including a countv of a city and a county of a town.' 
 
 By sect. 13 : ' In this Act, and in every other Act, whether passed 
 before or after the commencement of this Act, the following expressions 
 shall, unless the contrary intention appears, have the meanings hereby 
 respectively assigned to them, namely : 
 
 ' (4) The expression " court of assize " shall, as respects England, 
 Wales, and Ireland, mean a court of assize, a court of oyer and terminer, 
 and a court of gaol delivery, or any of them, and shall, as respects England 
 and Wales, include the Central Criminal Court. 
 
 ' (5) The expression " assizes," as respects England, W^ales, and 
 Ireland, shall mean the courts of assize usually held in every year, and 
 shall include the sessions of the Central Criminal Court, but shall not 
 include any court of assize held by virtue of any special commission, or, 
 as respects Ireland, any court held by virtue of the powers conferred by 
 section sixty-three of the Supreme Court of Judicature Act (Ireland), 
 1877 (40 & 41 Vict. c. 57). 
 
 ' (10) The expression " the Summary Jurisdiction Acts," when used 
 in relation to England or Wales, shall mean the Summary Jurisdiction 
 
 \i) This enactment replaces 7 & 8 Geo. calendar month.' Bysubsec. 2: 'A prisoner 
 IV. c. 28 (E), and 9 Geo. IV. c. 54, s. 35 (I). whose term of imprisonment or penal 
 As to its effect vide post, p. 102. servitude expires on any Sunday, Christ- 
 ie) At common law month primarily mas Day, or Good Friday, shall be dis- 
 means ' lunar ' month. Bruner v. Moore charged on the da\' next preceding.' 
 [1904], 1 Ch. 305, Farwoll, J. This enact- Subject to this enactment, a person sen- 
 ment applies only to the term as used in tenced to a month's imprisonment is 
 statutes. By s. 12 (1) of the Prison Act, entitled to be discharged on the day in the 
 1898 (61 & G2 Vict. c. 41) : ' In any sentence next month immediately preceding the 
 of imprisonment passed after the com- day corresponding to the one on which 
 mencemcnt of this Act (January 1, 1899) his sentence takes effect. Migotti r. Colvill, 
 the word month shall, unless the contrary 4 C. P.D. 233 : 48 L. J. C.P. (595. 
 
 is expressed, be construed as meaning 
 
 B 2
 
 4 Intevpretation. [book i. 
 
 (England) Acts {k), and when used in relation to Scotland the Summary 
 Jurisdiction (Scotland) Acts, and when used in relation to Ireland the 
 Summary Jurisdiction (Ireland) Acts. 
 
 ' (11) The expression " court of summary jurisdiction" shall mean 
 any justice or justices of the peace, or other magistrate, by whatever 
 name called, to whom jurisdiction is given by, or who is authorised to 
 act under, the Summary Jurisdiction Acts, whether in England, Wales, 
 or Ireland, and whether acting under the Summary Jurisdiction Acts or 
 any of them, or under any other Act, or by virtue of his commission, or 
 under the common law [l). 
 
 ' (14) The expression " court of quarter sessions " shall mean the 
 justices of any county, riding, jJarts, division, or liberty of a county, or 
 of any county of a city or county of a town, in general or quarter sessions 
 assembled, and shall include the court of the recorder of a municij^al 
 borough having a separate court of quarter sessions.' 
 
 Person. — By sect. 19 : 'In this Act and in every Act passed after 
 the commencement of this Act the expression " person " shall, unless the 
 contrary intention appears, include any body of persons, corporate or 
 unincorporated 
 
 Writing. — By sect. 20 : 'In this Act and in every other Act, whether 
 passed before or after the commencement of this Act, expressions 
 referring to writing shall, unless the contrary intention appears, be 
 construed as including references to printing, lithography, photography, 
 and other modes of representing or reproducing words in a visible form.' 
 
 Committed for Trial. — By sect. 27 : ' In every Act passed after the 
 commencement of this Act the expression " committed for trial " used 
 in relation to any person shall, unless the contrary intention appears, 
 mean, as respects England and Wales, committed to prison with the 
 view of being tried before a judge and jury, whether the jjerson is com- 
 mitted in pursuance of section twenty-two or of section twenty-five of 
 the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), or is committed 
 by a court, judge, coroner, or other authority having power to commit 
 a person to any prison with a view to his trial, and shall include a person 
 who is admitted to bail upon a recognisance to appear and take his trial 
 before a judge and jury.' 
 
 Offences under two or more Laws. — By sect. 33: 'Where an act 
 or omission constitutes an offence under two or more Acts, or both under 
 an Act and at common law, whether any such Act was passed before or 
 after the commencement of this Act, the offender shall, unless the 
 contrary intention appears, be liable to be prosecuted and punished under 
 either or any of those Acts, or at common law, but shall not be liable to 
 be punished twice for the same offence ' (m). 
 
 Distance. — By sect. 34 : 'In the measurement of any distance for 
 
 [k) The Summary Jurisdiction (Eng- licences or revision of jury lists. Boulter 
 
 land) Acts are the Summary Jurisdiction v. Kent JJ. [1897], A.G. 556. Hagmaier v. 
 
 Acts, 1848 (11 & 12 Vict, c 43) and 1879 Willesden Overseers [1904], 2 K.B. 316. 
 (42 & 43 Vict. c. 49), and any Act, past or (m) As to the effect of this section, sec 
 
 future, amending these Acts or either of post, p. 6. There are numerous enactments 
 
 them (52 & 53 Vict. c. 63, s. 13 (7) ). containing a similar provision as to par- 
 
 (l) This definition does not apply to ticular offences. See Hardcastle on Statutes 
 
 justices acting for the grant of liquor (4th ed., by Craies), 306n.
 
 CHAP. I.] Interpretation Act, 1880. 5 
 
 the purposes of any Act passed after the commencement of this Act, 
 that distance shall, unless the contrary intention appears, be measured 
 in a straight line on a horizontal plane ' (n). 
 
 Citation of Acts. — By sect. 35: '(1) In any act, instrument, or 
 document, an Act may be cited by reference to the short title (o), if any, 
 of the Act, either with or without a reference to the chapter, or by 
 reference to the regnal year in which the Act was passed, and where there 
 are more statutes or sessions than one in the same regnal year, by reference 
 to the statute or the session, as the case may require, and where there 
 are more chapters than one, by reference to the chapter, and any enact- 
 ment may be cited by reference to the section or subsection of the Act 
 in which the enactment is contained {p). 
 
 ' (2) Where any Act passed after the commencement of this Act 
 contains such reference as aforesaid, the reference shall, unless a contrary 
 intention appears, be read as referring, in the case of statutes included 
 in any revised edition of the statutes purporting to be printed by 
 authority, to that edition, and in the case of statutes not so included, 
 and passed before the reign of King George the First, to the edition pre- 
 pared under the direction of the Record Commission ; and in other 
 cases to the copies of the statutes purporting to be printed by the King's 
 Printer or under the superintendence or authority of His Majesty's 
 Stationery Office. 
 
 ' (3) In any Act passed after the commencement of this Act a 
 description or citation of a portion of another Act shall, unless 
 the contrary intention appears, be construed as including the word, section, 
 or other part mentioned or referred to as forming the beginning and as 
 forming the end of the portion comprised in the description or citation.' 
 
 Effect of Repeal. — By sect. 11 : ' (1) Where an Act passed after the 
 year 1850, whether before or after the commencement of this Act (January 
 1, 1893), repeals a repealing enactment, it shall not be construed as 
 reviving any enactment previously repealed, unless words are added 
 reviving that enactment. 
 
 (2) Where an Act pass:d after the year 1850, whether before or after 
 the commencement of this Act, repeals wholly or partially any former 
 enactment and substitutes provisions for the enactment repealed, the 
 repealed enactment shall r.main in force until the substituted provisions 
 come into operation. 
 
 By sect. 38 : ' (1) Where this Act, or any Act passed after the com- 
 mencement of this Act (January 1, 1890), repeals and re-enacts, witli or 
 without modification, any provisions of a former Act, references in any 
 other Act to the provisions so repealed shall, unless the contrary intention 
 appears, be construed as references to the provisions so re-enacted. 
 
 ' (2) Where this Act, or any Act passed after the commencement of 
 this Act, repeals any other enactment, then, unless tiie contrary intention 
 appears, the repeal shall not — 
 
 (n) See R. t>. Wood, 5 Jur. 225, ;J0•9^ p. 20. (]>) As to the old ride of citation see 
 
 (o) For a list of short titles of statutes II. v. Bieis [1834], 1 A. & E. .3-27. (iibbs 
 
 see Hardcastle on Statutes (4th ed., by r. Pike [1841], 8 M. & W. 223. 
 
 Craies), Appendix B.
 
 6 
 
 Effect of Bepealed Statutes. 
 
 [BOOK i. 
 
 ' (a) revive anything not in force or existing at the time at which the 
 
 repeal takes effect ; or 
 ' (b) affect the previous operation of any enactment so repealed or 
 anything duly done or suffered under any enactments so 
 repealed ; or 
 ' (c) affect any right, privilege, obligation, or liability acquired, 
 
 accrued, or incurred under any enactment so repealed ; or 
 ' (d) affect any penalty, forfeiture, or punishment incurred in respect 
 of any offence committed against any enactment so repealed ; 
 or iq) 
 ' (e) affect any investigation, legal proceeding, or remedy in respect 
 of any such right, privilege, obligation, liability, penalty, for- 
 feiture, or punishment as aforesaid ; 
 and any such investigation, legal proceeding, or remedy may be instituted, 
 continued, or enforced, and any such penalty, forfeiture, or punishment 
 may be imposed, as if the repealing Act had not been passed.' 
 
 In the Criminal Procedure Act, 1851 (14 & 15 Vict. c. 100), ' the 
 word " indictment " shall be understood to include " information " (r), 
 " inquisition " (s), and " presentment " {t), as well as " indictment," and 
 also any " plea," " replication," or other pleading, and any " nisi prius 
 record " (u), and the term " finding of the indictment" shall be under- 
 stood to include the " taking of an inquisition," the " exhibiting of an 
 information," and " the making of a presentment " ' (sect. 30). 
 
 Effect on Common Law or on Prior Legislation. — The effect of sect. 
 33 of the Interpretation Act, 1889, is to create a presumption (v) that 
 offences created by modern Acts are cumulative upon, and not in 
 substitution for, offences at common law or under prior statutes not 
 expressly repealed. 
 
 The provision creating a presumption against the right to punish the 
 offender twice for the same offence is in accord with the common law 
 rule (w). It appears not to bar a prosecution. 
 
 In considering statutes relating to crime it has to be determined whether 
 
 they override or supplement the common law or prior statutes, and 
 
 whether the remedies, procedure, or punishments which they enact are 
 
 exclusive of those existing or alternative to or cumulative on them. 
 
 In R. V. Thomjjson {x), however, it was held that an indictment 
 
 {q) Thus the Larceny Act, 1901, does not, 
 by repealing ss. 75, 76 of the Larceny Act, 
 1861, atfect liabiHty to punishment for 
 offences under those sections committed 
 before the time when the Act of 1901 took 
 effect. 
 
 (r) i.e. a criminal information exhibited 
 by the Attorney-General ex officio or by 
 leave of the High Court (K.B.D.). 
 
 (s) i.e. a coroner's inquisition. In R. v. 
 Ingham, 33 L. J. Q.B. 183, it was held that 
 indictment in s. 6 of the Offences against 
 the Person Act, 1861 (24 & 25 Vict. c. 100), 
 inc hided a coroner's inquisitioTi. 
 
 (t) By the grand jury of its own act. 
 Such presentments in respect to highways 
 and bridges are now by way of indictment 
 
 only. See 51 & 52 Vict. c. 43, s. 78 (3). 
 
 («) i.e. the record made up for trial of 
 an indictment or information originating 
 in or removed into the High Court. See 
 Short & Mellor, Cr. Pr. (2nd ed.) 110. 
 
 (v) As to what is sufficient to rebut such 
 presumption see Michell v. Brown, 28 L. J. 
 M.C. 53; 2 E. & E. 267. Fortescue v. 
 Bethnal Green [1891], 2 Q.B. 171, 178. 
 
 (ic) Middleton v. Crofts [1736], 2 Atk. 
 650, 674 : R. v. Miles, 24 Q.B.D. 423, 431. 
 This subject is discussed post, Bk. xii. c. ii. 
 under 'Autrefois convict,' 'Autrefois acquit.' 
 
 (.t) 16 Q.B. 832 ; sed qucjere. The ratio 
 decidendi was that conspiracy was a 
 common law olTenco.
 
 CHAP. I.] Effect of Repealed Statutes. 7 
 
 for conspiracy to violate a statute would lie after the repeal of the 
 statute. 
 
 Effect of Repeal of Statutes creating Offences. — 'It has been long 
 established that when an Act of Parliament is repealed, it must be con- 
 sidered (except as to transactions passed and closed) as if it had never 
 existed '(?/) . Where, therefore, a justice of the peace, under 13 Geo. III. 
 c. 78, s. 24, presented the inhabitants of a parish for the non-repair of a 
 highway, and the proceedings were removed into the Court of Queen's 
 Bench, and the defendants pleaded, and issues of fact were joined, and 
 a verdict found against the defendants, and the issues had been joined 
 before, but tried after, the day on which the Highway Act, 1835 (z) 
 (which repealed 13 Geo. III. c. 78), came into operation, the judgment 
 was arrested, on the ground that the power to give judgment upon a 
 presentment under 13 Geo. III. c. 78 was gone (a). So where the lia- 
 bility to repair certain highways in a parish w^as taken away from the 
 parish by statute, and cast upon certain townships, and the statute gave 
 a form of indictment against the towTiships for non-repair, and one of 
 the townships was indicted under the statute, but before the trial the 
 statute was repealed, and a verdict was found against the township, 
 the judgment was arrested, on the ground that, although whatever had 
 been done under the Act before it was repealed was valid, the statute 
 when repealed was, with regard to any future operation, as if it had 
 never existed, and the effect of the repeal is the same whether the alter- 
 ation affects procedure only or matter of substance (&). So where a 
 prisoner was indicted for privately stealing in a shop against 10 & 11 
 Will. III. c. 23, which was repealed (1 Geo. IV. c. 117, s. 1) after the 
 commission, but before the trial, of the offence, it was held that the 
 prisoner could not be sentenced under the repealed Act(c), there being 
 no special clause in the repealing Act continuing the repealed Act as 
 to matters arising before the repeal took effect (d). 
 
 Repealing Acts, however, sometimes contain clauses for the purpose 
 of keeping alive the statutes they repealed so far as they relate to of- 
 fences committed against them, and in repeals effected after 1889 there 
 is a presumption to this effect (e). Where a bankrupt had committed 
 an offence against 12 & 13 Vict. c. 106, s. 251, and an information had 
 been laid before a magistrate for that offence, and a warrant issued for 
 the prisoner's apprehension l)efore 24 & 25 Vict. c. 134 came into opera- 
 tion, which by sect. 230 repealed the former Act, except as to 'any 
 proceeding pending,' &c., 'or anfr penalty incurred,' &c., .at the com- 
 mencement of the Act, it was held that there was a proceeding pending 
 within the meaning of this exception, and that the word 'penalty' in it 
 extended to any penal consequences whatever, and was not restricted 
 to a pecuniary penalty, and, consequently, that the bankrupt might be 
 convicted and sentenced under the former Act(/). 
 
 (!/) Siirtees v. Ellison, 9 B. & C. 750, (rf) See Miller's Case [1764]. 1 W. 
 
 Tenterden, C.J. See 52 & 53 Vict. c. 6.3, Bl. 450; 3 Wils. (K.B.) 420. 
 
 ss. 11, 38, ante, p. 5. (e) 52 & 53 Vict. c. 63. s. 3S(2), 
 
 (c) 5 & 6 Will. iV. c. 50. ante, p. 5. See R. r. Wel)h. 140 Cent. 
 
 (o) R. V. Mawgan. 8 A. & E. 496. Cr. Ct. Sess. Pap. 627. Walton. J. 
 
 (5) R. V. Denton. 18 Q.B. 761. if) R. v. Smith. L. & C. 131. 
 
 (c) R. r. M^venzie. R. & K. 429.
 
 (7a) 
 
 CANADIAN NOTES. 
 
 INTERPRETATION OF STATUTES. 
 
 See the Criminal Code, R.S.C. (1906) ch. 146, sec. 2, for the inter- 
 pretation of words and phrases used therein. 
 
 Every provision of the Interpretation Act (R.S.C. (1906) ch. 1) 
 extends and applies to every Act of the Parliament of Canada except 
 in so far as such provision — 
 
 (a) Is inconsistent with the intent or object of such Act ; or 
 
 (&) Would give to any word, expression or clause of any such Act 
 an interpretation inconsistent with the context ; or 
 
 (c) Is in any such Act declared not applicable thereto. R.S.C. 
 (1906) ch. 1, sec. 2. 
 
 Interpretation of Criminal Statutes. — Penal statutes must be con- 
 strued strictly, and where an enactment imposes a penalty for a 
 criminal offence, a person against whom it is sought to enforce the 
 penalty is entitled to the benefit of any doubt which may arise in the 
 construction of the enactment. R. v. Wirth, 1 Can. Cr. Cas. 231. 
 
 Words and Phrases in Criminal Code. — See 11 Can. Cr. Cas., pp. 
 375-379; 12 Can. Cr. Cas. 583, 13 Can. Cr. Cas. 541. 
 
 The part headings of the Code are to be regarded as preambles to 
 statutes. R. v. Brooks, 5 Can. Cr. Cas. 372. 
 
 "Bank Note," a forged paper purporting on the face of it to be a 
 bank note is within the statute, although there be no such bank as 
 named. R. v. Macdonald, 12 U.C.Q.B. 543. 
 
 "Everyone" includes bodies corporate unless the context requires 
 otherwise. Union Colliery Company v. The Queen, 4 Can. Cr. Cas. 407. 
 
 "Capable of being stolen" (in Code sec. 354) includes anything 
 capable of being stolen by anybody, not merely by the accused. R. v. 
 Gildstaub, 5 Can. Cr. Cas. 357. 
 
 "Person" includes "bodies corporate" and "companies," but a 
 corporation cannot be indicted for manslaughter. R. v. Great West 
 Laundry Co., 3 Can. Cr. Cas. 5, at p. 519. 
 
 '^'Everyone" is a wider term than "person." Union Colliery v. 
 The Queen, 4 Can. Cr. Cas., at p. 407. 
 
 A small room used for temporary detention of persons is not 
 included in the phrase "a common gaol or prison." In re Burke 
 (1894), 27 N.S.R. 286.
 
 CHAP. I.] Interpretation of Statutes. 76 
 
 Valuable Security. — It was formerly held that the term "valuable 
 security" meant a valuable security to the person who parted with it 
 on the false pretence, and that the inducing a person to execute a 
 mortgage on his own property was therefore not obtaining a ' ' valuable 
 security." R. v. Brady (1866), 26 U.C.Q.B. 13; but the defini- 
 tion in Criminal Code expressly includes any deed, bond, etc., which 
 evidences title. 
 
 Defendant was indicted for forging an order for the payment of 
 money, the order being in the following words: "John McLean, tailor, 
 please give M. A. S. (defendant) to the amount of $3.50 and by doing 
 you will oblige me, A. McP." It was proved that the signature A. 
 McP. was forged by the prisoner, and the prisoner was convicted and 
 sentenced. It was held that this was an order for the payment of 
 money, and not a mere request, and the conviction was affirmed. R. v. 
 Steele (1863), 13 U.C.C.P. 619 (following R. v. Tuke (1858), 17 
 U.C.Q.B. 296). 
 
 The true criterion as to whether a document is an order for pay- 
 ment of money or only a request, is, whether, if the instrument were 
 genuine, and the person to whom it was directed paid it, he could 
 recover the amount from the party by whom the order w^as given, or 
 charge it to him, for if such be the case it is an order. R. v. Carter, 1 
 Cox 172 ; R. V. Ferguson, 1 Cox 241 ; R. v. Dawson, 3 Cox 220 ; R. v. 
 Vivian, 1 Den. C.C. 35.
 
 (8) 
 
 CHAPTER THE SECOND. 
 
 OF INDICTABLE OFFENCES. 
 
 Offences which may be made the subject of indictment, and are below 
 the crime of treason (w), fall into two classes, felonies and misde- 
 meanors. 
 
 1. Felony — Common Law. — Felony is the common-law term em- 
 ployed to describe the graver crimes kno^vn to the common law below 
 the degree of high treason or petty treason (j:) . The term has long been 
 used to signify the degree or class of crime committed, rather than the 
 penal consequences by way of forfeiture entailed by its commission. 
 But the proper definition at common law appears to be — an offence 
 (triable by indictment only at common laAv) which occasions a total 
 forfeiture of either lands or goods, or both(i/), at the common law: to 
 which capital or other punishment may he superadded according to the 
 degree of guilt (2'). Capital punishment is not an essential element in 
 the original definition, but was long so closely associated with felony 
 that until 1827, if a statute made a new offence felony, the law im- 
 plied that it should be punished not merely by forfeiture, but also by 
 deatli(a), subject to the right of benefit of clergy (&), imless that were 
 expressly denied by statute (c) . This is merely a particular instance of 
 the rule that where .a statute describes a new offence as felony, it there- 
 by by necessary consequence gives to the offence the like incidents that 
 belong to a felony by the rules and principles of the common law or 
 general statutory provisions. The chief of these incidents are : 
 
 1. Punishment (d). 
 
 2. The liability of persons aiding and abetting, committing or 
 
 (((■) Treason (which is only incident- App- ii- p- 129. The derivation of 'fel- 
 
 allj' treated in this work) is sometimes ony' is uncertain. It is by some traced 
 
 described as a form of felony (see 60 to the Low Latin fello (Ital. fellone) ; 
 
 & 61 Viet. c. 18, s. 1) ; but the pro- by others to feah or fie, 'fief or estate,' 
 
 cedure for' trial of treason is by statute and Ion, 'price or value,' and is by 
 
 different. See Archbold, Cr. PI. (23rd tliem said to mean pretium feudi. See 
 
 ed.) 928; 1 Hawk. c. 17; 2 Stephen, Spelm. Glos. s.i;. 'Felon'; Murray, Diet. 
 
 Hist. Crim. Law, 241; Steph. Dig. Cr. Eng. Lang, s.v.; 4 Bl. Com. 95. 
 Law (6th ed.), arts. 52-62; Pari. Pap. (a) 4 Bl. Com. 98. R. v. Johnson. 
 
 1878, H. L. (No. 178), Report by Mr. 3 M. & S. 539. 
 
 R. S. Wright on Acts relating to Trea- (6) Abolished in 1827. Tide post, 
 
 son. As to pirac}', see post, tit. 'Pir- p. 205n. 
 acy,' p. 255. (c) 7 & 8 Geo. IV. c. 28, s. 8, post,]). 
 
 (x) Now merged in murder: 24 & 246, which overrides the common-law 
 
 25 Vict. c. 100, s. 8. presumption in favour of capital pun- 
 
 iy) These forfeitures were abolished ishment (which applied to all felonies 
 
 in 1870. except in the case of outlawry: except petty larceny and mayhem) by 
 
 see 33 & 34 Vict. c. 23, s. 1. laying down a rule for the punishment 
 
 (s) 4 Bl. Com. 95; and see 1 Hawk. of felonies not specifically punishable 
 
 c. 25, s. 1. In Scots law 'the higher by other statutes. 
 
 crimes, rape, robbery, murder, arson, (d) Tide post, p. 246. The result of 
 
 <S:c., were called felony, and, being in- legislation in the nineteenth century 
 
 terpreted want of fidelity to his lord. has been to make the punishment of 
 
 made the vassal lose his fief.' 2 Hume, every felony depend upon some statute.
 
 CHAP. II.] Of Indictable Offences. 9 
 
 procuring the new felony to be convicted as principals in the 
 second degree (e), or accessories before the fact (/). 
 
 3. Liability to arrest without warrant. 
 
 4. Liability to indictment. 
 
 5. The right of peremptory challenge of twenty of the jurors 
 
 summoned to try the indictment (g). 
 Felony — Statutes. — No statutory offence is treated as a felony unless it 
 is made so by express words or necessary implication. Not only those 
 crimes which are made felonies by express words in a statute, but also 
 all those which are by statute decreed to have or undergo judgment of 
 life and member become felonies thereby, whether the word 'felony^ be 
 omitted or mentioned (A). And a statute which declares that the offender 
 shall, under the particular circumstances, be deemed to have feloniously 
 committed the act, makes the offence a felony, and imposes all the 
 common and ordinary consequences attending a felony (*). So where a 
 statute says that an offence, previously a misdemeanor, ' shall be deemed 
 and construed to be a felony,' instead of declaring it to be a felony in 
 distinct and positive terms, the offence is thereby made a felony (/). An 
 enactment that an offence shall be felony, which was felony at common 
 law, does not create a new offence (k). An offence is not to be made felony 
 by the construction of doubtful and ambiguous words in 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,' the offence created is only a misdemeanor (/). Where 
 a statute has made the doing of an act felonious, if a subsequent statute 
 make it 'penal only, the latter statute is considered as virtually repealing 
 the former, so far as relates to the punishment of the offence (m). Thus, 
 where a statute (9 Geo. L c. 22) made an offence punishable with death 
 and a subsequent statute (16 Geo. IIL c. 30) imposed a forfeiture of 
 £20 for the same offence when first committed, recoverable before 
 justices of the peace, and made the second offence felon}^ the latter 
 statute was held to be a virtual repeal of the former (n). ' Where 
 a later statute again describes an offence which had been previously 
 created by a former statute, and affixes a different punishment to it, and 
 varies the procedure, or if the later enactment expressly alters the quality 
 of the offence, as by making it a misdemeanor instead of a felony (o), or 
 a felony instead of a misdemeanor (p), the later enactment must be 
 
 (e) The Coal-heavers' case, 1 Leach, G4 ; death as in eases of felony without benefit 
 
 1 East, P.C. 343. of clergy.' The indictment was held bad 
 
 ( /■) R. V. James, 24 Q.B.D. 439. As to for omitting the word ' feloniously.' 
 
 accessories after the fact see 1 Hale, (J 13, ((') K. ?'. Johnson, 3 M. & S. 539, 556, 
 
 014, 704 ; 3 Co. Inst. 59 ; and 24 & 25 Vict. Bayley, J. 
 
 c. 94, s. 4, post, p. 131. (/) R. V. Salomons, 1 Mood. 292, over- 
 
 (g) Gray v. R., 11 CI. & F. 427 ; St. ruling R. v. Cale, 1 Mood. 11. 
 
 Tr. N. S. 117. 6 Geo. IV. c. 50, s. 29 (E). (/.) R. v. William.s, 7 Q.B. 253, Patte- 
 
 7 & 8 Geo. IV. c. 28, s. 3 (E). As to colonies .son, J. 
 
 see Levinger v. R., L. R. 3 P.C. 282. (/) 1 Hawk. c. 40, s. 3. 
 
 (h) I Hale, 703 ; 1 Hawk. c. 40, s 2. (m) 1 Hawk. c. 40, .s. 5. 
 
 R. V. Home, 4 Cox, 2()3, Patteson, J. This («) R. v. Davis, 1 Leach, 271. 
 
 was an indictment on 5 Geo. IV. c. 84, .s. 22, (o) Id il)icl. 
 
 which enacts that persons at large in (he (p) See R. r. Cross, 1 I.k1. Raym. 711; 
 
 United Kingdom during the term of a 3 Salk. 193. It has been held, notwith- 
 
 sentence of transportation ' shall suffer standing R. v. Cross, that an indictment
 
 10 
 
 Of Indictable Offences. 
 
 [BOOK I. 
 
 taken as operating by way of substitution (and implied repeal) and 
 not cumulatively ' {q). 
 
 Where a statute makes a second offence felony, or subject to a heavier 
 punishment than the first, it is always implied that such second ofience 
 has been committed after a conviction for the first; and unless this is 
 stated in the indictment, the offence is punishable as a first offence {q). 
 
 2. Misdemeanor. — The word misdemeanor is applied to all offences 
 (whether at common law or by statute) which are below the degree of 
 felony, whether they are punishable on indictment or on summary con- 
 viction. They may be punished, according to the character of the offence, 
 by fine or imprisonment, or both (r). The word is generally used in 
 contradistinction to felony, and includes such offences as perjury, battery, 
 libel, conspiracy, and public nuisance {s). Misdemeanors 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 a person 
 guilty of felony or treason may be proceeded against for a misprision 
 only, if the king please (t). 
 
 The term misdemeanor applies not only to completed offences below 
 the degree of felony, but also to attempts {u), or incitements (v), or con- 
 spiracies (w) to commit a complete felony or misdemeanor which do not 
 result in the commission of the full offence. An indictment lies at 
 common law for all kinds of inferior crimes of a public nature, as mis- 
 prisions, and all other contempts (x), all disturbances of the peace, oppres- 
 sions, or misbehaviour by public officers (y), and all other misdemeanors 
 whatsoever of a public evil example against the common law (z). An 
 indictment will lie for contempt of court by attacking courts of justice 
 or attempting to obstruct the course of justice (a) : but it seems doubtful 
 whether every contempt is indictable. In an early case. Holt, C.J., 
 said : ' If a witness be insolent we may commit him for the immediate 
 contempt or bind him to his good behaviour, but we cannot indict 
 him' (6). It seems, however, to be established that whatever openly 
 outrages decency and is injurious to public morals, is a misdemeanor 
 at common law (c). Thus the exposure of a man's person in a public 
 place is indictable {d). 
 
 will lie for receiving as a misdemeanor in 
 cases not falling within 24 & 25 Vict. o. 96, 
 s. 91. R. V. Payne [190G], 1 K.B. 97. 
 
 (q) Michell v. Brown, 2 E. & E. 267, 
 Campbell, C.J. Cf. Henderson v. Sher- 
 borne, 2 M. & W. 236, 239. As to alterna- 
 tive remedies under different enactments 
 vide ante, pp. 4, 6. , 
 
 (r) Burn's Justice (30th ed.), tit. 
 ' Misdemeanor,' citing Barlow's Justice, 
 tit.* Misdemeanor.' See post, c.vii. ' Punish- 
 ment,' p. 249. 
 
 (s) 4 Bl. Com. 5, note 2. Burn's Justice 
 (30th ed.), tit. 'Misdemeanor.' 
 
 (t) 1 Hawk. c. 20, s. 2, and c. 59, ss. 1, 2. 
 Burn's Justice, tit. ' Felony.' 
 
 (u) Post, p. 140. 
 
 (v) Post, p. 203. 
 
 (w) Post, p. 146. 
 
 (x) Post, p. 537. 
 
 (i/) Post, p. 601. 
 
 (z) 2 Hawk. c. 25, s. 4. 
 
 (a) R. V. Tibbits [1902], 1 K.B. 77. R. 
 V. Gray [1900], 2 Q.B. 36. Vide post, Bk. 
 vii. p. 537, and Oswald on Contempt 
 (2nd ed.), chap. i. 
 
 (6) R. V. Ro<rers, 7 Mod. 28. See R. r. 
 Nun, 10 Mod. 186. 
 
 (c) 4 Bl. Com. 65n. ; 1 Hawk. c. 5, s. 4 ; 
 1 East, P.C. p. 3. 
 
 (d) R. V. Sedley, 1 Sid. 108 ; 3 Keb. 620. 
 R. V. Holmes, Dears. 207. Vide post, Bk.
 
 CHAP. IL] Of Indictable Offences. 11 
 
 Breach of Statute — Test of Indictability.— In R. v. Hall (e), Charles, J., 
 adopted the rule laid down in 2 Hawk. c. 25, s. 4, that ' it seems to be 
 a good general ground that wherever a statute prohibits a matter of 
 public grievance to the liberties and security of a subject, or commands 
 a matter of public convenience, as the repairing of the common streets 
 of a town, an offender against such statute is punishable not only at 
 the suit of the party aggrieved, but also by way of indictment for his 
 contempt of the statute, unless such method of proceeding do manifestly 
 appear to be excluded by it' (/) ; and the law as laid down in R. v. Hall 
 has been accepted as correct {g). 
 
 Where an act or omission, which is not an offence at common law 
 is made punishable by a statute, the questions arise whether the criminal 
 remedies are limited to the particular remedy given by the terms of the 
 statute, or, in other words, whether the remedy given by the statute 
 is exclusive of or alternative to other remedies given by other statutes 
 or the common law. It has been laid down that where an act or 
 omission is not an offence at common law, but is made an offence by 
 statute, an indictment will lie where there is a substantive prohibitory 
 clause in such statute, though there be afterwards a particular pro- 
 vision and a particular remedy given {h). ' Where a duty is created 
 by statute which affects the public as the public, the proper mode 
 if the duty is not performed is to indict or take the proceedings pro- 
 vided by the statute' (t). Thus, an unqualified person may be indicted 
 for acting as an attorney contrary to the Solicitors Act, 1843 (6 & 7 
 Vict. c. 73), s. 2, although sect. 35 and sect. 36 enact, that in case any 
 person shall so act he shall be incapable of recovering his fees, and 
 that such offence shall be deemed a contempt of court and punishable 
 accordingly (/). And a clerk to borough justices has been held liable 
 to indictment for being interested in the prosecution of offenders 
 committed by borough justices, as he was not liable to the particular 
 penalty prescribed by sect. 102 of the Municipal Corporations Act, 1835 
 (5 & 6 Will. IV. c. 76) (k). When a new offence is created by statute, 
 and a penalty is annexed to it by a separate and substantive clause, 
 it is not necessary for the prosecutor to sue for the penalty ; but he 
 may proceed on the prior clause, on the ground of its being a misde- 
 meanor {I). And wherever a statute forbids the doing of a thing, 
 
 (e) [1891] 1 Q.B. 747, 753. in the same section of the statute. Thus 
 
 (/) 8ee 1 Hawk. c. 22, s. 5 ; 2 Hawk. 5 Ehz. c. 4, s. 31 (rep.) enacted, 'that it 
 
 c. 25, s. 4. shall not be lawful to any person to set up, 
 
 ((j) Saunders v. Holborn District Bd. of &c., any craft, mystery, &c., except he 
 
 Works [1895], 1 Q.B. fi4. shall have been brought up therein seven 
 
 (A) R. V. Wright, 1 Burr. 543. R. v. years as an apprentice,' &c., u}Mn pain that 
 
 Gregory, 5 B. & Ad. 555. R. v. Crosslev, every person willingly offending or doing 
 
 10 A. & E. 132. R. V. Walker, 44 L. J. the contrary forfeit for every default forty 
 
 M.C. 169. R. V. Hall [1891], 1 Q.B. 747, shillings for every month ; and the method 
 
 770, Charles, J. of proceeding upon this statute wa.s either 
 
 (i) Clegg V. Earby Gas Co. [1896], 1 Q.B. by information qui tarn in the court of oyer 
 
 362, Wills, J. See Att.-Gen. v. L. N. W. R. and terminer or sessions of the county, &c., 
 
 [1900], 1 Q.B. 78. where the offence was committed, to re- 
 
 (j) R. V. Buchanan, 8 Q.B. 883. cover the penalty, or by indictment in those 
 
 (k) Fox V. R., 29 L. J. M.C. 54 {Ex. Ch.). courts. But it should be observed that a 
 
 (I) R. V. Harris, 4 T. R. 205, Ashhurst, J. sub.sequent section (39) gave authority to 
 
 And this principle has been iield to apply proceed by indictment, or by information, 
 
 where the clause annexing the penalty was &c. See the cases collected in the note to
 
 12 Of Indictable fences. [book i. 
 
 the doing it wilfully, altliough without any corrupt motive, is indict- 
 able (m). Thus, under 3 & 4 Vict. c. 97, s. 15 (rep.), which made it a 
 misdemeanor if any person ' shall wilfully do, or cause to be done, any- 
 thing in such a manner as to obstruct any engine or carriage using 
 any railway, Maule, J., held, that if a person designedly placed on a 
 railway substances having a tendency to produce an obstruction, he 
 was v/ithin the Act, and that it was not necessary that he should have 
 placed them there expressly with the view to obstruct an engine (n). It 
 has also been ruled that it a statute enjoins an act to be done, without 
 pointing out any mode of punishment, an indictment lies for disobeying 
 the injunction of the Legislature (o). Thus, the father of a child was 
 indictable if, being requested by the registrar within forty-two days 
 of its birth so to do, he wilfully refused to inform the registrar of the 
 particulars required by the Act to be registered touching the birth, con- 
 trary to sect. 20 of the Births and Deaths Registration Act, 1836 (6 & 7 
 Will. IV. c. 86) (p). And the remedy by indictment in such a case is not 
 taken away by a subsequent statute pointing out a particular mode of 
 punishment for such disobedience (q). Where the same statute which 
 enjoins an act to be done contains also an enactment providing for a 
 particular mode of proceeding, as commitment, in case of neglect or 
 refusal, it has been doubted whether an indictment will lie (r). But 
 ' all that the authorities establish ' on this point is that where there is 
 a substantial general prohibition or command in one clause and there 
 is a subsequent clause w^hich prescribes a specific remedy, the remedy 
 by indictment is not excluded {s). Where a statute only adds a further 
 penalty to an offence prohibited by the common law, the offender may 
 still be indicted at the common law (t) ; and if a statute gives a new 
 punishment or new mode of proceeding for what before was a misde- 
 meanor, without altering the class or character of the offence, the new 
 punishment or new mode of proceeding is alternative only, and the 
 offender may be proceeded against as before for the common-law misde- 
 meanor (see sect. 33 of the Interpretation Act, 1889, aiite, pp. 4 & 6). 
 
 R. r. Kildeiby, 1 Wnis. Saund. 312. See Balme, 2 Cowp. 048, cited 2 Hawk. c. 25, 
 
 also Morris v. Loughborough Corporation s. 4, in 7ioiis. And, generally speaking, the 
 
 [1908], 1 K.B. 205. Court of King's Bench cannot be ousted 
 
 (m) R. V. Sainsbury, 4 T. R. 457, where of its jurisdiction save by express words, or 
 
 it was held to be a misdemeanor in magis- by necessary implication. Cates i: Knight, 
 
 trates to grant an ale licence where they 3 T. R. 445, Ashhurst, J. 
 had no jurisdiction. See R. v. Nott, 4 Q.B. (r) R. v. Cummings, 5 Mod. 179. R. v. 
 
 768, Dennian, C.J. King, 2 Str. 1208, cases of indictments 
 
 (n) R. V. Holroyd, 2 M. & Rob. 339 ; and against overseers for neglecting to account, 
 
 see Jones v. Taylor, 1 E. & E. 20, as to the and for not paying over the balance within 
 
 meaning of the woixls ' wilfully trespass ' in the time limited by the statute. See Couch 
 
 3 & 4 Vict. c. 97, s. 16. v. Steel, 3 E. & B. 402. In 2 Nolan, P. L. 
 
 (o) R. V. DavLs, Say. 103, discussed in 453, it is stated that an indictment will lie 
 
 R. V. Robinson, 2 Burr. 803 (refusal to in these cases, though the statute provides 
 
 receive a pauper removed luider an order of another remedy by commitment. See 
 
 justices). See also R. v. Harris, 4 T. R. 202. cases there cited. As to modern statutes 
 
 (p) R. V. Price, 11 A. & E. 727. Sect. 20 see 52 & 53 Vict. e. 63, s. 33, ante, p. 4. 
 was repealed in 1874, and replaced bys. 39 (s) R. v. Hall [1891], 1 Q.B. 747, 770, 
 
 of the Births and Deaths Registration Act, Charles, J. 
 
 1874 (37 & 38 Vict. c. 88), which makes the (t) 2 Hawk. c. 25, s. 4. R. v. Wigg, Ld. 
 
 refusal an offence punishable on summary Raym. 1163; 2 Salk. 460. And see the 
 
 conviction. cases collected in R. v. Dickenson, 1 Wms. 
 
 iq) R. V. Boyall, 2 Burr. 832. R. v. Saund. 135i, note (4).
 
 CHAP. II.] Of Indictable (fences. 13 
 
 Therefore, notwithstanding the jwovisions of the Blasphemy Act, 1697 (9 
 & 10 Will. III. c. 35; Ruffhead, c. 32), it was held that a blasphemous libel 
 might be prosecuted at common law (u). Where a statute makes that 
 felony which before was a misdemeanor only, the misdemeanor is merged, 
 and there can be no prosecution afterwards for the misdemeanor {v). 
 
 It is an offence at common law to obstruct the execution of powers 
 granted by statute (w). But where a public Act merely regulates private 
 rights, an indictment will not lie for the infringement of those rights : 
 as, if a statute empowers the setting out of private roads and the directing 
 their repairs, an indictment does not lie for not repairing them {x). 
 
 Disobedience of the orders of a competent tribunal is in most cases 
 an indictable misdemeanor at common law (y), and where a statute em- 
 powered the King in Council to make an order as to quarantine, and did 
 not annex any specific punishment for disobedience, the disobedience 
 was held to be a misdemeanor indictable at common law (z). By the 
 'Epping Forest Amendment Act, 1872,' s. 5, the Epping Forest com- 
 missioners may make orders prohibiting, until after their final report, 
 any inclosure or waste of land within the forest, subject, in their judg- 
 ment, to any forestal or common rights. The commissioners made a 
 general order prohibiting all persons from committing waste upon a piece 
 of land described until the final report, or until further order ; all persons 
 affected to be at liberty to apply to them as there might be occasion. The 
 defendant applied to the commissioners by counsel as a person affected, 
 but the}^ refused to enter into the c^uestion raised. The defendant was 
 convicted upon an indictment for breach of this order, subject to the 
 opinion of the Court of Queen's Bench, which held that the order and 
 indictment were good («). 
 
 In the case of acts commanded or prohibited by statute, three questions 
 arise : whether the statute intended the remedy to be (1) by indictment, 
 or (2) by civil proceedings, or (3) by some or other specified exclusive or 
 alternative statutory remedy. As to certain classes of acts commanded 
 or forbidden by statute in the public interest, the question arises whether 
 the remedy by indictment is excluded by a particular remedy given by 
 the statute, or is cumulative upon the statutory remedy (6). The true 
 rule is stated to be this : ' Where the offence was punishable by a 
 common-law proceeding, before the making of such statute prescribing 
 a particular mode of punishing it, then either method may be pursued, 
 as the particular remedy is cumulative, and does not exclude the common- 
 law punishment ; but where the statute creates a new offence by pro- 
 hibiting and making unlawful anything which was lawful before, and 
 appoints a particular remedy against such new offence by a particulai- 
 sanction and particular method of proceeding, such method of proceeding 
 
 iu) R. V. Carlisle, 3 B. & Aid. IGl, 1G4. R. v. HaU [1891], I Q.B. 747. 
 
 (v) See R. v. Payne [1906], I K.B. 97, 101. (a) R. v. Walker, 13 Cox, 94, where the 
 
 R. V. Gregory, L. R. 1 C. C. R. 77, and ante, form of indictment used is given, 
 
 p. 9. (h) The term ' cumulative ' with respect 
 
 {w) R. I'. Smith, 2 Dougl. 441. to this subject seems first to have been 
 
 (x) R. V. Richards, 8 T. R. 637. used by J.ord Mansfield, C.J., in R. v. 
 
 (y) R. V. Robinson, 2 Burr. 799, 804 ; and Robinson, 2 Burr. 799, 803, 805. ' Alterna- 
 
 vide post, Bk. vii. p. 542. tive ' would be a liappicr expression, so far 
 
 (z) R. V. Harris, 4 T. R. 269. See hereon as concerns criminal remedies.
 
 14 Of Indictable Offences. [book i. 
 
 must be pursued and no other (c). The mention of other methods 
 of proceeding impliedly excludes that of indictment ((^) ; unless such 
 methods of proceeding are given by a separate and substantive clause (e). 
 Thus it is now settled {/'), that where a statute making a new offence, 
 not prohibited by the common law, appoints in the same clause a par- 
 ticular manner of proceeding against the offender, as by commitment 
 or action of debt or information, without mentioning an indictment, no 
 indictment can be maintained (f/). It was decided on 21 Hen. VIII. 
 c. 13, s. 1, which provides that no spiritual person shall take land to farm 
 on pain to forfeit £10 per month ; that as the clause prohibiting the act 
 specified the punishment, the defendant was not liable to be indicted {h). 
 And it was held not to be an indictable offence to keep an ale-house 
 without a licence, because a particular punishment, namely, commitment 
 by two justices, was provided by the statute (?'). And an indictment 
 for assaulting and beating a custom-house officer in the execution of his 
 office was quashed, because 13 & 14 Car. II. c. 11, s. 6, appointed a par- 
 ticular mode of punishment for that offence (j). So an indictment will 
 not lie against an overseer for wilful breaches of the duties imposed 
 upon him by the Registration of Electors Act, 1843, in preparing and 
 publishing voters' lists, inasmuch as the sections prescribing those duties 
 contain no general prohibitory clause, and sect. 51 gives the revising 
 barrister power to fine overseers for wilful breaches of duty, and sect. 97 
 gives the party aggrieved the right to bring a penal action against 
 the overseer for every wilful misfeasance or wilful act of commission or 
 omission contrary to the Act (k). 
 
 Matters not indictable at Common Law. — An indictment will not 
 lie in respect of injuries of a pjivate nature to individuals unless they 
 in some way concern the King (l), or are accompanied by acts amounting 
 to a breach of the peace (w). Thus an indictment did not lie for 
 excluding commoners from a common by enclosing (n), or for infringing 
 the rights of the inhabitants of a particular district (o), nor for acting, not 
 
 (c) R. V. Robinson, 2 Burr. 799, 80.5. 2 Str. 828. 
 
 R.t). Carlisle, 3 B. & Aid. 163. R. r. Boy all, (/.) R. v. Hall [1891], 1 Q.B. 747; 17 
 
 2 Burr. 832. See also Hartley v. Hooker, Cox, 278, Charles, J. 
 
 2 Cowp. 524. R. V. Balme, 2 Cowp. G50. (/) 2 Hawk. c. 25, s. 4. R. v. Richards, 
 
 And see R. v. Faulkner, 1 Wms. Saund. 8 T. R. 637. This distinction is stated also 
 
 250e, note (3). 8ee, however, R. v. to have been taken in R. v. Bembridge & 
 
 Wright, 1 Burr. 543. R. v. Douse, 1 Ld. Powell ([1783], 22 St. Tr. 1, cited in R. v. 
 
 Rayni. 672. R. v. Hall [1891J, 1 Q.B. 747, Southerton, 6 East, 136), an indictment 
 
 ante. p. 1 1 . for enabling persons to pass their accounts 
 
 (d) 2 Hawk. c. 25, s. 4. with the pay-office in such a way as to 
 
 (e) A7}le, p. 11 ; and see R. v. Briggs enable them to defraud the Government. 
 [1909], 1 K.B. 381 ; 78 L. J. K.B. 116. It was objected, that this was only a private 
 
 (f) 2 Hawk. c. 25, s. 4. Glass's case, 3 matter of account, and not indictable : but 
 Salk. 350. the Court held otherwise, us it related to 
 
 (g) R. V. Hall fl891], 1 Q.B. 747. the public revenue. 
 
 (h) R. V. Wright, 1 Burr. 543. (m) R. r. Bake, 3 Burr. 1731, where an 
 
 {i) Anon., 3 Salk. 25. Watson's case, indictment for forcible entry was quashed 
 
 1 Salk. 45. R. r. Edwards, 3 Salk. 27. for lack of allegations as to breach of the 
 
 R. V. Faulkner, 1 Wms. Saunders 248, peace, the indictment merely alleging a 
 
 250e, note (3). breaking and entering of the close of 
 
 (j) Anon., 2 Ld. Raym. 991 ; 3 Salk. 189. another. 
 
 So an indictment for keeping an ale-house (n) Willoughby's case [1588], Cro. Eliz. 
 
 was quashed, because 3 Car. 1, e. 3, directed 90. 
 
 a particular remedy. R. v. James, cited in (o) See R. v. Hogan, 2 Den. 277 ; 20 L. J. 
 
 R. V. Buck, 1 Str. 679. R. v. Malland, M.C. 219; post, p. 16.
 
 CHAP. II.] 
 
 Of Indictable Offences. 
 
 15 
 
 being qualified, as a justice of j^eace (p) ; nor for giving short measure (</) ; 
 nor for an attempt to defraud, if neither by false tokens or con- 
 spiracy (r) ; nor for secreting another {s) ; nor for bringing a bastard 
 child into a parish {t) ; nor for entertaining idle and vagrant persons in the 
 defendant's house {u) ; nor for keeping a house to receive women with 
 child, and deliver them {v) ; nor for enticing away an apprentice {w). 
 
 An indictment alleging that the prisoner contriving to injure the 
 inhabitants of a parish, and unjustly to burthen them with the main- 
 tenance of her bastard child, being of very tender age and unable to move 
 
 (p) Castle'.s case, Cro. Jac. 644. 
 
 (q) R. V. Osborn, 3 Burr. 1697 ; but, 
 selling hi/ false measure is indictable. Ibid. 
 
 (?•) R.' V. Clmnnell, 2 Str. 793 (an indict- 
 ment against a miller for taking and detain- 
 ing part of the corn sent to him); and R. v. 
 Bryan, 2 Str. 86(). Anon., 6 Mod. 105. R. 
 11. Wheatly, 2 Burr. 112.5 (indictment of a 
 brewer for delivering less beer than con- 
 tracted for, held bad). R. v. Wilders, 2 Burr. 
 1128 (cit.) (indictment against a brewer 
 for sending vessels of beer falsely marked 
 as containing more than they in fact did, 
 quashed). R. v. Pinkney [1730], 2 Sess. 
 Cas. K.B. (2nd ed.) p. 198 (indictment for 
 selling corn by false measure, Cjuashed). In 
 R. V. Haynes, 4 M. & S. 214, an indictment 
 was found against a miller, for receiving 
 good barley to grind at his mill, and de- 
 livering a mixture of oat and barley meal, 
 different from the produce of the barley, 
 and which was musty and unwholesome. 
 For the prosecution was cited a note in 
 I Hawk. c. 71, s. 1, i-ef erring to R. v. Wood 
 [1740], 2 Sess. Cas. K.B. (2nd ed.) p. 277, 
 where it is laid dovvii, that changing corn by 
 a miller, and returning bad corn instead of 
 it, is punishable by indictment ; 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. Ellen- 
 borough, C. J., in giving judgment, said, that 
 if the allegation had been that the miller 
 delivered the mixture as an article for the 
 food of man, it might possibly have sus- 
 tained the indictment, but that he could 
 not say that its being musty and unwhole- 
 some necessarily and ex vi termini imported, 
 that it was for the food of man ; and it was 
 not stated that it was to be used for the 
 sustentation of man, but only that it was a 
 mixture of oat and barley meal. He added : 
 ' As to the other point, that this is not an 
 indictable offence, because it respects a 
 matter transacted in the course of trade, 
 and where no tokens were exhibited by 
 which the party acquired any greater de- 
 gree of credit, if the case had been that this 
 miller was owner of a soke-mill, to which 
 the inhabitants of the vicinage were bound 
 to resort, in order to get their corn ground, 
 and that the miller, abusing the confidence 
 of this his situation, had made it a colon i- 
 for practising a fraud, this might have pre- 
 
 sented a different aspect ; but as it now is, 
 it seems to 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 R. v. Wheatley, and the 
 other cases, as not being indictable.' And 
 see also R. v. Bower, 1 Cowp. 323, as to the 
 point that for an imposition, which a man's 
 own prudence ought to guard him against, 
 nn indictment does not lie, but he is left to 
 his civil remedy. But in R. v. I.iixon, 3 M. 
 & S. 11, it was held, that a baker who sells 
 bread containing alum, in a shape which 
 renders it noxious, is guilty of an indictable 
 offence, if he ordered the alum to be intro- 
 duced into the bread, although he gave 
 directions for mixing it up in the manner 
 which would have rendered it harmless. 
 
 (s) R. V. Chaundler, 2 Ld. Raym. 1368 ; 
 an indictment for secreting A., who was 
 with child by the defendant, to hinder her 
 evidence, and to elude the execution of the 
 law for the crime aforesaid. S(d quaere. 
 
 {t) R. i\ Warne, 1 Str. 644, it appearing 
 that the parish could not be burthened, the 
 child being born out of it. But see a prece- 
 dent of an indictment for a misdemeanor at 
 common law, in lodging an inmate, who 
 was delivered of a bastard child, which 
 became chargeable to the liberty. 2 Chit. 
 Cr. L. 700. And see also id. 699, 4 Wentw. 
 353, and Cro. Circ. Comp. (7th edit.) 
 648, precedents of indictments for misde- 
 meanors at common law, in bringing such 
 persons into parishes in which they had no 
 settlements, and in which they shortly died, 
 whereby the parishioners were put to ex- 
 pense. In one case it is stated to have been 
 held, that no indictment will lie for pro- 
 curing the marriage of a female pauper 
 with a labouring man of another parish, 
 who is not actually chargeable. R. v. 
 Tanner, 1 Plsp. 304. But if the facts of the 
 case will warrant a charge of conspiracy, 
 the offence would be substantiated, if under 
 the circumstances the parish might possibly 
 be put to expense. See 1 Nolan, P. L. 
 Settlement by Marriage, s. I. in the notes. 
 R. r. Seward, 1 A. & E. 700 ; 3 N. & M. 
 557. 
 
 (m) R. v. Langley, 2 Ld. Raym. 790. 
 
 (/•) R. v. Macdonald, 3 Burr. 1645. 
 
 (h) R, v. Daniel, 1 Salk. 380.
 
 16 Of Indictable fences. [book i. 
 
 or walk, unlawfully did abandon the said child in the said parish without 
 having provided any means for the support of the said child, the said 
 child not being settled in the said parish, was held bad, because the mere 
 abandonment, the possible consequence of which might be to injure the 
 parish, was not indictable (a;). 
 
 Where an indictment stated that the prisoner intending to burthen 
 the inhabitants of a parish with the maintenance of her bastard child 
 abandoned the said child in the said parish, and it appeared that the 
 prisoner left the child in a dry ditch in a field in the parish ; there was 
 a pathway in the field by the ditch, and a lane separated from the ditch 
 by a hedge neither of which was much frequented ; Parke, B., held that 
 there was no ground for imputing any intention to burthen the parish, 
 as it was not placed in a position where it was likely to come to the 
 knowledge of the officers of the jiarish {y). 
 
 The administration of a poisonous ingredient with intent to hurt 
 and damage the body of another, whereby sickness and disorder of 
 his body is caused, was not indictable at common law (2) but such an 
 act is punishable under 24 & 25 Vict. c. 100, s. 24 {post, Bk ix. c. iv.). 
 
 Cases of non-feasance and ^particular wrong done to another are not 
 in general the subject of indictment ; and it has been doubted whether 
 a clergyman is indictable for refusing to marry persons who were lawfully 
 entitled to be married (a) ; but circumstances may exist of mere tion- 
 feasance towards a bedridden or helpless person or a child of tender 
 years (such as the neglect or refusal to provide sufficient food and sus- 
 tenance for such person being under the charge of the accused), which 
 may amount to an indictable offence at common law if death or serious 
 injury to health results from the neglect (6). 
 
 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 
 master of the company, being served with the order, refused to obey it, 
 such refusal was not the subject of indictment (c). 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 (d). 
 To keej) 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 (e). 
 
 Trespasses. — 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 constituting a 
 breach of the peace, is not indictable (/). And an indictment was held 
 
 {x) R. V. Hogan, 2 Den. 277. The in- 3 Salk. 189. In an Anon, case, 2 Salk. 522, 
 dictment was also held bad, because it did it appears to have been held, that if a pawn- 
 not allege that the child suffered any injury. broker refuses, upon tender of the mofley, 
 
 (y) R. V. Renshaw, 2 Cox, 285. to deliver the goods pledged, he may be 
 
 {z) R. V. Hanson, 2 C. & K. 912, Williams indicted. But see R. v. Jones, 1 Salk. 379, 
 
 and Cresswell, J J. As to infecting another contra. 
 
 with an infectious or contagious disorder, (e) R. v. Gorge, 3 Salk. 188. Nor is it 
 
 see R. V. Clarence, 22 Q.B.D. 23. an indictable offence to exercise trade in a 
 
 (rt) R. V. James, 2 Den. 1. The point borough contrary to the bye-laws of that 
 
 was not decided, as there had been no borough. R. v. Sharpless, 4 T. R. 777. 
 
 sufficient demand to marry. (/ ) R. v. Storr, 3 Burr. 1698. The in- 
 
 (b) R. V. Instan [1893], 1 Q.B. 450. dictment was quashed on motion. Cf. R. 
 
 (c) R. V. Atkinson, 3 Salk. 188. v. Bake, ibid. 1731, an indictment for break- 
 Id) R. V. Bradford, 1 Ld. Raym. 36G ; ing the close of another.
 
 CHAP. II.] Of Indictable Offences. 17 
 
 not to lie against one person for pulling off the thatch from the house of 
 another, who was in peaceable possession (g). An indictment for taking 
 away chattels will not lie unless it states or imports that such a degree of 
 force was used as made the taking an offence against the public. Where 
 an indictment averred that the defendant with force and arms unlawfully, 
 forcibly, and injuriously seized, took, and carried away, of and from 
 J. S., and against his will, a paper-writing purporting to be a warrant to 
 apprehend the defendant for forgery, Perryn, B., held that the indictment 
 was not valid, as it charged nothing but a mere private trespass, and 
 neither the King nor the public appeared to have any interest therein (h). 
 But where an indictment stated the entering a dwelling-house, and 
 vi et armis and with strong hand turning out the prosecutor, the Court 
 refused to quash it (i). And an indictment will lie for taking goods 
 forcibly, if such taking is proved to be a breach of the peace (j) : and 
 though such goods are the prosecutor's own property, yet, if he takes them 
 in that manner, he will be guilty {k) . 
 
 Besides the common-law remedy by indictment for treason, felony, 
 or misdemeanor, there are also the following other remedies : — 
 
 Coroner's Inquisition. — An inquisition taken by a coroner and his jury 
 charging wilful murder or manslaughter (I), or concealment of treasure 
 trove (m), is equivalent to an indictment for such offence. 
 
 Criminal Information. — Misdemeanors (but not treasons or felonies) may 
 be prosecuted in the High Court of Justice without the intervention of a grand 
 jury, on information filed ex officio by the Attorney-General (n), or on infor- 
 mation filed by the King's Coroner and Attorney by leave of the Court (o). 
 This remedy is now regarded as extraordinary, and is rarely used (p). The 
 procedure is regulated by the Crown Office Kules, 1906, rr. 35-39, 79, 83, 84, 
 Summary Proceedings.^In the case of a very large number of offences 
 newly created by statute the sole criminal remedy is by proceedings for a 
 summary conviction under the Summary Jurisdiction Acts, 1848 to 1899, 
 as amended by the Children Act, 1908 (8 Edw. VII. c. 67) : and there is also 
 much legislation giving power to convict summarily of certain forms of 
 offence, particularly public nuisances, which at common law are punishable 
 only on indictment. The power to convict summarily of the latter class 
 of offence is alternative to and not exclusive of the power to indict (q). 
 
 Election to be tried on Indictment. — By the Summary Jurisdiction 
 Act, 1879 (42 & 43 Vict. c. 49), s. 17, subs. 1, ' A person when charged 
 before a Court of Summary Jurisdiction with an offence in respect of the 
 commission of which an offender is liable on summary conviction to be 
 imprisoned for a term exceeding three months (r), a^id which is not an 
 assault, may, on appearing before the Court and before the charge is 
 
 (g) R. V. Atkins, 3 Burr. 1706. («) Short & Mellor, Cr. Pr. (2nd ed.) 151. 
 
 (h) R. V. Gardiner, Salisbury, 1780, MS. Archb. Cr. PI. (23rd ed.) 142. 
 
 Bayley, J. (o) 4 & 5 W. & M. c. 18. Short & MclIor, 
 
 (t) R. V. Storr, 3 Burr. 1698. Cr. Pr. (2nd ed.) 151. Archb. Cr. PI. (23rd 
 
 (j) Anon., 3 Salk. 187. ed.) 144. 
 
 (k) Ibid. See Blades v. Higgs, 10 C.B. (p) See Archbold, Cr. Pi. (23rd cd.) 145. 
 
 (N. S.) 713; 12 C.B. (N. S.) 501; 11 Encyc. Laws of England (2nd ed.) vol. vii. 
 
 H. L. C. 621. tit. ' Information.' p. 201. 
 
 {I) See the Coroners Act, 1887 (50 & 51 (q) Vide post, Bk. xi. cc. iu. iv. 
 
 Vict.), c. 71. (/■) See Carle v. Elkington, 17 Cox, 557. 
 
 {m) Vide post, Bk. iv. p. 339. 
 
 VOL. I. C
 
 18 Of Indictable Offences. [book i. 
 
 gone into, but not afterwards, claim to be tried by a jury, and thereupon 
 
 . the ofience shall as respects the person so charged be deemed to be 
 an indictable offence, and if the person so charged is committed for trial 
 or bailed to appear for trial, shall be prosecuted accordingly . . . ' (s). 
 
 Similar provisions are made by two earlier Acts : the Conspiracy 
 and Protection of Property Act, 1875 (38 & 39 Vict. c. 86), s. 9 ; and the 
 Prevention of Cruelty to Animals Act, 1876 (39 & 40 Vict. c. 77), s. 15 : 
 and by sect. 1 (6) of the Merchandise Marks Act, 1887 (50 & 51 Vict, 
 c. 28), 'Any person charged with an offence under this section (relating to 
 false trade marks and false trade descriptions) before a Court of Summary 
 Jurisdiction shall, on appearing before the Court, and before the charge 
 is gone into, be informed of his right to be tried on indictment, and if he 
 requires be so tried accordingly' [t). As to summary trial of corrupt or 
 illegal practices at elections see 46 & 47 Vict. c. 51, s. 43. 
 
 The offences to which sect. 17 applies are too numerous for enumera- 
 tion here, and, so far as material, are mentioned under the appropriate 
 titles, post {u). By subsect. 2, as interpreted by the judges, the justices 
 must inform the accused of his election, so soon as it appears that by 
 reason of a previous conviction or otherwise the accused is liable to more 
 than three months' imprisonment, and, if they do not, the summary con- 
 viction is void(t'). By subsect. 3, as amended in 1908, the section is not 
 to apply to the case of a child under fourteen, unless the parent or 
 guardian of the child is present. If the parent, etc., is present, the 
 inquiry as to election is made of him, and the election is made by him (w). 
 
 Where an accused person elects, under sect. 17, to be tried by a jury, 
 the subsequent procedure before justices is the same as that which is 
 applicable to the case of indictable offences, and not that applicable to 
 summary proceedings. The accused person may therefore be committed 
 to take his trial in respect of any indictable offence disclosed by the deposi- 
 tions, and, in cases not falling within the Vexatious Indictments Acts, 
 counts may be added to the indictment in respect of any indictable 
 offence disclosed by the depositions, although the accused was not sum- 
 moned before the justices in respect of such offence {x). The indictment 
 need not include any reference to the election (?/), but where the offence 
 is punishable by more than three months' imjjrisonment by reason of a 
 previous conviction, the previous conviction is charged in the indictment 
 in the same manner as in ordinary indictable cases. But the previous 
 conviction may not be proved until after conviction of the subsequent 
 offence, unless its proof is essential to the proof of the complete or subse- 
 quent offence (z). 
 
 (s) As to costs see post, Bk. xii. c. v. T. L. R. 337, 78 L. J. K.B. 482, dissenting 
 
 {t) See R. V. Phillips, 65 J. P. 41. The from R. v. Fowler, 64 L. J. M. C. 9. 
 
 Vexatious Indictments Act applies (50 & {w) Provision for the summary trial 
 
 51 Vict. c. 28, s. 13), vide post, Bk. xii. of childi-en under fourteen, for all offences 
 
 c. i. except homicide, is made by the Summary 
 
 (u) For examples see R. r. Brown [1895], Jurisdiction Act, 1879, and the Children 
 
 1 Q.B. 119 (' Betting Houses '). R. v. Pen- Act, 1908 (8 Ed. VII. c. 67), s. 128, and the 
 
 fold [1902], 1 K.B. 547. A Kst, apparently liability of children to imprisonment is 
 
 complete, is given in Douglas's Summary taken away by the latter Act (s. 102). 
 
 Jurisdiction Procedure (9th ed.). (.r) R. ?>. Brown, uhi sup. 
 
 {v) R. V. Cockshott [1898], I Q.B. 582. (i/) R. v. Chambers, 65 L. J. M.C, 214, 
 
 R. V. Beesby [1909J, 1 KB. 849; 25 (z) B,. v. 'Peniold, uhi sup.
 
 (18a) 
 
 CANADIAN NOTES. 
 
 INDICTABLE OFFENCES. 
 
 Felony and Misdemeanour. — The distinction between "felony" and 
 "misdemeanour" is abolished. Code see. 14. 
 
 Misdemeanour Practice to Prevail. — When a certain practice would 
 have been permissible in case of misdemeanour, and not in case of 
 felony, the practice has been to apply the rule as in cases of misde- 
 meanour, and such is the intention of the Code. R. v. Fox, 7 Can. Cr. 
 Cas. 457. 
 
 Prisoner's Testimony as Witness at Another Trial. — Consent of 
 prisoner's counsel. The distinction between felony and misdemeanour 
 having been abolished, the consent of counsel for the accused which 
 before the Code would have been effective in misdemeanours only, is 
 now effective, although the offence charged was formerly a felony. 
 And evidence given on the trial of another person including the 
 evidence of the prisoner then called as a witness, may with the consent 
 of the prisoner's counsel be admitted in evidence both for and against 
 the prisoner. R. v. Fox, 7 Can. Cr. Cas. 457 (Ont.) 
 
 Felony or Misdemeanour. — A person committed for trial for an 
 indictable offence which was a felony before the Code is not entitled 
 as of right to bail. For indictable offences which were misdemeanours 
 before the Code the accused committed for trial is entitled to bail as a 
 matter of right. Ex parte Fortier, 6 Can. Cr. Cas. 191. 
 
 A provincial statute prior to Confederation, providing for the 
 discharge from imprisonment in default of indictment of an accused 
 person committed for a "felony" will apply equally to cases which 
 were misdemeanours before the abolition of the distinction between 
 felony and misdemeanour. R. v. Cameron (1897), 1 Can. Cr. Cas. 169 
 (Que.) 
 
 Enactments regulating the procedure in Courts are usually deemed 
 imperative, and not merely directory. R. v. Riel (No. 2) (1885), 1 
 Terr. L.R. 23, 44. 
 
 Coroner's Inquisition. — No one shall be tried on any coroner's 
 inquisition. Code see. 940. 
 
 Upon a verdict of guilty being found before him, it is the duty of a 
 coroner to direct by warrant that a person charged with manslaughter 
 or murder shall be taken into custody, and conveyed before a magis-
 
 ISb Indictable Off ences — Information, etc. [book i. 
 
 trate or justice ; or the coroner may direct that the accused enter into 
 recognizances, with or without bail, to appear before a magistrate or 
 justice. Code sec. 667. 
 
 A coroner's subpoena to a witness cannot be served outside the 
 coroner's jurisdiction. Re Anderson & Kinrade, 13 O.W.R. 1082. 
 
 Criminal Information. — "Indictment" includes "information" — 
 Code sec. 2(16) — and "finding the indictment" includes also "exhibit- 
 ing an information" and "making a presentment" — Code sec. 5(a). 
 * ' Attorney-General ' ' includes ' ' Solicitor-General. ' ' Code sec. 2(2). 
 
 Information. — The Superior Courts in Canada grant criminal 
 information in proper cases on motion. See the following cases for 
 statements of principles and practice. R. v. Ford (1853), 3 U.C.C.P. 
 209; R. V. Ed. Whelan (1863), 1 P.E.I. 223; Re Recorder, etc., of 
 Toronto (1864), 23 U.C.Q.B. 376; R. v. Plimsoll (1873), noted in 12 
 Ch. J. 227; R. V. Thompson (1874), 24 U.C.C.P. 252; R. v. Kelly 
 (1877), 28 U.C.C.P. 35; R. v. Wilkinson (1878), 42 U.C.Q.B. 492; R. 
 V. Wilson (1878), 43 U.C.Q.B. 583. 
 
 Summary Proceedings. — Code, Pt. 15, sees. 705-770. Summary 
 Convictions. 
 
 Election to ie Tried on Indictment or Summarily. — Code, Pt. 16, 
 sees. 771-799. Summary Trial of Indictable Offences. Certain offences 
 can be tried summarily without the consent of the accused (sees. 774, 
 775, 776). In other offences, the consent of the accused to be tried 
 summarily must be obtained after the charge is made (sec. 778). The 
 magistrate has power to decide in any case not to proceed summarily. 
 Section 784. 
 
 Trial of Juvenile Offenders for Indictable Offences. — Code sees. 
 800-821. An Act respecting Juvenile Offenders, Delinquents, etc. 
 7 & 8 Edw. VII. (Can.) eh. 40. 
 
 Speedy Trial of Indictable Offences. — Code sees. 822-842. The 
 accused has the option to be tried before a Judge without a jury, or in 
 the ordinary way. Section 827 (&).
 
 (19) 
 
 CHAPTER THE THIRD. 
 
 OF CRIMINAL JURISDICTION. 
 
 It is necessary to distinguish between national or territorial jurisdiction 
 to try for crime, and venue, i.e. the proper district of England from 
 which the jury must be summoned to try a crime which is within the 
 jurisdiction of the English Courts {a). Consequently, this chapter 
 necessarily to some extent includes procedure as well as jurisdiction. 
 
 In the view of English law, crime is primarily local, i.e., depends on 
 the law of the place in which it is committed, and not on the nationality 
 of the person who commits it {h). On this principle aliens are amenable 
 to the English criminal law, in respect of crimes committed in England (r), 
 and British subjects are not amenable to that law in respect of 
 offences committed outside England, unless committed within the 
 Admiralty jurisdiction, or unless specially j)rovided for by statute. 
 
 At common law the jurisdiction of English Courts to try persons 
 accused of crime is regulated by the following rules : — 
 
 1. Courts of the common law could try only offences committed within 
 
 the body of the realm. Offences committed by Englishmen 
 outside the body of the realm were cognisable, if at all, only by 
 the admiral or by the constable and marshal. 
 
 2. Indictments for crimes committed within tlie realm could be found 
 
 and tried only by juries summoned from the county, liberty, 
 borough, or other judicial area within which the crime or an 
 integral part of it was alleged to have been committed {d). This 
 rule created difhculties in the administration of justice where 
 the acts constituting the crime were not all committed witliin 
 the same judicial district. As regards larceny, this difficulty 
 was got over by treating common law larceny as committing in 
 any county in England into which the thief carried the stolen 
 goods (e). As regards homicide, cases in which the fatal wound 
 was ^iven in one county and the death took place in another, 
 were met by legislation, 2 & 3 Edw. VI. c. 24, s. 2, under which 
 the trial was to be in the county where the death occurred. 
 It seems to have been established as a common-law rule that a mis- 
 demeanor committed partly in one county and partly in another could 
 
 (a) See British South Africa Co. v. Com- De Jager v. Att.-Gcn. of Natal [1907 J, A.C. 
 
 panhia de Mozambique [1893], A.C. (K)2. 32G. 
 
 (6) Sirdar Gurdyal Singh v. Rajah of {d) R. v. Weston, 4 Burr. 2507, 2r)ll, 
 
 Faridkote [1894], A.C. (570, Earl of Sel- Lord Mansfield. 
 borne. (e) This rule did not apply where the 
 
 (c) Barronet's case, 1 E. & B. 1 ; a charge theft was committed outside England, 
 
 of homicide arising out of a duel between Vide post, vol. ii. p. 1307. 
 foreigners in England. As to treason see 
 
 c 2
 
 20 Of Criminal Jurisdiction. [Book I. 
 
 be tried in either county (/). 2 & 3 Edw. VI. c. 24, s. 2, was repealed in 
 1826 (g), and the following general rules were applied both to felonies 
 and misdemeanors : ' For the more effectual prosecution of offences 
 committed near the boundaries of counties, or partly in one county and 
 partly in another, it is enacted by the Criminal Law Act, 1826 (7 Geo. IV. 
 c. 64), s. 12, " that where any felony or misdemeanor shall be committed 
 on the boundary or boundaries of two or more counties, or within the 
 distance of five hundred yards of any such boundary or boundaries (h), 
 or shall be begun in one county and completed in another, every such 
 felony or misdemeanor may be dealt with, inquired of, tried, determined 
 and punished in any of the said counties, in the same manner as if it had 
 been actually and wholly committed therein " ' (i). 
 
 The term 'county' (j) in these enactments includes not only counties 
 at large, but counties of cities or towns {k), but does not include limited 
 jurisdiction within counties (l). The section does not apply to offences 
 partly committed on the high seas or on land outside England (m). 
 The effect of the section is to put an end to conflicts of jurisdiction between 
 two counties in cases to which the section applies. It authorises the 
 laying and trial of the offence in either county (n), but not laying the 
 offence in one county and trying it in the other (o). 
 
 Offences committed on a Journey or Voyage. — By the Criminal Law 
 Act, 1826 (7 Geo. IV, c. 64), s. 13 : ' Where any felony or misdemeanor 
 shall be committed on any person, or on or in respect of any property 
 in or upon any coach, waggon, cart, or other carriage whatever employed 
 in any journey, or shall be committed on any person, or on or in respect 
 of any property on board any vessel whatever employed on any voyage 
 or journey upon any navigable river, canal, or inland navigation, such 
 felony or misdemeanor may be dealt with, inquired of, tried, determined, 
 and punished in any county, through any part whereof such coach, 
 waggon, cart, carriage, or vessel shall have passed, in the course of the 
 
 (/) R. V. Burdett [1820], 3 B. & Ad. 717; committing the offence in the county where 
 
 4 B. & Ad. 95. the felony was completed ; but it was held 
 
 (g) 7 Geo. IV. c. 04, s. 32. that the section extended to the case. The 
 
 (h) Measured geometrically in a direct clerk of arraigns had consulted Littledale, 
 
 line or as the crow flies. R. v. Welsh, J., who thought that the indictment ought 
 
 1 Mood. 175, Parke, B. Vide ante, p. 4. to be preferred in the city, and it had been 
 
 (i) Cf. the somewhat similar provisions of so preferred accordingly. C. S. G. 
 the Fugitive Offenders Act, 1881 (44 & 45 (I) In R. v. Wood [1841], 5 Jur. 225, 
 
 Vict. c. 69), ss. 20, 39, as to offences com- where a larceny was committed in the City 
 
 mitted on the boundary of two adjoining of London, but within 500 yards of the 
 
 British possessions outside the British boundary of the county of Surrey and of 
 
 Islands. the borough of Southwark, it was held that 
 
 (j) As to its meaning in modern Acts the offence could not be tried by the 
 
 vide 52 & 53 Vict. c. 63, s. 4, ante, ]). 3. quarter sessions for the borough of South- 
 
 (k) R. V. Jones, Worcester Lent Assizes wark. Cf. Moufiet v. Cole, 42 L. J. Ex. 8. 
 [1830], Jervis, K.C.MSS. C. S. G. Upon an (m) See R. v. Elhs [1899], 1 Q.B. 230: 
 
 indictment for manslaughter, found by the goods obtained in England by false pre- 
 
 grand jury of the county of the city of W., tences in Scotland. R. v. Oliphant [1905], 
 
 alleging the blow which caused the death to 2 K.B. 67: falsification of account-books 
 
 liave been struck in the county of Worces- in England procured by an employee who 
 
 ter, it was objected that the words, ' began was in France. 
 
 in one county and completed in another,' («) R. v. Elhs [1899], 1 Q.B. 230, 234, 
 
 did not apply to such a case, as the word 239, Wills, J. All the earlier authorities 
 
 ' completed ' necessarily imported some are there discussed, 
 cative and continuing agency in the person (o) R. v. Mitchell, 2 Q.B. 636, 643.
 
 CHAP. III.] Offences on Journeys. 21 
 
 journey or voyage during which such felony or misdemeanor shall have 
 been committed, in the same manner as if it had been actually committed 
 in such county ; and in all cases where the side, centre, or other part 
 of any highway, or the side, bank, centre, or other part of any such 
 river, canal, or navigation shall constitute the boundary of any two 
 counties, such felony or misdemeanor may be dealt with, inquired of, 
 tried, determined, and punished in either of the said counties, through 
 or adjoining to, or by the boundary of any part whereof such coach, 
 waggon, cart, carriage, or vessel shall have passed, in the course of the 
 journey or voyage, during which such felony or misdemeanor shall 
 have been committed, in the same manner as if it had been actually 
 committed in such county ' {f). 
 
 This enactment is general, and applies to any carriage whatever 
 employed in any journey {q). Where the prisoners were tried for larceny 
 of oats, &c., the property of their masters, it appeared that they had 
 been sent with a waggon from a railway station, then in Middlesex, to 
 Woolwich, then in Kent, that the usual quantity of oats for the horses 
 was given out to them, and put into the waggon in nosebags, and that 
 the prisoners sold the oats at Woolwich. It was held that they were 
 triable in Middlesex ; for the ' object of the statute was to enable a 
 prosecutor, whose property is stolen from any carriage on a journey, 
 to prosecute in any county through any part of which the carriage shall 
 have passed in the course of that journey ; because, in many cases, 
 it might be quite impossible to ascertain at what part of the journey 
 the offence was actually committed ' (r). 
 
 The prisoner had acted as guard of a coach from P. in Cumberland 
 to K. in Westmoreland, and was entrusted with a banker's parcel con- 
 taining bank-notes and two sovereigns ; on changing horses in West- 
 moreland, he carried the parcel to a privy, and while there took out 
 of it the sovereigns. Parke, B., held that as the act of stealing was 
 not ' in or upon the coach,' the case was not within the statute, and 
 that the felony having been committed in Westmoreland, the indictment 
 ought to be preferred in that county (s). 
 
 The prosecutor missed a dressing-case which had been in a railway 
 carriage with him. The prisoner had accompanied the train, and had 
 stated that he had found the dressing-case in a first-class carriage at a 
 station in Staffordshire, and that he carried it to the engine and gave 
 it to another prisoner, who opened it with a wrench, and on their return 
 to Shrewsbury gave him some of the articles as his share. It was argued 
 that the prisoner's statement showed that the larceny was not committed 
 during the journey ; for the removal of the dressing-case from the carriage 
 did not constitute the larceny, according to the prisoner's statement, 
 but it consisted in the distribution of the property at Shrewsbury ; but 
 Williams, J., held that there was evidence from which the jury might 
 
 (y) Cf. the similar provisions of the Post Islands). 
 Office Act, 1908 (8 Edw. VII. c. 48), (7) R. r. Sharpe [1854], Dears. 415, 417. 
 
 s. 72 (1), and the Fugitive Offenders Jervis. C.J. 
 Act, 1881 (44 & 45 Vict. c.'()9), ss. 21, 39, as (r) Id. ibid. 
 
 to offences committed on a journey between {s) R. v. Sharpc [183G], 2 Lew. 233. 
 
 two British possessions (outside the British
 
 22 Of Criminal Jurisdiction. [book i. 
 
 find that the dressing-case was abstracted during the journey ; as the 
 evidence, with the exception of the prisoner's statement, was consistent 
 with either supposition {t). 
 
 Where on a trial at the Central Criminal Court for assault, it appeared 
 that the prosecutrix and the defendant left Brighton together by a 
 train which ran to New Cross, within the jurisdiction of the Central 
 Criminal Court ; and the assault was committed in Sussex, and the 
 jirosecutrix at Three Bridges left the carriage in which she had been 
 previously riding with the defendant, and travelled in another carriage 
 to New Cross {u) ; it was held that by the combined operation of 
 sect. 13 {v), and the Central Criminal . Court Act, 1834 (4 & 5 Will. 
 IV. c. 36) (w), the case might be tried at the Central Criminal Court. 
 There was but one journey, and although the carriages were distinct, 
 they all formed but one conveyance, and the fact that the prosecutrix 
 and defendant rode in different carriages after the assault did not affect 
 the question ; it was the same as if they had occupied different parts 
 of the same carriage. The words ' through which any carriage shall 
 have passed ' in sect. 13, refer to the time of the trial, and not to a time 
 antecedent to the commitment of the offence, and therefore make the 
 offence triable at any place within the limits of the beginning and end 
 of the journey, and do not confine the trial to any county through which 
 the train had passed up to the time of the offence {x). 
 
 In the enactments above set forth, the term ' county ' referred to the 
 geographical counties as then existing (including counties of cities or 
 towns). The boundaries of most, if not all, counties in England have 
 since 1826 been altered for administrative purposes and for Parliamentary 
 elections. The effect of these changes upon the judicial county may 
 be stated thus : 
 
 The changes of area effected by the Parliamentary Boundaries Act, 
 1832 (2 & 3 Will. IV. c. 64) {y), and the Municipal Corporations Act, 1835 
 (5 & 6 Will. IV. c. 76) (s), had the effect of removing completely from 
 one county to another, for all purposes, the transferred areas {a). Where 
 the prisoner was indicted for wounding with intent to do grievous bodily 
 harm, at a place which was added to the borough of Haverfordwest (6), 
 by the Acts last above mentioned, and declared to be part of the borough, 
 it was held that the prisoner might be tried by a jury of the borough (c). 
 
 By the Counties (Detached Parts) Act, 1839 (2 &"3 Vict. c. 82) s. 1, ' it 
 
 (I) R. V. Pierce [1852], 6 Cox, 117. Bexley. 70 J.P. 263 (a trial at the Central 
 
 {u) Then in Kent, now in the County of Criminal Court for killing a child found 
 
 London. dead at the end of a railway journey). 
 
 (v) Ante, p. 20. (y) See 31 & 32 Vict. c. 46 ; 48 & 49 
 
 (w) Except when extended under the Vict. c. 23. 
 
 Winter and Spring Assizes Acts, the (2) Repealed in 1882 (45 & 46 Vict. c. 50, 
 
 jurisdiction of the Central Criminal Court s. 5). 
 
 is confined to the City of London, the {a) R. v. Gloucestershire JJ. [1836], 4 A. 
 
 counties of London and Middlesex, and & E. 689. This decision related to the 
 
 parts of Essex, Surrey, and Kent. 4 & 5 county of the city of Bristol, and arose on 
 
 Will. IV. c. 36, s. 2 ; 51 & 52 Vict. c. 41, the transfer of Clifton from Gloucestershire 
 
 s. 89. to the city of Bristol. 
 
 (x) R. V. French, 8 Cox, 252, the Re- (6) Which is a county in itself by 34 & 35 
 
 corder. An objection that 7 Geo. IV. c. 64, Hen. VIII. c. 26, s. 61. 
 
 a. 13, did not apply to railway trains seems (c) R. v. Filler, 7 C. & P. 337, Coleridge, J. 
 to have been tacitly overruled. Cf. R. v.
 
 CHAP. III.] Detached Parts of Counties. 23 
 
 shall be lawful for any justice or justices of the peace acting for any 
 county, to act as a justice or justices of the peace in all things whatsoever 
 concerning or in any wise relating to any detached part of any other 
 county (d), which is surrounded in whole or in part by the county for 
 which such justice or justices acts or act ; and that all acts of such justice 
 or justices of the peace, and of any constable or other officer in obedience 
 thereto, shall be as good, and all offenders in such detached part may 
 be committed for trial, tried, convicted and sentenced, and judgment 
 and execution may be had upon them in like manner as if such detached 
 parts were to all intents and purposes part of the county for which 
 such justice or justices acts or act ; and all constables and other officers 
 of such detached parts are hereby required to obey the warrants, orders, 
 and acts of such justice or justices, and to perform their several duties 
 in respect thereof, under the pains and penalties to which any constable 
 or other officer may be liable for a neglect of duty ' (e). 
 
 By sect. 3 : " The word " county" shall be taken to mean and include 
 county, riding, division, and parts of a county having a separate com- 
 mission of the peace' (/'). 
 
 The grand jury of the county, which whoilv surrounds a detached 
 part of another county, may find an indictment for an offence committed 
 in such detached part, and the prisoner may be tried by a jury of such 
 surrounding county. The prisoner was indicted at the Dorsetshire assizes 
 for larceny in a parish of Somersetshire, entirely detached from it, and 
 surrounded by Dorsetshire. He had been committed by a Dorsetshire 
 magistrate to the gaol of that county. The indictment laid the offence 
 to have been committed in the parish of H., the same being a detached 
 part of Somersetshire, surrounded in the whole by Dorsetshire ; the 
 venue in the margin was Dorset. The indictment did not state that 
 the prisoner was in Dorsetshire, or that he was committed by a Dorset- 
 shire magistrate. Fitzherbert objected, first, that this should have 
 appeared on the face of the indictment ; and, secondly, that the grand 
 jury of Dorsetshire could not find the bill, as there were no words in the 
 statute giving any power to find the bill ; but Rolfe, B., overruled the 
 objection, saying that it would strike the Act out of the statute-book (y). 
 
 (d) For the purposes of county police, (g) R. v. Loader, ex relatione Mr. Fitz- 
 these detached parts and all liberties and herbert. Reference was made arguendo to 
 franchises (except municipal boroughs 7 Geo. IV. c. 64, s. 12, and 4 & 5 Will. IV. 
 having a separate police force) are treated c. 3(i. S. C. Talf. Dick. Q.S. 188, where a 
 as part of the surrounding county. 2 & 3 qKareis added to the decision by the learned 
 Vict. c. 93, s. 27. That Act does not editor ; but witli all respect to his opinion, 
 apply to the Metropolitan Police district it would seem that the decision is perfectly 
 (s. 28). correct, as the object of the Act clearly was 
 
 (e) This Act was declared by 21 & 22 to render prisoners triable in the surround- 
 Vict. c. (58, s. 2 (rep. S. L. R. 1892), to ex- ing county, and to prevent expense, and 
 tend to parts of a county which did not the effect of a contrary decision would be 
 form part of the county before the passing that they never could be so tried in such 
 of 7 & 8 Vict. c. 101, in like manner as if county, except where an indictment had 
 they had always formed part of the been found by a grand jury of the county 
 county. to which the detached i)art belonged ; 
 
 (/) Sect. 2, which provides for payment which would greatly add both to the incon- 
 
 of expenses of prosecutions by the county veniencc and expense, which it was intended 
 
 to which the detached part belongs, seems to avoid. It is difficult also to see how it 
 
 to be superseded by 8 Edw. VII. c. 15, post, can be correctly said that a person is ' tried 
 
 Bk. xii. c. V. tit. ' Costs.' in like manner as if such detached part
 
 24 Of Criminal Jurisdiction. [book i. 
 
 By the County Police Act, 1840 (3 & 4 Vict. c. 88), s. 2 : 'It shall be 
 lawful for the justices of any two or more neighbouring counties in their 
 several general or cjuarter sessions assembled, from time to time to agree 
 that such parts of their several counties as to them shall seem fit, shall, 
 for the purposes of the County Police Act, 1839, be considered as forming 
 part of any other of the said counties ; and whenever any such district 
 shall be so transferred, for the purpose of the said Act, from one county 
 to another, with the consent of the justices of both the last-mentioned 
 counties, such district shall be considered, for the purposes of the said 
 Act, as if it were detached from the county to which it belongs, and 
 wholly surrounded by the county to which it is so transferred, and all 
 the provisions contained herein, or in the said Act, or in the Counties 
 (Detached Parts) Act, 1839 (supra), shall be taken to apply to such 
 transferred districts ' (h). 
 
 By an Act of 1844 (7 & 8 Vict. 101), it was declared that every part of 
 a county in England and Wales which is detached from the main body of 
 the county should be considered as forming, for all purposes, part of the 
 County in which it was included for Parliamentary elections, under the 
 Parhamentary Boundary Act, 1832. This Act was repealed as spent 
 in 1891 (S. L. R.) (i), but the repeal does not affect its past operation (/). 
 
 By the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), s. 7 (which 
 is incorporated into the Summary Jurisdiction Act, 1848 (11 & 12 Vict, 
 c. 43), s. 6 (k) : 'The acts of any justice or justices, and of any constable or 
 officer in obedience thereto, shall be as good in relation to any detached 
 part of any county which is surrounded in whole or in part by the 
 county for which such justice or justices acts or act, as if the same were 
 to all intents and purposes part of the said county.' 
 
 By the Liberties Act, 1850 (13 & 14 Vict. c. 105), provision was made 
 for the union for judicial and other purposes of liberties with the counties 
 in which they lie, and all liberties seem now to have been merged except 
 those of Ripon, and the Soke of Peterborough, and the Isle of Ely. 
 
 The readjustment of county boundaries, with the exceptions above 
 stated, has been effected by statutes confirming provisional orders. The 
 Local Government Act, 1888 (51 & 52 Vict. c. 41), after providing for the 
 readjustment of county boundaries for administrative purposes, provides, 
 by sect. 59 (2) : ' that a place which is part of an administrative county for 
 the purposes of the Act shall, subject as in this Act mentioned, form part 
 of that county for all purposes, whether sheriff, lieutenant, custos 
 rotulorum, justices, militia, coroner, or other ' (/). This enactment does 
 
 were to all intents and purjioses part of the (50 & 51 Vict. c. 71). 
 
 county for which such justice acts,' unless {j) Vide ante, p. 5. 
 
 he is tried on an indictment found by the (k) By 26 & 27 Vict. c. 77, s. 1, the 
 
 grand jury of such county ; for that is the eifect of s. 6 was declared not to have 
 
 mode in which he would be tried if the part been cut down by 11 & 12 Vict. c. 43, s. 35. 
 
 were to all intents part of that county. (I) Then follow provisions that each of 
 
 C. S. G. the entire counties of York, Lincoln, 
 
 (h) The Act of 1840 did not affect Sussex, Suffolk, Northampton, and Cam- 
 licensing jurisdiction. R. v. Worcester- bridge shall continue to be one county for 
 shire JJ. [1899], 1 Q.B. 59. those purposes so far as it was one county 
 
 (i) It did not apply to inquests, which at the passing of the Act, and a saving as 
 
 were regulated Ijy 6 & 7 Vict. c. 12, and are to the then existing privileges of cities or 
 
 now .regulated by the Coroners Act, 1887 boroughs as tp sheriffs, justices, &c.
 
 CHAP. III.] Counties of Cities mid Towns. 25 
 
 not expressly refer to assizes. The corresponding provision of the Local 
 Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37), s. 69, makes express 
 reference to assizes, quarter or petty sessions, and jurors, and an Order 
 in Council has been made adjusting the assizes to the counties as bounded 
 under the Act of 1898. 
 
 In England the jurisdiction of courts of assize depends on the com- 
 mission, and in the case of winter and spring assizes on the Orders in 
 Council issued under the Winter and Spring Assizes Acts (m). 
 
 Counties of Cities. — Besides the geographical counties at large which 
 exist for judicial as distinct from administrative purposes (n), the following 
 cities and boroughs are counties in themselves (o) : Berwick-on-Tweed, 
 Bristol,* Caermarthen,^ Canterbury, Chester, Exeter,^ Gloucester, 
 Haverfordwest,* Kingston-upon-Hull, Lichfield, Lincoln,"^ London City, 
 Newcastle-upon-Tyne,"^ Norwich,* Nottingham,* Poole, Southampton, 
 Worcester,* and York.* AU these cities, &c., have separate quarter 
 sessions ; but at present separate assizes are held only for those marked 
 with an asterisk. 
 
 Until 1798 there was an exclusive right that offences arising within 
 the county of a city or town corporate should be tried by a jury of persons 
 residing within the limits of the city or town. By the Counties of 
 Cities Act, 1798 (38 Geo. III. c. 52), provision was made for indicting 
 and trying in the adjoining county at large, persons accused of commit- 
 ting offences in the county of any city or town corporate except the City of 
 London (ss. 2, 3, 10), or for transferring for trial at the assizes of the county 
 at large, indictments found in the county of a city or town (s. 4) (;;). 
 
 By the Criminal Law Act, 1851 (14 & 15 Vict. c. 55), s. 19 : ' Whenever 
 any justice or justices of the peace, or coroner, acting for any county of a 
 city or county of a town corporate within which His Majesty has not been 
 pleased for five years next before the passing of this Act to direct a com- 
 mission of Oyer and Terminer and gaol delivery to be executed, and 
 until His Majesty shall be pleased to direct a commission of Oyer and 
 Terminer and gaol delivery to be executed within the same, shall com- 
 mit for safe custody to the gaol or house of correction of such county of a 
 city or town any person charged with any offence committed within the 
 limits of such county of a city or town not triable at the court of quarter 
 sessions of the said county of a city or county of a town, the commitment 
 shall specify that such person is committed pursuant to this Act, and 
 the recognisances to appear to prosecute and give evidence taken by 
 such justice, justices, or coroner shall in all such cases be conditioned 
 for appearance, prosecution, and giving evidence at the court of Oyer 
 and Terminer and gaol delivery for the next adjoining county (<?) ; and 
 
 (m) See Index to Statutory Rules and 'county borough.' The borough of Leicester 
 
 Orders (cd. 1907), Supreme Court E, 16. has a separate commission of assize, but is 
 
 (n) Inchiding, besides the common-law not a county in itself. Coventry ceased to 
 
 counties, the statutory county of London be a county in 1842 (5 & (5 Vict. c. 110,8. 1). 
 
 created in 1889. 51 & 52 Vict.c.4],s. 40(2). (p) As to execution of sentence in such 
 
 (o) i.e. they have their own .sheriffs, and cases see 51 Geo. III. c. 100, s. 1. 
 
 for judicial purposes arc distinct from the (q) The words omitted were repealed in 
 
 counties at large which .suiTOund or adjoin 1875. S. L. R. As to costs of prosecution 
 
 them. The term ' county of a borough ' is see post, Bk, xij. c, v. ' Ooste.' 
 quite distinct from the O'dministrative term
 
 26 
 
 Of Crimi7ial Jurisdiction. 
 
 [BOOK I. 
 
 the justice, justices, "or coroner by whom persons charged as aforesaid 
 may be committed, shall deliver or cause to be dehvered to the proper 
 officer of the court the several examinations, informations, evidence, 
 recognisances, and inquisitions relative to such persons at the time 
 and in the manner that would be required in case such persons had 
 been committed to the gaol of such adjoining county by a justice or 
 justices, or coroner, having authority so to commit, and the same pro- 
 ceedings shall and may be had thereupon, at the sessions of Oyer and 
 Terminer or general gaol delivery for such adjoining county as in the 
 case of persons charged with offences of the like nature committed within 
 such county ' (r). 
 
 By the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 188 and 
 sched. 6(6'): 'The next adjoining county (for purposes of criminal trials) 
 to Berwick-on-Tweed and Newcastle-upon-Tyne is Northumberland ; 
 to Bristol, Gloucester ; to Chester, Cheshire ; to Exeter, Devon ; and to 
 Kingston-upon-Hull, Yorkshire.' 
 
 Transitory Offences. — Certain offences wholly committed within the 
 realm, are, for purposes of venue and trial, treated as not being 
 local but transitory, i.e. the offender may be tried wherever he is found, 
 apprehended, or in custody. The only offence which is transitory at 
 common law seems to be larceny (t). Offences committed partly in 
 one judicial district and partly in another, are triable in either, at common 
 law or under 7 Geo. IV. c. 64, ss. 12, 13, {ante p. 20). Certain offences are, by 
 statute, triable wherever the accused is found, or is apprehended, or is in 
 custody, e.g. bigamy and forgery (u), and post-office offences (v). 
 
 Offences on Land outside England. — Apart from statute, existing 
 English Courts {w) cannot take cognisance of any crime committed on 
 land outside England, whether by a British subject {x), or an alien. 
 
 {r) The venue in the margin of an indict- 
 ment was ' county of Norfolk, being the 
 next adjoining county to the borough of 
 Yarmouth ' ; the offence was committed in 
 the parish of Gorlestone, in Suffolk. The 
 whole of that parish is within the juris- 
 diction of the borough of Great Yarmouth, 
 and the prisoner had been committed by 
 the borough magistrates to the house of 
 correction at Great Yarmouth. It was 
 objected that the prisoner could not be 
 tried in Norfolk. Pollock, C.B. : ' The 
 words of the statute are, that in such a case 
 as this the prisoner sIidU be tried " in the 
 next adjoining county." Here the next 
 adjoining county was either Norfolk or 
 Suffolk. The place in the borough where 
 the offence was committed has nothing to 
 do with it. This would very likely have 
 been a good trial in Suffolk, but I think 
 that it is also a good trial in Norfolk.' R. 
 V. Gallant, 1 F. & F. 517. It does not 
 appear in the report whether Yarmouth 
 was a county of a town, and it is submitted 
 that the decision is based on a misreading 
 of 14 & 15 Vict. c. 55, s. 19. 
 
 (s) These supersede 14 & 15 Vict. c. 55, 
 s. 24, and sched. C of the Municipal Corpo- 
 
 rations Act, 1835 (5 & 6 Will. IV. c. 76). 
 
 (t) 1 Hawk. c. 33, s. 52 ; 1 East, P.C. 771. 
 R. V. Fenley, 20 Cox, 252. Griffith v. Taylor, 
 2 C. P.D. 194, and post, Vol. ii. p. 1303. 
 
 (u) See the statutes under the titles 
 relating to the crimes. 
 
 (v) 8 Ed. VII. c. 48, s. 72(1). 
 
 (w;) The Court of the Constable and 
 Marshal (or Court of Chivalry) had such 
 power, and conducted the trials according 
 to the course of the civil law or by battle. 
 It has not been constituted since Lord 
 Reay's case, 1631. It has not been for- 
 mally abolished, but its functions in respect 
 to persons subject to military law are exer- 
 cised by courts-martial under the Army 
 Act (44 & 45 Vict. c. 58). See Official 
 Manual of Military Law, c. 2. R. v. De- 
 pardo, 1 Taunt. 29, 30. 
 
 (x) i.e. a person who owes allegiance to 
 the British Crown by birth in any part 
 of the British Empire and semhln also by 
 naturalisation in the LTnited Kingdom. 
 R. V. Manning, 2 C. & K. 900. Natural- 
 isation in a British possession appears to 
 confer the status of British subject only in 
 that possession. Mere service as a member 
 of the crew of a British merchant ship does
 
 CHAP. III.] Offences on Land Ahrocid. ^2,1 
 
 Statutory authority has been given for the trial in England of the follow- 
 ing offences committed outside England: — Treason and misprision of 
 treason (y) ; murder or manslaughter on land out of the United Kingdom 
 by a British subject (z); offences against the Dockyards Protection Act, 
 1772 (12 Geo. 111. c. 24, s. 2) ; the Foreign Enlistment Act, 1870 (a) \ 
 the Explosive Substances Act, 1883 (46 & 47 Vict. c. 3, s. 7); the Official 
 Secrets Act, 1889 (52 & 53 Vict. c. 52, s. 6), the Commissioners of Oaths 
 Act, 1889 (52 & 53 Vict. c. 10, s. 9); the Foreign Marriage Act, 1892 
 (55 & 56 Vict. c. 23, s. 15) ; and bigamy by a British subject outside 
 England and Ireland (&). 
 
 It would seem that no foreigner can be liable to trial or punishment 
 under British law for any offence committed by him on land outside 
 the dominions or protectorates of the Crown, even though the act com- 
 mitted by him takes effect in British territory (c). To these there may 
 be one exception, in the case of an offence ashore by a foreigner who 
 is one of the crew of a British merchant ship {d). But this has been 
 doubted in K. v. Anderson (e). 
 
 Homicide.— By 24 & 25 Vict. c. 100, s. 9 : ' Where any murder or 
 manslaughter shall be committed on land out of the United Kingdom, 
 whether within the King's dominions or without, and whether the person 
 killed were a subject of [His] Majesty or not ( /'), every offence committed 
 by any subject of [His] Majesty, in respect of any such case, whether 
 the same shall amount to the offence of murder or of manslaughter, 
 or of being accessory to murder or manslaughter, may be dealt with, 
 inquired of, tried, determined, and punished in any county or place 
 in England or Ireland in which such person shall be apprehended or 
 be in custody, in the same manner in all respects as if such offence had 
 been actually committed in that county or place ; provided that notliing 
 herein contained shall prevent any person from being tried in any place 
 out of England or Ireland for any murder or manslaughter committed 
 out of England or Ireland, in the same manner as such person might 
 have been tried before the passing of this Act '((/). 
 
 not seem to make the seaman a British arose on Geo. IV. c. 31, s. 7, as to whether the 
 
 subject. R. 11. de Mattos, 7 C. & P. 458, deceased must be a British subject. R. v. 
 
 Vaughan, B., and Bosan<juet, J. Azzopardi, 2 Mood. 288. wiiore a Maltese 
 
 (?/) 3.5 Hen. VIII. c. 2, s. 1. R. v. Lynch killed a Dutchman in .Smyrna. 
 [1903], 1 K.B. 744. [g) Framed from 9 Geo. IV. c. 31, s. 7 
 
 (z) 24 & 25 Vict. c. 100, s. 9, which re- (E), and 10 Geo. IV. c. 34, s. 10 (I). By 
 
 enacts 9 Geo. IV. c. 31 s. 7, which rejilaced 9 (ieo. IV. c. 31, s. 7, any person charged 
 
 57 Geo. III. c. 53. See R. r. Azzojiardi, 2 with any offence specified in the present 
 
 Mood. 288 (an indictm.ent of a Maltese enactment might be examined and com- 
 
 for murdering a Dutchman in Smyrna), mitted by any justice of the ]ilace where the 
 
 and R. t'.de Mattos, 7 C.& P. 458: an indict- person so charged was, and thereupon a 
 
 iTient of a Spaniard who had been one of the special commission was to be issued for the 
 
 crew of a British shi]) for killing a British trial of such person. By 10 (Jeo. IV. c. 34, 
 
 subject at Zanzibar (57 Geo. III. c. 53). s. 10, where any person was charged in 
 
 (r/)33 & 34 Vict. c. 90, ss. IG, 17, /rW. p. Ireland with any olTcnce spccilicd in the 
 
 292. R. V. Jameson [189fi], 2 Q.B. 425. present enactment, he might be examined 
 
 {b) 24 & 25 Vict. c. 100, s. 57 (pout, and committed by any justice of the place 
 
 p. 979). EarlRussell'scascflOOl], A.C.44G. where the person so charged was, and there- 
 
 (c) Mayne, Ind. Cr. L. (ed. 1896) p. 209. upon he might be tried in that place in the 
 
 (d) 57 & 58 Vict. c. 60, s. 686, post, p. 43 ; same manner as if his offence had been 
 2 Steph. Hist. Cr. Law, p. 12. there committed. This was a much better 
 
 (e) L. R. 1 C. C. R. 161. provision than that in 9 Geo. IV. c. 31, s. 7, 
 (/) These words remove a doubt which as it got rid of the necessity for a special
 
 28 Of Criminal Jurisdictiofi. [book i. 
 
 Though 33 Hen. VIII. c. 23 (rep.) was not limited to offences com- 
 mitted within the King's dominions, yet it was held that it did not apply 
 to a case where a prisoner of war had taken service on board an English 
 merchant ship, and whilst in that capacity had killed an Englishman 
 in a foreign country, on the ground that he could not be deemed a British 
 subject. The offender, a Spaniard, was taken prisoner at sea, and 
 whilst abroad, volunteered on board an Indiaman, and received the 
 usual bounty and part of his pay for about three months, which he 
 served on board the Indiaman. While the Indiaman was lying in the 
 Canton river, about a third of a mile in width, within the tideway, at 
 the distance of about eighty miles from the sea, the prisoner went 
 ashore with the deceased, an Englishman, and there mortally wounded 
 the deceased, who was carried on board ship, and died there the next 
 day. Upon a case reserved, it was argued that the prisoner was not 
 liable to be tried here, because he never became subject to the laws of 
 this country ; that he was not so by birth, and did not become so by 
 entering on board the Indiaman. No judgment was given, but the 
 prisoner was discharged (h). 
 
 An indictment charged, in substance, that the prisoner, at Lisbon, 
 in the kingdom of Portugal, in parts beyond the seas without England, 
 one H. G., in the peace of God and our lord the King, then and there 
 being, feloniously did assault, shoot, and murder, against the peace of 
 our said lord the King, It was held that the offence was triable in 
 England, though committed in a foreign country, the prisoner and the 
 deceased being both British subjects at the time ; and that stating 
 H. G, to be in the King's peace at the time, sufficiently imported that 
 he was the King's subject at the time ; and that the statement that 
 this was against the King's peace, sufficiently imported that the 
 prisoner was also a subject of this realm at that time(i). In E.. v. 
 
 commission, and avoided a difficulty which as to which see post, ' Manslaughter.' This 
 was very likely to arise under 9 Geo. IV. section was carefully framed in order to 
 c. 31, s. 7 ; for the special commission issued remove any question as to the killing of a 
 under that section recited the offence foreigner being within it ; and instead of 
 charged before the justice, and authorised the words of 9 Geo. IV. c. 31, s. 7, ' where 
 the trial for that offence, and a fatal any of His Majesty's subjects shall be 
 variance might well arise on the trial be- charged in England with any murder or 
 tween the facts proved and the offence manslaughter, or with being accessory 
 charged before the justice. The present before the fact to any murder,' &c. (which, 
 section is substantially the same as 10 Geo. from their collocation, might afford an 
 IV. c. 34, s. 10, but uses the terms of 9 argument that no murder was within the 
 Geo. IV. c. 31, s. 8, and under it the party clause unless it were committed by a 
 charged may be examined before any jus- British subject, and therefore a British 
 tice of the place where he is, and tried in the subject would not be within it if he were 
 same place. The words ' dealt with ' apply accessory to a murder by an alien), the 
 to justices of the peace ; ' inquired of ' to wording of this clause has been adopted so 
 the grand jury ; ' tried ' to the petit jury ; as to include an accessory to any murder 
 and ' determined and punished ' to the by whomsoever committed. C. S. G. 
 Court ; as was held by Parke, B., in R. v. {h) R. v. Depardo, 1 Taunt. 26 ; R. & R. 
 Ruck, 2 Russ. Cr. &. M. (4th ed.), p. 50, 134. According to the report in R. & R., 
 MSS. C. S. G., post, vol. ii. p. 1098. 9 the indictment was for manslaughter. The 
 Geo. IV. c. 31,s.7 (E.),and 10 Geo.IV.c. 34, case fell within no statute, as the wound 
 s. 10 (I), were confined to accessories after was on shore, and the death within the 
 the fact in manslaughter, but the present Admiralty jurisdiction. See R. v. de Mat- 
 section is so framed as to include an acres- tos, post, p. 29 ; and R. v. Coombes, post, 
 sory before the fact in that offence, p. 33. 
 wherever there can be such an accessory, (i) R. v. Sawyer, MS. Bayley, J. ; R.
 
 CHAP. III.] Offences on Land Abroad. 29 
 
 Helsham {j), it was ruled that an indictment upon 9 Geo. IV. c. 31, s. 7 {k), 
 must aver, that the prisoner and deceased were subjects of His Majesty, 
 but that the declarations of the prisoner were evidence to go to the jury 
 to prove this fact. The indictment charged the murder to have been 
 committed ' at Boulogne, in the kingdom of France, to wit, at the parish 
 of St. Mary-le-bow, in the ward of Cheap,' &c. The grand jury objected 
 to finding the bill, as it stated the death to have occurred in two different 
 places. Bayley, J. (having conferred with Bosanquet, J., and the 
 Recorder), directed the words ' to wit, at the parish of St. Mary-le-bow, 
 in the ward of Cheap,' &c., to be struck out. His lordship also said, 
 that it was deemed by the Court to be necessary to have inserted in the 
 bill an allegation that the prisoner and the deceased were subjects of 
 His Majesty ; and the bill was so amended accordingly. Upon the 
 trial it appeared that the deceased was killed in a duel at Boulogne, and 
 that he was an Englishman, born at Islington ; and the prisoner had 
 said he was an Irishman, and had come from Kilkenny. It was objected 
 that, under 9 Geo. IV. c. 31, s. 7, it was necessary to prove that the parties 
 were natural-born subjects of His Majesty ; the present Act differed 
 from 33 Hen. VIII. c. 23, the words of which were 'any person or persons,' 
 and that since it never could have been intended that this Act should 
 apply to foreigners domiciled in England, or naturalised either by Act 
 of Parliament {I), or by service to the state, it was necessary to prove, 
 by some one acquainted with the fact, where the prisoner was born, 
 which was a fact the prisoner could not know of his own knowledge. 
 But it was held, that the declaration of the prisoner, unexplained, was, 
 as against himself, evidence to go to the jury ; and the case was left 
 to the jury to say, whether they were satisfied by the evidence that the 
 prisoner was a British horn subject ; for that they must be quite satisfied 
 that such was the fact before they could pronounce him guilty. But it is 
 questionable whether this ruling could now be accepted, and probably 
 that R. V. Sawyer (supra) would be followed (m). 
 
 Where an indictment for manslaughter stated that the prisoner 
 being a subject of His] Majesty, on land out of the United Kingdom, 
 to wit, at Zanzibar, did make an assault on J. K., and did give him 
 divers mortal wounds, &c., of which he died, at Zanzibar aforesaid, 
 and it appeared that the prisoner, a Spaniard, while in England, entered 
 into articles to serve in a ship bound on a voyage to the Indian seas, 
 and elsewhere, and back to the United Kingdom. On the ship's arrival 
 at Zanzibar, then under the dominion of the Sultan of Muscat, the captain 
 left the vessel, and set up in trade there, and engaged the prisoner to 
 
 & R. 294 ; and 2 C. & K. 101. In the latter rights, powers, and privileges, and becomes 
 
 report there is a very full account given subject to all obHgations, to whicii a 
 
 of the previous cases. Another objection, natural-born British subject is entitled or 
 
 that the indictment ought to have con- subject. But he does not necessarily cease 
 
 eluded contra formam statuti, was also to be a citizen of his original state. Sec 
 
 overruled. Report of Committee on Naturalisation 
 
 (j) 4 C. & P. 394, Bayley and Bosanquet, (Pari. Pap. 1901, c. 723). 
 JJ., and Knowlys, R. (m) See R. v. Audley [1907]. 1 K.B. 383 : 
 
 (/(•) See note (;/), ante, p. 27. bigamy by a British subject abroad. R. v. 
 
 (I) Under the Naturalisation Act, 1870 Jameson [1896], 2 Q.B. 425: offences ni 
 (33 & 34 Vict. c. 14), an alien naturalised South Africa against the Foreign Enlist- 
 in the United Kingdom is entitled to all mcnt Act, 1870.
 
 30 
 
 Of Criminal Jurisdiction. 
 
 [BOOK 1. 
 
 go on shore and act as his interpreter. The new captain seems to have 
 assented, but the crew did not. The ship went one or two short voyages 
 without the prisoner, and having returned to anchor in a roadstead, a 
 few hundred yards from Zanzibar, and the crew being allowed to go on 
 shore, some dispute arose between the prisoner and the deceased, who 
 was one of the crew, which led to the blows, of which the deceased after- 
 wards died on board the ship. It was ruled that there was no evidence 
 of the prisoner being a British subject or under British protection. To 
 claim his allegiance, it must at least be shewn, that he was under British 
 protection. And although he was on board a British ship for a time, 
 yet it seemed as if the articles were abandoned, and he was living on 
 shore, and had been so for months. And, secondly, that the offence 
 was alleged to have been committed on land out of the United Kingdom, 
 but though the blows were given on land, the death took place on board 
 ship, and there was no clause in 9 Geo. IV. c. 31, providing for such 
 a case (w). 
 
 In K. V. Bernard (o), the prisoner was charged as accessory before the 
 fact in England to a murder committed in France ; and many points were 
 taken at the close of the case, and reserved (p), but as the accused was 
 
 of acts done by the prisoner on land out 
 of the United Kingdom, and without the 
 Queen's dominions, or of any act done by 
 any other person in pursuance of any 
 authority from him on land out of the 
 United Kingdom and without the Queen's 
 dominions, was receivable in evidence on 
 this trial. 6. That the principal offence of 
 murder charged in the first three counts 
 was not alleged to have been committed by 
 any of Her Majesty's subjects. 7. That 
 by the special commission the Court had 
 only jurisdiction to try the prisoner as 
 accessory before the fact, and had no juris- 
 diction to try the prisoner as principal. 
 8. That the prisoner, being an alien, could 
 not be tried as principal for a murder 
 alleged in the fourth and fifth counts to 
 have been committed at Paris. As to the 
 first objection, it is clear that a foreigner 
 resident in England is a subject of the 
 Queen ; all the authorities prove that rule 
 in general, and 1 Hale, 542, and Courteen's 
 case, Hob. 270, are express that a statute 
 naming the subjects of the Queen includes 
 aliens in England ; and besides, 32 Hen. 
 VIII. c. 16, s. 9, enacts that every alien 
 who shall hereafter come into this realm or 
 the dominions of the King, shall be bound 
 by all the laws and statutes of this realm. 
 As to the second, third, fourth, and sixth 
 objections, see 24 & 25 Vict. c. 100, s. 9, 
 ante, p. 27 ; and post, p. 835 et seq., 
 relating to conspiracies to murder. As 
 to the fifth objection, every case that 
 has been tried where the death was on land 
 abroad is an answer ; for such evidence 
 was admitted in all, and necessarily so ; for 
 how can a man be tried for any offence 
 abroad unless the acts relating to it done 
 abroad are admissible in evidence ? As to 
 
 (n) R. V. de Mattos, 7 C. & P. 458, 
 Vaughan and Bosanquet, J J. Rolfe, S.G., 
 doubted whether the limitation put upon 
 9 Geo. IV. c. 31, s. 7, in Pv. v. Helsham 
 (supra) was correct, and the Court seems to 
 have thought that that construction was 
 too narrow. Vaughan, J., in charging the 
 grand jury, said, ' there are other ways 
 which may constitute a man a British 
 subject ; as, for instance, he may owe 
 allegiance for protection.' The case was 
 decided on the ground that the prisoner 
 was not a British subject in any sense of 
 those words. C. 8. G. 
 
 (o) 8 8t. Tr. (N. S.) 887 ; 1 F. & F. 240. 
 The first count alleged that Orsini, Gomez, 
 and Rudio at Paris murdered N. Batty ; 
 and that the prisoner incited, &c., them to 
 commit the murder ; the second count was 
 similar, but described the deceased as un- 
 known. The third count was framed in 
 the old form before 14 & 15 Vict. c. 100, by 
 Mr. Greaves ; because he thought it might 
 be contended that 14 & 15 Vict. c. 100, s. 4, 
 did not extend to indictments against 
 accessories ; and it alleged an assault, &c., 
 by the principals, and charged the prisoner 
 with inciting, &c. The fourth count 
 charged the prisoner, being a subject of the 
 Queen, with murdering Batty at Paris. 
 The fifth was like the fourth, but described 
 the deceased as unknown. C. S. G. 
 
 (/;) The points were : 1. That the 
 prisoner was not one of Her Majesty's sub- 
 jects within 9 Geo. IV. c. 31, s. 7. 2. The 
 prisoner was not an accessory before the 
 fact to any murder within that section. 
 
 3. There was no proof of any murder having 
 been committed within that section. 
 
 4. That the murder was committed by 
 aliens on ahens in France. 6. No evidence
 
 CHAP. III.] Admiralty Jurisdiction. 31 
 
 acquitted, were never argued, and most of the points taken are covered 
 by 24 & 25 Vict. c. 100, sect. 9 {ante p. 27), and the accessories and 
 abettors clauses of the Acts of 1861. 
 
 Offences by Officials out of Great Britain. — By an Act of 1698 
 (11 Will. III. c. 12) (q), oppressions, crimes, and offences committed by 
 governors, lieutenant-governors, or commanders-in-chief of plantations 
 or colonies within the King's dominions beyond the seas are triable 
 in England in the High Court (K.B.D.) The Act is expressed to 
 be against oppression of the King's subjects within their respec- 
 tive governments, and other crimes and offences, ' contrary to the 
 laws of this realm, or in force within their respective governments or 
 commands.' By the Criminal Jurisdiction Act, 1802 (42 Geo. III. c. 85), 
 crimes, misdemeanors, or offences committed out of Great Britain by 
 a person in the service of the King, civil or military, or in any public 
 station, office, or capacity, may be prosecuted in the High Court (K.B.D.) 
 in England, either upon an information exhibited by the Attorney-General, 
 or upon indictment found, and are triable in the counties of London or 
 Middlesex (r). This Act has been held not to apply to felonies (s), but 
 it has been applied to offences by British officials in foreign countries (t). 
 There is also imperial legislation as to the trial in England of certain 
 offences committed in India (u). The provisions of the Indictable 
 Offences Act, 1848 (11 & 12 Vict. c. 42), as to holding a preliminary 
 inquiry as to offences committed on land beyond the seas for 
 which an indictment may legally be preferred in England or Wales, apply 
 to proceedings under the above Acts, and the High Court is a Court of 
 Oyer and Terminer for trying such offences {v). 
 
 Offences in the Jurisdiction of the Admiralty of England.— The 
 criminal jurisdiction of the Admiralty of England attaches : 
 
 1. In the case of piracy jure gentium to all vessels and persons of 
 
 whatever nationality : and 
 
 2. To all British ships, public or private, on the high seas, outside the 
 
 territorial waters of any state : and 
 
 3. To all vessels, British or foreign, within British territorial waters (m;), 
 
 including all ports, havens, and rivers, below bridges, where 
 great ships go. To some extent the jurisdiction is concurrent 
 with that of the common law courts in the case of waters which 
 are within the body of a county : and 
 
 the seventli objection, 11 & 12 Vict. c. 46, 466. 
 
 s. 1 (now 24 & 25 Vict. c. 94, s. 1), making (m) 10 Cieo. III. c. 47 s. 4 ; U (!eo^ III. 
 
 every accessory before the fact triable, &c., c. 63, s. 39 ; 21 (ieo. III. c. 70, s. 7; 33 
 
 as a principal, is an answer. As to the Geo. III. c. r)2, s. 67. These enactments and 
 
 eighth objection, see the remarks on 24 & 25 others are collected and epitomised in llbert, 
 
 Vict. e. 94, s. 1, post, p. 130. C. ,S. (!. (!ovt. of India {2nd cd.), 255 259. 
 
 (q) 11 & 12 Will. Ill c. 12, in Ruffliead's (v) R. r. Eyre, L. R. 3 Q.B. 487. 
 
 edition. {w) See 41 & 42 Vict. c. 73, post, p. 41. 
 
 (r) 42 ilco. III. c. 85, s. 1 ; 51 & 52 Vict. In R. v. Cunningham, Bell, 72. an American 
 
 c. 41, s. 89. who on an American ship in the Bristol 
 
 (s) R. V. Shawe, 5 M. & Sel. 403. For Channel wounded one of the crew was held 
 
 other prosecutions under this Act see R. v. to be triable iti the county of Cdamorgan. 
 
 Jones, 8 East, 31. R. v. Picton, 30 8t. Tr. In this case the part of the sea where the 
 
 225 (relating to the application of Spanish siiip lay was held to be within the body of 
 
 procedure in Trinidad). the realm. 
 
 (t) R. V. Turner [1889], 24 L. J. (new.sp.)
 
 32 Of Criminal Jurisdiction. [book i. 
 
 4. To all British public vessels in foreign territorial waters. The 
 
 jurisdiction is probably exclusive of the jurisdiction of the state 
 to which the waters belong {x) : and 
 
 5. To all British vessels, public or private, Avithin foreign territorial 
 
 waters. This jurisdiction is concurrent with, or perhaps sub- 
 ordinate to, the jurisdiction of the state to which the waters 
 belong. 
 The Admiralty of England {y) has always had criminal jurisdiction 
 in respect of piracy jure gentium, committed by persons or ships of any 
 or no nationality (z), and of offences committed on British ships (a), whether 
 public vessels or merchant ships on the high seas. Conflicts as to juris- 
 diction arose between the common Courts and the Admiralty as to matters 
 arising in waters within the body of the realm, which led to statutes of 
 1389 (13 Kich. II. c. 3), and 1391 (15 Rich. II. c. 3). Under the earlier of 
 these Acts the admiral is prohibited from meddling ' of anything done 
 within the realm, but only of a thing done upon the sea.' The later Act, 
 after providing that ' all manner of contracts, pleas and quarrels, and all 
 other things rising within the bodies of counties as well by land as by 
 water and wreck of the sea, shall be tried, determined, discussed and 
 remedied by the laws of the land, and not before nor by the admiral nor 
 his lieutenant in any wise,' proceeds : ' Nevertheless, if the death of a man 
 and if a mayhem done in great ships being and hovering in the main stream 
 of great rivers, only beneath the bridges (6) of the same rivers nigh unto 
 the sea and in none other places of the same rivers the admiral shall have 
 cognisance ; and also to arrest ships in the great flotes for the great 
 voyages of the King and of the realm — saving always to the King all 
 manner of forfeitures and profits thereof coming : and he shall have the 
 jurisdiction upon the said flotes during the said voyages only,' . . . 
 
 {x) But see Forbes v. Cochrane, 2 B. & Description of the River Thames (Long- 
 
 C. 467, Best, J. and Report of Fugitive man, 1752), it is said that the Lord Mayor 
 
 Slave Commission (Pari. Pap. 1876, vol. 28). of London used to summon a jury four 
 
 (y) As to the origin and history of the times a year ' to make inquisition after all 
 
 Admiralty jurisdiction see Seiden Soc. offences committed on the Thames and 
 
 Publications, vol. 6, Introduction ; 2 Medway up the river as far as Staines 
 
 Stubbs, Const. Hist. 289 ; and the opinions Bridge, and down the river as far as the 
 
 of the judges in R. v. Keyn [1876], 2 Ex. D. points of it next the sea,' and that ' the 
 
 63. jurisdiction of the City of London in 
 
 [z) R. V. Keyn, 2 Ex. D. 63, 168, Cock- the river of Thames from Staines Bridge 
 
 burn, C.J. westward unto the points of the river next 
 
 (a) In R. V. Keyn, 2 Ex. D. 63, the to the sea eastward, appeareth to belong 
 
 majority of the Court held that the Admiral to the City.' All this appears to be taken 
 
 had no jurisdiction to try offences by from old charters. In 1347 it appears that 
 
 foreigners on foreign ships even within persons settmg kiddels ultra Genland 
 
 British waters. See 41 & 42 Vict. c. 78, (Yantlett) versus mare were fined (pp. 94, 
 
 post, p. 41. 95, 96). In later times Yendall or Yenlet 
 
 (h) There are various readings in the seems from old charters to be the limit (p. 
 
 Norman-French texts of this statute. In 139). It is clear that ' bridges,' and not 
 
 the Statutes of the Realm, printed from ' points ' or ' ports," is the true reading. In 
 
 the Tower Roll, the words are, ' per aval les Moore, K.B. 892, Dodderidge J., in speak- 
 
 pountz.' In Rot. Pari. No. 30 the word is ing of the statute, uses the words ' subtus 
 
 pontz : see 7 C. & P. 665n. Old printed le pont,' and in Leigh v. Burley, Owen, 122, 
 
 copies have pointz or poyntz (4 Co. Inst. the judge said : ' The translator mistook 
 
 137). Pulton's Calendar, 1612, Pulton's "bridges" for "points," i.e. the land's 
 
 Statutes, 1661, and some old abridgements end.' 
 have ports (Cary's Abr. 1739). In A
 
 CHAP. III.] Admiralty Jurisdiction. 33 
 
 The jurisdiction thus preserved is (as to English rivers) concurrent with, 
 and not exclusive of, the jurisdiction of the common-law Courts (c): and 
 extends to offences committed on a British ship in foreign or colonial 
 ports or waters {d). It is immaterial whether the ship is moving about the 
 foreign waters (e), or at anchor therein (/) or moored to the land ((/), so 
 long as she is afloat and below bridges, at a part where the tide ebbs 
 and flows and great ships go. All such waters are, for purposes of indict- 
 ment and Admiralty jurisdiction, treated as part of the ' high seas,' an 
 expression which, ' when used with reference to the jurisdiction of the 
 Court of Admiralty, includes all oceans, seas, bays, channels, rivers, 
 creeks and waters below low-water mark, and where great ships can 
 go, with the exception only of such parts of such oceans, &c., as are 
 within the body of some county ' (//). 
 
 In R. V. Coombes (?'), a sailor on board a boat which had run aground 
 100 yards from the shore was shot by a smuggler and died on the sea. 
 The whole offence was held to have been committed within the Admiralty 
 jurisdiction. The decision is supported on the ground that in the case 
 of murder the intention is presumed to follow the act, and so the shot 
 which took effect on the high seas must be presumed to be accompanied 
 thither by the intention with which it was fired, and both these together 
 operate {j) ; or that the blow struck by the bullet was an act done in the 
 jurisdiction where it hit the sailor {k). According to the decision, the 
 crime must, for the purpose of determining the venue, be held to have 
 been committed on an English ship where the death occurred, a doctrine 
 founded on a convenient fiction {I). R. v. Coombes was in the United 
 States applied so as to exclude the jurisdiction of the United States 
 Courts in the case of a death caused on a foreign vessel, in foreign 
 territorial waters, caused by a shot from a United States vessel in these 
 waters (m). 
 
 In R. V. Jemot (n) larceny from a British ship in a natural harbour 
 in Cuba was held to be within the Admiralty jurisdiction. 
 
 In R. V. Allen (o) the indictment was for stealing three chests of tea 
 out of the ' Aurora,' of London, on the high seas, and it was proved that 
 the larceny was committed while the vessel lay off Whampoa, in a river, 
 twenty or thirty miles from the sea. There was no evidence as to the 
 
 (c) 1 East, P. C. 388. {k) lb. 234, Cockburn, C.J. 
 
 [d) The ' Mecca ' [1895], P. 95, 107, Lind- (/) lb. 119, Amphlett, J. A. 
 
 ley, L.J. (m) U. S., Davis, 2 yumncr, 482 ; dis- 
 
 (c) R. V. Anderson, L. R. 1 C. C. R. 101. cussed by Cockburn, C.J., in R. v. Keyn at 
 
 ( /■) R. V. Allen, 1 Mood. 494. 232. 
 
 (g) R. V. Carr, 10 Q.B. 76. {n) Old Bailey, Feb. 28, 1812, MS. 
 
 (h) The'Mecca'[189o], P. 95, 107,Lind- Archb. Cr. PI. (23rd ed.) 540, where the 
 
 ley, L.J., citing the above cases, and 4 Co. offence is said consequently to be piracy. 
 
 Inst 134: Com. Dig. Admiralty (1), (7), (14). In the Times of Feb. 29, 1812, the offence is 
 
 (/) 1 Leach, 388. In Badische Anilin spoken of as larceny, and this description 
 und Soda Fabrik v. Basle Chemical Works is accepted in R. v. Carr, 10 Q.B D. 7(i, 83, 
 [1898], A.C. 200, 204, Halsbury, L.C., Coleridge, C.J. The trial was at an Ad- 
 said, with reference to this case ; ' I think miralty Session at the Old Bailey, 
 one may say there is a confusion of thought (o) [1837] 7 C. & P. (364. In the report 
 between the technical rules of criminal in 1 Mood. 494, the judges are said to have 
 venue and the question who is the person affirmed the conviction, ' the place being 
 doing the act.' where great ships go.' The trial was at 
 
 (/) R. V. Keyn, 2 Ex. D. G3, 103, Den- the Central CriminalCourt under 4 & 5\Vill. 
 
 man, J. IV. c. 36, s. 22, post, p. 38. 
 
 VOL. I. D
 
 34 Of Criminal Jurisdiction. [book i. 
 
 tide flowing, or otherwise, at the place where the vessel lay, but it was 
 held that the fact that the tea was stolen on board the vessel, which 
 had crossed the ocean, afforded sufficient evidence that the larceny was 
 committed on the high seas. 
 
 In K, V. Anderson (p) an American citizen, engaged as a sailor on a 
 British ship, was held to have been lawfully indicted and convicted of the 
 manslaughter of another American citizen on that ship while she was 
 sailing up the river Garonne, in France, on her way to Bordeaux. At the 
 time when the offence was committed the ship was ninety miles up the 
 river. 
 
 In R. V. Carr (q) a prisoner was held to have been lawfully indicted 
 and convicted of larceny on a British ship which at the time of the com- 
 mitting of the offence lay moored to a quay in the port of Rotterdam in 
 Holland, at a point on the river Maas seventeen or eighteen miles above 
 the open sea, but below the bridges. 
 
 In R. V. Lesley (r), the defendant, who was master of an Enghsh ship, 
 entered into a contract with the Chilian Government to carry from 
 Valparaiso to Liverpool five persons who had been ordered by that 
 Government to be banished. These persons were brought by force on board 
 the ship, guarded by soldiers of that State, and conveyed by the defendant 
 under the contract, and against their will, to Liverpool. At the time he 
 received these persons on board, the ship was lying in the territorial 
 waters of Chili . The defendant was indicted, tried and convicted at Liver- 
 pool for false imprisonment and assault. On a case reserved, it was held 
 that so far as it related to what was done in Chihan waters the conviction 
 could not be sustained. Erie, C.J., said : ' We assume that in Chili the 
 act of the Government towards its subjects was lawful ; and, although an 
 English ship, in" some respects, carries with it the laws of her country 
 in the territorial waters of a foreign State, yet, in other respects, she 
 is subject to the laws of that State, as to acts done to the subjects thereof. 
 We assume that the Government could justify all that it did within its 
 own territory, and we think that it follows that the defendant can justify 
 all that he did there as agent for the Government, and under its authority.' 
 But the conviction was sustained for that which was done out of the 
 Chilian territory (s). As to this, Erie, C.J., said : ' It is clear that an 
 English ship on the high seas out of any foreign territory, is subject to the 
 laws of England ; and persons, whether foreign or English, on board 
 such ship, are so much amenable to English law as thev would be on 
 English soil ' (t). After referring to 18 & 19 Vict. c. 91, s. 21 (u), he 
 continued : ' Such being the law, if the act of the prisoner amounted 
 to a false imprisonment he was liable to be convicted. Now, as the 
 contract of the prisoner was to receive the five persons on board the 
 
 ip) L. R. 1 C. C. R. 101. plaintiff's vessel in Portuguese waters on 
 
 (q) R. V. Carr, 10 Q.B.D. 76. In this case behalf of and by authority of the Queen of 
 
 the words ' below the bridges ' in the Act Portugal. 
 
 15 Rich. II. c. 3, were construed as applying (t) He referred to R. v. Sattler, 27 L. J. 
 
 to foreign as well as British rivers. M. C. 48, and Ortolan, Diplomatie de la 
 
 (r) 29 L. J. M. C. 97. Mer, Bk. ii. c. 13. 
 
 (s) He then referred to Dobrec v. Napier, {u) Superseded by 57 & 58 Vict. c. 60. s. 
 
 2 Bing. (N. C.) 781, a case in which the 687, post, p. 43. 
 defendant was lield justified in seizing the
 
 CHAP. III.] Admiralty Jurisdiction. 35 
 
 ship and to take them, without their consent, over the sea to En»land, 
 although he was justified in first receiving them in Chili, yet that justi- 
 fication ceased when he passed the line of Chilian jurisdiction, and after 
 that it was a wrong which was intentionally planned and executed in 
 pursuance of the contract, amounting in law to false imprisonment. 
 It may be that transportation to England is lawful by the law of Chili, 
 and that a Chilian ship might so lawfully transport Chilian subjects ; 
 but for an English ship the laws of Chili, out of that State, are powerless, 
 and the lawfulness of the acts must be tried by English law/ 
 
 High and Low Water-mark.— Upon the open seashore the common 
 law and the admiral have alternate jurisdiction between high and low 
 water-mark {i.e. the admiral has jurisdiction supra aquam as long as 
 the sea flows, and the common-law Courts jurisdiction over the land so 
 long as the sea does not cover it (v). It is sometimes difficult to fix the 
 line of demarcation between the county and the high sea in harbours, or 
 below the bridges in great rivers. The question is often more a matter 
 of fact than of law, and determinable by local evidence ; but some general 
 rules upon the point are collected in East's Pleas of the Crown, where it is 
 said that ' in general it is said that such parts of the rivers, arms, or 
 creeks, are deemed to be within the bodies of counties where persons can 
 see from one side to the other (w). Lord Hale, in his treatise De jure maris, 
 says that the arm or branch of the sea which lies within the fauces terrce, 
 where a man may reasonably discern 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 authorities, to such 
 parts of the sea where a man, standing on the one side of the land, raay 
 see ivhat is done on the other ; and the reason assigned by Lord Coke in 
 the Admiralty case (x) in support of the county coroner's jurisdiction, 
 where a man is killed in such places, because that the county may ivell know 
 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' (y). 
 
 Bays.— Where a murder was committed in Roundstone Bay, and 
 it appeared that the place in question was ivithin the county of Galway, 
 and that the headlands bounding the bay were so situated that a man 
 could see from the one to the other, and that the place in question would 
 fall within a straight line drawn from the one headland to the other, and 
 that in that part of the bay there were fifteen fathoms water, and that 
 a ship of 120 tons could sail there ; but there was no evidence of it having 
 been frequented by shipping, or of any Admiralty process having ever 
 been executed within it ; it was held by the judges in Ireland that the 
 murderer was rightly tried under an Admiralty commission (:). 
 
 Roadsteads.— Upon an indictment for maliciously wounding in 
 
 {v) 3 Co. Inst. 113. 2 Hale, 17. See 2 county, the admiral hath jurisdiction, or 
 
 Hawk. c. 9, s. 14, as to the jurisdiction of else not.' Leigh v. Burley, Uwen, 122, 
 
 a county or borough coroner in offences on Coke, and Foster J. ; Cf. Moore (K.B.), 892. 
 the seashore. Anon., 1 Lew. 242. Sec (x) 13 Co. Rep. 52. 
 
 •Jervis on Coroners (6th cd.), 103. 5 Co. (//) 2 East, P. C. 803, 804. 
 
 Rep. 107. (z) R. V. Mauniou, 2 Cox, 158. 
 
 (w) ' It' the sea there be not of any 
 
 D 2
 
 36 Of Criminal Jurisdiction. [book i. 
 
 the county of Glamorgan, it appeared that the prisoners were Americans, 
 and they and the person wounded were part of the crew of an American 
 ship, which sailed from the docks of Cardiff to an anchorage in Penarth 
 Roads, and that the offence was committed shortly before she arrived 
 at that anchorage, when the ship was three-quarters of a mile from land, 
 in a place never left dry by the tide ; but was within a quarter of a mile 
 of land which is left dry by the tide. The shore of the county of Glamorgan 
 extends many miles up and down the Bristol Channel from the place 
 where the offence was committed. The spot in question was in the 
 Bristol Channel, between the Glamorganshire and Somersetshire coasts, 
 and was about ten miles from the opposite coast of Somersetshire. Two 
 islands, called the Flat and Steep Holmes, are outside the anchorage- 
 ground, and farther from the shore than it is, but not lower down the 
 Channel, being abreast of the anchorage-ground. When the offence 
 was committed the ship was inside, and about two miles from the Flat 
 Holmes, and four or five miles from the Steep Holmes, and was within the 
 Lavernock Point in Penarth Eoads, but outside Penarth Head. Penarth 
 Head and Lavernock Point form a bay. At Penarth Head persons can 
 see from one to the other, and could see what a vessel was doing from 
 one to the other, but could not see the people from one to the other. From 
 where the ship was persons could see people at Lavernock, and see what 
 they were doing if they took particular notice of them, and they could 
 see the coast of Somersetshire on a clear day. The mouth of the Severn 
 is at King's Road, higher up the Channel. The Holmes are part of the 
 parish of St. Mary's, Cardiff. By an order of the Treasury, the port of 
 Cardiff had been fixed so as to include the spot in question. It was 
 objected that the prisoners could not be tried in the county of Glamorgan, 
 as there was no proof that the offence was committed in that county ; 
 but it was held that the offence was committed in that county. Cockburn, 
 C.J. : ' The question is, whether the part of the sea on which the vessel 
 was at the time when the offence was committed forms part of the body 
 of the county of Glamorgan ; and we are of oj)inion that it does. The sea 
 in question is part of the Bristol Channel, both shores of which form part 
 of England and Wales, of the county of Somerset on one side, and the 
 county of Glamorgan on the other. We are of opinion that, looking at 
 the local situation of this sea, it must be taken to belong to the counties 
 respectively by the shores of which it is bounded; and the fact of 
 the Holmes, between which and the shore of the county of Glamorgan the 
 place in question is situated, having always been treated as part of the 
 parish of Cardiff, and as part of the county of Glamorgan, is a strong 
 illustration of the principle on which we proceed, namely, that the whole 
 of this inland sea between the counties of Somerset and Glamorgan is to 
 be considered as within the counties, by the shores of which its several 
 parts are respectively bounded. We are, therefore, of opinion that the 
 place in question is within the body of the county of Glamorgan ' (a). 
 
 Prior to the passing of the statutes now to be mentioned, wherever 
 a murder or other felony against the law of nature or nations was com- 
 mitted in England or on the narrow seas (6), it was triable by jury in the 
 
 (a) R. V. Cunningham, Bell, 72. (b) See jjust, p. 38.
 
 CHAP. TiT.i Ad.mirfdly Jurisdiction. 37 
 
 Court of King's Bench and Courts of Oyer and Terminer and gaol delivery. 
 But wherever a murder or such other felony was committed on the high 
 seas, it could not be tried by a jury (because a jury by the common law 
 could only take cognisance of felonies committed within the local jurisdic- 
 tion from which they were summoned), but such matters and other 
 felonies were always triable by the Court of Admiralty, which proceeded 
 according to the course of the civil law (c). To this proceeding there 
 was the vital objection that it did not try by a jury (d), and either the 
 accused must plainly confess his ofTence, or there must be two witnesses 
 who saw the ofTence committed ; and this led to the passing of the Offences 
 at Sea Act, 1536 (28 Hen. VIII. c. 15). The preamble of that Act {e) 
 recites that ' traitors, pirates, thieves, robbers, murderers, and con- 
 federators upon the sea many times escape unpunished because the trial 
 of their offences hath heretofore been ordered, judged, and determined 
 before the admiral or his lieutenant or commissary, after the course of 
 the civil laws the nature whereof is that before any judgment of death can 
 be given against the offenders, either they must plainly confess their 
 offences (which they will never do without torture or pains), or else their 
 ofTences be so plainly and directly 23roved by witness indifferent, such as 
 saw their offence committed, which cannot be gotten but at chance at 
 few times.' . . . Sect. 1 enacts ' that all treasons, felonies, robberies, 
 murders, and confederacies, committed in or uj^on the sea ( /'), or in any 
 other haven, river, creek, or j^lace, where the admiral or admirals have, 
 or pretend to have, power, authority, or jurisdiction, shall be inquired, 
 tried, heard, determined, and judged, in such shires and places in the 
 realm as shall be limited by the King's commission, or commissions to 
 be directed for the same, or like form and conditions as if any such offence 
 or offences had been done in or upon the land ' (g). 
 
 The Act did not create or alter any offence, but left the offences as 
 they were before it passed, and all the offences mentioned in it were, 
 before its passing, triable in the Court of Admiralty, and were by the Act 
 made triable by a jury (h). 
 
 By the Offences at Sea Act, 1799 (39 Geo. III. c. 37), s. 1, ' all and 
 every offence and offences, which, after the passing of this Act (May 10, 
 1799), shall be committed upon the high seas out of the body of any 
 county of this realm, shall be, and they are hereby declared to be offences 
 of the same nature respectively, and to be subject to the same punish- 
 ments respectively, as if they had been committed upon the shore, and 
 
 (c) See 2 Hale, 12. section, where the admiral has jurisdiction. 
 
 (d) Commissions of oyer and terminer One of the mischiefs recited in the first see- 
 to try piracy, &c., seem to have been issued tion, is, that tlie witnesses being commonly 
 to common-law Courts until 1361. The mariners and .shipmen, depart without long 
 practice then dropped until I'^'M). See G tarrying or protraction of time. Tlie sta- 
 Selden Society Publications, p)). xlv., Ixxx. tute is almost in the same terms as 27 Hen. 
 
 (e) 'An Act for punishment of pirates VIII., c. 4 (rep. ISfi.'l. 2G & 27 Vict. c. 125). 
 and robbers of the sea.' Sec 3 Co. Inst. except tliat it adds ' treasons ' to the 
 112, and post. p. 257. olfcnces. See R. r. Snape, 2 East, P. C. 
 
 (./•) In Leigh v. Burley, Owen, 122, 807. R. v. Bayley, R. & R. 1. R. v. 
 
 Coke and Foster, J., explain this as meaning Amarro, R. & R. 286. 
 
 the high seas. (h) See 3 Co. Inst. 112. R. r. Keyn, 2 
 
 (g) S. 2 introduces the words ' man- Ex. 63, 169. Cockburn, C.J. R. r. Depardo, 
 
 slaughters,' and uses the words ' havens,' 1 Taunt. 26, 36, Sir J. Mansfield. 
 &c., without the qualification in the first
 
 38 Of Criminal Jurisdiction. [book i. 
 
 shall be inquired of, heard, tried, and determined and adjudged in the 
 same manner as treasons, felonies, murders, and confederacies are directed 
 to be by the Offences at Sea Act, 1536 ' {i). By the Criminal Law Act, 
 1827 (7 & 8 Geo. IV. c. 28, s. 12), ' All offences prosecuted in the High 
 Court of Admiralty of England shall upon every first and subsequent 
 conviction be subject to the same punishments, whether of death or 
 otherwise, as if such offences had been committed upon the land.' (/) Bv 
 the Central Criminal Court Act, 1834 (4 & 5 Will. IV. c. 36), s. 22, ' the 
 justices and judges named in the commission constitute the Court, or 
 any two or more of them have power to inquire, hear, and determine any 
 offence or offences committed or alleged to have been committed on the 
 high seas and other places within the jurisdiction of the Admiralty of 
 England, and to deliver the gaol of Newgate (or other appointed prison 
 of the Court (/)), of any person committed thereto, or detained therein, 
 for any offence or offences committed or alleged to have been done and 
 committed upon the high seas, aforesaid, within the jurisdiction of the 
 Admiralty of England : and all indictments found, and trials and other 
 proceedings had and taken before the said justices and judges of 
 oyer and terminer and gaol delivery shall be valid and effectual to all 
 intents and purposes whatsoever ' {k). 
 
 Before the passing of the nineteenth-century Acts, presently to be stated 
 controversies arose in cases in which the Admiralty and the common- 
 law Courts had or claimed concurrent jurisdiction on the narrow seas {I). 
 In R. V. Bruce (w), a trial at the Admiralty session at the Old Bailey for 
 murder committed in a part of Milford Haven, where it was about three 
 miles across, about seven or eight miles from the mouth of the river, or 
 open sea, and about sixteen miles below any bridges over the river, the 
 question was raised whether the place where the murder was committed 
 was within the limits to which the commission granted under the Offences 
 at Sea Act, 1536 (w), by law extended. The judges were unanimously 
 of opinion that the trial was properly had, and that there was no objection 
 to the conviction on the ground of want of jurisdiction in respect of the 
 place under the commission of the Court of trial. During the discussion 
 of the point the construction of Hale (o) was much preferred to that of 
 Coke [f] ; and most, if not all, of the judges, seemed to have thought that 
 the common law has concurrent jurisdiction with the Admiralty in all 
 havens, creeks, and rivers in this realm, and that the Act of 1536 applied 
 to all great waters frequented by ships ; that in such waters the admiral, 
 
 {*■) It is not quite clear whether this Act of 1530 had no Jurisdiction, and in the 
 
 applies to offences created by subsequent former event the offender could not be 
 
 statutes. indicted before a common-law Court, even 
 
 (/) See Central Criminal Court Prisons when the offence was theft and the goods 
 
 Act, 1881 (44 & 45 Vict. c. 64). were carried ashore. 2 East, P. C. 805. 
 
 [k) This enactment made it unnecessary 3 Co. Inst. 149. R. v. Prowes, 1 Mood, 
 
 to hold the Admiralty Sessions which had 349. R. v. Madge, 9 C. & P. 29. It would 
 
 theretofore been held at the Old Bailey. seem that the statutes above set out overrule 
 
 (/) Ante, p. 35. Before the passing of these decisions, 
 
 the Act of 1799 and s. 115 of the Larceny (m) [1812] 2 Leach, 1093. 
 
 Act, 1861, it was important to ascertain {n) Post, p. 39. 
 
 whether the fact was done on the .sea or (o) 2 Hale, 16, 17. 
 
 within the body of a county, because in the (p) 3 Co. Inst 119. 4 Co. Inst. 134. 
 latter event commissioners under the Act
 
 CHAP. III.] Admiralty Jurisdiction. 39 
 
 in the time of Henry VIII., claimed jurisdiction ; that by havens, &c., 
 havens in England were meant to be included, though they are all withm 
 the body of some county ; and that the mischief from the witnesses 
 being sea-faring men was likely to apply to all places frequented by 
 ships (q). 
 
 An accessory before the fact to a felony committed on the high seas 
 within the jurisdiction of the Admiralty, may be indicted and tried at 
 the Central Criminal Court, under 4 & 5 Will. IV. c. 36, s. 22 (ante, p. 38), 
 although the principal had not been ' committed to, or detained in,' 
 Newgate (/•). 
 
 The Admiralty Offences Act, 1844 (7 & 8 Vict, c. 2), after reciting the 
 Act of 1536 {ante, p. 37), and that it is expedient that provision be 
 made for the trial of persons charged with offences committed within the 
 jurisdiction of the Admiralty, enacts (sect. 1) ' that His Majesty's justices 
 of assize or others His Majesty's commissioners by whom any Court 
 shall be holden under any of His Majesty's commissions of oyer and 
 terminer or general gaol delivery shall have severally and jointly all the 
 powers which by any Act are given to the commissioners named in any 
 commission of oyer and terminer for the trying of offences committed 
 within the jurisdiction of the Admiralty of England, and that it shall be 
 lawful for the first-mentioned justices and commissioners, or any one or 
 more of them, to inquire of, hear, and determine all offences alleged to 
 have been committed on the high seas and other places within the jurisdic- 
 tion of the Admiralty of England, and to deliver the gaol in every county 
 and franchise within the limits of their several commissions of any person 
 committed to or imprisoned therein for any offence alleged to have been 
 committed upon the high seas and other places within the jurisdiction 
 of the Admiralty of England ; and all indictments found, and trials and 
 other proceedings had, by and before the said justices and commissioners 
 shall be valid ' (s). This Act gives to Courts of Oyer and Terminer, &c., 
 the same jurisdiction as was possessed by commissioners iinder the Act 
 of 1536 and by the Court of Admiralty before that Act. It does not 
 affect the jurisdiction of the Central Criminal Court or of special com- 
 missions under the Act of 1536 (t). 
 
 By sect. 2, 'in all indictments preferred before the said justices and 
 commissioners under this Act the venue laid in the margin shall be the 
 same as if the offence had been committed in the county where the trial 
 is had ; and all material facts which in other indictments would be 
 averred to have taken place in the county where the trial is had shall in 
 indictments prepared (u) and tried under this Act be averred to have 
 taken place " on the high seas " ' {v). An indictment under this Act for 
 
 iq) MS., Bayley, J. within the jurisdiction of the Admiralty 
 
 (r) R. V. AVallace, 2 Mood. 200 ; C. & under 7 tJco. IV. c. 38, but so much of that 
 
 M. 200. For Newgate read now 'the prison Act as related to the examination and 
 
 of the Court.' Newgate i^rison has been connnitment of such persons was repealed 
 
 demoUshcd. by 11 & 12 Vict. c. 42, s. 34 (E), and 12 & 13 
 
 (s) The residue, whicli related to costs, Vict. c. 09, s. 31 (1) and the examination 
 
 was repealed in 1882 (45 & 46 Vict. e. 55). and commitment of such persons are now 
 
 (<) S. 4. regulated by 11 & 12 Vict. c. 42 (E), and 
 
 (m) Qucere, ' preferred.' 14 & 15 Vict. c. 93 (I). It seems, there- 
 
 (v) S. 3 provides for the commitment fore, that 7 & 8 Viet. e. 2, s. 3 is virtually 
 
 of persons charged with offences committed repealed.
 
 40 Of Criminal Jurisdiction. ['book i. 
 
 larceny ' on the high seas ' was held sufficient, without adding ' within 
 the jurisdiction of the Admiralty ' {w). The provisions as to alleging 
 that the offence was committed on the high seas seems to be direc- 
 tory (x). 
 
 Each of the Criminal Law Consolidation Acts of 1861, 24 & 25 Vict. 
 c. 96, s. 115 ; c. 97, s. 72 ; c. 98, s. 50 ; c. 99, s. 36 ; and c. 100, s. 68, 
 contains the following clause : — 
 
 ' All indictable offences mentioned in this Act which shall be com- 
 mitted within the jurisdiction of the Admiralty of England and Ireland 
 shall be deemed to be offences of the same nature and liable to the same 
 punishments as if they had been committed upon the land in England 
 or Ireland, and may be dealt with, inquired of, tried, and determined 
 in any county or place in England or Ireland in which the offender shall 
 be apprehended or be in custody, in the same manner in all respects as 
 if they had been actually committed in that county or place ; and in 
 any indictment for any such offence, or for being an accessory to such 
 an offence, the venue in the margin shall be the same as if the offence had 
 been committed in such county or place, and the offence shall be averred 
 to have been committed " on the high seas " : Provided that nothing 
 herein contained shall alter or affect any of the laws relating to the govern- 
 ment of His Majesty's land or naval forces' {y). 
 
 It is to be noted that these enactments do not expressly extend to 
 attempts to commit the crimes in question in the Admiralty jurisdiction. 
 From this it would seem to follow that Courts of Quarter Sessions 
 cannot, under the enactments, try such attempts, but that they are 
 cognisable at assizes under 7 & 8 Vict., c. 2 {ante, p. 39). 
 
 By sect. 9 of the Accessories, &c., Act, 1861 (24 & 25 Vict. c. 94) ; 
 ' Where any person shall, within the jurisdiction of the Admiralty of 
 England or Ireland, become an accessory to any felony, whether the 
 same be a felony at common law or by virtue of any Act passed or to be 
 passed, and whether such felony shall be committed within that jurisdic- 
 tion or elsewhere, or shall be begun elsewhere or completed within that 
 jurisdiction, the offence of such person shall be felony ' (2). 
 
 (if) R.V.Jones, 1 Den. 101; 2 C. &K. 165. on the land in England or Ireland. It 
 
 The indictment need not conclude coritra seems clear that, wherever an Act creates 
 
 formam statuti. R. v. Serva, 2 C. & K. 53. new offences, this is the proper form of 
 
 {x) R. V. Menhara [1858], 1 F. & F. 369, enactment ; for, though in the case of 
 
 373, Wightman, J. offences against the law of nations, such as 
 
 (y) Framed on the similar clauses con- murder or piracy committed on the seas, 
 
 tained in 7 & 8 Geo. IV. c. 29, s. 77 ; 7 & 8 the general course of legislation has been 
 
 Geo. IV. c. 30, s. 43 ; 9 Geo. IV. c. 31, s. 32 ; simply to provide for their trial, and no 
 
 9 Geo. IV. c. 55, s. 74 (I.) ; 9 Geo. IV. c. 56, doubt correctly, because, in the eye of the 
 
 s. 55 (I.) ; and 10 Geo. IV. c. 34, s. 41 (I.) ; law of England, they were offences of the 
 
 together with 7 & 8 Vict. c. 2. Some of same nature as if they had been committed 
 
 these enactments simply provided for the on land in England, yet it may well be 
 
 trial of offences committed within the doubted whether that be sufficient in the 
 
 jurisdictionof the Admiralty ; whilst others case of newly created offences; and it is 
 
 provided in addition that the offences certainly much safer to have the provision 
 
 mentioned in the Act, whicli shall be com- with which this clause commences. C. S. G. 
 
 mitted within the jurisdiction of the (2) The rest of the section as to indict- 
 
 Admiralty shall be deemed to be offences ment is in similar terms to those above 
 
 of the same nature and liable to the same quoted from the other Crim. Law Consoli- 
 
 punishments as if they had been committed elation 4cts.
 
 CHAP, iii.i Admifcdfy Jurisdiction. 41 
 
 Under these enactments, Courts of Assize {a) and Quarter Sessions (Z>) 
 for counties or boroughs have authority to try any offender apprehended 
 or in custody within their local jurisdiction for any offence or offences 
 mentioned in the Acts of 1861, committed on the sea, which they might 
 have tried if it had been committed within the local jurisdiction. 
 
 The Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vict, c. 73) (c), 
 begins by two recitals, 'Whereas the rightful jurisdiction of His Majesty, 
 his heirs and successors extends, and has always extended, over the open 
 seas adjacent to the coasts of the United Kingdom, and of all other parts 
 of His Majesty's dominions to such a distance as is necessary for the 
 defence and security of such dominions' ((^), and 'whereas it is expedient 
 that all offences committed on the oj)en sea within a certain distance of 
 the coasts of the United Kingdom, and of all other parts of His Majesty's 
 dominions, by whomsoever committed, should be dealt with according 
 to law.' By sect. 2: 'An offence committed by a person, whether he is 
 or is not a subject of His Majesty on the open sea within the territorial 
 waters of His Majesty's dominions, is an offence within the jurisdiction 
 of the Admiral, although it may have been committed on board or by 
 means of a foreign ship, and the person who committed such offence may 
 be arrested, tried, and punished accordingly.' 
 
 By sect. 3 : ' Proceedings for the trial and punishment of a person who 
 is not a subject of His Majesty and who is charged with any such offence 
 as is declared by this Act to be within the jurisdiction of the Admiral, 
 shall not be instituted in any Court of the United Kingdom, except with 
 the consent of one of His Majesty's principal Secretaries of State, and 
 on his certificate that the institution of such proceedings is in his opinion 
 expedient, and shall not be instituted in any of the dominions of His 
 Majesty out of the United Kingdom, except with the leave of the governor 
 of the part of the dominions in which such proceedings are proposed to 
 be instituted, and on his certificate that it is expedient that such pro- 
 ceedings should be instituted.' 
 
 By sect. 4: 'On the trial of any person who is not a subject of His 
 Majesty for an offence declared by this Act to be within the jurisdiction 
 of the Admiral, it shall not be necessary to aver in any indictment or 
 information on such trial that such consent or certificate of the Secretary 
 of State or Governor, as is required by this Act, has been given ; and the 
 fact of the same having been given shall be presumed, unless disputed by 
 
 (a) R. V. Dudley, 14 Q.B.D. 273. shore, ran down and sank a British ship, 
 
 (6) R. V. Peel, 32 L. J. M. C. 65, an in- whereby one of her passengers was drowned 
 
 dictment at Southampton Borough Quarter under circuniKtances which in English law 
 
 Sessions for larceny on a British ship on the would amount to manslaughter. He was 
 
 high seas. The accused was arrested in tried at the Central Criminal Court, but on 
 
 Southampton. The case was decided on appeal it was held by the majority of the 
 
 24 & 2r)Vict. c. 96, s. 115. The enactments court that there was no power to try 
 
 appear not to extend to attempts to offences committed by foreigners on board 
 
 commit the offences. foreign ships while within the three nnlcs 
 
 (c) Passed in consequence of R. v. Keyn limit, 
 
 (the Tranconia'). 2 Ex. D. 63. In that ((/) This recital and s. 2 are declaratory 
 
 case the prisoner, who was a foreigner and of tiie law as laid do\vn by the minority of 
 
 in command of a foreign ship, whilst the judges in R. v. Keyn. R. v. Dudley, 
 
 passing within three miles of the English 14 Q.B.D. 273.
 
 42 Of Cmninal Jurisdiction. [book i. 
 
 the defendant at the trial ; and the production of a document purporting 
 to be signed by one of His Majesty's principal Secretaries of State as 
 respects the United Kingdom, and by the Governor as respects any other 
 part of His Majesty's dominions, and witnessing such consent and certifi- 
 cate, shall be sufficient evidence, for all the purposes of this Act, of the 
 consent and certificate required by this Act. 
 
 ' Proceedings before a justice of the peace or other magistrate, previous 
 to the committal of an offender for trial, or to the determination of the 
 justice or magistrate that the offender is to be put upon his trial, shall 
 not be deemed proceedings for the trial of the offence committed by such 
 offender, for the purposes of the said consent and certificate under this 
 Act.' 
 
 By sect. 5: 'Nothing in this Act contained shall be construed to be in 
 derogation of any rightful jurisdiction of His Majesty, his heirs or suc- 
 cessors, under the law of nations, or to affect or prejudice any jurisdiction 
 conferred by Act of Parliament or now by law existing in relation to 
 foreign ships, or in relation to persons on board such ships.' 
 
 By sect. 6: ' This Act shall not prejudice or affect the trial in manner 
 heretofore in use of any act of piracy as defined by the law of nations, 
 or affect or prejudice any law relating thereto (e), and where any act of 
 piracy as defined by the law of nations is also any such offence as is declared 
 by this Act to be within the jurisdiction of the Admiral, such offence may 
 be tried in pursuance of this Act, or in pursuance of any other Act of 
 Parliament, law, or custom relating thereto.' 
 
 By sect. 7 : 'In this Act, unless there is something inconsistent in the 
 context, the following expressions shall respectively have the meanings 
 hereafter assigned to them, that is to say : " The jurisdiction of the 
 Admiral " as under this Act includes the jurisdiction of the Admiralty 
 of England and Ireland, or either of such jurisdictions as used in any Act 
 of Parliament ; and for the purpose of arresting any person charged 
 with an offence declared by this Act to be within the jurisdiction of the 
 Admiral, the territorial waters adjacent to the United Kingdom or any 
 other part of His Majesty's dominions shall be deemed to be within the 
 jurisdiction of any judge, magistrate, or officer having power within such 
 United Kingdom or other part of His Majesty's dominions to issue warrants 
 for arresting or to arrest persons charged with offences committed within 
 the jurisdiction of such judge, magistrate, or officer.' 
 
 ' United Kingdom ' includes the Isle of Man, the Channel Islands, 
 and other adjacent islands. 
 
 ' The territorial waters of His Majesty's dominions,' in reference to the 
 sea, means such part of the sea adjacent to the coast of the United Kingdom 
 or the coast of some other part of His Majesty's dominions as is deemed 
 by international law to be within the territorial sovereignty of His Majesty; 
 and for the purpose of any offence declared by this Act to be within the 
 jurisdiction of the Admiral, any part of the open sea within one marine 
 league of the coast measured from low water-mark, shall be deemed to 
 be open sea within the territorial waters of His Majesty's dominions.' 
 
 ' Offence,' as used in this Act, means an act, neglect, or default of 
 
 (e) See post, Bk. ii. p. 253, ' Piracy.'
 
 Chap, lii.] Admiralty Jurisdiction. 43 
 
 such a description as would, if committed witliin the body of a county in 
 England, be punishable on indictment according to the law of England 
 for the time being in force. 
 
 ' Ship ' includes every description of boat or other floating craft ; 
 ' foreign ship ' means every ship which is not a British ship (/). 
 
 By sect. 686 (y) of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 
 60) : ' (1) where any person being a British subject is charged with having 
 committed an offence on board any British ship on the high seas, or in 
 any foreign port or harbour, or on board any foreign ship to which he 
 does not belong, or not being a British subject, is charged with having 
 committed any offence on board any British ship on the high seas, and 
 that person is found (h), within the jurisdiction of any Court in His 
 Majesty's dominions, which would have had cognisance of the offence 
 if it had been committed on board a British ship within the limits of 
 its ordinary jurisdiction, that Court shall have jurisdiction to try the 
 offence as if it had so been committed. 
 
 '(2) Nothing in this section shall affect the Admiralty Offences 
 (Colonial) Act, 1849 ' (i). 
 
 By sect. 687 (/): 'All offences against property or person committed 
 in or at any place either ashore or afloat out of His Majesty's dominions 
 by any master, seaman, or apprentice who, at the time when the offence 
 is committed, is or within three months previously has been employed 
 in any British ship, shall be deemed to be offences of the same nature 
 respectively, and be liable to the same punishments respectively, and 
 be inquired of, heard, tried, determined, and adjudged in the same 
 manner and by the same Courts and in the same places as if such offences 
 had been committed within the jurisdiction of the Admiralty of Eng- 
 land' (A;). By sect. 689, power is given to a British consular officer to 
 detain any master, seaman, or apjjrentice employed on any British 
 ship, on complaint that any offence against property or person has 
 bsen committed by him, at any place, ashore or afloat, out of His Majesty's 
 dominions or on the high seas, and may send him in custody to the United 
 Kingdom or to any British possession, in which there is a court capable 
 of taking cognisance of his offence. 
 
 To prove that a ship is a British merchant ship, it is not essential 
 to produce the register or a copy thereof, it is sufficient to show that 
 she carries the British flag, and belongs to British owners (/). 
 
 The prisoner was convicted of manslaughter committed on board 
 a ship on the high seas, the ship was built at Kiel, in the duchy of Holstein, 
 and sailed thence to London, and thence on the voyage in which the 
 offence was committed. All the officers and crew were foreigners ; the 
 prisoner was the second mate, and the deceased the master. The ship 
 
 (/) The definition is wide enough to in- of trial. R. v. Lopez, D. & B. 525, decided 
 
 elude foreign pubhc ve.ssels, but see the on 18 & 19 Vict. c. 91, s. 21 (rep.). 
 
 Parleraent Beige, 5 P. D. 197, and Mail («') 12 & 13 Vict. c. 90, post, p. 50. 
 
 Ships Act, 1891 (54 & 55 Vict. c. 31). (j) This section re-enacts 17 & 18 Vict. 
 
 {g) This section re-enacts the substance c. 104, s. 267. 
 
 of 18 & 19 Vict. c. 91, s. 21, and 30 & 31 (k) The rest of the section relates to 
 
 Vict. c. 124, s. 11. costs. See post, Bk. xii. c. v. 
 
 (h) The word ' found ' autliorises trial at (/) R. v. Allen, 10 Cox, 405. R. v. Seberg. 
 
 any place where the accused is at the time L. R. 1 C. C. R. 2(54 : 39 L. J. M. C. 133.
 
 44 Of Criminal Jurisdiction. [book i. 
 
 was sailing under the English flag when the offence was committed. 
 The crew were told before sailing that Mr. Rehder was sole owner. He 
 was not born an Englishman. A certified copy of the register of the 
 ' Giistav Adolph ' under the Merchant Shipping Act, 1854 (17 & 18 Vict, 
 c. 104), was admitted as prima facie evidence that the ship was a British 
 ship. Certain letters were put in, which, it was urged, showed a partner- 
 ship between Eehder and Ehlers, and it was urged that under ss. 18, 38, 
 and 103, the owner of a beneficial interest in a British ship must be 
 cjualified in the same way as the owner of a legal interest ; that, even 
 admitting that the registration of the ship in the name of Rehder was 
 prima facie evidence that he was owner, it could be no evidence of Ehler's 
 qualification, and therefore the letters proving Ehler's interest in the 
 ship rebutted the prima facie evidence that she was a British ship. On 
 a case reserved, it was held that there was prima facie evidence that 
 she was a British ship ; as there was evidence of a certificate of registry 
 in London, wherein Rehder was described as the owner at that time 
 resident in London, and the ship was sailing under the British flag ; but 
 that the prima facie proof was rebutted by the proof that Rehder was 
 alien born ; and that there was no presumption that letters of deniza- 
 tion or naturalisation had been granted to him, by reason that he, being 
 ahen born, would have become liable to penalties under the Act for 
 registering the ship as belonging to a British owner (m). 
 
 By the Sea Fisheries Act, 1883 (46 & 47 Vict. c. 22, s. 18), ' For the 
 jDurpose of giving jurisdiction to courts under this Act, a sea-fishing 
 boat shall be deemed to be a ship within the meaning of any Act relating 
 to offences committed on board a ship, and every court shall have the 
 same jurisdiction over a foreign sea-fishing boat within the exclusive 
 fishery limits of the British Islands and persons belonging thereto as 
 such court would have if such boat were a British sea-fishing boat.' 
 
 By the Behring Sea Award Act, 1894 (57 & 58 Vict. c. 2 (n), persons 
 committing, procuring, aiding, or abetting a contravention of the Act 
 are guilty of a misdemeanor within the meaning of the Merchant Shipping 
 Act, 1854, and by the Sea Fisheries North Pacific Act, 1895 (58 & 59 
 Vict. c. 21), like provisions are made as to contravention of Orders in 
 Council (o). 
 
 To a count for murder which alleged to have been committed ' upon 
 the high seas,' it was objected that it ought to have averred that the 
 prisoners were on board a British ship, or that they were British subjects ; 
 and to counts alleging that the prisoner was master of a British ship 
 afloat in the river Elbe, and that he there committed the murder, it 
 was objected that these counts did not allege the murder to have been 
 committed ' on the high seas.' The objection was overruled by Wight- 
 man, J. (p). 
 
 These enactments apply only to British merchant ships. Offences 
 on ]3ublic ships are dealt with under the Admiralty jurisdiction and the 
 
 (m) R. V. Bjornsen, L. & C. 545: 34 {p) R. v. Menhara, 1 F. & F. 369. He 
 
 L. J. M. C. 180. • said that as the alleged defects were on the 
 
 (n) Preserved by 57 & 58 Vict. c. 60, record he did not know whether he had 
 
 s. 745 ( f). power to state a case under 11 & 12 Vict. 
 
 (o) Continued by 8 Edw. VII. c. 18. c. 78.
 
 CHAP. Ill] AdmiraUy Jurisdiction. 45 
 
 other statutes above mentioned, or the Naval Discipline Act 
 (29 & 30 Vict. c. 109). 'British ship' is defined by sect. 1 of the 
 Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), as one owned wholly 
 by British subjects by birth or naturalisation or denizens, or by bodies 
 corporate, established, andsubject to the lawsof some part of His Majesty's 
 dominions, and having their principal place of business in these dominions. 
 A prisoner was charged at the Liverpool Assizes with the wilful murder 
 of the captain of the hulk 'Kent' in the Bonny River, Africa. It was 
 proved that the 'Kent' had been a sailing ship, and was registered as a 
 British ship though not British built. She had been for eighteen months 
 dismasted and used as a floating depot in the Bonny River for a line of 
 steamers trading from Liverpool. She floated in the tideway of the 
 river and hoisted the British ensign at the peak. The prisoner was 
 proved to have seized the captain and thrown him overboard, and he 
 was not seen again. Archibald, J., held that there was sufficient evidence 
 that the ' Kent ' was a British ship to give the Court jurisdiction, and 
 that it was not necessary that the crime should be wholly completed 
 on board such ship (q). By sect. 2, a vessel required to be registered 
 as a British ship, and not so registered is not recognised as a British 
 ship. By sect. 72, ' where it is declared by this Act that a British ship 
 shall not be recognised as a British ship, that ship shall not be entitled 
 to any benefits, privileges, advantages, or protection usually enjoyed 
 by British ships, nor to use the British flag or assume the British national 
 character, but so far as regards the payment of dues, the liability to pains 
 and penalties, and the punishment of offences committed on board such 
 ship or by any persons belonging to her, such ship shall be dealt with in 
 the same manner in all respects as if she were a recognised British ship ' (/•). 
 Sect. 687 applies to alien members of the crew as well as to British 
 subjects. In R. v. Lopez (s), upon an indictment for wounding, with 
 intent to do some grievous bodily harm, it was proved that the prisoner, 
 a foreigner, being a sailor and one of the crew of a British ship, maliciously 
 and unlawfully wounded Smith, also a foreigner and a sailor and one 
 of the crew of the ship, whilst on the high seas and in the same ship, 
 was tried and convicted at the Assizes at Exeter ; and upon a case 
 reserved, the conviction was affirmed. He was not found within the 
 jurisdiction of the Court at Exeter, but was brought into the jurisdiction 
 in custody and against his will having been ' found ' in the ship (t). 
 Lord Campbell, C.J., in giving the judgment of the Court said: 'We 
 are all of opinion that the conviction must be sustained. We have no 
 doubt that the offence committed by the prisoner was, under the circum- 
 stances, an offence against the laws of England. The prisoner, a foreigner, 
 was in an English ship ; he was under the protection of English laws, 
 and he therefore owed obedience to the English laws, and was guilty 
 of an offence against those laws when he maliciously wounded another 
 foreigner, one of the crew of the same ship, on the high seas. It is 
 
 (q) R. V. Armstrong, 13 Cox, 184, Archi- decided on the corresponding terms of 18 
 
 bald, J. & 19 Vict. c. 91, s. 21. 
 
 (r) SeeR. v. Seberg, L. R. 1 C. C. R. 2G4: (t) Ho argued. The case reserved did 
 
 39 L. J. M. C. 133. not state how he came into custody. 
 
 (s) D. & B. 525; 27 L. J. M. C. 48,
 
 46 Of Criminal Jurisdiction. [book i. 
 
 unnecessary to enter into a discussion of the authorities cited to prove 
 that proposition,— they are quite overwhelming. Then the only other 
 question is, whether there was jurisdiction under the commission of 
 oyer and terminer to try the prisoner at Exeter for that offence ; and 
 upon that point we entertain as little doubt. The Court at Exeter 
 would not have had jurisdiction {u) before 18 & 19 Vict. c. 91, s. 21 (y) ; 
 but that statute is quite conclusive on the subject, and seems to have 
 been passed for the purpose of removing any doubt that might arise. 
 It provides that offences committed by foreigners in British vessels on 
 the high seas may be tried by any Court within the jurisdiction of which 
 the offender is found, if the offence is one which would have been 
 cognisable by such Court, supposing it to have been committed within 
 the limits of its ordinary jurisdiction. Here the offence, if committed 
 within the county of Devon, would certainly have been triable at 
 Exeter ; and as the prisoner was found within that jurisdiction, it is 
 the same as if the offence had been committed within the limits of that 
 jurisdiction ; and we therefore think there was clearly jurisdiction in 
 the Court at Exeter to try him there, and that he was legally convicted.' 
 This decision really turned on 17 & 18 Vict. c. 104, s. 267 (mm), but 
 independently of legislation the offence was within the Admiralty juris- 
 diction {vv). 
 
 English Courts have not except in the case of piracy jure (jentium {w) 
 any jurisdiction to try any person for an offence committed on or by 
 means of a foreign, public or private vessel outside British territorial 
 waters {x). On the high seas a ship whether public or private is considered 
 for purposes of jurisdiction a part of the territory of the nation to which 
 the ship belongs, and (except in the case of piracy jure gentium), as subject 
 only to the law of the flag which she is entitled to fly. In this context 
 the term ' high seas ' does not include the territorial waters of a nation 
 other than that to which the ship belongs. The result of the rule is that a 
 British subject is not punishable by the law of England for offences 
 committed on the high seas on a foreign ship, whether he is or is not a 
 member of the crew of the ship ; and that a foreigner committing an 
 offence on a British ship on the high seas is amenable to British justice 
 whether he is or is not a member of the crew (y). 
 
 In R. V. Depardo (2) it was held that there was no jurisdiction to try 
 in England under a commission issued in pursuance of 33 Hen. VIII. 
 
 («) "This dictum is unnecessary and high seas killed the captain and some of the 
 
 erroneous. In the argument, Cockburn, crew and took the shiji back to China. 
 
 C.J., said : " There is strong opinion that [x) See observations of 8ir E. PhiUimore 
 
 but for the venue a person committing an in the 'Princess RoyaF [1870], L. R. 3 Adm. 
 
 offence on the high seas on an English ship & Eccl. 41, 48. No owner or part owner 
 
 would have been amenable to punishment of the vessel was domiciled in England, and 
 
 at the common law," and that opmion is the master was a foreigner, 
 
 clearly right.' C. S. G. (y) 57 & 58 Vict. c. 60, s. 686, supra, 
 
 [v) Repealed and re-enacted as 57 & 58 p. 43. 
 
 Vict. c. 60, s. 686, supra, p. 43. (z) [1807] 1 Taunt. 26 ; R. & R. 134. 
 
 [uu) Repealed and re-enacted as 57 & 58 In this case there was an argument that 
 
 Vict. c. 60, s. 687, ante, p. 43. the aUen had by this entering into the 
 
 (vv) R. V. Anderson, L. R. 1 C. C. R. 161. merchant service owed a local and temp- 
 
 (w) Att.-Gen. for Hong Kongv. Kwok a orary allegiance. The offence would be 
 
 Sing, L. R. 5 P. C. 180, a case in which triable under 57 & 58 Vict. c. 60, s. 686. 
 Chinese coolies on a French ship on the 
 
 I
 
 CHAP. III.] Admiralty Jurisdiction. 47 
 
 c. 23 (a) and 43 Geo. III. c. 113, s. 66 {b) ; an indictment for man- 
 slaughter of an Englishman, committed in China, by an alien enemy 
 who had been prisoner of war and was at the time of the alleged olience, 
 acting as a mariner on a British merchant ship. 
 
 In R. V. Lewis (c) a foreigner on a foreign ship on the high seas, inflicted 
 a blow on another foreigner which resulted in the death of the latter. 
 The death took place in England. It was held that the offence was not 
 rendered cognisable in England by 9 Geo. IV. c. 31, s. 8, by reason of the 
 fact that the death occurred in England, because the act which caused the 
 death was not cognisable in England, the accused not being a British 
 subject, and not falling within sect. 2 of the Act. The enactments 
 referred to are repealed and replaced by 24 & 25 Vict. c. 100, ss. 9, 10, 
 
 Homicide partly at Sea, partly on Shore.— Where a person was struck, 
 &c., upon the high seas, and died upon shore, the admiral had no cognis- 
 ance of the offence (d) ; and it was doubtful whether such offence could 
 be tried at common law (e). By 24 & 25 Vict. c. 100, s. 10, ' Where any 
 person being feloniously stricken, poisoned, or otherwise hurt upon the 
 sea, or at any place out of England or Ireland, shall die of such stroke, 
 poisoning, or hurt in England or Ireland, or being feloniously stricken, 
 poisoned, or otherwise hurt at any place in England or Ireland, shall die of 
 such stroke, poisoning, or hurt upon the sea, or at any place out of England 
 or Ireland, every offence committed in respect of any such case, whether 
 the same shall amount to the offence of murder or of manslaughter, or of 
 being accessory to murder or manslaughter, may be dealt with, inquired 
 of, tried, determined, and punished in the county or place in England or 
 Ireland in which such death, stroke, poisoning, or hurt shall happen, in 
 the same manner in all respects as if such offence had been wholly 
 committed in that county or place' (/'). 
 
 Upon an indictment for manslaughter it appeared that the prisoner, 
 who was not a British subject, shipped on board ship at New York, and 
 signed articles to serve as a seaman therein, and so did the deceased, who 
 was also not a British subject. The ship was American owned, com- 
 manded by an American master, and sailed under the flag of the United 
 States. The prisoner during the voyage to Liverpool exercised much 
 cruelty to the deceased, of which he died at Liverpool ; the last act of 
 cruelty was committed on the high seas four days before the ship arrived 
 at Liverpool. Uj^on a case reserved, it was held that the^ prisoner was 
 not liable to be tried in England. The Court considered that 9 Geo. 
 IV. c. 31, s. 8 (fj), was obviously intended to prevent a defeat of justice, 
 from the difficulty of trial where the death occurred in a different place 
 from that at which the blow causing it was given ; and ought not to be 
 construed as making a homicide cognisable in England by reason only 
 of death occurring here, unless it would have been so cognisable if the 
 
 (a) Repealed in 1828 (9 Geo. IV. c. 31). and 10 Geo. IV. c. 34, s. 11 (I), with a 
 
 {b) Repealed in 1861 (24 & 25 Vict. modification so as to include accessories 
 
 c. 101). before the fact in manslaught<>r. See 
 
 (c) 26 L. J. M. C. 104 ; D. & B. 182. post, p. 119. The first change of the 
 
 (d) 2 Hale, 17, 20; 1 East, P. G. 365, common law on the subject was by 2 
 306. Geo. II. c. 21, repealed in 1828. 
 
 (e) Id. and 1 Hawk. c. 31, s. 12. {g) Rc-cnacted as 24 & 25 Vict. c. 100, 
 (/) Taken from 9 Geo. IV. c. 31, s. 8 (E); s. 10, supra.
 
 48 
 
 Of Crmmial Jurisdiction, 
 
 [BOOK I. 
 
 death had ensued at the place where the blow was given {h), the homicide 
 would have been, in this particular case, by sect. 8, if the offender had 
 been a British subject, but not otherwise {i). 
 
 Where a person standing on the shore of a harbour fired a loaded 
 musket at a revenue cutter which had struck upon a sandbank in the sea, 
 about a hundred yards from the shore, by which another was maliciously 
 killed on board the boat, it was held that the trial must be in the 
 Admiralty Court, and not at common law (/). 
 
 It is said that a foreigner illegally detained upon a British ship is not 
 liable for acts done on the ship to effect his escape {k). But in respect 
 of acts not done for such purposes he is liable as if he were voluntarily 
 aboard. In R. v. Sattler {I) upon an indictment for murder, tried at the 
 Central Criminal Court, it appeared that S. the prisoner was a foreigner 
 and had committed a larceny in England, and then went with part of the 
 stolen property to Hamburg. The deceased, who was a detective officer 
 of the London police force, and a British subject, with the assistance of the 
 police of Hamburg, arrested S. there, and brought him against his will on 
 board an English steamer trading between Hamburg and London, in 
 order that he might be tried for the larceny, Hamburg is on the river 
 Elbe, sixty miles from the sea ; but the tide flows higher up than the 
 place where the steamer was when S. was taken on board. The steamer 
 left Hamburg on November 21, S. being in irons, and on November 22, 
 whilst on the high seas, he shot the deceased, who died of the wound. If 
 the killing had been by an Englishman, in an English county, it would 
 have been murder. The deceased had no warrant ; and a case was 
 reserved upon the question whether there was any jurisdiction to try S. 
 at the Central Criminal Court. It was argued for the prisoner, (1) that 
 the original arrest at Hamburg was unlawful and that the prisoner was 
 illegally taken on board the steamer (m) ; (2) that as the prisoner was 
 brought by force against his will into British jurisdiction no allegiance was 
 created. For the Crown it was contended, that it was a general principle 
 that a ship, pubhc or private on the high seas, was, for the purpose of 
 jurisdiction over crimes therein committed, a part of the territory of the 
 country to which the ship belongs ; and a person coming voluntarily or 
 involuntarily on board an English ship was as much amenable to the 
 
 {h) Now represented by 24 & 25 Vict. 
 c. 100, s. 10, ante, p. 47. 
 
 (/) R. V. Lewis, Dears & B. 182. See 
 R. V. Coombes, ante, p. 33. 
 
 {]) In Ireland it was necessary to issue 
 a special commission under 11, 12, & 13 
 Jac. I. c. 2 (I) ; and 23 & 24 Geo. III. c. 14, 
 s. 4 (I), for the trial of all offences com- 
 mitted on the seas ; but in England such 
 offences might be tried under the ordinary 
 commissions of Oyer and Terminer, or Gaol 
 Delivery, by 7 & 8 Vict. c. 2. 24 & 25 Vict. 
 c. 100, s. 08 follows that Act in providing 
 for the trial and form of indictment in such 
 cases, and renders the law the same in both 
 countries. 
 
 [k) See R. v. Serva, 1 Den. 104 ; 2 C. & 
 
 K. 53. In that case aliens were tried (under 
 7 & 8 Vict. c. 2) for murder on a Brazilian 
 vessel which had been seized by a British 
 cruiser for being concerned in the slave 
 trade. The majority of the Court held 
 that there was no jurisdiction, because 
 there was not sufScient evidence to show 
 that the vessel was lawfully in the posses- 
 sion of the British Crown. The persons 
 responsible for the detention are liable to 
 indictment under English law. R. v. 
 Lesley, Bell, 220. 
 
 (/) D. & B. 525 ; 27 L. J. M. C. 48 ; 
 ante, p. 34. 
 
 (m) There was no extradition treaty in 
 force between Great Britain and the free 
 city of Hamburg.
 
 CHAP. III.] Admiralty Jurisdiction (Colonies). 49 
 
 criminal law of England as if he came voluntarily or involuntarily into an 
 English county (n). 
 
 Lord Campbell in giving the judgment of the Court said : ' We think 
 it equally clear that, although the prisoner was a foreigner, the offence of 
 which he was convicted was an offence against the laws of England. 
 Here a crime is committed by the prisoner on board an English ship 
 on the high seas, which would have been murder if the kiUing had been 
 by an Englishman in an English county ; and we are of opinion that, 
 under these circumstances, whether the capture at Hamburg and the 
 subsequent detention were lawful or unlawful, the prisoner was guilty of 
 murder and an offence against the laws of England ; for he was in an Eng- 
 lish ship, — part of the territory of England, — entitled to the protection 
 of the English law, and he owed obedience to that law ; and he committed 
 the crime of murder — that is to say, he shot the detective officer, not for 
 the purpose of obtaining his liberation, but for revenge, and of malice 
 prepense. Then comes the question, whether the Central Criminal Court 
 had jurisdiction to try the prisoner for this offence ; and it appears to us 
 that the late Act 18 & 19 Vict. c. 91, s. 21 (o), was framed for the purpose 
 of obviating, and does obviate, all doubt upon such a subject. A man is 
 " found " wherever he is actually present, and the prisoner was " found " 
 within the jurisdiction of the Central Criminal Court, and we are all of 
 opinion that the Court had jurisdiction to try him. It was contended that 
 the prisoner was not '* found " within the jurisdiction, because he was 
 brought within it against his will ; but, upon the construction of the 
 statute, we are all of a different opinion.' And from the decision in R. v. 
 Anderson (2-)) it would seem that the fact of the presence of a foreigner on 
 board a British ship whether he is there as a member of the crew or 
 casually, and whether voluntarily or involuntarily is enough to give 
 jurisdiction to British Courts over crimes by him committed on the ship. 
 
 Offences in the Admiralty Jurisdiction. (Colonies and India). — 
 The statutes above referred to relate only to the trial in England or 
 Ireland of offences committed within the jurisdiction of the admiral. 
 Colonial legislatures have not as a general rule any authority to give 
 jurisdiction to the offences committed outside the territory or waters of 
 the possession (q). 
 
 The Offences at Sea Act, 180G (46 Geo. Ill, c. 54) (r), enacts, sect. 1. 
 that, ' all treasons, piracies, felonies, robberies, murders, conspiracies, and 
 other offences of what nature or kind soever, committed upon the sea, or 
 in any haven, river, creek, or place, where the admiral or admirals have 
 power, authority, or jurisdiction, may be inquired of, tried, heard, deter- 
 mined and adjudged, according to the common course of the laws of this 
 
 {n) The questions reserved were, ' Was 58 Vict. c. 60, 3. 080, aiile, p. 43. 
 the custody of the prisoner on board the (p) \j. R. 1 C. C. R. 161 ; 38 L.J. M. C. 12. 
 
 steamer lawful, and is there any distinction (</) Sec Maclcod r. Att.-Gen. of N. S. W. 
 
 as to the times wlicn the steamer was in [18'Jl], A.C. 455. Hardcastle on Statute 
 
 the river Elbe, and whilst she was upon the Law (4th cd. by Craies), p. 408. 
 high seas ? ' [On this the Court gave no (/) Tlie full title is, ' An Act for the more 
 
 opinion.] And, ' SujDposing the custody speedy trial of offences committed in dis- 
 
 not to have been lawful, was the killing tant parts on the sea.' The preamble 
 
 necessarily only manslaughter ? ' recites 28 Hen. VIII. c. 15, and the Piracy 
 
 (o) Repealed and incorporated in 57 & Act, 1698 (11 Will. III. c. 7), post, p. 259. 
 VOL. I. E
 
 50 Of Criminal Jurisdiction. LBook i. 
 
 realm used for offences committed upon the land within this realm, and 
 not otherwise, in any of His Majesty's islands, plantations, colonies, 
 dominions, forts, or factories, under and by virtue of the King's com- 
 mission or commissions, under the Great Seal of Great Britain, to be 
 directed to any such four or more discreet persons as the Lord Chancellor 
 of Great Britain, Lord Keeper, or Commissioner for the custody of the 
 Great Seal of Great Britain for the time being, shall from time to time 
 think fit to appoint ; and that the said commissioners so to be appointed, 
 or any three of them, shall have such and the like powers and authorities 
 for the trial of all such murders, &c., within any such island, &c., as any 
 commissioners ajipointed according to the directions of the Offences at Sea 
 Act, 1536, by any law or laws now (May 23, 1806) in force, have or would 
 have for the trial of the said offences within this realm.' And it further 
 enacts, that ' all persons convicted of any of the said offences so to be 
 tried, &c., shall be Hable to the same pains, &c,, as, by any laws now 
 (May 23, 1806) in force, persons convicted of the same would be liable to 
 in case the same were tried, &c., within this realm, by virtue of any 
 commission according to the directions of the Offences at Sea Act, 1536.' 
 
 The Admiralty Offences (Colonial) Act, 1849 (12 & 13 Vict. c. 96), 
 enacts sect. 1, that ' if any person within any colony shall be charged 
 with the commission of any treason, piracy, felony, robbery, murder, 
 conspiracy, or other offence, of what nature or kind soever committed 
 upon the sea(ss), or in any haven, river, creek, or place, where the admiral, 
 or admirals, have power, authority, or jurisdiction, or if any person 
 charged with the commission of any such offence upon the sea, or in 
 any such haven, river, creek, or place, shall be brought for trial to any 
 colony. Then, and in every such case, all magistrates, justices of the 
 peace, public prosecutors, juries, judges, courts, public officers, and 
 other persons in such colony, shall have, and exercise, the same jurisdiction 
 and authority for inquiring of, trying, hearing, determining, and adjudg- 
 ing such offences, and they are hereby respectively authorised and 
 required to institute and carry on all such proceedings for the bringing 
 of such person so charged as aforesaid, to trial and for and auxiliary 
 to and consequent upon the trial of any such person, for any such offence, 
 wherewith he may be charged as aforesaid, or by the law of the colony 
 would, and ought, to have been had and exercised, or instituted and 
 carried on by them respectively, if such offence had been committed, 
 and such person had been charged with having committed the same, 
 upon any waters situate within the limits of any such colony, and within 
 the limits of the local jurisdiction of the courts of criminal justice of such 
 colony ' {s). 
 
 Sect. 3 : ' Where any person shall die in any colony of any stroke, 
 poisoning, or hurt, such person having been feloniously stricken, poisoned, 
 or hurt, upon the sea, or in any haven, river, creek, or place, where the 
 admiral, or admirals, have power, authority, or jurisdiction, or at any 
 place out of such colony, every offence committed in respect of any 
 
 {ss) As to the great lakes in North (s) S. 2, relating to punishments, wag 
 
 AmericaseeR, V. Meikleham[1906], 11 Ont. superseded by 37 & 38 Vict. c. 27, s. 3, 
 L. R. 36G. infra, and repealed in 1891 (S. L. R.).
 
 CHAP. III.] Admimltij Jurisdiction {Colonies). 51 
 
 such case, whether the same shall amount to the offence of murder or 
 manslaughter, or of being accessory before or after the fact to murder 
 or manslaughter, may be dealt with, inquired of, tried, determined, 
 and punished, in such colony in the same manner, and in all respects as 
 if such offence had been wholly committed in that colony ; and if any 
 person in any colony shall be charged with any offence in respect of any 
 person, who, having been feloniously stricken, poisoned, or otherwise 
 hurt, shall have died of such stroke, poisoning, or hurt, upon the sea, 
 or in any haven, river, creek, or place, in which the admiral, or admirals, 
 have power, authority, or jurisdiction, such offence shall be held for 
 the purpose of this Act to have been wholly committed on the sea ' {t). 
 
 Sect. 5 : ' For the purposes of this Act colony shall mean any island, 
 plantation, colony, dominion, fort, or factory, of His Majesty, except any 
 island within the United Kingdom, and the islands of Man, Guernsev, 
 Jersey, Alderney, and Sark, and the islands adjacent thereto, respec- 
 tively ' {u). The Act of 1849 was extended to British India in I860 (23 & 
 24 Vict. c. 88) {v), and is not affected by anv of the provisions of the 
 Merchant Shipping Act, 1894 (57 & 58 Vict. 60) {w). 
 
 By the Admiralty Offences Colonial Act, I860 (23 & 24 Vict. c. 122), it 
 is made ' lawful for the legislature of any of His Majesty's possessions 
 abroad to enact by any law or ordinance to be by them made in the usual 
 manner that where any person being feloniously stricken, poisoned, or 
 otherwise hurt at any place within the hmits of such possession, shall 
 die of such stroke, poisoning, or hurt upon the sea or at any place out 
 of the limits of such possession, every offence committed in respect of 
 any such case, whether the same shall amount to the offence of murder or 
 manslaughter, or of being accessory before or after the fact to murder or 
 manslaughter, may be dealt with, inquired of, tried, determined, and 
 punished, in the possession within the hmits of which such stroke, 
 poisoning, or hurt shall happen in the same manner in all respects as 
 if such offence had been wholly committed within the limits of such 
 possession, or such legislature may by any such law or ordinance to be 
 made, as aforesaid, to the like effect.' 
 
 The Courts Colonial Jurisdiction Act, 1874 (37 & 38 Vict. c. 27), 
 enacts (sect. 3), that ' When by virtue of any Act of Parhament now, 
 or hereafter to be, passed, a j^erson is tried in the court of any colony (x) 
 for any crime or offence committed on the high seas or elsewhere out of 
 the territorial hmits of such colony, and of the local jurisdiction of such 
 
 {t) The terms of this section were taken jurisdiction. S. 2 of the Act of 18G0 provides 
 
 from 9 Geo. IV. c. 31, s. 8, repealed as to for the case of persons entitled to be tried 
 
 England in 1861, and replaced by 24 & 25 before the Supreme Court of a presidency in 
 
 Vict. c. 100, s. 10 [ante, p. 47). 9 Geo. IV. India. See also Mayne, Ind. CV. L. (ed. 
 
 c. 31, s. 8 was extended to India by 9 189(i), p. 263 ; Ilbert, Govt, of India (2nd 
 
 Geo. IV. c. 74, s. 56, as to which see Nga ed.), 243-245. 
 
 Hoong V. R., 7 Moore, Ind. App. 72 ; Ilbert, (w) See s. 686, subs. 2, ante, p. 43. 
 
 Govt, of India (2nd ed.), 242. (x) Defined by s. 2 .so as to exclude 
 
 («) S. 4 provides that the Act shall not the British Islands but to include British 
 
 affect the jurisdiction given to the Courts India, and any plantation, territory or 
 
 of New South AVales and Van Diemen's .settlement elsewhere within the King's 
 
 Land by 9 Geo. IV. c. 83. dominions. Possessions under a central 
 
 {v) The High Court of Bengal has, under legislature are deemed to be one colony 
 
 33 Geo. III. c. 52, s. 156, power to try under the same local government. 
 
 otfences committed within the Admiralty 
 
 E 2
 
 52 
 
 Of Criminal Jurisdiction. 
 
 [BOOK I. 
 
 Court, or if committed within such local jurisdiction, made punishable 
 by that act, such person shall, upon conviction, be liable to such punish- 
 ment as might have been inflicted upon him if the crime or offence 
 had been committed within the local jurisdiction of the court, and no 
 other, any thing in any Act to the contrary notwithstanding : Provided 
 always that if the crime or offence is a crime or offence not punishable 
 by the law of the colony in which the trial takes place, the person shall, 
 on conviction, be liable to such punishment other than capital punish- 
 ment as shall seem to the Court most nearly to correspond to the punish- 
 ment to which such person would have been liable in case such crime or 
 offence had been committed in England/ Offences within sects. 686 & 
 687, of the Merchant Shipping Act, 1894 (57 & 58 Vict. 60), are triable 
 in the criminal Courts of British possessions (y). 
 
 The Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27), 
 denies to the Courts created by or under the Act any ' jurisdiction under 
 this Act to try or punish any person for an offence which, according to the 
 law of England, is punishable on indictment,' sect. 2, sub-s. 3 (c). 
 
 Jurisdiction over Offences initiated outside, but taking Effect within 
 the Realm. — The question from time to time arises whether, and to what 
 extent, and on what principle an English court has jurisdiction to try in- 
 dictments, in respect of acts done outside the realm, or initiated outside 
 the realm, and taking effect within it. So far as concerns acts done on 
 the sea, whether within or without the jurisdiction of the Admiralty of 
 England, this subject is treated ante, pp. 31 et seq. As regards offences 
 completely committed on land outside England ; it seems clear that no 
 jurisdiction to try in England can be asserted except under the express 
 provisions of a statute. 
 
 But there remains another class of case in which the acts constituting 
 the offence take place partly in England and partly on land outside 
 England, or on a vessel not subject to the jurisdiction of the English 
 Courts. 
 
 From the point of view of international law the cases fall into three 
 divisions — 
 
 1. Where the act is initiated in another part of the British Empire, 
 
 and takes effect in England. 
 
 2. Where the act is by a British subject, and is initiated in a foreign 
 
 country, but takes effect in England. 
 
 3. Where the act is initiated in a foreign country, and takes effect in 
 
 England, but is done by an alien. 
 In R. V. Johnson (2), an indictment was found in Middlesex against 
 a judge of the Court of Common Pleas in Ireland, for causing the publica- 
 tion in Westminster of a seditious libel. The defendant filed a j)lea to 
 the jurisdiction of the Court setting forth that he was a native of and 
 resident in Ireland, and that Ireland was subject to its own laws and 
 not those of Great Britain, and had its own competent Courts. This 
 plea on demurrer was quashed for not stating what Court was competent to 
 try the oft'ence : but it was intimated that the proper mode of setting 
 
 (y) See R. v. Hinde [1902], 22 N .Z. L. R. 
 43«. 
 
 (c) [1805] 6 East, 583.
 
 CHAP. III.] Offences Initiated Outside the Realm. 53 
 
 up the defence that no English Court could tiy the defendant was by 
 plea in bar or by evidence on plea of not guilty. Lord Ellenborough 
 said (a), 'If then the circumstances attending the defendant, of his birth 
 in Ireland and his residence there at the time of the publication made 
 in this country, have the effect of rendering him not punishable in any 
 Court of this country for such publication, this impunity must follow 
 as a consequence of its being no crime in the defendant so circumstanced 
 to publish a libel in Middlesex. And indeed the argument rested wholly 
 upon this position, that the defendant owed no obedience to the laws 
 of this part of the United Kingdom, and if he owed no obedience then 
 he had been guilty of no crime in acting contrary to them (6). Such 
 defence, if it can be, may prove available in law as matter of absolute 
 bar.' 
 
 Judge Johnson was subsequently tried on the indictment (c), and 
 after certain legal arguments (not involving the point left open as above 
 stated), was found guilty. Lord Ellenborough, C.J., said : ' One who 
 procures another to publish a libel is no doubt guilty of the publication 
 in whatever county it is in fact published in consequence of his procure- 
 ment.' This ruling, while undoubtedly correct as between county and 
 county of England (d), does not specifically deal with a case in which 
 the offender charged with procuring is not within the realm when he 
 does the acts on which it is sought to make him criminally responsible. 
 
 In R. V. Munton (e), a government store-keeper in Antigua, while 
 there resident, transmitted to his agent in London false returns, which 
 were by the agent delivered at the Navy office in London. He was 
 iiidicted in Middlesex for colluding with contractors by these false vouchers 
 to defraud the Crown. It was objected that the Court could not take 
 cognisance of matters committed out of the realm. Lord Kenyon held 
 that that objection would be valid ' where the criminal matter arose 
 wholly abroad,' and agreed that in such a case to warrant the inter- 
 position of the Court of King's Bench an Act of Parliament w^as expressly 
 necessary : but he ruled that an offence was committed in London where 
 the false returns were received and the fraud completed by their allowance, 
 and that the jurisdiction of the Court then attached. 
 
 In R. V. Brisac (/), an information was filed at common law and tried 
 in Middlesex for conspiracy between the captain and purser of a man-of- 
 war, for planning and fabricating false vouchers to cheat the Crown. 
 The evidence showed that the planning and fabrication took place on 
 the high seas at Brassa Sound or at Lerwick in Shetland. The only 
 acts proved to have been done in Middlesex were the delivery of the 
 vouchers to the commissioners of victualling by innocent persons to whom 
 they had been transmitted by the defendants, and the application for 
 a receipt of payment there by the holder of a bill of exchange, the 
 
 (a) 6 East, 601. (e) [1793] I Esp. 62 ; 6 East, 590, cit. 
 
 (b) The Iii.sh Courts rejected this con- There is no doubt that now .such an offence 
 tention as unfounded in law. Sec per by an official committed outside Great 
 McCleland, B., C East, 591, cit. Britain could be dealt with under 42 Ceo. 
 
 (c) [1805] 7 East, 65 : 29 St. Tr. 81. III. c. 85, or 49 Geo. III. c. 126, s. 14. 
 
 (d) See R. v. Bowes [1787], 4 East, 171, (/) 4 East, 164. See Greaves Crini. 
 cit. Cons. Acts (2nd ed.) 34.
 
 54 
 
 Of Criminal Jurisdiction. 
 
 [BOOK I. 
 
 consideration for which was evidenced by the false vouchers. After 
 conviction it was objected on behalf of Brisac that the offence charged 
 was committed on the high seas and could only be tried by virtue of 
 39 Geo. Ill, c. 37 (g), under a commission granted under 28 Hen. VIII. 
 c. 15 (h). Grose, J., ruled (1) that these statutes did not take away the 
 jurisdiction of the Courts of common law to try offences which they 
 had power to try before the acts were passed ; (2) that conspiracy may 
 be tried wherever any distinct overt act of conspiracy is in fact com- 
 mitted. In support of this proposition he relied on R. v. Bowes {{), 
 a case of conspiracy in which some overt acts were done in Middlesex, 
 and the rest in other counties. 
 
 In R. V. Buttery (/) the defendant was indicted and tried in Hereford- 
 shire for obtaining goods by false pretences. The pretences were made 
 in Herefordshire, and the goods supplied in Monmouthshire. It was 
 ruled that the indictment was laid in the wrong county. The decision 
 turned on the interpretation of 30 Geo. II. c. 24 (rep.), as to obtaining 
 property by false pretences : and the only question was as to the proper 
 county to try acts undoubtedly cognisable by English law. Certain 
 doubts existed at that date as to whether felonies or misdemeanors 
 committed partly in one county and partly in another could be tried 
 in either (k), and these doubts were as to both felony and misdemeanor 
 settled in 1826 (7 Geo. IV. c. 64, s. 12) (l), as between the counties of 
 England. This decision does not touch cases in which the person 
 accused was not in England when the act alleged to constitute the crime 
 was done there (m). 
 
 In R. V. Ellis (n) the indictment was for obtaining credit by false 
 pretences contrary to sects. 11 (13) and 13 (1) of the Debtors Act, 1869. 
 The evidence was that the defendant carried on business in the county 
 of Durham, and that goods were delivered to him there by a firm in 
 Glasgow on the faith of false representations made by the defendant in 
 Glasgow to the firm. On conviction, a question was raised as to the 
 jurisdiction to try the offence in the county of Durham. The conviction 
 was upheld. The majority of the (o) Court held that the offence consisted 
 in obtaining the goods, and not in making the false representations, 
 and that an English Court can try for obtaining goods within the jurisdic- 
 tion by false representations made beyond the jurisdiction. Wright, J., 
 held that the possession of the goods could on the evidence be treated 
 as had in the county of Durham under a representation made in Glasgow, 
 but continuing in Dm^ham. The majority relied on the authority of R. v. 
 Buttery and R. v. Burdett {k) : but Wright, J., considered R. v. Buttery 
 as inapplicable to a case where the pretence was in another country, 
 saying, ' Where the false pretence has been made in a foreign country, 
 the law of that country as to false pretences may not be the same as it is 
 here ' (p). 
 
 {(/) Ante, p. 37. 
 (h) Ibid. 
 
 (i) [1787] 4 East, 171 cit. 
 (/) [1820] 4 B. & AW. 179 cit. 
 (k) Se3 R. V. Burdett, 4 B. & Aid. 95 : 1 
 St. Tr. (N. S.) 1, jjost, p. 1031. 
 
 (I) Ante, p. 20. 
 
 (m) R. V. Ellis [1899], 1 Q.B. 230, 241, 
 Wright, J. 
 
 (n) [1899] 1 Q.B. 230 : 68 L. J. Q.B. 103. 
 (o) Hawkins, Wills and Bruce, JJ. 
 (p) I.e. p. 241.
 
 CHAP. III.] Ofences Initiated Outside the Realm. 55 
 
 In R. V. Oliphant (q) the defendant was indicted for omitting or con- 
 curring in omitting certain particulars from the cash-book of his employers, 
 contrary to the Falsification of Accounts Act, 1875 (38 & 39 Vict. c. 24), 
 The evidence was that he was employed as manager in Paris of a branch 
 establishment of a firm carrying on business in London : that it was his 
 daily duty to make up on slips an account of all sums received by him in 
 Paris, and transmit the slips to London, that the amounts might be entered 
 in a cash-book kept in London : that he had received and fraudulently 
 misappropriated certain sums, and omitted to enter the amounts so taken 
 in the slips transmitted, knowing and intending that the sums omitted 
 from the slips would, in consequence, be omitted from the cash-book. 
 It was objected that there was no jurisdiction to try the offence in England. 
 The Court overruled the objection on the authority of R. v. Munton (r) 
 and R. v. Brisac (s). Reference was made arguendo to R. v. Johnson (t), 
 R. V. Girwood (u), and R. v. Coombes (v). 
 
 In R. V. von Veltheim (w) the defendant, an alien, was convicted under 
 sect. 44 of the Larceny Act, 1861, for sending a letter containing menaces 
 without reasonable and probable cause. It was proved that the letters 
 were posted in Russia and received in England, and that the defendant 
 was in Hungary when he gave the letters to an agent to be posted. 
 
 In two cases the question has arisen whether acts initiated in England, 
 but taking effect abroad, could be regarded as constituting offences 
 against English law, or against the law of the country in which the 
 act took effect. In R. v. Holmes (x) the indictment was in resj^ect of 
 false pretences contained in a letter posted in Nottingham, addressed to 
 G. in France, by means of which G. was induced to send from France to 
 Nottingham a draft which the prisoner there cashed. The decision was 
 based on R. v. Burdett {ante, p. 54), and no attention was called to the dis- 
 tinction drawn by Wright, J., in R. v. Ellis (supra) to the difference between 
 venue and jurisdiction (y). The case can be maintained on the ground 
 that the draft was received in Nottingham by means of the pretence (2). 
 In R. V. Nillins (a) N., being in Southampton, wrote and sent to Germany 
 letters alleged to contain false pretences, and addressed to persons carry- 
 ing on business in Germany, and thereby induced them to deliver goods 
 to his order to persons in Hamburg. N. also sent to persons in Germany 
 cheques alleged to be forged. An aj^plication was made for his extradi- 
 tion to Germany in respect of the false pretences and forgery. On 
 proceedings for habeas corpus to prevent extradition, it was argued for the 
 Grown that there was ample evidence of an offence committed in Germany, 
 and that N. fell within the definition of fugitive criminal in the Extradition 
 Act, 1870, sect. 2G. Cave, J., said, ' It is clear that there may be cases 
 
 (?) No. 2 [1905], 2 K.B. ()7. fired from the shore, was held to be cognis- 
 
 {r) Supra, p. 5:}. able by the Admiralty jurisdiction. Vide 
 
 (•s) Supra, p. 52. rinte, p. 33. 
 
 (t) 29 St. Tr. at 392, anlc, p. 53. (iv) Cent. Crim. Ct. 12 Feb. 1908, PhiUi- 
 
 (m) [1776] 1 Leach, 142, where an indict- more, J. 
 
 ment for sending a threatening letter, (x) 12 Q.B.D. 23 ; 53 L. J. M. C. 37. 
 
 which lie had caused to be posted in the {;/) See British S. Africa Co. r. Companhia 
 
 City of London, was held to lie hi Jliddle- de Movambiquc [1903], A.C. (502. 
 
 sex, where the addressee received the letter. (z) P. v. Ellis, ubi supra. 
 
 (v) [1785] 1 Leach, 388, where the kiUing (a) 53 L. J. M. C. 157, Cave, Day and 
 
 of a sailor in a boat on the sea, by a shot A. L. Smith, JJ.
 
 56 Of Criminal Jurisdiction. [book i. 
 
 wliere a person has committed a crime in a foreign country without ever 
 being there (b). This decision, if of sufficient authority, states a j)rinciple 
 equally applicable to criminal acts taking effect in England done by 
 persons in foreign countries by means of the post. 
 
 In the case of a crime committed through an innocent agent, e.g., 
 where a messenger is sent to cash a forged cheque, or a packet containing 
 poison, or where a letter containing false pretences or threats, or a 
 defamatory libel is sent through the post, the person who employs the 
 agent or the post office in aid of his criminal purpose is treated as the 
 principal offender (c). Where the offence is committed in England or 
 within the Admiralty jurisdiction, the principal offender is regarded as 
 constructively present where the cheque was uttered, or the poison or 
 letter delivered, though he would apparently be equally triable by the 
 Court having jurisdiction in respect of the place where the crime was 
 set in motion. In R. v. Brisac (d) Grose, J., said : ' In the present case 
 the delivering the vouchers, &c. (e), to the commissioners of the victual- 
 ling office in Middlesex were the acts of both the defendants done in the 
 county of Middlesex. I say it was their acts done by them both : for 
 the persons who innocently delivered the vouchers were mere instru- 
 ments in their hands for that purpose ; the crime of presenting the 
 vouchers was exclusively their own, as the crime of administering poison 
 through the medium of a person ignorant of its quality would be the 
 crime of the person procuring it to be administered.' 
 
 In R. V. Taylor (/ ) Pigott, B., said that if a jierson in a foreign country 
 set other persons in motion as his agents, by whom a forged cheque was 
 prescribed by his procurement in England, this would be an uttering for 
 which he might be convicted in England. 
 
 In R. V. C'oombes [g) it was held that the killing of a sailor in a boat by 
 a shot fired from the shore was cognisable in the Admiralty jurisdiction. 
 The reasons for the conclusion are not stated, and the opiniDn of the 
 judges was that the prisoner was tried by a competent jurisdiction, not 
 that the common-law Courts would not have had concurrent jurisdiction 
 to try the offence {h). 
 
 It would seem that the above rule is equally applicable where 
 the post is used by a person abroad for the transmission of letters 
 containing matter which may be the subject of criminal proceedings (i). 
 
 It cannot be said that the authorities above cited show that any com- 
 plete and effective consideration has been judicially given to the questions 
 under discussion : but the trend of the decisions supports the statement 
 in Wharton's Conflict of Laws (2nd ed.) s. 823, that ' the prevailing opinion 
 in England and the United States is that a person who, when abroad, 
 
 (6) This decision has been questioned in (/;) The headnote in Leach seems to be 
 
 Clarke on Extradition (4th ed.) 263. inaccurate in suggesting that the juris- 
 
 (c) This view was not accepted by Cock- diction of the Admiralty was exclusive, 
 burn, C.J. See R. v. Keyn, 2 Ex. D. 63, 237. Coombes' case was criticised in Badische 
 
 (d) 4 East, 172. Anilin und Soda Fabrik v. Basle Chemical 
 
 (e) It was proved that the vouchers were Works [1898], A.C. 200, 204, ante, p. 33 
 false and had been made on the high seas note (i), and is fully discussed in the 
 or at Lerwick in the Shetland Isles. opinions of the judges in R. i\ Keyn, 
 
 ( /■) 4 F. & F. 511, 513. 2 Ex. D. 63, 103, 119, 234. 
 
 {g) 1 Leach, 388. (i) R. v. de Marny [1907], 1 K.B. 388,
 
 CHAP. III.] Offences Initiated Outside the Realm. 57 
 
 is concerned in directing a crime, may be punished for the same if 
 arrested (or found) where the crime was committed, although he was 
 at the time of commission and concoction out of the latter 's jurisdic- 
 tion'(jf), and this view is supported by R. v. Stoddart(A;). The indict- 
 ment inter alia contained charges of obtaining money by false pre- 
 tences, with reference to a coupon competition. Postal orders and 
 letters containing money were in consequence of the advertisement of 
 the competition posted in London addressed to Middelburg in Holland, 
 it was contended that the obtaining of the money was in Holland and 
 that there was no jurisdiction to try the charges at the Central Crim- 
 inal Court. The contention was overruled on the ground that the 
 offence was complete on the posting of the letters in London (Z). 
 
 Where an intelligent acting agent is interposed between the for- 
 eigner initiating the crime and its commission in England, difficulties 
 may arise as to the jurisdiction of the English Courts over the 
 foreigner (m). 
 
 (i) Cf. s. 18. Wharton inquires (s. templation of law done on the foreign 
 
 825 ) , What is the place of commence- schooner where the shot took effect, and 
 
 ment where a crime is begun in one was not cognisable under the laws of 
 
 country to take effect in another, e.g., the U. S. See also State v. Wyckoff, 2 
 
 by sending poison, explosives or libel- Vroom. (N. J. ) 69. R. v. Keyn, 2 
 
 lous letters, or using long-range fire- Ex. D. 6.3, 2.37, Cockburn, C.J. 
 
 arms? See too s. 811 and Wharton {k) [1909] 25 T.L.R. 612: 53 Sol. 
 
 Crim. Law (8th ed.) ss. 278-28.3. R. v. Jour. 578. 
 
 Johnson, 7 East, 65, ante, p. 53. U.S. (?) The Court relied on R. v. Jones, 
 
 V. Davies [1837], 2 Sumner, 482, Story, 1 Den. 551; 19 L.J.M.C. 162 and Archb. 
 
 J. This was the case of a gun fired from Cr. PI. (2.3rd ed.) 609. 
 
 an American ship in the habour of {m) See Badische Anilin und Soda 
 
 Raiatea by which a person on a native Fabrik v. Basle Chemical Works 
 
 schooner in the harbour was killed. [1898], A.C. 200, 205, Halsbury, L.C. 
 Story, J., held that the act was in con-
 
 (57a) 
 
 CANADIAN NOTES. 
 
 CRIMINAL JURISDICTION. 
 
 Common Law ^Jurisdiction. — The common law jurisdiction as to 
 crimes is still operative, notwithstanding the Code, and even in cases 
 provided for by the Code, unless there is such repugnancy as to give 
 prevalence to the later law. R. v. Cole, 5 Can. Cr. Cas. 330. 
 
 Application of Criminal Law of England. — 
 
 (1) To Ontario. Code sec. 10. 
 
 (2) To British Columbia. Code sec. 11. 
 
 (3) To Manitoba. Code sec. 12. 
 
 (4) To Quebec:— 
 
 The Quebec Act, 1774. — The Criminal Law of England was intro- 
 duced into the Province of Quebec by Royal Proclamation in 1763, and 
 subsequently extended by 14 Geo. III. ch. 83 (Imp.) to what is now 
 Ontario. After the erection of Upper Canada, now Ontario, into a 
 separate province, the Provincial Legislature, after reciting the Imper- 
 ial Act, 14 Geo. III. ch. 83, passed 40 Geo. III. ch. 81, in July, 1800, 
 enacted that the Criminal Law of England as it stood on the 17th 
 September, 1792, should be the Criminal Law of Upper Canada. R. v. 
 Malloy (1900), 4 Can. Cr. Cas. 116 (Ont.). 
 
 (5) To Nova Scotia, New Brunswick and Prince Edward Island: — 
 The preamble to the Nova Scotia statute, 33 Geo. II. ch. 3 (1759), 
 
 declares "that this Province of Nova Scotia, or Acadia, and the pro- 
 perty thereof, did always of right belong to the Crown of England, 
 both in priority of discovery and ancient possession." At that time 
 Nova Scotia included New Brunswick, but not Cape Breton, but Cape 
 Breton was ceded to Great Britain in 1763, and subsequently became a 
 part of the Province of Nova Scotia. Prince Edward Island was also 
 ceded to Great Britain in 1763, and annexed to Nova Scotia, but 
 became a separate province in 1769. All the common law of England 
 in 1758, unless obviously inconsistent with surrounding circumstances 
 is in force in the territory which then constituted Nova Scotia. No
 
 CHAP. III.] Offences on Land Outside Canada. 57& 
 
 statute law of England in 1758 is in force in the said territory unless 
 obviously applicable to the circumstances of the territory. 
 
 (6) The North- West Territories: — 
 
 The North- West Territories Act, R.S.C. ch. 62, sec. 12, enacts as 
 follows: "Subject to the provisions of this Act, the laws of England 
 relating to civil and criminal matters, as the same existed on the 15th 
 day of July, 1870, shall be in force in the Territories, in so far as the 
 same are applicable to the Territories, and in so far as the same have 
 not been, or are not hereafter, as regards the Territories, repealed, 
 altered, varied, modified or affected by any Act of the Parliament of 
 the United Kingdom, or of the Parliament of Canada, applicable to the 
 Territories, or by any ordinance of the Territories. ' ' 
 
 (7) The Yukon Territory: — 
 
 By the Yukon Act, R.S.C. ch. 63. sec. 19, it is provided: "Sub- 
 ject to the provisions of this Act the laws relating to civil and 
 criminal matters and the Ordinances in force in the North-West 
 Territories on the 13th day of June, 1898, shall be and remain in force 
 in the (Yukon) Territory, in so far as the same are applical)le thereto, 
 and in so far as the same have not been or are not hereafter repealed, 
 abolished or altered by the Parliament of Canada, or by any Ordinance 
 of the Governor in Council or the Conmiissioner in Council made under 
 the provisions of this Act. ' ' 
 
 Offences on Land Outside Canada. — Issue of warrant by justice. 
 Code sec. 656. By Code sec. 307, sub-sec. 4, no person shall be liable to 
 be convicted of bigamy in respect of having gone through a form of 
 marriage in a place not in Canada, unless such person, being a British 
 subject resident in Canada, leaves Canada with intent to go through 
 such form of marriage. 
 
 The Parliament of Canada has jurisdiction to constitute the leaving 
 of Canada by a British subject resident therein, with intent to perform 
 a prohibitive act, an indictable offence, upon the act itself being per- 
 formed. Re Bigamy Sections of the Code (1897), 1 Can. Cr. Cas. 172; 
 R. V. Brierly, 14 O.R. 525 ; see R. v. Plowman, 25 O.R. 656. 
 
 A British subject domiciled in Canada, only temporarily absent, 
 continues to owe to His IMajesty in relation to his government of 
 Canada an obligation to refrain from the completion, whilst absent 
 without any animus manendi, of a prohibited act, a material part of 
 which is done by him in Canada. 1 Can. Cr. Cas. 172.
 
 57c Criminal Jurisdiction. [book i. 
 
 General Jurisdiction of Courts Within Province. — Code sec. 577. 
 Offences Committed in One Province are not Triable in Another. — 
 Code see. 888. 
 
 Transitory Offences — 
 
 On Water Between Jurisdictions. — Code see. 584(a). 
 
 Begun in One Magisterial Jurisdiction and Completed in Another^ 
 — Code sec. 584(&). 
 
 On Mail, Vehicle or Vessel Passing Through Several Jurisdictions. 
 — Code sec. 584(c). 
 
 Section 584, sub-sec. c, of the Code, is practically a reproduction of 
 section 13 of the Criminal Law Act, 1826 (7 Geo. IV. ch. 54), with the 
 distinction that the Code includes offences committed " on or in respect 
 to mails or a person conveying a post letter bag, post letter, or any- 
 thing conveyed by post. ' ' 
 
 Summons or Warrant May Issue. — Code sec. 653. 
 
 Where the accused was arrested for an offence alleged to have been 
 committed in another province in respect of which a warrant of arrest 
 had been there issued and notified by telegram to the Police Depart- 
 ment at the place of arrest, the accused is not entitled to be discharged 
 on habeas corpus in respect of the irregularity of his arrest, if the 
 original warrant in due form and duly endorsed is returned in answer 
 to the writ. The King v. Lee Chu, 14 Can. Cr. Cas. 322. 
 
 Preliminary Inquiry When Offence Committed Outside of Jurisdic- 
 tio7i of Justice. — Code sec. 665. 
 
 Whenever the accused has been sent for trial by a magistrate or 
 justice of the peace before the Court in any district of the same pro- 
 vince, the Court sitting in such district has jurisdiction to try the 
 accused. R. v. Hogle, 5 Can. Cr. Cas. 53. See Code sees. 653 and 665. 
 
 The power conferred on a magistrate under section 665 of ordering 
 the accused person brought before him, charged with an offence com- 
 mitted out of his territorial jurisdiction (but over which the magistrate 
 still has jurisdiction because of the arrest of the accused within his 
 district), to be taken before some justice having jurisdiction in the 
 place where the offence was committed is permissive only. The Queen 
 V. Burke, 5 Can. Cr. Cas. 29. 
 
 A magistrate may hold a preliminary inquiry in respect of an 
 indictable offence committed in the same province outside of his terri- 
 torial jurisdiction, if the accused is, or is suspected to be, within the
 
 CHAP. III.] Admiralty Jurisdiction. ^jd 
 
 limits over which such magistrate has jurisdiction, or resides or is 
 suspected of residing within such limits. R. v. Burke, 5 Can. Cr. Cas. 
 29 ; Code sec. 653. 
 
 The general rule is that the magistrate or justice of the peace has 
 jurisdiction either by reason of the residence or presence of the accused 
 in his district, or by reason of the commission of the offence within its 
 limits. There is, however, an enlargement of this general rule in sec. 
 653, whereby, when an offence is begun in one magisterial jurisdiction, 
 and completed within another, such offence may be considered as 
 having been committed in either of them. R. v. Hogle, 5 Can. Cr. Cas. 
 53. 
 
 Where the offence charged was the making, circulation and publish- 
 ing of false statements of the financial position of a company, and it 
 appeared that the statements were mailed from a place in Ontario to 
 the parties intended to be deceived in Montreal, the offence, although 
 commenced in Ontario, is completed in the Province of Quebec bj^ the 
 delivery of the letters to the parties to whom they were addressed. R. 
 V. Gillespie (No. 2), 2 Can. Cr. Cas. 309. 
 
 In such case the Courts of the Province of Quebec have jurisdiction 
 to try the accused if he has been duly committed for trial by a magis- 
 trate of the district. Ihid. 
 
 The offence of fraudulent conversion of the proceeds of a valuable 
 security consists of a continuity of acts — the reception of the valuable 
 security, the collection of the proceeds, the conversion of the proceeds, 
 and lastly the failure to account for them; and where the beginning 
 of the operation is in one district, and the continuation and completion 
 is in another district, the accused may be proceeded against in either 
 district. R. v. Hogle, 5 Can. Cr. Cas. 53. 
 
 Offences Within Jurisdiction of the Admiralty. — Code sec. 591. 
 
 A charge against a seaman not a British subject on a British ship 
 for inciting a revolt upon the ship while on the high seas, cannot if 
 taken only under Code see. 138, be made without the consent of the 
 Governor-General under sec. 591 obtained prior to the laying of the 
 information. But per Ritchie, J. — If the proceedings for the offence 
 are taken under the ^Merchant Shipping Act, 1894 (Imp.), sec. 686, 
 the consent of the Governor-General is not required, and Code sec. 591 
 would not apply. Per Weatherbe, J. — Code sec. 591 applies to the 
 procedure in Canadian Courts in respect of offences committed within
 
 57e Criminal Jurisdiction. [book i, 
 
 the Admiralty jurisdiction whether the proceedings are taken under 
 the Criminal Code or the Imperial Merchant Shipping Act or the 
 Admiralty Offence Act, 1849 (Imp.). The King v. Heckman, 5 Can. 
 Cr. Gas. 242 (N.S.). 
 
 A foreign seaman on a British ship cannot be summarily convicted 
 for insubordination under the Canada Shipping Act, H.S.C. (1906) 
 ch. 113, see. 287, unless leave to lay the information has been granted 
 by the Governor-General under sec. 591 of the Code. R. v. Adolph 
 (1907), 12 Can. Cr. Cas. 413. 
 
 Under the Imperial statutes, 12-13 Vict. ch. 96, and the ^Merchant 
 Shipping Act, 1894, sec. 686, any offence committed upon the sea or 
 within the jurisdiction of the Admiralty, shall, in any British colony 
 where the person is charged with the offence or brought there for trial, 
 be- dealt with as if it had been committed within the limits of the local 
 jurisdiction of the Courts of criminal jurisdiction of such colony; and 
 if any person dies in any colony in consequence of having been 
 feloniously hurt or poisoned upon the sea, or within the limits of the 
 Admiralty, or at any place out of the colony, the offence may be dealt 
 with in such colony as if it had been wholly committed there. 
 
 A sea harbour enclosed within headlands such as the harbour of 
 Halifax, is within the body of the adjacent county, and criminal 
 offences committed in such harbour even upon foreign ships are not 
 within the jurisdiction of the Admiralty except in the special cases pro- 
 vided by statute. R. v. Schwab (1907), 12 Can. Cr. Cas. 539 (N.S.). 
 
 A charge of theft by foreigners upon and from a foreign ship while 
 lying in a harbour forming part of the body of the county may be pro- 
 secuted in the county without obtaining the leave of the Governor- 
 General under see. 591 of the Code. Ibid. 
 
 A preliminary inquiry may be begun in respect of an indictable 
 offence committed by a foreigner on a British ship within the three mile 
 limit without first obtaining the leave of the Governor-General under 
 Code sec. 591 and the accused may be remanded for the purpose of 
 obtaining the leave of the Governor-General for the trial and punish- 
 ment of the accused. 
 
 The Territorial Waters Jurisdiction Act, 1878 (Imp.), from which 
 Code sec. 591 is derived, applies, and the phrase "proceedings for the 
 trial of the offence" used in Code sec. 591 must be construed in accord- 
 ance to the statutory limitation which section 4 of the Imperial statute 
 provides. The King v. Tano. 14 Can. Cr. Cas. 440.
 
 CHAP. III.] Special J iirisdictioH. o7f 
 
 The great lakes at the boundary of the Province of Ontario are 
 within the jurisdiction of the Admiralty. R. v. Sharp, 5 P.R. 
 (Ont.) 135. 
 
 Disclosing Official Secrets. — Code sec. 592. 
 
 Judicial Corruption. — Code sec. 593. 
 
 Making Explosive Substances. — Code sec. 594. 
 
 Sending TJ nseaworthy Ships to Sea. — Code sec. 595. 
 
 Criminal Breach of Trust. — Code sec. 596. 
 
 Fraudulent Acts of Vendor or Mortgagor. — Code sec. 597. 
 
 Uttering Defaced Coin. — Code sec. 598. 
 
 Offences in Unorganized Territory. — Code sees. 585, 586, 587, 588.
 
 (58) 
 
 CHAPTER THE FOURTH. 
 
 OF CRIMINAL RESPONSIBILITY. 
 
 It is a general rule that no person is excused from punishment for dis- 
 obedience to the laws of England, unless he is expressly exempted by 
 law (a). The several pleas and excuses which may be urged on behalf 
 of a person who has committed a forbidden act, as grounds of exemp- 
 tion from punishment, are now usually described as general exceptions, 
 as being implied in the definition of every crime unless the contrary 
 is expressed ( 6 ) . 
 
 It is the general practice of the legislature to leave unexpressed some 
 of the mental elements of crime. In all cases whatever, competent age, 
 sanity, and some degree of freedom from some kind of coercion are 
 assumed to be essential to criminality, but I do not believe that they 
 are ever introduced into any statute by which ,any particular crime is 
 defined (c). This principle was early expressed by laying down that a 
 statute making a new felony did not extend to an infant under the age 
 of discretion or to a lunatic (cZ). 
 
 The four general exceptions now recognised are — ■ 
 
 I. Infancy. II. Unsoundness of mind. III. Subjection to the 
 power of others. IV. Ignorance and mistake of fact. 
 
 I. Infancy. — The full age of man or woman by the law of England 
 is twenty-one years (e). 
 
 Under seven. — ^Under the law of England (/) a child under seven 
 years of age cannot be guilty of any criminal oifence, whatever evi- 
 dence may be available of his possessing ,a mischievous discretion ; for 
 ex prcBSumptione juris he 'has not discretion and understanding '(gr) ; 
 and the presumption cannot be rebutted (/() . In consequence of this 
 rule it has been held illegal to arrest a child under seven found stealing 
 wood(t). 
 
 (a) 1 Bl. Com. 20. Cf. 1 Hale, 14. the party was not presumed to be doli 
 
 (h) Steph. Dig. Cr. L. (6th ed.) p. capax. 4. Infantia, which lasts till 
 
 20. 2 Steph. Hist. Cr. L. cc. xviii., xix. seven years, within which age there 
 
 (c) R. V. Tolson, 23 Q.B.D. 168, 187, can he no guilt of a capital oflFence. 
 Stephen, J. 1 Hale, 17-19. 
 
 (d) Evston V. Studd, Plowd. 459a, (g) Reniger v. Fogossa, 1 Plowd. 1, 
 465. See' 1 Hale, 21, 22. Bac. Abr. Inf. 19. The rule is recognised by ss. 10, 11 
 (H.). of the Summary Jurisdiction Act, 1879 
 
 (e) See Co. Litt. ss. 104. 259. (42 & 43 Vict. c. 49), as amended in 
 (/) The civil law, as to capital pun- 1908 (8 Edw. VII. c. 67), s. 128, which 
 
 ishments, distinguished the ages into provides for the summary trial of chil- 
 four ranks: 1. /Etas pubertatis plena, dren from seven to fourteen years for 
 w'hich is eighteen years. 2. ^Etas puber- any indictable offence except homicide. 
 tatis, or piibertas generally, which is (h) 1 Hale, 27, 28. 1 Hawk. c. 1, 
 fourteen to eighteen years, at which s. 1, n. (1). 4 Bl. Com. 23. For a par- 
 time persons were likewise presumed to don for homicide granted to a child 
 be doli capaces. 3. JEtas pubertati found to have be^n under seven at the 
 proxima; from ten and a half (or, ac- date of the homicide, see 1 Hale, 27 
 cording to some, eleven) to fourteen, (ed. 1800), note (e). 
 during which period the capacitas doli (i) Marsh v. Loader, 14 C.B. (N.S. ) 
 was in the arbitrium of the judge, but 535.
 
 CHAP. IV.] Effect of Infancy. 59 
 
 Between seven and fourteen. — A child of seven and under fourteen 
 is presumed to be incapable of criminal intent {doli ineapax) ; but the 
 presumption may be rebutted, and weakens with the advance of the child's 
 years towards fourteen, and the particular facts and circumstances 
 attending the doing of the act and manifesting the extent of the under- 
 standing and disposition of the child. The evidence of criminal capacity 
 which is allowed to displace the presumption (expressed in the phrase 
 malitia supplet aetatem) should be strong and clear beyond all doubt and 
 contradiction (/). It is said that in the case of capital crime the law was 
 minute and circumspect, distinguishing with nicety the several degrees of 
 age and discretion, though criminal responsibility depends not so mucli 
 on years and days as on the delinquent's understanding and judgment (k). 
 There are numerous cases in and before the eighteenth century in which 
 the liability of children under fourteen to conviction and execution for 
 capital felony has been solemnly discussed, and it was laid down that if it 
 appeared to the Court and jury that the child was doli capax he might 
 be convicted and suffer death (l). Under the Children Act, 1908 (8 Edw. 
 VII. c. 67, s. 103) sentence of death cannot be passed on or recorded 
 against a person under sixteen ; but such children are now rarely if ever 
 put on trial in respect of any of the few felonies which are still capital, 
 although they cannot be summarily tried for homicide (m). 
 
 Whenever a person under the age of fourteen is indicted for felony, 
 the proper course is to leave the case to the jury to say whether, at the 
 time of committing the offence, such person had guilty knowledge that 
 he was doing wrong (n). And in a recent case it has been ruled that the 
 mere fact that the child did the acts imputed to him as an offence is not 
 in itself enough to rebut the presumption against criminal responsibility 
 arising from his tender years (o). The presumption against capacity is 
 now applied equally to felony and misdemeanor. 
 
 (/) R. V. Vamplcw, 3 F. & F. 520. wanting discretion be indicted and found 
 
 (k) 4 BI. Com. 23. guilty of felony the justices themselves 
 
 (I) 1 Hale, 25, 27. 4 Bl. Com. 32. See may dismiss him without a pardon (Y. B. 
 
 Dean's case, 1 Hale, 25, note (u) : execution 35 Hen. VI. 11 & 12) ; but that this authority 
 
 of a child between eight and nine for burn- must be understood of a reprieve before 
 
 ing two barns ; sentence to death (respited) judgment; or of a case where the jury 
 
 of a child of nine for murder. 1 Hale, 27 find the prisoner within the age of seven 
 
 (see Fitz. Rep. Corone, 57 ; B. Corone, 133 ; years, or not of sufficient discretion to 
 
 Dalt. c. 147): and conviction and execution judge between good and evil. 1 Hale, 27. 
 
 of a child of ten (iSpigurnaFs case : 1 Hale, 1 Hawk. c. 1, s. 8. They also raise a query 
 
 26; Fitz. Rep. Corone, 118) and a girl of whether in any case of an infant cnnvirlid 
 
 thirteen (Alice de Waldeborough's case : 1 by a jury, the judge would take upon him- 
 
 Hale, 2H) : in each case for murder. The self to dismiss him. It is submitted tliat 
 
 fullest discussion of the rules applied in the the regular course would be to respite 
 
 eighteenth century is in York's case [1748], execution, and recommend the prisoner for 
 
 Fost. 70, an indictment of a boy of ten for a pardon. Except in case of conviction of 
 
 murdering a girl of five. The boy was sen- murder, these statements arc of no present 
 
 tencedtodeathand respited until 1757, when value : the Courts being free in non-capital 
 
 he was pardoned on condition of entering ca.scs to bind the prisoner to come up for 
 
 the navy. Cf. R. v. Wild, 1 Mood. 452. judgmcntor put him on probation (r/rffpci»7, 
 
 (m) 42 & 43 Vict. c. 49. s. 10 : 52 and p. 227). 
 53 Vict. e. 22, s. 2 : 8 Edw. VII. c. 07, (o) R. v. Kershaw, 18 T. L. R. 357, 
 
 s. 128 (1). Bucknill, J. In R. v. Carvery [1006], 11 
 
 (n) R. V. Owen, 4 C. & R 236, Littledale, Canada Cr. Cas. 331, it was held that a 
 
 J. R. V. .Smith, 1 Cox, 260, Erie, J. For- charge of misdemeanor (perjury) against a 
 
 mer editions of this work contain the boy of ten could not be sustained at common 
 
 statement that if an infant apparently law unless he was conscious of the nature of
 
 60 
 
 Of Crimi7ial Responsibility. 
 
 [BOOK I. 
 
 The law presumes that a male under fourteen cannot be guilty of 
 rape (;;) ; nor of an assault with intent to commit rape {q), nor of carnally 
 knowing a girl under thirteen years of age (r). But, on an indictment 
 for this offence, he may be convicted of indecent assault (s), an offence 
 which may be committed by persons of either sex {ss). This presumption 
 is absolute, and evidence is not admissible to prove that the infant is in 
 fact physically capable of committing any such offence {t). But this 
 presumption is upon the ground of impotency rather than want of dis- 
 cretion ; for he may be a principal in the second degree, as aiding and 
 assisting in rape as well as in other felonies, if it appears by sufficient 
 circumstances that he had a mischievous discretion (w). 
 
 Fourteen and over. — An infant of fourteen years and over is pre- 
 sumed to be doli capax, and at common law was regarded as liable to 
 capital punishment as much as a person of full age (v), and a statute 
 declaring acts to be treason or felony extends to infants above fourteen. 
 But they were said to be exempt from punishment in the case of some 
 misdemeanors and non-capital offences (iv). The distinctions drawn 
 between the two classes of offence were probably based on a tendency 
 to confuse between the criminal and civil aspects of misdemeanor, and 
 it was recognised that in the case of any notorious breach of the peace, 
 as a riot, battery, or the like, an infant above the age of fourteen is equally 
 responsible as a person of full age (x). 
 
 An infant capable of taking the witnesses' oath is punishable for 
 
 his conduct, and was capable of appreciating 
 that it was wrong. No evidence was 
 given to shew the extent of the boy's 
 intelligence, and the Court declined to 
 presume from the mere commission of the 
 act that the boy knew he was doing wrong. 
 It has been suggested that a plea of guilty 
 should not be accepted in the case of a child 
 under fourteen, and that the Court or jury 
 should require evidence of criminal cap- 
 acity before convicting such a child. See 
 43 L. J. (newsp.) 688. 
 
 (p) R. V. Groombridge, 7 C. & P. 582. 
 Gaselee, J., after consulting Abinger, C.B., 
 as to whether the words ' every person ' 
 in 9 Geo. IV. c. 31, s. 16, altered the former 
 law. 
 
 (q) R. r. 
 Vaughan, .J 
 Patteson, J 
 
 (r) R. V. Jordan, 9 C. & P. 118, Wil- 
 liams, J. R. V. Waite [1892], 2 Q.B. 
 600. 
 
 (s) R. r. WiUiams [1893], 1 Q.B. 320. In 
 that case there were conflicting dicta as to 
 the liability of a boy under fourteen to 
 conviction for attempting to commit rape. 
 See R. V. Angus, infra. 
 
 {ss) See R. v. Angus [1907], 24 N. Z. L. R. 
 948, and post, p. 955. 
 
 (t) R. V. Philips, and R. v. Jordan, 
 supra. 
 
 (u) 1 Hale, 630. R. v. Eldershaw, iibi 
 supra. R. v. Allen, 18 L. J. M. C. 72. 
 
 (?•) Dr. & Stu. c. 26. Co. Lit. 79, 171, 
 
 Eldershaw, 3 C. & P. 396, 
 R. V. Philips, 8 C. & P. 736, 
 
 247. Dalt. 476, 505. 1 Hale, 25. Bac. 
 Abr. Inf. (A. & H). 
 
 (w) In 1 Jac. I. c. 11, as to bigamy (rep. 
 9 Geo. IV. c. 31, s. 1, and now represented 
 by 24 .& 25 Vict. c. 100, s. 57) there 
 was a special exception of marriages 
 within the age of consent ; so that if the 
 marriage were above the age of consent, 
 though within the age of twenty-one years, 
 it was not exempted from the penalty. So 
 by 21 Hen. VIII, c. 7 (rep. 7 & 8 Geo. IV. 
 c. 27), concerning felony by servants em- 
 bezzling their masters' goods delivered to 
 them, there was a special provision that it 
 should not extend to servants under the 
 age of eighteen years, who certainly would 
 have been within the penalty, if above 
 fourteen though under eighteen, unless 
 there had been a sj)ecial jirovision to ex- 
 clude them. And so by 12 Ann. c. 7 (rep. 
 7 & 8 Geo. IV. c. 27), which made it felony 
 without benefit of clergy to steal goods to 
 the value of 405. out of a house, though the 
 house were not broken open, aj^prentices 
 who should rob their masters were especi- 
 ally excepted (see Bac. Abr. Inf. (H.). Co. 
 Lit. 147. 1 Hale, 20, 21, 22). 
 
 (x) See 4 Bl. Com. 23. 1 Hale, 20. Co. 
 Lit. 247b. And as to riot, 1 Hawk. c. 65, 
 s. 14. It is said that it was the course of 
 the Crown Office for an infant to appear 
 in the Kmg's Bench by attorney and not by 
 guardian. R. v. Tanner, 2 Ld. Raym. 
 1284.
 
 CHAP. IV.] Effect of Infancy. 61 
 
 perjury (y), and an infant may be indicted for cheating with false dice {z), 
 or for larceny as a bailee, since bailment is not a contract but a delivery 
 upon condition (a). An infant is not liable to indictment as a bankrupt 
 for offence within the Debtors Act, 1869, as extended by the Bankruptcy 
 Acts, 1883 and 1890, because he cannot be adjudicated bankrupt (6), 
 but there seems to be no legal objection to his conviction for aiding and 
 abetting an adult bankrupt to commit such offences (c). 
 
 In the following cases the criminal liability of an infant between 
 fourteen and twenty-one is said to be qualified. It was said that general 
 statutes imposing corporal punishment did not extend to infants : and 
 on this reasoning it was held that an infant could not be imprisoned for 
 ravishment of ward, notwithstanding the generality of the terms of the 
 Statute of Merton (20 Hen. III. c. 6) (d). But this, if in any sense true, 
 must be limited to cases in which the punishment is collateral to the 
 offence, and not the direct object of the proceeding against the infant (e). 
 
 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 imprisoned (/') ; and that 
 though an infant at the age of eighteen or even fourteen, by his own acts 
 may be guilty of a forcible entry, and may be fined for the same, yet he 
 cannot be imprisoned, because his infancy 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 (g). It is also 
 said that 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 
 command or assent of this kind 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 (A). 
 
 It is also said that if the offence charged against the infant be a mere 
 non-feasance (unless it be of such a thing as the party is bound to by 
 reason of tenure or the like, as to repair a bridge, &c. {i), an infant is 
 privileged by reason of his infancy ; because laches in such a case is not 
 imputable to him ( / ). 
 
 It is doubtful whether these authorities would now be followed, except 
 where the contractual incapacity of the infant had a direct bearing on 
 the offence with which he was charged. Recent legislation for purposes 
 of iDunishment and reform, as distinct from legal responsibility, classifies 
 infants from fourteen to sixteen separately from those between sixteen 
 and twenty-three, and separates both from adults (k). 
 
 (y) But see ante, p. GO, note (o). The Lit. 357. And see 1 Hawk. c. 04, s. 35, 
 
 rule has been extended by recent legislation that the infant ought not to be imprisoned 
 
 to children of tender years allowed to give because he shall not be subject to corporal 
 
 evidence without oath. Vide post, Bk. punishment by force of the general words of 
 
 xiii. c. V. any statute wherein he is not expressly 
 
 (z) Bac. Abr. Inf. (H.). Sid. 258. named. 
 
 ((() R. V. Macdonald, 15 Q.B.D. 323. (h) Bac. Abr. Inf. (H.). Co. Lit. 357. 1 
 
 (b) R. V. Wilson, 5 Q.B.D. 28. Cf. Hawk. c. 64, s. 35. 
 
 Lovell V. Beauchamp [1894], A.C. 607. («) 2 Co. Inst. 703. R. v. Sutton, 3 A. 
 
 (r) Vide jjosi, p. 108. & E. 597. In substance such indictments 
 
 (d) Bac. Abr. Infancy, (H.). 1 Hale, 21. are now of a civil and not of a criminal 
 Eyston v. Studd, 1 Plowd. 4(15a. character. See 7 Ed. VII. c. 23, s. 20 (3). 
 
 (e) Bac. Abr. tit. Inf. (H.). 1 Hale, 21. 8 Ed. VII. c. 15. s. 9 (3). 
 
 { /')'l Hale, 21. (j) 1 Hale, 20. Bac. Abr. Infant (H.). 
 
 (!/) Bac. Abr. Inf. (H.l. Dalt. 422. Co. (A) Vide fost, p. 230.
 
 62 Of Criminal Responsibility. [Book i. 
 
 II. Unsoundness of Mind. — All persons who have reached the age of 
 discretion (14 years) are presumed to be sane, and criminally respon- 
 sible (l), and in cases where a person subject to attacks of insanity (m) has 
 lucid intervals, the law presumes the offence of such person to have 
 been committed in a lucid interval, unless it appears to have been com- 
 mitted in the time of his distemper (n). It lies on the accused to prove 
 that he was insane at the time of the commission of an offence (o), so as 
 not to be liable to punishment as a sane person. The jury may draw 
 the inference of insanity from direct evidence, or from the appearance 
 and conduct of the accused at his arraignment or trial. 
 
 It has been considered, that there are four kinds of persons who may 
 be said to be non compotes mentes : — 1. An idiot. 2. One made non compos 
 by illness. 3. A lunatic. 4. One who is drunk {p). 
 
 Idiocy is congenital imbecility or unsoundness of mind (q), (without 
 lucid intervals) (r). A person is deemed an idiot who cannot count 
 twenty, tell the days of the week, does not know his father or mother, 
 his own age, &c. : but these are mentioned as instances only ; for whether 
 idiot or not is a question of fact for the jury (s). A person deaf and 
 dumb from birth is in presumption of law an idiot ] but if it appears 
 that he has the use of understanding he is criminally responsible, and 
 may be tried and convicted, though great caution should be used in 
 such a proceeding (t). This form of mental incapacity has been described 
 as dementia naturalis. The difficulty in cases of deaf and dumb persons 
 accused of crime is oftener as to their capacity to plead and understand 
 the proceedings at their trial than their mental incapacity {u). 
 
 Mental incapacity arising from post natal causes, such as illness 
 
 (I) Macnaughton's case, 4 St. Tr. (N. S.) understanding, much more may one who 
 
 931, jMst, p. 67. R. V. Stokes, 3 C. & K. 185. is only dumb, and consequently such a one 
 
 post, p. 71. R. V. Layton, 4 Cox, 149, may be guilty of felony.' Fromthehumane 
 
 post, p. 78. exertions of many ingenious persons, and 
 
 (m) 1 Hale, 33, 34. R. v. Oxford [1840], from the charitable institutions for the 
 
 4 St. Tr. (N. S.) 497 ; 9 C. & P. 525. instruction of deaf mutes, many of them 
 
 (n) 1 Hale 33, 34. have at the present day a very perfect 
 
 (o) The practice at the Central Criminal knowledge of right and wrong. In R. v. 
 
 Court, approved in R. v. de Vere [1909], 2 Steel, 1 Leach, 451, a prisoner, who could 
 
 Cr. App. R. 19, is for the defence to call the not hear, and could not be prevailed upon 
 
 prison doctor or other witnesses. As to to plead, was found mute by the visitation 
 
 procedure in Scotland see Brown's case, of God, and then tried, found guilty, and 
 
 [1907], 9 Fraser (Just.) 67. As to Canada sentenced to be transported, 
 
 see i?e Duclos, 12 Canada Ci-. Cas. 478. (u) In R. v. Jones, 1 Leach, 102, where 
 
 (p) Co. Litt. 247. Beverley's case, 4 Co. the prisoner (who was indicted on 12 Ann. 
 
 Rep. 124, post, p. 87. c. 7, for stealing in a dwelling-house), on 
 
 (q) Dementia naturalis, vel fatuitas a being put to the bar aijpeared to be deaf 
 
 nativilate. and dumb, and the jury found a verdict, 
 
 (r) Post, p. 63. ' Mute by the visitation of God ; ' after 
 
 (s) Bac. Abr. Idiots, &c. (A). Dy. 25. which a woman was examined upon her 
 
 Moore (K.B.), 4, pi. 12. Bro. Idiot, 1. oath, to the fact of her being able to make 
 
 F. N. B. 233. him understand what others said, which 
 
 (t) 1 Hale, 34 and note, where it is said she said she could do by means of signs, 
 
 that ' according to 43 Assis. pi. 30, and such prisoner was arraigned, tried, and 
 
 T. B. 8 Hen. IV. 2, if a prisoner stands mute. convicted of the simple larceny. In R. v. 
 
 it shall be inquired whether it be wilful, or Berry, 1 Q.B.D. 447, a deaf mute on trial for 
 
 by the act of God ; whence Crompton felony was found by the jury not to have 
 
 infers that if it be by the act of God, the understood the proceedings at the trial, and 
 
 party shall not suffer, Crompt. Just. 29, a. to be unable to understand them. This was 
 
 But if one who is both deaf and dumb can held equivalent to a verdict of insanity, 
 
 show by signs that he has the use of his As to present procedure, vide post, p. 82.
 
 CHAP. IV.] Ejfed of Insanity. 63 
 
 (fever or palsy), or accident, injury, or shock to the brain, makes the 
 person suffering from it not criminally responsible for acts done by him 
 while it continues, is described by the older writers as dementia accidentalis 
 vel adventitia, and is separately regarded as total or partial, or temporary (r) 
 or 23ermanent. They describe as lunatics persons afflicted by mental 
 disorder only at certain periods and vicissitudes ; having intervals of 
 reason. Such persons during their frenzy are criminally as irresponsible 
 as those whose disorder is fixed and permanent {w). 
 
 The great difficulty in cases of this kind is to determine whether a 
 person is so far deprived of sound memory and understanding as not 
 to be responsible for his actions ; or whether, notwithstanding some 
 defects of this kind, he still appears to have so much reason and under- 
 standing as will make him accountable for his actions. Hale says 
 that partial insanity 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 the committing 
 of any capital offence. And further, ' Doubtless most persons that 
 are felons of themselves and others are under a degree of partial insanity 
 when they commit these offences : it is very difficult to define the invisible 
 line that divides perfect and partial insanity ; but it must rest upon 
 circumstances duly to be weighed and considered both by the judge 
 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 indul- 
 gence given to great crimes.' He concludes, ' the best measure 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 four- 
 teen years hath, is such a person as may be guilty of treason or felony (x). 
 
 On the trial of Earl Ferrers in 1760 for murder (y), it was proved 
 that he 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 com- 
 mitted 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. 
 
 In Arnold's case (a), a trial in 1724, for maliciously shooting, it 
 appeared 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 carrying it into effect. Tracey, J., told the jury, 
 
 (v) See R. v. Baines [1886], Kenny Cr. (.r) 1 Hale, 30. 
 Law, p. 61, cit. The dictum of Darling, J. {y) 19 St. Tr. 886, 947. See Wood Ren- 
 in R. V. Harding [1909], 1 Cr. A])}). R. 223 ton on Lunacy, 886. 
 seems incorrect. («) MS. Collinson, Lunacy, 475 : 16 St. 
 
 (tc) Beverley's case, 4 Co. Rep. 125. Co. Tr. 764, 765. The jury found the prisoner 
 
 Litt. 247. 1 Hale, 31. Bac. Abr. Idiot.s, guilty; but at Loi-d Onslow's request he 
 
 &c. (A). was reprieved.
 
 64 Of Criminal Responsibility. [book i. 
 
 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 un- 
 accountable in his actions, which will show 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, or a wild beast, he will 
 properly be exempted from the punishment of the law. 
 
 In Parker's case (6), who was tried in 1812, for aiding the King's 
 enemies, by entering into the French service in time of war between 
 France and this country, the defence 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 intellect ; so weak that 
 it excited surprise in the neighbourhood when he was accepted for a 
 soldier. But the evidence for the prosecution had shown the act to 
 have been done with considerable deliberation and possession of reason ; 
 and that the prisoner, who was a marine, having been captured by the 
 French, 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 
 confined 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 committed the prisoner did not really know 
 right from wrong, 
 
 T. Bowler (c) was tried on July 2, 1812, for wounding W. B. The 
 defence set up for the prisoner was insanity, occasioned by epilepsy ; 
 and it was deposed by the prisoner's housekeeper, that he was seized 
 with an epileptic fit on July 9, 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. The keeper of a lunatic 
 asylum deposed, that it was characteristic of insanity 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 upon causes wholly imaginary, which no persuasion 
 could remove, and that yet the patient might be rational and collected 
 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 June 17, 1812, and 
 an inquisition taken upon it, whereby the prisoner was found insane, 
 and to have been so from March 30. Le Blanc, J., told the jury, 
 that it was for them to determine whether the prisoner, when he 
 committed the offence with which he stood, charged, was incapable of 
 
 {h) 1 Collinson, Lun. 477. Shelf. Lun. The report in Collinson does not state the 
 .590. The jury returned a verdict of guilty. day on which the jirisoner .shot at W. 
 (c) T'mes, July4, 1812: 1 Collinson, 673n. "Burrowes.
 
 CHAP. IV.] Crileria of Insanity. 65 
 
 distinguishing right from wrong, or under the influence of any illusion 
 in respect of the prosecutor which rendered his mind at the moment 
 insensible of the nature of the act he was about to commit ; since in that 
 case he would not be legally 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 doing 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 (d). 
 
 In Bellingham's case (e), who was tried in 1812 for the murder of Mr. 
 Spenc r Perceval, a part of the prisoner's defence was insanity. On 
 this part of the case, Sir James Mansfield, C.J., 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 madness called lunacy, where persons are subject to temporary 
 paroxysms, 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, amenable 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 fancies 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 dis- 
 tinguishing right from wrong, there would be no excuse for any act of 
 atrocity which he might commit under this description of derangement. 
 
 In R. V. OfEord {t), on an indictment for murder, it appeared that 
 the prisoner laboured under a notion that the inhabitants of H., and 
 particularly the deceased, were continually issuing warrants against 
 him with intent to deprive him of his liberty and life. Lord Lyndhurst, 
 C.B., told the jury that ' they must be satisfied, before they could acquit 
 the prisoner on the ground of insanity, that he did not know, when he 
 committed the act, what the effect of it, if fatal, would be, with reference 
 to the crime of murder. The question was, did he know that he was 
 committing an offence against the laws of God and nature ? ' and ex- 
 pressed his complete agreement with the observations of Sir James 
 Mansfield in the last case. 
 
 On the trial of Oxford, in 1840, for shooting at Queen Victoria, Lord 
 Denman, C.J., told the jury, ' Persons prima facie must be taken to be of 
 sound mind till the contrary is shewn. But a person may commit a 
 criminal act, and not be responsible. If some controlling disease was, 
 
 id) Sec 4 St. Tr. (N. S.) 508. was conducted.' Per Campbell, Att.-Gcn. 
 
 (e) Old Bailey, May 15, 1812. Tme.?, May in R. r. Oxford, 9 C. & P. 553; 4 St. Tr. 
 
 If) : CoUinson Addend. 0.30. ' I will not refer (N. S.) 497, 508. ^ 
 to Bellingham's ca.fe, as there are some (/) [1831] 5 C. & P. 168. 
 
 doubts as to the mode in vvhich that case 
 
 VOL. I. F
 
 66 Of Criminal Responsibility. [book i. 
 
 in truth, the acting power within him which he could not resist, then 
 he will not be responsible. It is not more important than difficult to 
 lay down the rule by which you are to be governed.' . . . ' On the part of 
 the defence, it is contended that the prisoner was non compos mentis, 
 that is (as it has been said) unable to distinguish right from wrong, 
 or, in other words, that from the effect of a diseased mind he did not 
 know at the time that the act he did was wrong.' . . . ' Something has 
 been said about the power to contract and to make a will ; but I think 
 that those things do not supply any test. The question is, whether the 
 prisoner was labouring under that species of insanity which satisfies 
 you that he was quite unaware of the nature, character, and consequences 
 of the act he was committing, or, in other words, whether he was under 
 the influence of a diseased mind, and was really unconscious at the time 
 he was committing the act that it was a crime ? ' (fy) 
 
 J. Hadfield was tried in the Court of King's Bench, in 1800 (h), for high 
 treason, in shooting at King George III., and the defence was insanity. 
 He had been a soldier and received many severe wounds in battle, which 
 had caused partial derangement of mind, and 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 intercourse with 
 God ; sometimes called himself God, or Jesus Christ, and used other 
 expressions of the most 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 May 11, 1800, 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 whom he was usually remarkably fond, said he was about to 
 dash his brains out against the bedpost, 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 following 
 day he used many incoherent and blasphemous expressions. On the 
 morning of May 15 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 King. He spoke very highly of the King, the royal family, and 
 particularly of the Duke of York. He then went to his master's work- 
 shop, 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 expressions, 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 
 
 (g) 9 C. & P. 525 ; 4 St. Tr. (N. S.) 497, {h) 27 St. Tr. 1281 : 1 Collinson, Lunacy, 
 
 Denman, C.J., Alderson, B., and Patte- 480. 
 son, J, 
 
 I
 
 CHAP. IV.] Insanitij^Macnauyhton's Case. 67 
 
 hour before the King entered ; that at the moment when the audience 
 rose, on His Majesty's entering his box, he got up above the rest, 
 and, taking deliberate aim, presented 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 appre- 
 hension, amongst other expressions, he said that ' he knew perfectly 
 well his life was forfeited ; that he was tired of life, and regretted nothing 
 but the fate of a woman who was his wife, and would be his wife a few 
 days longer, he supposed.' These words he spoke calmly, and without 
 any apparent derangement ; and with equal calmness repeated that he 
 was tired of life, and said that ' his plan was to get rid of it by other 
 means ; he did not intend anything against the life of the King ; he knew 
 the attempt only would answer his purpose.' Erskine (i) for the jH-isoner 
 put the case to the jury 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 question was the immediate 
 unqualified offspring of the disease. And Kenyon, C.J., ruled that as 
 the prisoner was deranged immediately before the offence was committed, 
 it was impossible that he had recovered his senses in the interim ; and 
 although, were they to run into nicety, proof might be demanded of 
 his insanity at the precise moment when the act was committed ; yet, 
 there being no reason for believing him to have been at that period 
 a rational and accountable being, he ought to be acquitted (/). 
 
 On an indictment of Daniel Macnaughton, in 1843, for the murder 
 of D., the defence was insanity, and the medical evidence was that persons 
 of otherwise sound mind might bo affected with morbid delusions ; that 
 the prisoner was in that condition ; that a person labouring under a 
 morbid delusion might have a moral perception of right and wrong ; 
 but that, in the case of the prisoner, it was a delusion which carried 
 him away beyond the power of his own control, and left him no such 
 perception ; and that he was not capable of exercising any control 
 overacts which had a connection with his delusion ; that it was the nature 
 of his disease to go on gradually until it had reached a climax, when it 
 burst forth with irresistible intensity ; that a man might go on for years 
 quietly, though at the same time under its influence, but would at once 
 break out into the most violent paroxysms. Tindal, C.J., said to the jury, 
 ' The point I shall have to submit to you is whether on the whole of the 
 evidence you have heard, you are satisfied that at the time the act for 
 the commission of which the prisoner now stands charged he had that 
 competent use of his understanding as that he knew that he was doing, 
 by the very act itself, a wicked and a wrong thing. If he was not sensible 
 at the time he committed that act, that it was a violation of the law of 
 God and man (k), undoubtedly he is not responsible for that act, or 
 liable to any punishment whatever flowing from it.' ... 'If upon 
 
 (i) Later Lord Chancellor Erskine. {!:) Qncere, whether thi.s position was not 
 
 (/) The accused was acquitted on the too favourable for the prisoner, as it required 
 ground of insanity. See 39 & 40 Geo. III. the jury to be satisfied that the prisoner wa.s 
 c. 94, ])ud, p. 84. aware both of the laws of (Jod and man ? 
 
 F 2
 
 68 0/ Criminal Responsibility. [book i. 
 
 balancing the evidence in your minds you should think the priscMier 
 a person capable of distinguishing right from wrong with respect to the 
 act with which he stands charged {I), he is then a responsible agent 
 and liable to the penalties imposed upon those who commit the crime of 
 which he is accused' (w). 
 
 Macnaughton was acquitted on the ground of insanity, and his acquittal 
 gave rise to a discussion in the House of Lords, and the following questions 
 were put to the judges (w), and answered by them all, except Maule, J., 
 as follows, in June, 1843 : — • 
 
 ^. I. ' What is the law respecting alleged crimes committed by 
 persons afflicted with insane delusion in respect of one or more par- 
 ticular subjects or persons ; as, for instance, where, at the time of the 
 commission of the alleged crime, the accused knew he was acting contrary 
 to law, but did the act complained of with a view, under the influence 
 of insane delusion, of redressing or revenging some supposed grievance 
 or injury, or of producing some supposed public benefit ? ' 
 
 A. \. ' Assuming that your lordships' inquiries are confined to 
 those persons who labour under such partial delusions only, and are not 
 in other respects insane, we are of opinion that notwithstanding the 
 accused did the act complained of with a view, under the influence 
 of insane delusion, of redressing or revenging some supposed grievance 
 or injury, or of producing some public benefit, he is nevertheless punish- 
 able, according to the nature of the crime committed, if he knew at the 
 time of committing such crime that he was acting contrary to law, by which 
 expression we understand your lordships to mean the law of the land.' 
 
 Q. II. ' What are the proper questions to be submitted to the jury 
 where a person alleged to be afflicted with insane delusion respecting 
 one or more particular subjects or persons, is charged with the com- 
 mission of a crime (murder, for example), and insanity is set up as a 
 defence ? ' 
 
 Q. III. ' In what terms ought the question to be left to the jury 
 as to the prisoner's state of mind, at the time when the act was com- 
 mitted ? ' 
 
 A. II. and III. ' As these two questions appear to us to be more 
 conveniently answered together, we submit our opinion to be that the 
 jury ought to be told in all cases that every man is to he presumed to be 
 sane, and to possess a suffi,cient degree of reason to be responsible for his 
 crimes, until the contrary be proved to their satisfaction ; and that to 
 establish a defence on the ground of insanity it must be clearly proved that, 
 at the time of committing the act, the accused was labouring under such a 
 defect of reason, from disease of the mind, as not to know the nature and 
 quality of the act he was doing, or, if he did know it, that he did not know 
 he was doing what was wrong. The mode of putting the latter part of the 
 question to the jury on these occasions has generally been, whether the 
 
 {I) Qucere, this position also, as a man put questions to the judges on matters not 
 
 may not have a perfectly sound mind, and judicially before the house, see Wood 
 
 yet be criminally responsible ? Renton, Lunacy, 889. For medical criticism 
 
 (m) Macnaughton's case, 4 St. Tr. (N. S.) on the case see Mercier, Criminal Responsi- 
 
 847 ; 10 CI. & F. 200 ; 8 E. R. 718. bility, c, viii. 
 
 {n) As to the authority of the H. L. to 
 
 I
 
 CHAP, iv.j Insanity— Maniaughton's Case. 69 
 
 accused at the time of doing the act knew the difference between right and 
 wrong (o) ; which mode, though rarely, if ever, leading to any mistake 
 with the jury, is not, as we conceive, so accurate when put generallv 
 and in the abstract, as when put with reference to the party's knowledge 
 of right and wrong, in respect to the very act with which he is charged. If 
 the question were to be put as to the knowledge of the accused solely 
 and exclusively with reference to the law of the land, it might tend 
 to confound the jury, by inducing them to believe that an actual know- 
 ledge of the law of the land was essential in order to lead to a conviction : 
 whereas, the law is administered upon the principle that every one nnist 
 be taken conclusively to know it, without proof that he does know it. //' 
 the accused was conscious that the act was one that he ought not to do, and if 
 that act was at the same time contrary to the law of the land, he is punishable ; 
 and the usual course, therefore, has been to leave the question to the jury, 
 whether the accused had a sufficient degree of reason to know that he was 
 doing an act that was wrong ; and this course we think is correct, accom- 
 panied with such observations and explanations as the circumstances 
 of each particular case may require ' (p). 
 
 Q. IV. ' If a person under an insane delusion as to existing facts 
 commits an offence in consequence thereof, is he thereby excused ? ' 
 
 A. IV. ' The answer must, of course, depend on the nature of the 
 delusion ; but making the same assumption as we did before, namely, 
 that he labours under such partial delusion only, and is not in other 
 respects insane, we think he must be considered in the same situation 
 as to responsibility as if the facts with respect to which the delusion 
 exists were real. For example, if, under the influence of his delusion, 
 he supposes another man to be in the act of attempting to take away 
 his life, and he kills that man, as he supposes, in self-defence, he would 
 be exempt from punishment. If his delusion was that the deceased 
 had inflicted a serious injury to his character and fortune, and he 
 killed him in revenge for such supposed injury, he would be liable to 
 punishment.' 
 
 Q. V. ' Can a medical man, conversant with the disease of insanity, 
 who never saw the prisoner previously to the trial, but who was present 
 during the whole trial, and the examination of the witnesses, be asked 
 his opinion as to the state of the prisoner's mind at the time of the com- 
 mission of the alleged crime, or his 02)inion whether the prisoner was 
 conscious at the time of doing the act that he was acting contrary to 
 law, or whether he was labouring under any, and what, delusion at 
 the time ? ' 
 
 (o) 8ee Mayne, Ind. Cr. L. (1890), 378. though .somewhat ck'rangod, he is able to 
 
 {])) In Alison's Principles of tiic Ciimiiial distinguish right from wrong, in his oirn 
 
 Law of Scotland, p. (534, cited in 1». v. casr, and to know that he was doing wrong 
 
 Oxford, 9 C. & P. 532 ; 4 8t. Tr. (N. S.) 497. in tiie act wliicli he committed, he is liable 
 
 by Campbell, Att.-(!en., it is said, that ' to to the full punishment of his ciiminal acts.' 
 
 amount to a complete bar of ininishment, Macnaughton's case has been followed in 
 
 either at the time of committing the offence, Scotland. Gibson's case, 2 Brown (Sc), 
 
 or of the trial, the insanity must have been 332. But see Brown's case |1907], 9 Fraser 
 
 of such a kind as entirely to deprive the (Just.) ()7, 7(i. In American and Colonial 
 
 prisoner of the use of reason, a.s ajiplivd to Courts it is not accepted as fully expres.sing 
 
 the act in question, and the knowledge tiuvt the directions proper to ca.scs of irresistible 
 
 he was doing wrong in committing it. If. impulse. See Archb. Cr. PI. (23rd ed.), 2Gn.
 
 70 
 
 Of Criminal Responsibility. 
 
 [BOOK I. 
 
 A. Y. ' We think the medical man, under the circumstances sup- 
 posed, cannot, in strictness, be asked his opinion in the terms above 
 stated, because each of those questions involves the determination of the 
 truth of the facts deposed to, which it is for the jury to decide, and the 
 questions are not questions upon a mere matter of science, in which 
 case such evidence is admissible. But where the facts are admitted, 
 or not disputed, and the question becomes substantially one of science 
 only, it may be convenient to allow the question to be put in that general 
 form, though the same cannot be insisted on as a matter of right ' (q). 
 
 In R. V. Vaughan (r) the prisoner, who was charged with stealing a 
 cow, had had his cow taken from him under an illegal distress, and, with 
 a view of recovering her, he had gone in the night to the close of the 
 prosecutor, who had purchased her, and taken another cow out of it. 
 Owing to the loss of his cow, and various other losses, the prisoner's mind 
 
 iq) 1 C. & K. 130, 10 C. & F. 200. Maiile, 
 J., after expressing the difficulty he felt in 
 answering the questions, because they did 
 not arise out of, and were not put with 
 reference to. a particular case, or for a par- 
 ticular purpose, whicii might limit or ex- 
 plain the generality of their terms, said, in 
 answer to the (irst c^uestion, ' So far as it 
 comprehends the question whether a person 
 circumstanced as stated in the question is 
 for that reason only to be found not guilty 
 of a crime respecting which the question of 
 his guilt has been duly raised in a criminal 
 proceeding, and I am of opinion that he is 
 not. There is no law that I am aware of 
 that makes persons in the state described 
 in the question not responsible for their 
 criminal acts. To render a person irres- 
 fonsible for crime on account of unsoundness 
 o/'mind the unsoundness should, according to 
 the law as it has been long understood and 
 held, be such as to render him inrajiablc of 
 knowing right from icrong. The terms used 
 in the question cannot be said (with refer- 
 ence only to the usage of language) to be 
 equivalent to a description of this kind and 
 degree of rmsoundness of mind.' To the 
 second question the learned judge answered, 
 ' If, on a trial such as is suggested in the 
 question, the judge should have occasion 
 to state what kind and degree of insanity 
 would amount to a defence, it should be 
 stated conformably to what I have men- 
 tioned in my answer to the first question as 
 being, in my opinion, the law on this subject.' 
 To the third question the learned judge 
 le plied, ' There are no terms which the 
 judge is by law required to use. They 
 shoidd not be inconsistent with the law as 
 above stated, but should be such as, in the 
 discretion of the judge, are proper to assist 
 the jury in coming to a right conclusion as 
 to the guilt of the accused.' To the fourth 
 question the learned judge replied that the 
 answer to the first question was applicable 
 to this. To the fifth question the learned 
 judge replied, ' Whether a question can be 
 asked dej)ends, not merely on the questions 
 
 of fact raised on the record, but on the 
 course of the cause at the time when it is 
 proposed to ask it ; and the state of an 
 inquiry as to the guilt of a person charged 
 with a crime, and defended on the groinid 
 of insanity may be such that such a ques- 
 tion as either of those suggested is proper 
 to be asked and answered, though the wit- 
 ness has never seen the person before the 
 trial, and though he has been present and 
 heard the witnesses ; these circumstances 
 of his never having seen the person before, 
 and of his having been present at the trial, 
 not being necessarily sufficient, as it seem.s 
 to me, to exclude the lawfulness of a c[ues- 
 tion, whicli is otherwise lawful, though I 
 will not say that an inquu-y might not be in 
 such a state as that these circumstances 
 should have such an effect. Supposing 
 there is nothing else in the state of the trial 
 to make the questions suggested proper to 
 be asked and answered, except that the 
 witness had been jiresent and heard the 
 evidence, it is to be considered whether that 
 is enough to sustain the question ; in 
 principle it is open to the objection that as 
 the opinion of the witness is founded on 
 those conclusions of fact, which he forms 
 from the evidence, and as it does not ajjpear 
 what these conclusions are, it may be that 
 the evidence he gives is on such an assump- 
 tion of facts as makes it irrelevant to the 
 inquiry. But such questions have been 
 very frequently asked, and the evidence to 
 which they are directed given, and has 
 never, that I am aware of, been successfully 
 objected to ; and I think the course and 
 practice of receiving such evidence, con- 
 firmed by the very high authority of Tindal, 
 C.J., Williams, J., and Coleridge, J., in R. v. 
 Macnaughton, who not only received it, 
 but left it, as I understand, to the jury 
 without any remark derogating from its 
 weight, ought to be held to warrant its 
 reception, notwithstanding the objection 
 in principle to which it may be open.' 
 (/■) [1844] I Cox. 80.
 
 CHAP. IV.] Criteria of Insanity. 71 
 
 was affected, and he was under the impression that every one was robbing 
 him. Tindal, C.J., told the jury that it is not mere eccentricity or singu- 
 larity of manner that will suffice to establish the plea of insanity ; it must be 
 shewn that the prisoner ' had no competent use of his understanding, so as 
 to know that he was doing a wrong thing in the particular act in question/ 
 
 In R. V. Higginson {s), a trial for murder, by burying a child alive, 
 upon the surgeon, called for the prosecution, being asked whether a 
 fracture of the skull was the cause of the death, or whether the child 
 had, after the fracture of the skull, been suffocated by being buried while 
 alive, the prisoner said, in open court, ' I put him in alive.' Two 
 witnesses stated that the prisoner was of ' very weak intellect,' and the 
 surgeon of the prison stated that the prisoner was of ' very weak intellect 
 but capable of knowing right from wrong.' Maule, J., after adverting to 
 the evidence adduced, said to the jury, ' If you are satisfied that the 
 prisoner committed this offence, but you are also satisfied that, at the time 
 of the committing the offence, the prisoner was so insane that he did not 
 know right from wrong, he should be acquitted on that ground ; but if you 
 think that, at the time of committing the offence, he did know right from 
 wrong, he is responsible for his acts, although he is of weak intellect ' {t). 
 
 In R. V. Stokes (w), upon an indictment for murder it appeared that 
 the prisoner, in the soldiers' room in the barracks, took up his musket 
 as if to clean it, levelled it at the deceased, fired and killed her on the 
 spot ; her husband and child being in the room, and two other soldiers 
 being present. The prisoner was a man of singular habits, and seldom 
 spoke to the other soldiers, was very ' secluded, sulky, and sullen,' and 
 was described as ' a close-minded man,' and ' a man of a very nasty temper.' 
 He had frequently complained of illness, and had made efforts to get into 
 the hospital, but he was rejected, as having no visible disorder. (The 
 report contains a statement of sundry other facts as to the prisoner's 
 state of mind.) The defence was that the prisoner was insane, or that 
 he was under such an insane impulse as to render him irresponsible. 
 Rolfe, B., in summing up said : ' If a prisoner seeks to excuse himself 
 upon the plea of insanity, it is for him to make it clear that he was insane 
 at the time of committing the offence charged. The onus rests on him ; 
 and the jury must be satisfied that he actually was insane. If the matter 
 be left in doubt, it will be their duty to convict him ; for every man must 
 be presumed to be responsible for his acts till the contrary is clearly shewn. 
 A case occurred some time ago at the Central Criminal Court, before 
 Alderson, B., and the jury hesitated as to their verdict, on the ground 
 that they were not satisfied whether the prisoner was or was not of sound 
 mind when he committed the crime ; and that learned judge told them, 
 that, unless they were satisfied of his insanity, it would be their duty to 
 find a verdict of guilty. Every man is held responsible for his acts by 
 the law of this country, if he can discern right from wrong. This subject 
 was a few years ago carefully considered by all the judges, and the law 
 is clear upon the subject (v). It is true, that learned speculators, in 
 
 (.s) [1843] 1 V. & K. 129. rifiht from wrong.' Cf. R. r. Richards, ibul. 
 
 (0 In R. V. Davics [1858|. 1 F. & F. 09. 87, CVowder, J., a case of i)aroxysm.s. 
 70, Crompton, J., said: 'You must find («) [1848] 3 C. & K. 18.-J. 
 
 that from mental disea.se he did not know (r) Sec Macnaughton's ca.se, aiile, p. (17.
 
 72 Of Criminal Besfonsihility. [book i. 
 
 their writings, have laid it down that men, with a consciousness that 
 they were doing wrong, were irresistibly compelled to commit some 
 unlawful act(t(;). But who enabled them to dive into the human heart, 
 and see the real motive that prompted the commission of such deeds ? 
 It has been urged that no motive has been shown for the commission of 
 this crime. It is true that there is no motive apparently but a very 
 inadequate one ; but it is dangerous ground to take, to say that a man 
 must be insane because men fail to discern the motive for his act. It 
 has also been said that the conduct of the prisoner was that of a madman 
 in committing the offence at such a time, in the presence of the woman's 
 husband, who had arms within his reach ; but it would be a most dangerous 
 doctrine to lay down, that because a man committed a desperate offence, 
 with the chance of instant death, and the certainty of future punishment 
 before him, he was therefore insane, as if the perpetration of crimes was 
 to be excused by their very atrocity ' {x). 
 
 In R. V. Barton {y), on the trial of a man for the murder of his wife, it 
 appeared that he had always treated her and their children with kindness ; 
 that they were talking with a neighbour at their door late at night, and 
 at four o'clock next morning it was discovered that he had cut the throats 
 of his wife and child, and had attemj)ted to commit suicide. When 
 questioned, he exhibited no sorrow or remorse for his conduct, but stated 
 that ' trouble and dread of poverty and destitution had made him do it, 
 fearing that his wife and child would starve when he was dead.' He 
 said he had contemplated suicide for a week past ; he had not had any 
 quarrel with his wife, and that, having got out of bed to destroy himself, 
 the thought had first come into his head to kill his wife and child ; he 
 had first attacked her whilst she was asleep in bed ; she got away from 
 him, and rushed to the window ; he then killed the child, and seizing 
 his wife, pulled her backwards to him, and cut her throat ; he next tried 
 to cut his own throat, but his powers failed him, and he did not succeed, 
 though he wounded himself severely. This narrative, coupled with a 
 knowledge of the prisoner's private circumstances, induced the surgeon 
 to form the opinion that the prisoner, at the time he committed the act, 
 had not, in consequence of an uncontrollable impulse, to which all human 
 beings are subject, any control over his conduct. The desire to inflict 
 pain and injury on those previously dear to the prisoner, was in itself a 
 strong symptom of insanity, and the impossibility of resisting a sudden 
 impulse to slay a fellow-being, was another indication that the mind 
 was insane. There was not necessarily a connection between homicidal 
 and suicidal monomania, though it would be more likely that a mono- 
 maniac who had contemplated suicide should kill another person, than 
 for one who had not entertained any such feelings of hostility to his own 
 existence. Monomania was an affection, which, for the instant, com- 
 pletely deprived the patient of all self-control in respect of some one 
 particular subject which is the object of the disease. The prisoner had 
 
 [w) See Staph. Dig. Cr. Law (6tli ed.), [h], .387, 388. 
 
 art. 28(c). Mereier, Criminal Responsibility, \x) But see R. v. JeiJerROn, 72 J. P. 4B7 ; 
 
 (Oxford, 1906). Pari. Pap. 1908 (c. 4202). 1 Cr. App. R. 95. 
 
 p. 141. 1 Bishop American Cr. L. ss. 383 (y) [1848] 3 Co.x, 275.
 
 CHAP, iv.i Criteria of Insanihj. 73 
 
 no delusion, and his reasoning faculties did not seem to be aflfected ; but 
 he had a decided monomania evincing itself in the notion that he was 
 coming to destitution. For that, there was some foundation in fact ; 
 but it was the surgeon's decided opinion that the prisoner was in an 
 unsound state of mind at the moment he cut his wife's throat. On the day 
 before, the prisoner had had his razor sharpened, saying he wanted it to 
 give to some friend ; and the prisoner had suffered a severe pecuniary 
 loss not long before, and it had produced a decided effect upon his mind, 
 giving rise to the most gloomy anticipations on account of his wife and 
 family. Parke, B., told the jury that the only question was whether, 
 at the time the prisoner inflicted the wound on his wife, ' he was in a state 
 of mind to be made responsible to the law for her murder. That would 
 depend upon the question, whether he, at the time, knew the nature and 
 character of the deed he was committing, and, if so, whether he knew 
 he was doing wrong in so acting. This mode of dealing with the defence 
 of insanity had not, he was aware, the concurrence of medical men ; 
 but he must, nevertheless, express his decided concurrence with Rolfe, 
 B.'s views of such cases (2), that learned judge having expressed his 
 opinion that the excuse of an irresistible impulse co-existing with the 
 full possession of reasoning powers might be urged in justification of 
 every crime known to the law — for every man might be said, and truly, 
 not to commit any crime except under the influence of some irresistible 
 impulse. Something more than this was necessary to justify an acquittal 
 on the ground of insanity, and it would therefore be for the jury to say 
 whether, taking into consideration all that the surgeon had said, wliicli 
 was entitled to great weight, the impulse, under which the prisoner had 
 committed this deed, was one which altogether deprived him of the 
 knowledge that he was doing wrong. Could he distinguish between 
 right and wrong ? Reliance was placed on the desu'e to commit suicide, 
 but that did not always evidence insanity. And here the prisoner was 
 led to attempt his own life by the pressure of a real substantial fact clearly 
 apparent to his perceptive organs, and not by any unsubstantial delusion. 
 The fact, however, must be taken into the account, for it might have had 
 a serious effect on the mind of the jH'isoner, as also the absence of any 
 attempt to escape from justice, and the want of all sense of sorrow and 
 regret immediately after the death of his wife, contrasted with his more 
 natural state of mind afterwards, when he felt and expressed regret and 
 sorrow for his act. Tliese circumstances ought all to be taken into con- 
 sideration ; but it was difficult to see how they could establisli the jiiea 
 of insanity in a case where there was a total absence of all delusion ' {a). 
 
 In R. V. Burton (6), the prisoner, a youth of eighteen, at first pleaded 
 guilty to an indictment for murder ; the judge warned him tliat this 
 would not affect his fate ; his counsel said he was insane, and desired to 
 be hung ; the prisoner, however, with apparently perfect intelligence, 
 retracted his plea, and pleaded not guilty. The deceased, a boy, had 
 been found witli his throat cut, and the prisoner gave himself up, and 
 admitted the act,recounting all t luMinnimstanceswith jierfect intelligence; 
 
 (:) Expressed in R. v. Slokos, ante, (a) Verdict miiity. 
 
 p. 71. (b) [18lJ3] 3 F. & F. 772.
 
 74 Of Criminal Responsibility. [book I. 
 
 and it did not appear that there was any ill-will to the boy, and the 
 prisoner had said, ' I had no particular ill-feeling against the boy, only 
 I had made up my mind to murder some one.' He added that he had 
 wiped his hands and the knife. Afterwards he said that it was well for 
 a Mr. C. that he had left Chatham, for he had prosecuted him, and he had 
 made up his mind to murder him when he came out of gaol. Evidence 
 was given on behalf of the prisoner of strange conduct, and a surgeon 
 proved that on two occasions he had sent the prisoner's mother to a 
 lunatic asylum : she was low and desponding, and attempted suicide. 
 The prisoner's brother was of weak intellect. On two occasions he had 
 attended the prisoner, and said he believed he was labouring under what, 
 in the profession, would be considered as moral insanity ; that is, he 
 knows perfectly well what he is doing, but has no control over himself. 
 By the moral feelings he meant the propensities which may be diseased, 
 while the intellectual faculties are sound ; and that, having heard the 
 evidence, in his opinion, it was reasonable to believe that there must in 
 the prisoner's case be some derangement of the brain, — some deviation 
 from the normal condition of the brain. On cross-examination, he 
 stated that he believed the prisoner knew what he was doing, but that 
 an impulse came upon him, which he could not control ; and he adopted 
 an opinion of Dr. Winslow that no man could commit suicide in a state 
 of sanity. He believed the prisoner had no proper control over his actions. 
 He had a knowledge of right and wrong, but could not control his actions. 
 Evidence on the part of the Crown was given to shew that the prisoner 
 was sane. Wightman, J., said that ' in Macnaughton's case (c) the judges 
 laid down the rule to be that there must, to raise the defence, be a defect 
 of reason from disease of the mind, so as that the person did not know 
 the nature and quality of the act he committed, or did not know whether 
 it was right or wrong. It was .not mere eccentricity of conduct which 
 made a man irresponsible for his acts. The medical man called for the 
 defence had defined homicidal mania to be a propensity to kill, and 
 described moral insanity as a state of mind under which a man, perfectly 
 aware that it was wrong to do so, killed another under an uncontrollable 
 impulse. This seemed to be a most dangerous doctrine, and fatal to the 
 interests of society and security of life. The question was whether such 
 a theory was in accordance with law. The rule, as laid down by the 
 judges, was quite inconsistent with such a view ; for it was, that a man 
 was responsible for his actions if he knew the difference between right 
 and wrong. It was urged that the prisoner did the act in order to be 
 hanged, and so was under an insane delusion ; but what delusion was 
 he under ? So far from it, it showed that he was quite conscious of the 
 nature of the act and its consequences. He was supposed to desire 
 to be hanged, and in order to attain the object committed murder. That 
 might show a morbid state of mind, but not delusion. Homicidal mania, 
 again, as described by the witnesses for the defence, showed no delusion ; 
 it merely showed a morbid desire for blood. Delusion meant the belief 
 in what did not exist. The question for the jury was, whether the prisoner 
 at the time he committed the act was labouring under such a species of 
 
 (c) Ante, p. (57 et seq.
 
 CHAP. IV.] Criteria of Insanity. 75 
 
 insanity as to be unaware of the nature, the character, Or the consequences 
 of the act he committed. In other words, whether he was incapable of 
 knowing that what he did was wrong.' 
 
 In H. V. Townley {d) on an indictment for murder, it appeared that 
 the prisoner had been engaged to the deceased, but her friends disapproved, 
 and the engagement was broken off, but renewed afterwards. However, 
 the deceased formed an attachment for another, and wrote to the prisoner 
 to break off the engagement ; and he wrote three very sensible letters 
 in reply to hers, that he would not stand in her way if she was resolved 
 to part with him, but that he should prefer to have an interview with 
 her, and to hear her determination from her own lips. Accordingly 
 he went to the place where she lived, and they were seen together, and 
 she was afterwards found with her throat cut in three places. The 
 prisoner came up and assisted to carry her to the house, repeatedly stating 
 that he had done it, and should be hanged for it. He said also, ' Poor 
 Bessie ! you should not have proved false to me.' He told her grand- 
 father, who asked what was amiss, ' It is your granddaughter, Betsy, 
 murdered. She has deceived me, and the woman that deceives me 
 must die.' The prisoner behaved throughout with apparent indifference, 
 and, on the arrival of the police, said that he wished to give himself up 
 for murdering the young lady ; and added, ' I am far happier now I have 
 done it than I was before, and I trust she is.' Evidence was given that 
 there had been insanity in the family, and Dr. Winslow stated that he had 
 seen the prisoner. ' I talked to him largely on the subject of the crime, 
 and I am of opinion that at the present moment he is a man of deranged 
 intellect. He told me he did not recognise he had committed any crime 
 at all, neither did he feel any degree of pain, regret, contrition, or remorse 
 for what he had done. I endeavoured to impress on his mind the serious 
 nature of the crime he had committed. He repudiated the idea of its 
 being a crime either against God or man, and attempted to justify the 
 act, alleging that he considered Miss Goodwin as his own property ; that 
 she had been illegally wrested from him by an act of violence ; that he 
 viewed her in the light of his wife, who had committed an act of adultery ; 
 and that he had as perfect a right to deal with her life as he had with any 
 other description of property, — as the money in his pocket, &c. I 
 endeavoured to prove to him the gross absurdity of his statement and 
 the enormity of his offence: he replied, "Nothing short of a miracle can 
 alter my opinions." The expression that Miss Goodwin was his property 
 was frequently repeated. He killed her, he said, to recover property 
 which had been stolen from him. I could not disturb this, as I thought, 
 very insane idea. I said, " Suppose anyone robbed you of a picture, 
 what course would you take to recover it ? " He said he would demand 
 its restitution, and if it were not granted, he would take the person's life 
 without compunction. I remarked that he had no right to take the law 
 into his own hands ; he should have recourse to legal measures to obtain 
 restitution. He replied that he recognised the right of no man to sit in 
 judgment upon him ; he was a free agent ; and as he did not bring himself 
 into the world by any action of his own, he had perfect liberty to think 
 
 (d) [18()3] :5 F. & V. 839.
 
 76 Of Crmiinal Res'ponsibility. [book i. 
 
 and act as he pleased, irrespective of anyone else. I regard these exj)res- 
 sions as evidence of a diseased intellect. He said he had been for some 
 weeks under the influence of a conspiracy ; there were six conspiiators 
 plotting against him, with a view to destroy him, with a chief conspirator 
 at their head. This conspiracy was still going on while he was in jtrison, 
 and he had no doubt that, if he were at liberty, they would continue their 
 operations against him, and in order to escape their evil purposes he 
 would have to leave the country. He became much excited, and assumed 
 a wild, demoniacal aspect. I am satisfied that aspect was not simulated.' 
 On cross-examination he said, ' I have no doubt he knows that these 
 opinions of his are contrary to those generally entertained, and that, if 
 acted upon, they would subject him to punishment. I should think 
 that he would know that killing a person was contrary to law, and wrong 
 in that sense. I should think, from his saying he should be hanged, that 
 he knew he had done wrong. His moral sense was more vitiated than 
 I ever found that of any other human being. His opinions were pretty 
 much those of atheists, but he was beyond atheism. He seemed incap- 
 able of reasoning correctly on any moral subject. He denied the existence 
 of a God and of a future world. He said it was a matter of perfect in- 
 difference whether he was dead or alive.' Martin, B., told the jury that 
 what the law meant by an insane man was, a man who acted under delu- 
 sions, and supposed a state of things to exist which did not exist, and 
 acted thereupon. A man who did so was under a delusion, and a person 
 so. labouring was insane. In one species of insanity the patient lost his 
 mind altogether, and had nothing but instinct left. Such a person 
 would destroy his fellow-creatures, as a tiger did his prey, by instinct only. 
 A man in that state had no mind at all, and therefore, was not criminally 
 responsible. The law, however, went farther than that. H a man 
 labouring under a delusion did something of which he did not know the 
 real character — something of the effect and consequences of which he. 
 was ignorant — he was not responsible. An ordinary instance of such 
 delusion was where a man fancied himself a king, and treated all around 
 him as his subjects. H such a man were to kill another under the sup- 
 position that he was exercising his prerogative as a king, and that he was 
 called upon to execute the other as a criminal, he would not be responsible. 
 The result was, that if the jury believed that at the time the act was 
 committed the prisoner was labouring under a delusion, and believed 
 that he was doing an act that was not wrong, or of which he did not know 
 the consequences, he would be excused. H, on the other hand, he well 
 knew that his act would take away life — that that act was contrary to 
 the law of God, and punishable by the law of the land — he was guilty of 
 murder. In his opinion the law was best laid down by Le Blanc, J., in 
 Bowler's case (e), who told the jury that it was for them to determine 
 whether the prisoner, when he committed the offence, was incapable of 
 distinguishing right from wrong, or under the influence of any illusion 
 which rendered his mind at the moment insensible of the nature of the 
 act he was about to commit ; since in that case he would not be legally 
 responsible for his conduct. On the other hand, provided they should 
 
 (e) A7Ue, p. G4.
 
 CHAP. IV.] Criteria of Insanitij. 77 
 
 be of opinion that when he committed the act he was capable of dis- 
 tinguishing right from wrong, and not under the influence of such an 
 illusion as disabled him from discerning that he was doing a wrong act, 
 he would be amenable to justice. After noticing other cases, Martin, B., 
 told the jury that they must judge of the act by the prisoner's statements 
 and by what he did at the time. Unless they were satisfied — and it was 
 for the prisoner to make it out — that he did not know the consequences 
 of his act, or that it was against the law of God and man, and would 
 subject him to punishment, he was guilty of murder. The prisoner's 
 letters appeared to be as sensible letters as ever he had read. Again, 
 the reason the prisoner gave for his act was, ' She should not have proved 
 false to me.' Now, if his real motive was that he conceived himself to 
 have been ill-used, and either from jealousy of the man who was preferred 
 to him, or from a desire of revenge upon her, committed the act, that 
 would be murder. Those were the very passions which the law required 
 men to control ; and if the deed was done under the influence of those 
 j)assions, there was no doubt it was murder. The prisoner's expression, 
 that he should be hanged for it, indicated that he knew the consequences 
 of his act. Another reason he gave for what he had done was, ' The 
 woman who deceives me must die.' If a young lady promised to marry 
 a man, and then changed her mind, it might be truly said that she de- 
 ceived him ; but what would be the consequences to society if men were 
 to say every woman who treated them in that way should die, and were to 
 carry out those views by cutting their throats ? The prisoner claimed 
 to exercise the same power over a wife as he could lawfully exercise over 
 a chattel ; but that was not a delusion, nor like a delusion. It was the 
 conclusion of a man, who had arrived at results different from those 
 generally arrived at, and contrai'y to the laws of God and man ; but 
 it was not a delusion. It had been said by one of the witnesses that the 
 prisoner did not know the difference between good and evil. If that 
 was a test of insanity, many men were tried who did not know that 
 difference. In truth, it was no test at all. The idea of a conspiracy was 
 a delusion, but the mere setting himself up against the law of God and 
 man was not a delusion at all. The question for the jury was, Was the 
 prisoner insane, and did he do the act under a delusion, believing it to 
 be other than it was ? If he knew what he was doing, and that it was 
 likely to cause death, and was contrary to the law of God and man, and 
 that the law directed that persons who did such acts should be punished, 
 he was guilty of murder. 
 
 In R. V. Haynes (/), a trial for murder of a woman, the prisoner 
 appeared to have been on the most intimate terms with the deceased. 
 No motive was assigned for the murder. The prisoner having seduced 
 a young woman under a promise of marriage, which he had been unable 
 to fulfil, his reason had been much affected by it. Bramwell, B., read 
 the opinion of the judges in the House of Lords to the jury, and then said. 
 ' It has been urged that you should acquit the prisoner on the ground 
 that, it being impossible to assign any motive for the perpetration of the 
 offence, he must have been acting under what is called a powerful and 
 
 {./•) [1859] 1 F. & F. 6G6.
 
 78 Of Criminal Responsibility. [book i. 
 
 irresistible influence, or homicidal tendency. But the circumstances of 
 an act being apparently motiveless, is not a ground from which you can 
 safely infer the existence of such an influence. Motives exist unknown 
 and innumerable, which might prompt the act. A morbid and restless, 
 but resistible, thirst for blood, would itself be a motive urging to such 
 a deed for its own relief iff)- But if an influence be so powerful as to be 
 termed irresistible, so much the more reason is there why we should not 
 withdraw any of the safeguards tending to counteract it. There are 
 three powerful restraints existing, all tending to the assistance of the 
 person who is suffering under such an influence, — the restraint of religion, 
 the restraint of conscience, and the restraint of law. But if the influence 
 itself be held a legal excuse, rendering the crime dispunishable, you at 
 once withdraw a most powerful restraint — that forbidding and punishing 
 its perpetration. We must return, therefore, to the simple question you 
 have to determine — did the prisoner know the nature of the act he was 
 doing, and did he know that he was doing what was wrong V{g) 
 
 In R. V. Layton {h), a trial for murder, the prisoner and his wife 
 were walking along a road, and he had been for some time chiding 
 her. He then fired a pistol at her and she fell ; and he pulled her 
 up, and they proceeded a few yards, when he pushed her down, and 
 inflicted a second wound on her throat with a knife. He then got over a 
 hedge into a field, and ran some distance, until he was overtaken by a 
 person who had seen the woman fall. The prisoner wiped the blood off his 
 hands, saying he had met with a misfortune and cut his finger. He 
 would not tell what he had done with the pistol and knife, but said, 
 ' I did it. I intended to do it, and that will put an end to it. I have 
 been unhappy since Christmas.' When he shot and cut his wife, 
 he must have known that persons were within a short distance, having 
 just before met them. He had threatened to murder his wife 
 before, and on the day before he was heard sharpening a knife, 
 and the wife was afterwards seen running out of the house, followed 
 by the prisoner with a knife similar to one found near the place where 
 the murder was committed. The prisoner had been in gaol for debt 
 for two months in the early part of the year, and had been unfortunate 
 in building speculations. Several witnesses called for the prisoner 
 stated that they believed that the prisoner was not in his right 
 mind, and proved sundry statements made by him as to his property 
 and other matters, which were alleged to be delusions, and that his 
 conduct had been strange, and his manner greatly excited. For the 
 prosecution, witnesses were called to prove that he was sane, and had 
 acted in matters of business in a rational manner. Rolfe, B., told the 
 jury that insanity was the most difficult question which could engage 
 the attention of any tribunal. It was difficult to define it in words, 
 or even in idea. The opinion of the judges was taken by the House of 
 Lords a few years back, as to what was to constitute a definition of 
 insanity, and it created very great difiiculty, but after great and anxious 
 deliberation, they came to the conclusion that the old description was 
 
 iff) In homicide cases it is intent and EUwood [1908], 1 Cr. App. R. 181 (C.C.A.). 
 not motive wliich is crucial. R. v. Dixon (17) Cf. R. v. Broiioh, 2 F. & F. 838n. 
 
 [1869], 11 Cox, 3il, Montague Smith,,!. R. v. (h) [1849] 4 Cox, 149.
 
 CHAP. IV.] Criteria of Insanity. 79 
 
 the best, viz., that insanity should constitute a defence only when a 
 party was in such a state of mind arising from disease as to be incapable 
 of deciding between right and wrong ; but that this definition was 
 imperfect, as all definitions must be, and would require to be modified 
 with reference to each particular case. Applying that law to the present 
 case, what the jury had to consider was, whether the evidence was such 
 as to satisfy them that at the time the act was committed by the prisoner, 
 he was incapable of understanding right from wrong, as that he could 
 not appreciate the nature of the act he was committing. Perhaps it 
 would be going too far to say that a party was responsible in every 
 case where he had a glimmering knowledge of what was right and wrong. 
 In cases of this description, there was one cardinal rule which should 
 never be departed from, viz., the burden of proving innocence rested 
 on the accused. Every man committing an outrage on the person or 
 property of another, must be, in the first instance, taken to be a responsible 
 being. Such a presumption was necessary for the security of mankind. 
 A man going about the world, marrying, dealing, and acting as if he 
 were sane, must be presumed to be sane till he proves the contrary. 
 The question, therefore, would be, not whether the prisoner was of 
 sound mind, but whether he had made out to their satisfaction that 
 he was not of sound mind. They might arrive at the conclusion, from 
 the nature of his conduct and acts up to the time of the act in question, 
 or shortly preceding it, that he was insane ; though he was not capable 
 of proving it by positive testimony, as such was the nature of the mind, 
 that it might be one minute sane, and the next insane, and therefore 
 it might be impossible for a party to give positive evidence of its condition 
 at the particular moment in question. The conclusion seemed irresistible, 
 that the prisoner was to some extent labouring under a delusion, but 
 he was not exempt from responsibility because he was labouring under 
 a delusion as to his property, unless that had the effect of making him 
 incapable of understanding the wickedness of murdering his wife. But 
 when that was the question they had to consider, he could not say that 
 it was altogether immaterial that he was insane on one point only (/). 
 Indeed his insanity on that point might guide them to a conclusion as 
 to his sanity on the point involved in this case, and, in this view of the 
 matter, there were two circumstances in the evidence of great importance : 
 these were, the want of motive for the commission of the crime, and 
 its being committed under circumstances which rendered detection 
 inevitable. They could come to no other conclusion than that the 
 prisoner liad taken away the life of his wife, and that this was murder, 
 unless he had satisfied them that he was not capable at the time of 
 appreciating his acts (/). 
 
 (t) Quarc, omit ' only,' which seems in- not guilty on the ground of insanity ; that 
 
 consistent with the context. was an issue far too vague, indefinite, and 
 
 (?) Cf. R. V. Law [1862], 2 F. & F. 836. undefined. The issue was, whether or not 
 
 In R. V. Leigh [1866], 4 F. & F. 915, where when he did the act, he was legally respon- 
 
 on the trial of an indictment for murder, sible ; in other words, whether he knew its 
 
 insanity was set up as a defence, Erie, C.J., nature, and knew that it was wrong. Tiie 
 
 said, ' The question was, whether the distance, indeed, between the extreme 
 
 prisoner was or was not responsible wlien points of manifest mania and perfect sen-se 
 
 lie committed the act, not whether he was was great, but they approach by gradual
 
 80 Of Criminal Responsibilitij. [boc»k i. 
 
 It is usual but not essential in a question of insanity to call medical 
 witnesses or lunacy experts {k). 
 
 In R. V. Wright (?), on a trial for murder, the prisoner was acquitted, 
 but a question was reserved as to whether the evidence of a medical 
 man was properly admitted. He volunteered his evidence, and wished 
 to give his opinion upon the evidence as to the state of the prisoner's 
 mind at the time the act was done ; and he was allowed so to do. The 
 judges did not come to any formal resolution ; but they all thought 
 that in such a case a witness of medical skill might be asked, whether 
 in his judgment such and vsuch appearances were symptoms of insanity, 
 and whether a long fast, followed by a draught of strong liquor, was likely 
 to produce a paroxysm of the disorder in a person subject to it ? and 
 that by such questions the effect of his testimony might be got in an 
 unexceptionable manner. Several of the judges doubted whether the 
 witness could be asked on the very point which the jury were to decide ; 
 viz., whether, from the testimony given in the case, the act with which 
 the prisoner was charged was, in his opinion, an act of insanity ? In 
 R. V. Searle(w),a case of malicious wounding, where it was proposed 
 to call a physician who had heard the whole evidence, to give his opinion 
 as to the insanity of the prisoner, Park, J., after referring to the pre- 
 ceding case, allowed the physician to be asked whether the facts and 
 appearances proved shewed symptoms of insanity. 
 
 In R. V. Frances (w), where the defence to an indictment for murder 
 was that the prisoner was insane at the time he committed the act, and 
 witnesses were called to prove that insanity had existed in many members 
 of the prisoner's family and that he had been insane for three years, a 
 physician, who had been in court during the whole trial, was asked 
 by the counsel for the prosecution ' whether, from all the evidence he 
 had heard, both for the prosecution and defence, he was of opinion 
 that the prisoner, at the time he did the act, was of unsound mind ? ' 
 and the opinion of the judges in answer to the fifth question in 
 Macnaughton's case (o) was cited in support of the question. Alderson, 
 B., and Cresswell, J., held that the question ought not to be put. The 
 proper mode is to ask what are the symptoms of insanity, or to take 
 jiarticular facts, and assuming them to be true, to ask whether they 
 indicate insanity. To take the course suggested is really to substitute 
 the witness for the jury, and allow him to decide upon the whole case. 
 The jury have the facts before them, and they alone must interpret 
 them by the general opinions of scientific men (p). 
 
 steps and slow degree. The law, however, (p) Cf. R. v. Burton, ante, p. 73. In 
 
 did not say that when any degree of in- Doe i'. Bainbrigge, 4 Cox, 454, the trial of 
 
 sanity existed, the party was not respon- an ejectment where the question turned on 
 
 sible, but that when he was in a state of the sanity cf the testator, and a physician 
 
 mind to know the distinction between right was asked whether in his opinion, from the 
 
 and wrong, and the nature of the act he facts proved in evidence, the testator was 
 
 committed, he was responsible.' See also sane or insane, Campbell, C.J., said the 
 
 R. V. Southey [1866], 4 F. & F. 864. witness might give general scientific evi- 
 
 {k) R. V. Dart, 14 Cox, 143. dence on the causes and symptoms of 
 
 (l) [1823] R. & R. 456. insanity, but he must not express an 
 
 (m) [1831] 1 M. & Rob. 75. opinion as to the result of the evidence he 
 
 (n) 4 Cox, 57. had heard with reference to the sanity or 
 
 (o) Ante, p. 67. insanity of the testator ; his lordship saying
 
 CHAP. IV.] Criteria of Insanity, 81 
 
 Where the defence of insanity has been set up, it has been common 
 practice to prove that other members of the prisoner's family have 
 been afflicted with insanity ; but it is a matter of fact that insanity 
 is often hereditary in a family, and therefore that fact should be proved, 
 in the first instance, by the testimony of medical men, and then the 
 inquiry whether another member of the prisoner's family has been insane 
 will be legitimate {q). 
 
 Where in support of a defence of insanity the prisoner's counsel 
 attempted to quote from ' Cooper's Surgery ' the author's opinions on 
 the subject, in his address to the jury, on the ground that they were 
 the sentiments of one who had studied the subject, and submitted that 
 it was admissible in the same way as opinions of scientific men on matters 
 appertaining to foreign law ; Alderson, B., said : 'I should not allow you 
 to read a work on foreign law. Any person who was properly con- 
 versant with it might be examined ; but then he adds his own personal 
 knowledge and experience to the information he may have obtained 
 from books. We must have the evidence of individuals, not their 
 written opinions. You surely cannot contend that you may give the 
 book in evidence, and if not, what right have you to quote from it in 
 your address, and do that indirectly which you would not be permitted 
 to do in the ordinary course ? ' And on its being said that it was cer- 
 tainly done in Macnaughton's case, Alderson, B., added, 'And that shows 
 still more strongly the necessity for a stringent adherence to the rules 
 laid down for our observance. But for the non-interposition of the 
 judge in that case, yovi would not probably have thought it necessary 
 to make this struggle now ' (r). 
 
 The application of the rules and principles laid down in these cases 
 to each particular case as it may arise, will necessarily in many instances 
 be attended with difficulty ; more especially with regard to the true 
 interpretation of the expressions, 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 distinguish 
 right from wrong,' or to discern ' that he was doing a wrong act,' or should 
 appear to have been ' totally deprived of his understandimj and memory'; 
 as even in Hadfield's case (s) his expressions when apprehended, that 
 * he was tired of life,' that ' he wanted to get rid of it,' and that ' he 
 did not intend anything 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 ivrong 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 affected. 
 But it is clear that idle and frantic humours, actions occasionally unac- 
 countable and extraordinary, mere dejection of spirits, or even such 
 insanity as will sustain a commission of Imnacy, will not be sufficient 
 to render a person irresponsible for a criminal act. And it seems that 
 
 peremptorily that he would not allow a (q) R. v. Tucket, 1 Cox, 103, Maule, J. 
 
 physician to be substituted for a jury. The R. r. Atkins. I Cv. Ajjp. R. 09. 
 
 verdict was for the plaintiff, which pre- (/) R. v. Crouch, 1 Co.x, 94. 
 
 vented this ruling from being questioned in (s) Ante, p. 66. 
 the court above. 
 
 VOL, I, G
 
 82 Of Criminal Responsihility. [book i. 
 
 though if there be a total j^ermanent 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 competent use of it, sufficient to have restrained those passions which 
 produced the crime ; if there be thought and design, a faculty to dis- 
 tinguish the nature of actions, to discern the difference between moral 
 good and evil ; then, upon the fact of the offence proved, the judgment 
 of the law must take place {t). 
 
 Procedure with reference to insane offenders. — At whatever stage 
 insanity arises with reference to an alleged offence, its existence is 
 treated as a bar to giving the verdict or judgment appropriate in the case 
 of a prisoner of unsound mind. 
 
 It is stated by the older authorities that, if a man in his sound memory 
 commits a capital offence, and before arraignment 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 has pleaded, 
 he becomes mad, he shall not be tried, as he cannot make his defence. 
 If, after he is tried and found guilty, he loses his senses before judgment, 
 judgment shall not be pronounced ; and if after judgment he becomes 
 of non-sane memory, execution shall be stayed ; for, had the prisoner 
 been of sound memory, he might have alleged something in stay of 
 judgment or execution {u). 
 
 It is now the practice to bring up the prisoner for arraignment unless 
 he is certified to be insane in manner provided by the Criminal Lunatics 
 Act, 1884 (v) (47 & 48 Vict. c. 64). By that Act, s. 2, subsect. (1), 
 'where a prisoner is certified in manner provided in this section 
 to be insane, a Secretary of State may, if he thinks fit, by warrant [tv), 
 direct such prisoner to be removed to the asylum named in the warrant, 
 and thereupon such prisoner shall be removed to and received in such 
 asylum and subject to the provisions of this Act, relating to conditional 
 discharge, or otherwise, shall be detained therein, or in any other asylum 
 to which he may be transferred in pursuance of this Act, as a criminal 
 lunatic (r) until he ceases to be a criminal lunatic' The effect of removal 
 under the certificate is to prevent the arraignment or trial of the person 
 to whom it relates, until he is remitted to prison for trial under sect. 3 («/). 
 
 [t) Per Yorke, Sol.-Gen., in Earl Ferrers's place for the reception of the insane (s. 16). 
 
 case, 19 8t. Tr. 947, 948. R. v. Allen, The disposal and tieatment of criminal 
 
 Stafford Lent Assizes, 1807, MS., Lawrence, lunatics is regulated by the Criminal Lima- 
 
 J. Att.-Gen. v. Parnther, 3 Br. Ch. Cas. tic Asylums Act, 18G0 (23 & 24 Vict. c. 75), 
 
 441; 29 E. Pv. 632, per Lord Thiirlow. and by ss. 4 16 of the Act of 1884. The 
 
 (u) 4 Bl. Com. 23. 1 Hale, 35. See prisons appointed as asylums for criminal 
 
 Wood-Renton on Lunacy, 807. lunatics are Broadmoor and Parkhurst. 
 
 (v) As to the history of legislation with See Stat. R. and Orders Revised (ed. 1904), 
 
 reference to criminal lunatics, see Wood- tit. ' Lunatic (E).' 
 
 Renton on Lunacy, 793. (y) Ex parte Collins, K.B.D. [1899], noted 
 
 {w) The warrant may be signed by an 34 L. J. (newsp.) 132. Under the former 
 
 under-secretary of state (s. 15). Act on the same subject (27 & 28 Vict. c. 29) 
 
 (x) i.e., as a person for whose safe cus- it was held that a habeas corpus would lie to 
 
 tody during the King's pleasure, His bring up for trial a person sent by Home 
 
 Majesty or the Admiralty is authorised to Secretary's warrant to an asylum after 
 
 give order, or a ])erson whom a Secretary committal for trial. R. v. Peacock, 12 
 
 of State or the Admiralty has, in pursuance Cox, 21. 
 of any statute, directed to be removed to a
 
 CHAP. IV.] Trial of Lunatics. 83 
 
 This enactment was passed to deal with cases of persons obviously too 
 mad to be arraigned {z). 
 
 By subsect. (2), 'A person shall cease to be a criminal lunatic if he is 
 remitted to prison, or absolutely discharged in manner provided by this 
 Act, or if any term of penal servitude or imprisonment to which he may 
 be subject determines/ 
 
 By subsect. (3), ' where it appears to any two members of the Visiting 
 Committee of a prison that a prisoner in such prison, not being under 
 sentence of death, is insane, they shall call to their assistance two legally 
 qualified medical practitioners, and such members and practitioners 
 shall examine such j)i'isoner and inquire as to his insanity, and after 
 such examination and inquiry may certify in writing that he is insane.' 
 
 Subsect. (4) provides for an inquiry by the Secretary of State, where 
 a prisoner under sentence of death appears to be insane. 
 
 By subsect. (5) in convict prisons the power of the section shall be 
 exercised by the Directors of Convict Prisons or one of them {a). 
 
 By sect. 3, ' where it is certified by two legally qualified medical 
 practitioners that a person being a criminal lunatic (not being a per- 
 son with respect to whom a special verdict has been returned, that he was 
 guilty of the act or omission charged against him, but was insane at the 
 time when he committed the act or made the omission) is sane, a Sec- 
 retary of State, if satisfied that it is proper so to do, may by warrant direct 
 such person to be remitted to prison to be dealt with according to law. 
 
 By sect. 16, ' " prison " means any prison or place of confinement to 
 which a person may be committed, whether on remand or for trial, safe 
 custody, or punishment, or otherwise under any other than civil process, 
 and " prisoner " means any person so committed.' 
 
 Trial— By the Trial of" Lunatics Act, 1883 (46 & 47 Vict. c. 38) (&), s. 2 
 (1 ), ' where in any indictment or information any act or omission is charged 
 against any person as an offence, and it is given in evidence on the trial 
 of such person for that offence, that he was insane so as not to be 
 responsible according to law for his actions, at the time when the act was 
 done or omission made, then if it appears to the jury before whom such 
 person is tried, that he did the act or made the omission charged, but 
 was insane as aforesaid at the time when he did or made the same, the 
 jury shall return a special verdict to the effect that the accused was 
 guilty of the act or omission charged against him, but was insane as 
 aforesaid, at the time when he did the act or made the omission ' {hb). 
 
 (2) ' When such special verdict is found the Court shall order the 
 accused to be kept in custody as a criminal lunatic, in such place and 
 in such manner as the Court shall direct till llis Majesty's pleasure 
 
 (z) See R. r. Dwenyhouse, 2 Cox, 44G. s. 2 [post, p. 84), applies lo all olToiiccs tried 
 
 (a) Now the prison commissioner.-! : see on indictment. 
 
 Prison Act, 1898 (01 & 62 Vict. c. 41), s. 1. (hb) See R. r. Harding, 1 Cr. App. R. 210: 
 
 [h) This Act superseded the provisions 2r>T. L. R. 130. When on a criminal appeal 
 
 of 39 & 40 Oeo. III. c. 94, s. 1, as to acquit- the appellate court consider that the 
 
 tal on the ground of insanity, and detention appellant was insane. &c., they may quash 
 
 of the accused or insane during the King's the sentence and make an order a.s on a 
 
 pleasure. The superseded enactment ap- special verdict. 7 Edw. VII. c. 23, s, ') (4). 
 
 plied only to treason, murder and felony. R. r. Jefferson, 72 .IP. 407: 1 Cr. App. 
 
 The present Act like 39 & 40 Geo. III. c. 94, R. 95. 
 
 G 2
 
 84 Of Criminal Responsibility. [book i. 
 
 shall be known, and it shall be lawful for His Majesty thereupon and 
 from time to time, to give such order for the safe custody of the said 
 person during pleasure, in such place and in such manner as to His 
 Majesty may seem fit ' (c). 
 
 When the questions of fitness to plead and take trial have not been 
 decided on arraignment they are dealt with by the jury with the question 
 of criminal responsibility {d). 
 
 Under the law prior to this Act, if the jury were of opinion that the 
 prisoner did not in fact do all the acts necessary in law that the law 
 requires to constitute the offence charged, suj)posing the prisoner had been 
 sane, they must find him not guilty generally, and the Court have no power 
 to order his detention, although the jury should find that he was in fact 
 insane. Where, therefore, on an indictment for treason, which stated, 
 as an overt act, that the prisoner discharged a pistol loaded with powder 
 and a bullet, the jury found that the prisoner was insane at the time 
 when he discharged the pistol, but whether the pistol was loaded with 
 ball or not there was not satisfactory evidence, the Court expressed a 
 strong opinion that the case was not within the statute (e). 
 
 Under the Act of 1883, the jury find that the accused did the act or 
 made the omission charged as an offence and then proceed to negative 
 the defendant's responsibility according to law for his actions. 
 
 Where a prisoner's counsel set up the defence of insanity for him, 
 and the prisoner objected to that defence, asserting that he was not 
 insane, he was allowed to suggest questions to be put to the witnesses 
 for the prosecution, to negative the supposition that he was insane; and 
 the judge, at the request of the prisoner, allowed additional witnesses to 
 be called on his behalf for the same purpose (/"). 
 
 Indictment. — If the acts proved to have been done by the prisoner 
 be such as would have amounted to the crime charged, if they had been 
 done by a person of sane mind, the grand jury are bound to find a true 
 bill ig). The acts next to be cited do not apply to the grand jury. 
 
 Arraignment. — By the Criminal Lunatics Act, 1800 (A), 39 & 40 
 Geo, in. c. 94, s. 2, ' if any person indicted for any offence shall be insane, 
 and shall upon arraignment be found so to be by a jury lawfully impanelled 
 for that purpose, so that such person cannot be tried upon such indictment 
 or if upon the trial of any person so indicted, such person shall appear to 
 the jury charged with such indictment to be insane (i), it shall be lawful 
 for the Court, before whom any such person shall be brought to be 
 
 (c) Subsect. (4) applies to persons in B., and Patteson, J. 
 
 respect of where a special verdict is found, (f) R. v. Pearce, 9 C. & P. 667, Bosan- 
 
 the statutes applying to persons acquitted quet, J. For numerous unreported deci- 
 
 on the ground of insanity. The enact- sions on the same point, see Wood-Renton 
 
 ments then existing are repealed — ^3 & 4 on Lunacy, 809. 
 
 Vict. c. 54, s. 7, by 47 & 48 Vict. c. 64, ante, {g) R. r. Hodges, 8 C. & P. 195, Alder- 
 
 p. 82, and 25 & 26 Vict. c. 86, s. 15, by son, B. 
 
 s. 342 of the Lunacy Act, 1890 (53 Vict. (h) Passed July 28, 1800. See Had- 
 
 c. 5) ; and tlie detention of such persons is field's case, ante, p. 66. S. 1 is super- 
 
 now regulated bv the Acts of 1860 and seded by 46 & 47 Vict. c. 38, s. 2, rt«/e, p. 83. 
 
 1884, ajite, p. 82, note (x). (i) R. v. Little, R. & R. 430, and MS., 
 
 (d) R. V. Southey, 4 F. & F. 864. 39 & Bayley, J. There is no appeal against a 
 40 Geo. III. c. 94, s. 2, infra. finding under this section negativing in- 
 
 (e) R. V. Oxford, 9 C." & P. 525; 4 St. sanity. R. v. Jefferson, 72 J.P. 467. Ex 
 Tr. (N. S.) 497, Denman, C.J., Alderson, parteEmery [1909], 2 K.B. 81-86.
 
 CHAP. IV.] Trial of Lunatics. 85 
 
 arraigned or tried as aforesaid, to direct such finding to be recorded, and 
 thereupon to order such person to be kept in strict custody till HisMajesty's 
 pleasure shall be known ' : ' and if any person charged with any offence 
 shall be brought before any Court to be discharged for want of prosecution, 
 and such person shall appear to be insane, it shall be lawful for such 
 Court to order a jury to be impanelled to try the sanity of such person ; 
 and if the jury so impanelled shall find such person to be insane, it shall 
 be lawful for such Court to order such person to be kept in strict custody, 
 in such place, and in such manner as to such Court shall seem fit, until 
 His Majesty's pleasure shall be known. And in all cases of insanity 
 so found it shall be lawful for His Majesty to give such order for the safe 
 custody of such person so found to be insane during his pleasure, and 
 in such manner as to His Majesty shall seem fit ' (/). 
 
 The prisoner was indicted for assaulting one E. Earl, and beating 
 her with intent to murder her. The jury found specially that he was 
 insane at the time of committing the offence, and also at the time of the 
 trial, and that they acquitted him on account of such insanity, and 
 the judge ordered him to be kept in custody accordingly. The judges 
 were unanimously of opinion that sect. 2 applied to all offences, including 
 misdemeanors, — and that though mere insanity at the time of the offence 
 would not have warranted an order, yet insanity found at the time of the 
 trial did warrant it (jj). 
 
 By the Criminal Law Act, 1827 (7 & 8 Geo. IV. c. 28, s. 2), if any 
 person, being arraigned upon or charged with any indictment or informa- 
 tion for treason, felony, piracy, or misdemeanor, shall stand mute of 
 malice, or will not answer directly to the indictment or information, 
 in every such case it shall be lawful for the Court, if it shall so think fit, 
 to order the proper officer to enter a plea of ' not guilty ' on behalf of such 
 person ; and the plea so entered ' shall have the same force and effect as 
 if such person had actually pleaded the same.' 
 
 When a prisoner on arraignment stands mute the proper course is. 
 To swear a jury (k) to determine — 1. Whether the prisoner is mute of malice 
 or by the visitation of God : 2. Whether he is able to plead : 3. Whether 
 he is sane or not : on which issue the question is, whether he is of sufficient 
 intellect to comprehend the course of the proceedings on the trial so as 
 to be able to make a proper defence (/). In R. v. Thompson (m), where 
 the prisoner being deaf and dumb, but able to read, the indictment was 
 handed to him with the usual questions written upon paper, and he wrote 
 his plea on paper. The jurors' names were then handed to him, with the 
 question, ' whether he objected to any of them ? ' and he wrote for answer. 
 ' No.' The judge's note of the evidence of each witness was handed to 
 
 (;■) See Criminal Lunatic A.svlums Act. ant. be insavc or not, and a true verdict 
 
 1860 (23 & 24 Vict. c. 75), aiid Criminal given to the best of your understanding, so 
 
 Lunatics Act, 1884 (47 & 48 Vict. c. 84), help you (Jod.' 
 
 ss. 4-16. (/) R. r. Pritchard. 7 C. & P. 303, Alder- 
 
 (jj) R. V. Little, R. & R. 430. and MS. son, B., where the jury were sworn sepa- 
 
 Bayley, J. rately on eacii of the three issues, approved 
 
 (k) In R. V. Goode, 7 A. & E. 536, the in Ex parte Emery [19091. 2 KB. 81. See 
 
 j\iry were sworn in kaec verba, ' You shall R. v. Dyson, 7 C. & P. 305n. ; 1 Lew. 64, 
 
 diligently inquire and true presentment Parke. B., where a form of oath for the ni- 
 
 make for and on behalf of our Sovereign terpreter is given. 
 
 Lady the Queen whether J. G., the defend- (?/>) 2 Lew. 137.
 
 86 Of Criminal Resfonsihility. [book i. 
 
 him, and he was asked in writing, if he had any question to put. In R. v. 
 Whitfield (w), a case of misdemeanor, after a jury had found that the 
 prisoner was mute by the visitation of God, but was of sound mind, his 
 counsel was permitted to plead not guilty for him, and the trial proceeded 
 in the usual manner, and the evidence was not interpreted to the prisoner. 
 Where a prisoner, on being brought up to be arraigned, stands mute or 
 it appears questionable whether he be sane or not, the proper course is 
 to swear a jury to try the question, as it is for them and not for the CJourt 
 to decide whether the prisoner stands mute of mahce, or is insane (o). 
 Where the verdict is mute of malice, a plea of not guilty is entered, and 
 the trial proceeds (p). 
 
 Where the defendant does not stand mute, but his mental condition 
 comes into question at the trial, the procedure is regulated by the 
 Act of 1800, and a jury should be impanelled on arraignment to 
 determine questions 2 or 3, supra. 
 
 If a prisoner have not at the time of the trial, from the defect of 
 his faculties, sufficient intelligence to understand the nature of the 
 proceedings against him, the jury ought to find that he is not sane, and 
 upon such finding he may be ordered to be kept in custody (q). 
 
 Where a prisoner, indicted for uttering seditious words, upon arraign- 
 ment shewed symptoms of insanity, and an inquest was forthwith taken 
 under the statute, it was held that the jury might form their judgment of 
 the state of the mind of the prisoner from his demeanor while the inquest 
 was being taken, and might thereupon find him to be insane without any 
 evidence being given as to his present state ; and that it was unnecessary 
 to ask him whether he would cross-examine the witnesses or offer any 
 remarks or evidence, as that would be a useless prolongation of a painful 
 proceeding (r). So the jury may take into consideration both the con- 
 duct of the prisoner in their presence and the evidence given (s). 
 
 Where on a prisoner being arraigned, his counsel stated that he was 
 insane, and a jury was sworn to try whether he was so or not, Williams, J., 
 held that the counsel for the prosecution should call his witnesses to sheAV 
 that the prisoner was sane and capable of pleading ; as this was not so 
 much an issue joined as a preliminary inquiry for the information of the 
 Court {t). But in a similar case, Cresswell, J., held, notwithstanding the 
 preceding case, that, as the presumption is that a man is sane, if the 
 prisoner's counsel suggested that he was insane, he must give evidence 
 of the fact (u). 
 
 {n) 3 C. & K. 121, Williams, J. («) R. v. Turton, 6 Cox, 385. It is said 
 
 (o) R. V. Israel, 2 Cox, 2(53. in the old authorities that if a person in a 
 
 (p) R. V. Schleter, 10 Cox, 409. As to frenzy happens by oversight, or by means 
 
 former procedure, see 1 Hawk. c. 1, s. 4 ; of the gaoler, to plead to his indictment, 
 
 R. V. Ley, 1 Lew. 239, Hullock, B. ; Bac. and is put upon his trial, and it appears to 
 
 Abr. Idiot (B) ; 1 Hale, 33, 35, 36 ; Somer- the Court upon his trial that he is mad, the 
 
 ville's case, 1 And. 107 ; 1 Sav. 50, 56 : judge in his discretion may discharge the 
 
 Fost. 46; Kel. (J.), 13; 1 Lev. 61 ; 1 Sid. 72. jury of him and remit him to gaol to be 
 
 {q) R. V. Dyson, 7 C. & P. 305n. 1 Lew. tried after the recovery of his understand- 
 
 04, Parke, B. See a number of unreported ing, especially where any doubt appears 
 
 cases collected in Wood-Renton on Lunacy, upon the evidence touching his guilt, and 
 
 808, 809. this in favorem vitce ; and that if there is 
 
 (;•) R. V. Goode, 7 A. & E. 536. no colour of evidence to prove him guilty, 
 
 (s) R. V. Davies [ 1853], 6 Cox, 326. or if there is pregnant evidence to prove his 
 
 (.') R. V. Davies, 3 C. & K. 328. insanity at the time of the fact committed,
 
 CHAP. IV.] Effect of Drunkenness. 87 
 
 The prisoner being arraigned on two indictments for nuirder, and 
 having with apparent intelligence pleaded to one and declined to plead 
 to the other, the plea of not guilty was entered for him with the assent of 
 his counsel. The case was then opened, and the first witness examined, 
 and it was then set up by his counsel that he was insane and not in a fit 
 state to be tried. It was held that the proper time for making that sugges- 
 tion was before the prisoner pleaded, and that, had it then been made, a 
 jury should have been impanelled to try the question whether he was 
 sane and in a fit state to be tried ; but that, as the trial had been begun, 
 and it would be manifestly inconvenient to recommence the trial of the 
 collateral issue, and as, moreover, it appeared that the evidence as to the 
 prisoner's present sanity was very much mixed up with the general ques- 
 tion of his sanity, it was open to the Court, under the Trial of Lunatics 
 Act, 1800 {v), to take the whole of the evidence, and then leave to the 
 jury both questions as to the prisoner's state of mind at the time of the 
 act, and at the time of trial {rr). 
 
 A person deaf and dumb from four years of age was indicted for 
 larceny from the person, and not answering when called upon to plead, 
 the jury found the prisoner ' mute by the visitation of God.' The Coiu-t 
 then ordered a plea of ' not guilty ' to be entered, and the trial to proceed. 
 A relation of the person, who could in some degree communicate with 
 the prisoner by means of signs, was sworn to interpret the nature of the 
 proceedings and the evidence, and the Court assigned counsel to 
 the prisoner. At the conclusion of the case, after the summing up of 
 the presiding judge, the jury found the prisoner guilty, but in answer to 
 a question left to them in the summing up found that the prisoner ' is 
 not capable of understanding, and, as a fact, has not understood the 
 nature of the proceedings.' On a case reserved, it was held, that the 
 above finding shewed that the prisoner was at the time of the trial of 
 non-sane mind, as he had not sufficient intellect to understand the 
 proceedings ; therefore, that it was wrong to enter a plea of not guilty, 
 or allow the trial to proceed : and that the jury should have been 
 discharged, and an order made to detain the prisoner under sect. 2 of the 
 Act of 1800 {x). 
 
 Drunkenness. — Drunkenness is described by Coke and Hale as 
 dementia affecfota, or acquired madness. 
 
 Vohmtar?/ Drunkenness. — The older authorities lay it down ns a general 
 rule that voluntary drunkenness does not take away responsibility for any 
 crime {y) and must be considered rather an aggravation than a defence (t). 
 This rule is qualified by holding that drunkenness is not a defence to a 
 
 then upon the same favour of hfo and iz) Co. Litt. 247. Beverley's case. 4 Co. 
 
 liberty it is fit that the trial proceed in Rep. 125. Nam omne crimen ebrietas ir- 
 
 order to his acquittal. Bac. Abr. Idiot (B). cctidit ct dcteqit. Cf. 4 Bl. Com. 2(5. In 
 
 I Hale, 35, .30. 18 St. Tr. 411, Foster, J. Reniger v. Fogossa, 1 Plowd. 1, 19, it i.s 
 
 (v) Ante, p. 84. said, ' if a person that is drunk kills another 
 
 (w) R. V. Southey, 4 F. & F. 864. this shall be felony, and he shall be hanged 
 
 (a-) R. V. Berry, 1 Q.B.D. 447 : 45 for it, and yet he did it through ignorance, 
 
 L. J. M. C. 123, followed in Ex parte Emery for when he was drunk he hatl no undcr- 
 
 [1909], 2 KB. 81 ; 73 J. P. 284. " standing or memory: but ina-smuch a.s 
 
 (y) Co. Litt. 247. 1 Hale, 32. Cf. 1 that ignorance wa.s occasioned by his own 
 
 Hawk. c. 1, s. 6. R. v. Meade [19U9], 1 act and folly, and he might have avoided it, 
 
 l\.B. 895. he shall not be privileged thereby.'
 
 88 Of Criminal Res])onsibility. [book i. 
 
 charge of crime unless it amounts to unsoundness of mind (a), or has 
 produced in the defendant a mental or physical condition inconsistent with 
 the inference that acts done by him under the influence of drink were 
 intentional, where intent or premeditation is of the ess:nce of tho crime (6). 
 A man who, while suffering from delirium tremens, feloniously wounded 
 another, was held to have been insane when he committed the act (c), 
 and the same has been held in a case of temporary mental derangement 
 caused by drink {d). 
 
 In R. V. Meakin (e), a case of maliciously stabbing, Alderson, B., 
 said that with regard to the intention, drunkenness might perhaps be 
 adverted to according to the nature of the instrument used (/'). If a 
 man used a stick, a jury would not infer a malicious intent so strongly 
 against him, if drunk, when he made an intemperate use of it, as they 
 would if he had used a different kind of weapon ; but where a dangerous 
 instrument was used, which, if used, must produce grievous bodily 
 harm, drunkenness could have no effect on the consideration of the 
 malicious intent of the party (g). So drunkenness is often very material 
 where the question is as to the intent with which an act was done. On 
 an indictment for inflicting a bodily injury dangerous to life, with intent 
 to murder, it appeared that the prisoners were both very drunk at the 
 time, and Patteson, J., told the jury, that ' although drunkenness is 
 no excuse for any crime whatever, yet it is often of very great importance 
 in cases where it is a question of intention. A person may be so drunk 
 as to be utterly unable to form any intention at all, and yet he may be 
 guilty of very great violence ' (h). So where a prisoner was indicted 
 for shooting with intent to murder, and he was shewn to have been 
 intoxicated shortly before he fired the shot ; Coleridge, J., told the 
 jury, that ' drunkenness is ordinarily neither a defence nor excuse for 
 crime, and where it is available as a partial answer to a charge, it rests 
 on the prisoner to prove it, and it is not enough that he was excited or 
 rendered more irritable, unless the intoxication was such as to prevent 
 his restraining himself from committing the act in question, or to take 
 away from him the power of forming any specific intention ' (i). And 
 where, on an indictment for attempting to commit suicide, it appeared 
 that the prisoner had thrown herself into a well, and the witness who 
 
 (a) It is immaterial whether the un- upon that case, but afterwards retracted his 
 
 soundness is or is not due to habitual or opinion, and there is no doubt that that 
 
 voluntary drinking. 1 Hale, 32. case is not law.' R. v. Carroll, 7 C. & P. 
 
 (6) 1 Hale, 32. R. v. Meade [1909], 1 145. But in this case there was evidence 
 
 K.B. 895, 898. Though voluntary drunken of provocation and in R. v. Meade {ubi sup. ) 
 
 ness cannot excuse from the commission of R. v. Grindley was approved. See cases 
 
 crime, yet where, as upon a charge of collected in Wood-Renton on Lunacy, 91 2n. 
 
 murder, the material question is, whether (c) R. v. Davis, 14 Cox, 563, Stephen, J. 
 
 an act was premeditated or done only with {d) R. v. Baines, Times, Jan. 1, 1886, 
 
 sudden heat and impulse, the fact of the noted in Wood-Renton on Lunacy, 912, 
 
 party being intoxicated has been held to be where Day, J., dissented from R. v. Burrow, 
 
 a circumstance proper to be taken into con- 1 Lew. 75, and R. v. Rennie, 1 Lew. 76. 
 
 sideration. R. v. Grindley, Worcester Sum. (e) 7 C. & P. 297. 
 
 Ass. 1819, MS. Holroyd, J. In a case of (/) See R. v. Carroll, 7 C. & P. 145, ante, 
 
 murder by stabbing with a bayonet, where note (b). 
 
 R. V. Grindley was relied upon. Park, J., in (ij) R. v. Meakin, tihi sup. 
 
 the presence of Littledale, J., said, ' Highly (h) R. v. Cruse, 8 C. &■ P. 541, 546. Cf. 
 
 as I respect that late excellent Judge (Hoi- R. v. Doherty, 16 Cox, 306, Stephen, J. 
 
 royd), I differ from him, and my brother (t) R. v. Monkhouse, 4 Cox, 55. 
 Littledale agrees with me. He once acted
 
 CHAP, iv.j Ejfect of Drunkenness. 89 
 
 proved this, stated that at the time she did so, she was so drunk as not 
 to know what she was about ; Jervis, C.J., said, ' If the prisoner was 
 so drunk as not to know what she was about, how can you say that 
 she intended to destroy herself ? ' {j) So drunkenness may be taken 
 into consideration in cases where what the law deems sufficient provo- 
 cation has been given, because the question is, in such cases, whether 
 the fatal act is to be attributed to the passion of anger excited by the 
 previous provocation, and that passion is more easily excitable in a 
 person when in a state of intoxication than when he is sober {k). Where 
 the question is whether words have been uttered with a deliberate purpose, 
 or are merely low and idle expressions, the drunkenness of the party 
 uttering them is proper to be considered {I). But if there is really a 
 previous determination to resent a slight affront in a barbarous manner, 
 the state of drunkenness in which the prisoner was, ought not to be 
 regarded ; for it would furnish no excuse {I). So, upon an indictment 
 for stabbing, the jury may take into their consideration, among other 
 circumstances, the fact of the prisoner being drunk at the time, in order 
 to determine whether he acted under a bona fide apprehension that his 
 person or property was about to be attacked (m). So on an indictment 
 for an assault, in considering whether the prisoner apprehended an 
 assault upon himself, the jury may take into consideration the state 
 of drunkenness in which he was (w). There is no reported decision in 
 England on the question whether drunkenness can be considered as 
 negativing the animus furandi in larceny ("). 
 
 The English rule as to the effect of drunkenness on criminal respon- 
 sibility seems to have been correctly laid down in a recent New Zealand 
 case, E. i\ Matheison (p). The indictment contained two counts : (1) for 
 stealing tobacco and cigarettes in a store ; (2) for breaking into the 
 store with intent to steal. The defence raised was that the defendant was 
 so drunk as not to be responsible. Cooper, J., charged the jury as follows : 
 ' If a man chooses to get drunk, it is his own voluntary act. In cases, 
 however, where intention is the main ingredient in an offence, drunkenness 
 may under certain circumstances amount to a sufficient defence. . . . 
 
 ' In the first count, alleging an actual theft, you must be satisfied that 
 the prisoner, if he took the cigarettes, did so with a fraudulent intent ; 
 and in the second count, the intent is the sole ingredient of the alleged 
 offence. The offence would not be complete under the second count 
 unless the store was broken into by the prisoner with intent to commit 
 an offence. . . . 
 
 ' If that intent existed it does not matter whether the prisoner was 
 drunk or sober, for a criminal intent may exist in the mind of an intoxi- 
 cated person, and if so his drunkenness is no excuse. But if the drunken- 
 ness is such as to take away from his act all criminal intent {l>p), then his 
 
 [j) R. V. Moore. 3 C. & K. 319. Cf. R. R. v. Egan [18971, 23 Vict. L. R. 159, a con- 
 
 V. Doody, 6 Cox, 4(53. viction of a mother for manslaughter of her 
 
 (k) R. V. Thomas, 7 C. & P. 817, Parke, infant by overlaying it was quashed on the 
 
 B. R. V. Pearson. 2 Lew. 144, Park, J. ground that going to bed drunk with the 
 
 [I) R. V. Thomas, nhi supra. chiW, and overlaying it by mischance, was 
 
 (wi) R. V. Marshall, 1 Lew. 76. R. t". not manslaughter, t^ee 8 Edw. VII. c. (»7, 
 
 Goodier, ibid., Parke, J. g. 13. 
 
 (n) R. V. Gamlen. 1 F. & F. 90, Crowder, J. (p) [1906] 25 N. Z. L. R. 879. 
 
 (o) It has been so held in R. v. Corbet (pp) See R. v. Meade [1909], 1 K.B. 895, 
 
 [1903], Queensland State Reports, 246. In 898.
 
 90 Of Cnminal Responsibility. [book i. 
 
 act is not criminal. If the prisoner blundered into the store through 
 a drunken mistake, and under such circumstances as to indicate inability 
 to form any definite purpose, and especially to form the purpose of 
 committing a larceny, then he ought to be acquitted. If, on the other 
 hand, although under the influence of liquor, he was not so intoxicated as 
 to be unable to form such purpose, and knew what he was about, then 
 his partial intoxication will not excuse him ' (q). 
 
 Special provision is made by the Inebriates Act, 1898 (61 & 62 Vict, 
 c. 60) (r), for dealing with habitual drunkards convicted of oSences com- 
 mitted under the influence of drink, or of which drunkenness was a 
 contributing cause. The statute appears to proceed on the theory that 
 drunkenness is not an excuse for crime, but if habitual a ground for 
 special treatment with a view to seclusion and reform of the offender. 
 
 The terms of sect. 1 of the Act shew some uncertainty as to the position 
 of drunkenness with respect to criminal liability. For the section 
 provides for the special treatment of persons convicted on indictment 
 of certain kinds of offences, if ' the Court is satisfied from the evidence 
 that the offence was committed under the influence of drink, or that 
 drunkenness was a contributory cause of the offence,' and that the offender 
 is a habitual drunkard. According to the common law rule above stated, 
 if the offender was drunk enough he would be acquitted, and the Act of 
 1898 could not be brought into operation. 
 
 Involuntary Drunkenness. — If a person, by the unskilfulness of 
 his physician, or by the contrivance of his enemies, eat or drink such 
 a thing as causes frenzy, this puts him in the same condition with any 
 other frenzy, and equally excuses him {s). This rule has been extended 
 in Ireland to cases in which such causes as long watching, want of sleep, 
 or depravation of blood, have reduced a person to such a condition 
 that a smaller quantity of drink would make him drunk than would 
 produce such a state if he were in health (/). 
 
 III. Compulsion, or Subjection to the Power of OihQvs.—General 
 rule. — Persons are properly excused from those acts which are not done 
 of their own free will, but in subjection to the fower of others (w). Actual 
 physical force upon the person and present fear of death may in some 
 cases excuse a criminal act. Thus, although the fear of having houses 
 burnt or goods spoiled is no excuse in law for joining and marching 
 with rebels, yet an actual force upon the person and present fear of death 
 
 (q) The jury fouud that the prisoner had cited Wood-Renton on Lunacy, 913, where 
 
 bhindered into the store under a drunken is also cited a suggestion made in R. v. 
 
 mistake, and without any intention to Mountain, Leeds Assizes, April. 1888, by 
 
 commit an offence, but that while in the Pollock, B., that where insane predispo- 
 
 store he appropriated the cigarettes, and sition was the proximate cause of the in- 
 
 knew then and there that he was taking the toxication, the same rule as to irresponsi- 
 
 cigarettes of another person. On this find- bility would apply. 
 
 ing, a verdict of guilty of larceny was (u) 1 Hale, 43. Blackstone says (4 Com. 
 directed. Cf. R. v. Nuttall [1908], 25 T. 27), that though a legislator establish 
 L. R. 76, where it was said that drunkenness, iniquity by a law, and command the sub- 
 while no excuse for crime, was a matter to ject to do an act contrary to religion and 
 be considered in fixing the punishment. sound morality ; yet obedience to such 
 
 (r) Post, p. 244. Cf. the Children Act, laws, while in being, is a sufficient extenu- 
 
 1908 (8 Edw. VII. c. 07), s. 20, pos/, p. 912. ation of civil guilt before the municipal 
 
 (s) 1 Hale, 32. tribunal ; though a different decree will be 
 
 (<) R. V. Mary R. [1887], Palles, C.B., pronounced in foro conscientice.
 
 CHAP. IV.] Necessity— Mar i/al Coercion. 91 
 
 may form such excuse, provided they continue all the time during which 
 the party remains with the rebels (v). The rule is sometimes stated that 
 obedience to usurped power, which would otherwise be treason, is excused 
 only where actual physical compulsion is used, or directly available (w). 
 And in general the person committing a crime will not be answerable if 
 he was not a free agent, and was subject to actual physical force at the 
 time the act was done. Thus, if A. by force takes the arm of B., in which 
 is a weapon, and therewith kills C, A. is guilty of murder, but B. is not : 
 but if it is only a moral force put upon B., as by threatening him with 
 duress or imprisonment, or even by an assault to the peril of his life, in 
 order to compel him to kill C, it is no legal excuse (x). Where a mob 
 forced several persons to go with them, and to take actual part in breaking 
 threshing machines, and one of them escaped as soon as he could, he 
 was held not to be guilty of the breaking (y). An idiot or lunatic, or 
 a child so young as not to be punishable for his criminal act, or any 
 innocent agent, when made use of for the purpose of committing crimes, 
 is merely an innocent instrument of the procurer, who is answerable as 
 a principal (z). As to persons in 'private relations, neither a child nor 
 a servant is excused for the commission of any crime, by the command or 
 coercion of the parent or master (a). Sir J. Stephen expresses the opinion 
 that in most, if not all cases, the fact of compulsion is matter of mitiga- 
 tion of punishment, and not matter of defence (b). 
 
 Necessity. — Closely related to compulsion is the plea which has 
 been described as necessity (r) or choice of evils (d), which rests not on 
 physical compulsion, but on the force of temptation, or on disputations 
 as to whether stress of hunger or desire to save one's own life can justify 
 theft or homicide. In R. v. Dudley (e), two sailors were held not to be 
 excused from liability to conviction for murder, who, being adrift in an 
 open boat, without food, under stress of hunger killed and ate a fellow 
 sailor. 
 
 Coverture. — With a few obvious exceptions, a woman is not deemed 
 incapable of crime or excused from responsibility of crime by reason of her 
 sex (/). But the relationship of husband and wife creates in favour of 
 the wife a position of non-responsibility in certain cases of crime. A 
 wife cannot be made criminally liable as a principal by receiving 
 her husband when his offence is treason (f/), nor as an accessory after the 
 fact to a felony committed by her husband (//), nor is she liable, criminally, 
 for receiving jointly wdth her husband a traitor or felon (0, nor for 
 
 (r) McGrowthcr's case, Fost. 13 ; 18 St. (r) Stcph. Dit;. Cr. L. (mli cd.), arl. 
 
 Tr. 393, 394, Lee, C.J. R. v. Tyler, 8 C. & 25. 
 
 P. Ci\C>. Id) R. V. Stratton f 178(tl, 21 St. Tr. I(»4.-.. 
 
 (w) See also Sir H. Vane's case, (i St. Tr. 1223, acts done l)y the Counril of Madras 
 
 119; Kel. (J.), 14. Axtel's case, Kel. (J.), to depose and restrain the (Jovernor. wlio 
 
 13. was acting in an arbitrary and illegal nan- 
 
 (x) 1 Hale, 43. 1 East. P.C. 22.'). ner. Di.scu.ssed in R. r. Dudley, 14 Q.H.D. 
 
 (V) R. V. Crutchley, 5 C. & P. 133. at p. 285. 
 
 (2) 1 Hawk. c. 31, s. 7. 1 East, (e) 14 Q.B.I). 273. 
 
 P.C. 228. Vide post, p. 104. ' Acces- (/) Hawkins (1 P.C. c. 65, s. 8) .-^a) s a 
 
 sories.' woman may he giiiltv of riot. 
 
 {a) 1 Hale. 44. 51(i. 1 Hawk. e. 1, s. 14. (</) 1 Hale, 47. IHawk. c. 1. s. 10. 
 
 Moore, K.B. 813, Kel. (J). .34. {h) 1 Hale. 48. ()21. 7>o.«/. p. 128. 
 
 (b) Dig. Cr. L. (0th cd.), p. 24n. (i) 1 Hale, 48, r,21, vide /o•^^ p. 128.
 
 92 
 
 Of Criminal Responsibility. 
 
 [BOOK I. 
 
 conspirac}^ with her husband (/) ; nor can she at common law be convicted 
 of stealing her husband's goods (k). It is not clear whether these exemp- 
 tions rest on the theory of identity of person created by marriage, or 
 upon the theory that the wife's acts in receiving her husband or con- 
 spiring with him are done in obedience to his will [1), because she is in 
 the eye of the law suh potestate viri. As regards crimes charged to have 
 been committed by husband and wife jointly, no presumption arises in 
 favour of the wife merely from the fact of the conjugal relation; but where 
 certain forms of crime are committed by a wife in the presence of her 
 husband, she is presumed to have committed them under his coercion (m). 
 It is somewhat difficult to extract from the authorities any definite and 
 reasoned classification of the crimes to which this presumption applies (n). 
 It is said that if a wife commits treason or murder (o) in company with, 
 or by coercion of her husband (p), she is criminally responsible just as if 
 she were a, feme sole (q), and she is said by Blackstone to be responsible for 
 
 (j) 1 Hawk. c. 72, s. 8. Y. B. 38 E. 3, 3. 
 
 (k) 1 Hale, 514. The common law ha.s 
 been to some extent changed by the Married 
 Women's Property Act, 1882. See post, 
 Vol. ii. p. 12.51, tit. ' Larceny.' 
 
 (/) R. V. Manning, 2 C. & K. 903n. 
 
 (m) R. V. Baines, 69 L. J. Q.B. 681. Cf. 
 Brown v. Att.-Gen. of N. Z. [1898], A.C. 
 234, 237. 
 
 (n) The origin of the presumption is dis- 
 cussed by Sir James Stephen. Dig. Cr. L. 
 (6th ed.) Appendix, p. 395. 
 
 (o) See R. v. Alison, 8 C. & P. 418, infra. 
 
 (p) R. V. Buncombe, 1 Cox, 183. 
 
 (q) 1 Hawk. c. 1, s. 11. 1 Hale, 45, 47, 
 48, 516. Kel. (J.) 31. 2 Bl. Com. 29. 
 ' The reason given is the heinousness of 
 those crimes. I find no decision which 
 warrants the position in the text, as to 
 treason, murder or robbery. Somerville's 
 case, 1 And. 104, which is the only case 
 where husband and wife have been con- 
 victed of treason, only shows that a wife 
 may be convicted of treason with her hus- 
 band. There Arden and his wife were 
 charged with procuring Somerville to 
 destroy the Queen, and both found guilty, 
 but as none of the evidence is stated, it 
 may have been that the wife was the insti- 
 gator, and both properly convicted. In 
 Somerset's case, which is the only case of a 
 wife convicted, as well as her husband, as 
 an accessory to a murder, according to 
 3 Co. Inst. 50, the Earl and Countess were 
 indicted as accessories before the fact, to the 
 murder of Sir T. Overbury, the wife was 
 arraigned alone first, and pleaded guilty, 
 and being asked what she had to say why 
 judgment of death should not be given 
 against her, she said, " I can much aggra- 
 vate, but nothing extenuate my fault." (2 
 St. Tr. 957.) Assuming, therefore, that the 
 indictment was joint against both, the case 
 only proves that the wife may properly be 
 convicted upon her own confession, which 
 indicates that she was the more guilty 
 
 party ; as it is clear she was in this case. 
 See Hume's Hist. Eng. vol. 6, p. 68, &c. 
 But as the Earl and Countess were sepa- 
 rately arraigned, and on different days, and 
 as the indictment against the Earl, as re- 
 cited in his pardon (2 St. Tr. 1014), is 
 against him alone, I infer that the Countess 
 was indicted alone ; if so, the case is 
 merely that of a wife pleading guilty to an 
 indictment charging her alone as accessory, 
 and unless in such a case she either pleaded 
 that she committed the offence in company 
 with her husband (as it seems .she may, 1 
 Hale, 47. Y. B. M. 37 Ed. III. Rot. 34), 
 or such appeared to be the case upon her 
 trial, no question as to coercion could arise. 
 In R. V. Alison, 8 C. & P. 418, Patteson, J., 
 mentions an old case, where a husband and 
 wife, intending to destroy themselves, took 
 poison together ; the husband died, but the 
 wife recovered, and was tried for the mur- 
 der, and " acquitted solely on the ground 
 that, being the wife of tlie deceased, she 
 was under his control, and inasmuch as the 
 proposal to commit suicide had been first 
 suggested by him, it was considered that 
 she was not a free agent ; " but I know 
 from the very learned judge himself that he 
 guarded against subscribing to the reason 
 given for this decision. Probably the case 
 referred to is an anonymous one, Moore, 
 K.B. 754, where it is said, the question 
 was, whether it was murder in the woman, 
 and the recorder caused the special matter 
 to be found, but no decision is stated, nor 
 have I been able to find the case elsewhere. 
 Before Somerville's case, 26 Eliz., and 
 Somerset's case [1616], I find no exception 
 to the general rule that the coercion of the 
 husband excuses the act of the wife. (See 
 27 Ass. 40, Staundf. P.C. 26, 27, 142. Poul- 
 ton de Pace Regis, 130. Br. Ab. Coron. 
 108. Fitz. Ab. Coron. 130, 180, 199.) But 
 after those cases I find the following excep- 
 tions in the Books : — Bac. Max. 57, except 
 treason only. Dalton, c. 147, treason and
 
 CHAP. IV.] 
 
 Marital Coercion. 
 
 93 
 
 all crimes which, like murder, are mala in se, and prohibited by the law 
 of nature (r). But this statement is obviously too wide, as it would include 
 larceny. C. S. and his wife were indicted for the murder of a boy, 
 who was bound as a parish apprentice to the husband. It appeared 
 in evidence that both prisoners had used the apprentice in a most cruel 
 and barbarous manner, and that the wife had occasionally committed 
 the cruelties in the absence of the husband. But the surgeon who opened 
 the body deposed that, in his judgment, the boy died from debility and 
 want of proper food and nourishment, and not from the wounds, &c., 
 which he had received. Lawrence, J., directed the jury, that as the wife 
 was the servant of the husband, it was not her duty to provide the 
 apprentice with sufficient food and nourishment, and that she was not 
 guilty of any breach of duty in neglecting to do so ; though, if the 
 husband had allowed her sufficient food for the apprentice, and she had 
 wilfully withheld it from him, then she would have been guilty. But 
 that here the fact was otherwise ; and therefore, though in foro con- 
 scientice the wife was equally guilty with the husband, yet in point of law 
 she could not be said to be guilty of not providing the apprentice with 
 sufficient food and nourishment (s). The presumption of coercion of 
 a wife by a husband as to crimes committed in his presence has been 
 applied to the following felonies : Burglary {t), robbery (w), larceny and 
 
 murder, citing for the latter Mar. Lect. 12 
 (which I conceive refers to the reading of 
 Marrow, a Master in Chancery, in the time 
 of Henry VII. See Willes v. Bridger, 2 B. 
 & A. 282). 1 Hale, 45, 47, treason, murder 
 and homicide ; and p. 434, treason, murder 
 and manslaughter. Kel. (J.), 31, an obiter 
 dictum, murder only. Hawk. b. 1, c. 1, 
 s. 11, treason, murder and robbery. Bl. 
 Com. vol. i. p. 444, treason and murder ; 
 vol. iv. p. 29, treason, and mala in se, as 
 murder and ^he like. Hale, therefore, 
 alone excepts manslaughter, and Hawkins 
 introduces robbery, without any authority 
 for so doing ; and, on the contrary, in R. v. 
 Cruse, 8 C. & P. 54.5, a case is cited, where 
 Burrough, J., held that the rule extended 
 to robbery. It seems long to have been 
 considered that the mere presence of the 
 husband was a coercion (see 4 Bl. Com. 28), 
 and it was so contended in R. v. Cruse ; and 
 Bac. Max. 5(5, expressly states that a wife 
 can neither be principal nor accessory by 
 joining with her husband in a felony, be- 
 cause the law intends her to have no will ; 
 and in the next page he says, " If husband 
 and wife join in committing treason, the 
 necessity of obedience doth not excuse the 
 wife's offence, as it does in felony.''^ Now if 
 this means that it does not absolutely 
 excuse, as he has stated in the previous 
 page, it is warranted by Sonicrville's case, 
 which shows that a wife mat/ be guilly of 
 treason in company with her husbanti, and 
 which would be an exception to the general 
 rule, as stated by Bacon. So also would 
 the conviction of a wife with her husband 
 for murder in any case be an exception to 
 the same rule. Dalton cites the exception 
 
 from Bacon without the rule, and Hale fol- 
 lows Dalton, and the other writers follow 
 Hale ; and it seems by no means improb- 
 able that the exceptions of treason and 
 murder, which seem to have sprung from 
 Somerville's and Somerset's cases, and 
 which were probably exceptions to the rule 
 as stated by Bacon, have been continued by 
 writers without adverting to their origin, 
 or observing that the presence of the hus- 
 band is no longer considered an absolute 
 excuse, but only affords a prima facie pre- 
 sumption that the wife acted by his coer- 
 cion. See the learned argument of Mr. 
 Carrington in R. v. Cruse, 8 C. & P. 541, 
 544, 552. In 1849, G. Manning and his 
 wife were jointly convicted of murder, but 
 the question discussed in this note was not 
 raised, prol)ably because upon the evidence 
 it was plain that she was the more active 
 party in the offence. The case as reported 
 2 C." & K. 887, and 1 Den. 4()7, does not 
 advert to this question, but the charge of 
 the recorder to the grand jury, 2 C. & K. 
 903, contains some observations upon it. 
 See R. V. Smith, I). & B. 553 ()H,st. p. 94). 
 which is quite in accordance with tliis note.' 
 C. S. G. 
 
 (/•) 4 Bl. Com. 29. 
 
 (s) R. V. Squire and wife. Stafford Lent 
 Assizes, 1799. See Pt. 2 of the Children 
 Act. 1908, post, p. 912 ct scq. 
 
 (I) 1 Hale, 32. R. v. Knight. 1 C. & P. 
 116. R. V. Wharton, Kel. (J.). 37. 
 
 (u) As to this offence the authorities aie 
 inconsistent. In 1 Hawk. c. 1, s. II, 
 robbery is said not to be within the pre- 
 sumption as to coercion. The contrary 
 was ruled in a case cited in R. i: Cruse, 8 C.
 
 94 Of Criminal Responsibility. [book i. 
 
 receiving stolen goods {v), forgery {w), disposing of forged notes (x), wound- 
 ing with intent to disfigure {y), sending threatening letters {z). 
 
 In R. v. Archer (a), on an indictment against husband and wife for jointly 
 receiving stolen goods, it appeared that a burglary was committed by their 
 two daughters. The mother and the daughters brought {h) two trunks, 
 and packed them with a quantity of the stolen property. The trunks were 
 afterwards found in London (in consequence of a statement made by the 
 wife, who, Avhen the house was searched had denied that any of the 
 stolen goods were in it, and made various other false statements), and a 
 quantity of the stolen property was found concealed in different parts of 
 the house. On a verdict of guilty being returned against both husband 
 and wife, it was held, that as the charge against the husband and wife 
 was joint, and it had not been left to the jury to say whether she received 
 the ffoods in the absence of the husband, the conviction of the wife could 
 not stand, though she had been more active than her husband (c). 
 
 In R. V. McClarens {d), on an indictment against husband and wife 
 for receiving stolen sugar it appeared that the husband received it in the 
 first instance in the absence of his wife. Some remains of the sugar were 
 found on searching in a sink in the kitchen, and the wife stated that she 
 and her daughter had washed all the sugar away, and had burnt the bags 
 in which it was contained, and that she thought it a hard case that she 
 and her husband should be at a lo-is of four or five pounds. Coltman, J., 
 told the jurv that " if the husband received the property, knowing it to 
 be stolen, and if the wife received it from him with the like knowledge, 
 and with the purpose of aiding and assisting him in the object which he 
 had in view in receiving it, by turning it to pecuniary profit or in other 
 like manner, although prima facie she might be supposed to be acting 
 
 & P. 545, and in R. v. Torpey, 12 Cox, 45 ; ally inflict any violence upon the prosecutor, 
 and in R. v. Dykes, 15 Cox, 771, where and it was held that she ought to have been 
 Stephen, J., directed a wife to be acquitted acquitted. The facts (except as above 
 on an indictment for highway robbery with stated) were not submitted to the judges, 
 violence jointly with her husband, the jury As the wife met the prosecutor at tlie rail- 
 having found that she had acted under her way station, and induced him to go to a 
 husband's compulsion. Vide ante, p. 92, lonely spot where her husband wounded 
 note {q). him (see the note to the case), it is clear she 
 
 (v) 1 Hale, 45. 11 Hawk. c. 1, s. 9. 4 was an accessory before the fact, and 
 Bl. Com. 28. Kel. (J.) 31. According to responsible as such for her acts in the 
 some, if a wife commits larceny by the absence of her husband, and under the 
 command of her husband, she is not guilty ; statute then in force, 11 & 12 Vict. c. 46, 
 which seems to be the law if the husband s. 1, she ought to have been convicted as 
 be frenent, but not if he be absent at tlie such accessory.' C. S. G. 
 time and place of the felony committed. (s) R. v. Hammond [1787], 1 Leach, 447. 
 1 Hale, 45. It is no ground for dismissing (a) 1 Mood. 143. 
 an indictment for burglary or larceny as to (6) So in the report ; qucere, bought, 
 the wife that she is charged with her hus- (c) 'The marginal note is "upon a joint 
 band and described as his wife, for the charge against husband and wife, of re- 
 indictment is joint or .several according as ceiving stolen goods, the wife cannot, 
 the facts may appear, and on such an in- properly, be convicted, if the husband is," 
 dictment the wife might be convicted and which seems not to be warranted by the 
 the husband acquitted. 1 Hale, 4(i. case, which, at most, only decides that 
 
 {w) R. V. Hughes, 2 Lew. 229. where there is no evidence whatever that 
 
 (:r) See R. v. Atkinson [1814], Old Bailey the wife was present when the goods were 
 
 Jan. Sess., MS. Bayley, J. The conjugal received, or of her conduct when they were 
 
 relation was not proved in this case. received, she ought not to be jointly con- 
 
 [y) R. V. Smith, D. & B. 553. 'The jury victed with her husband.' C. S. G. 
 
 found that the wife acted under the coercion {d) 3 Cox, 425. 
 of the husband, and did not herself person-
 
 CHAP, iv.i Marital Coercion. 95 
 
 under the coercion of her luisband, that was rebutted by the active part 
 which she took in the matter with the intention above mentioned. But 
 if the part she took was merely for the purpose of concealing her husband's 
 guilt, and of screening him from the consequences, then she ought to be 
 acquitted. A wife cannot be convicted of harbouring her husband, when 
 he has committed a felony, and the mere circumstance of her attempting 
 to conceal what may lead to his detection appears to come within the 
 same principle.' 
 
 In R. V. Brooks (e), on an indictment against a wife for receiving stolen 
 goods, it appeared that her husband stole the goods from a shop, and 
 delivered them into her hands. Whether the articles were stolen at one 
 or at several times, or delivered to the prisoner at one or at different times, 
 did not appear. The husband absconded, his house was searched, and 
 a box taken from the prisoner, after a struggle on her part to retain it. 
 It contained pawn-tickets which related to the stolen goods. The prisoner 
 pledged some of the stolen goods, and had made false statements about 
 them. Parker, B., told the jury that, as her husband had delivered the 
 stolen articles to the prisoner, the law presumed that she acted under 
 his control in receiving them; but that this presumption might be re- 
 butted : if therefore they were satisfied that at the time when the prisoner 
 received the articles she knew that they were stolen, and in receiving 
 them acted not by reason of any coercion of her husband, but voluntarily, 
 and with a fraudulent intention, she might be found guilty ; and on her 
 being found guilty the questions were reserved, whether the direction was 
 right, and whether on the evidence there was any case for the jury ; and 
 it was held that the case failed on both points ; if there had been plenty 
 of evidence there would have been no case to go to the jury ; but it 
 appeared that there was no evidence at all ( /'). 
 
 In R. V. Banks (r/), on an indictment for larceny, it appeared that the 
 goods were found in the house of the prisoner's husband, who was a blind 
 man, and when they were found the prisoner said she had bought thoni 
 a long time before. Erie, J., said that if the prisoner had said nothing, 
 and the goods had simply been found in the house of the husband, there 
 would have been no evidence to go to the jury, but as she said she bought 
 the goods, it must be left to the jury to decide whether the goods were in 
 the possession of the prisoner or her husband; and he told the jnrythat 
 if they were of opinion that the goods were in the possession of the wife 
 without the consent and control of her husband, they must find her guilty. 
 In R. V. Wardroper {h) the prisoner was indicted together with her 
 
 (c) Dears. 184. her, and he does so in her absence, dehvers 
 
 (/■) 'Thisdecisionwascleailyright on (lie it to her, and she wears it; or, suppose a 
 
 ground that there was no evidenee wl»at- thief brings stolen goods to a house, and 
 
 ever as to tlie guiUy knowledge or conduet the husband declines to receive them, but 
 
 of the prisoner at the time the f/oods were is induced by the wife so to do. and after- 
 
 rereived. Parke, B., said that, as the wards the husbanii delivers them to the 
 
 prisoner received the goods from her lius- wife ; it cannot be doubted that in these 
 
 band, "it is difficult to see how she could be and the like cases .she may be convicU'd, 
 
 guilty of this offence." With all deference for the plain reason that she i.s actmg m no 
 
 it is perfectly easy to suggest cases where way under his coercion. C. S. G. 
 
 a wife may be convicted of receiving stolen ('/) 1 t'ox. 238. 
 
 goods from her husband. Suppose she in- (/() Bell, 249. 
 cites him to steal a diamond necklace for
 
 96 Of Criminal Responsibilitij. [book i. 
 
 husband and P. for burglary and receiving. The jury found P, guilty 
 of housebreaking, and the wife and her husband of receiving. Part of 
 the stolen property was found in the house where the prisoner and her 
 husband lived together, and the evidence warranted the jury in convicting 
 the husband of receiving ; but the only evidence which affected the wife 
 was that, some time after the robbery, in the absence of her husband, 
 she produced a quantity of the stolen property, and said it was to be 
 destroyed, and said she had been changing some foreign money, and 
 thought she was going to be taken uj) for it, and asked a young woman 
 to come down, if she were taken, and say a foreign captain had given her 
 part of the stolen property. It was contended that there was no evidence 
 that she received the property either in the absence of her husband or 
 from any other person than him ; and that if there was evidence for the 
 jury the question would be whether she received it from him, and if not, 
 whether she received it in his absence ; but Martin, B., ruled that there 
 was evidence for the jury, and did not leave either of these questions to 
 them. On a case reserved, it was held that the questions ought to have 
 been left to the jury, and that it was perfectly consistent with the facts 
 that the goods might have been received by the husband at his own house, 
 and so have come into the possession of the wife through her husband 
 in a manner that did not render her liable to be convicted (?'). 
 
 In R. V. Matthews (j), on an indictment against husband and wife 
 for jointly receiving stolen fowls, it appeared that the fowls were found 
 in the husband's house, and the wife said she had bought part from 
 people who came to the house in his absence, and that her husband bought 
 some at S. market on Wednesday ; and the husband afterwards said that 
 he was not out of the place where he resided on the Wednesday, and had 
 bought ' the fowls ' from the person who stole them ; so that the evidence 
 shewed either a joint receiving by both or a separate receiving by each 
 in the absence of the other, and the jury found both guilty. On a case 
 reserved, it was held that, assuming the receiving to have been joint, the 
 wife was entitled to be acquitted, as the offence was committed in her 
 husband's presence ; and assuming the receiving to have been separate, 
 the offence against both was not proved as laid, and that the husband 
 was rightly convicted, but the wife not (k). 
 
 In R. V. M'Athey (l), the jury found a wife guilty of stealing from 
 the person, and her husband guilty of receiving the property stolen, 
 knowing it to have been stolen, and also found that the wife acted volun- 
 tarily and without any restraint on the part of the husband, and that he 
 received the property from his wife knowing it to have been stolen by 
 her. It was held, on a case reserved, that the husband was rightly 
 convicted of feloniously receiving the property from his wife. 
 
 In R. V. Dring {m), upon an indictment against husband and wife for 
 
 (t) Martin, B., at the trial rightly treated shew any activity on the part of the wife 
 
 the indictment as joint and several. See 14 at the time of the receipt. See now 24 & 
 
 & 15 Vict. c. 100, s. 14 ; but there was no 25 Vict. c. 96, s. 94, by whicli persons 
 
 evidence of a receipt by the wife in the charged with a joint receipt of stolen 
 
 absence of her husband, so as to bring the property may be convicted of separate 
 
 case within that clause. receipts. 
 
 (j) 1 Den. 596. {/) L. & C. 250. 
 
 (k) 1 Den. 596. There was nothing to (m) D. & B. 329.
 
 CHAP. IV.] Marital Coercion. 97 
 
 jointly receiving stolen goods, the jury found that the wife received 
 them without the control or knowledge of and apart from her husband 
 and that the husband afterwards adopted his wife's receipt ; and it was 
 held that, upon this finding, the conviction of the husband could not be 
 supported. The word ' adopted ' might mean that the husband passively 
 consented to what his wife had done without taking any active part in 
 the matter, and in that case he would not be guilty of receiving. Or 
 it might mean that he did take such active part ; but this rigid con- 
 struction ought not to be put upon the v/ord ' adopted ' (w). But in R. v. 
 Woodward (0), where the thief delivered the stolen property to the 
 prisoner's wife in his absence, and she then paid sixpence on account, 
 but the amount to be paid was not then fixed ; and afterwards the prisoner 
 and the thief met, agreed on the price, and the prisoner paid the balance; 
 it was held that tliB receipt was not complete till the jDrice was fixed, and 
 the money paid, and consequently that the prisoner was rightly convicted 
 of receiving the stolen property. 
 
 Misdemeanors. — As to whether the presumption in favour of coercion 
 when a wife commits an offence in the presence of her husband extends 
 to misdemeanor, the authorities are not consistent. They display some 
 confusion between two distinct questions : (1) whether husband and wife 
 can be jointly indicted {f) for an offence, and (2) whether if the wife 
 is indicted, whether severally or jointly, for a misdemeanor committed 
 in her husband's presence, the presumption of coercion by him arises. 
 
 It has been held a wife may be indicted and convicted with her 
 husband for keeping a bawdy house {q), or gaming house (r). 
 
 In R. V. Dicks (5), it appears to have been held by all the judges, 
 upon an indictment against a married woman, for falsely swearing herself 
 to be next of kin and procuring administration, that she was guilty of 
 the offence, though her husband was with her when she took the oath. 
 
 In R. V. Cruse [t), a wife was convicted with her husband of assault 
 
 (h) It was doubted, whether 14 & 15 bably have as great, nay, a greater, share 
 
 Vict. c. 100, s. 14, apphed to successive in the crimmal management of the house, 
 
 receipts of the whoJe property stolen. See and that the offence was sucli as niiglit 
 
 the Statute of Frauds (29 Car. II. c. 3), generally be presumed to be managed by 
 
 s. 17, ' except the buyer shall accept part the intrigues of the sex. This case, and 
 
 of the goods so sold, and actually receive R. v. Ingram, 1 Salk. 384, .were decided on 
 
 the same.' No one ever doubted that a motioninarrest of judgment, and the Court 
 
 receipt of the whole was within this section, would presume if necessary that the wife 
 
 now embodied in s. 4 of the Sale of Goods had acted voluntarily, and the reasons 
 
 Act, 1893 (50 & 57 Vict. c. 71). Cf. R. v. given indicate that to warrant conviction 
 
 Orris, 1 Cr. Aj)p. R. 199 ; 73 J. P. 15. the wife must have acted voluntarily and 
 
 (o) L. & C. 122. not under coercion.' C. S. G. 
 
 (/)) In R. V. Martm, 8 A. & E. 481, hus- (*) 1 Hawk. c. I, s. 12. R. v. Dixon, 10 
 baud and wife were convicted of obtaining Mod. 335. 1 Salk. 384 on demurrer. ' By tlie 
 goods by false pretences. The judgment indictment the husband and wife cl idcrqxc 
 was reversed, but not on the ground of eorum were charged with the offence. The 
 coercion, or that the indictment was joint. Court did, it would seem, hold the indict- 
 There is no doubt that in all misdemeanors ment good because it might be proved that 
 a wife may be jointly convicted with her the wife was not under coercion.' C. S. G. 
 husband, as she may be proved to have (s) [1817] 2 3IS. Sum. /(7. ' Of Offenders,' 
 acted voluntarily. and MS. Bayley, J. It does not appear 
 
 (q) R. V. WiUiams, 10 Mod. 63. 1 Salk. whether the ratio decidendi was that tlio 
 
 384. And see Baldwin v. Blackmore, 1 presumption did not apply to false swearing 
 
 Burr. 595, 600. ' The ratio decidendi in R. or that it was rebutted by the evidence. 
 
 c. WilHams was that the wife might pro- (0 8 C. & P. 541. 
 
 VOL. I. H
 
 98 Of Criminal Resfonsihility. [book i. 
 
 upon an indictment for inflicting bodily injury dangerous to life, with 
 intent to murder {u). A case was reserved by Patteson, J., and fully 
 argued before all the judges on two points, the second being as to the 
 application of the presumption as to coercion {v). All the judges were 
 of opinion that the point as to presumed coercion did not arise, as the 
 ultimate result of the case was a conviction for misdemeanor {w). This 
 decision can be explained on the ground that the presumption, if any, 
 was rebutted by the active part taken by the wife in the acts on which 
 the indictment was founded, viz., ferocious ill-treatment of her own 
 natural child. In K. v. Price [x), on an indictment of husband and wife 
 for a misdemeanor in uttering counterfeit coin, it was ruled that the 
 wife was entitled to acquittal on the ground that she uttered the coin 
 in her husband's presence. Mirehouse, Common Serjeant, after consulting 
 Bosanquet and Coltman, JJ., said, ' the judges agree with me, and I think 
 the reason of the thing is that the same rule which applies in cases of 
 felony should apply also to cases of misdemeanor like the present' {y). 
 And in E. v. Torpey (z), Russell Gurney, Recorder, after consulting 
 Bramwell, B., appears to have ruled that the presumption applied in 
 favour of a wife jointly indicted with her husband for the misdemeanor 
 of an assault causing actual bodily harm. 
 
 The presumption as to coercion of wife by husband arises only 
 when the offence in question was committed in the husband's presence (a). 
 Where a married woman offends alone without the company or coercion 
 of her husband she is responsible for her offence as much as if she were 
 a feme sole (6) ; and if it is of such a nature that it may be committed 
 by her alone, without the concurrence of her husband, she may be indicted 
 for it without the husband ; the husband need not be included in an 
 indictment for any offences to which he is in no way privy. Thus a 
 married woman may be indicted for riot (c) ; for being a common 
 scold {d) ; for assault and battery (e) ; for forcible entry ( /') ; and for 
 keeping a bawdy house {(]) ; and for trespass (/t). And she may also 
 be indicted for larceny of goods of which she is bailee {i), or for receiving 
 stolen goods by her own separate act without the privity of her husband ; 
 or if he, knowing thereof, leaves the house and forsakes her company, 
 
 (m) Framed on 7 Wm. IV. & 1 Vict. c. 88, cited. But qu. and see 1 Hawk. c. 81, s. 6, 
 
 s. 2 (rep.), which made the offence a capital and post, p. 585, tit. ' Barratry.' 
 
 felony. The jury returned a verdict for (c) Dalt. 447. 
 
 misdemeanor under the power given by {d) R. v. Foxby, 6 Mod. 213, 239. 
 
 7 Wm. IV. and 1 Vict. c. 88, s. 11 (rep.). (e) Salk. 384. ' 
 
 [v) 8 C. & P. 552. (/) 1 Hale, 21. Co. Lit. 357. In 1 Hawk. 
 
 (w) 8 C. & P. 558. c. 64, s. 35, the liability is said to be 'in 
 
 (x) 8 0. & P. 19. respect of such actual violence as shall be 
 
 (y) Hereferredtoarulingof Bayley, J.,in done by her in person, but not in respect 
 
 R. V. ConoUy, MS. Durham Spring Assizes, of what shall be done by others at her com- 
 
 1829, an indictment for a misdemeanor in mand, because such command is void.' The 
 
 uttering coin. This case is referred to as latter proposition appears not to be now law 
 
 Anon. Matthews Dig. Cr. L. 262. See owing to the change in the status of married 
 
 the note in 8 C. & P. 21. women. 
 
 (2) [1871], 12 Cox, 45, 49. (^) 1 Hawk. c. 1, s. 13, n. 11 : 1 Bac. Abr. 
 
 [a) Ante, p. 92. 294. 
 
 (6) 4 Bl. Com. 29. 1 Hawk. c. 1, s. 13. {h) 1 Bac. Abr. Baron and Feme (G). 
 
 1 Bac. Abr. Baron and Feme (G). where {i) See R. v. Robson, L. & C. 93 : and 45 
 
 it is said in the notes, that she cannot be & 46 Vict. c. 75. 
 indicted for barratry, and Roll. Rep. 39 ia
 
 CHAP. IV.] Marital Coercion. 99 
 
 she alone shall be guilty as accessory (;) ; and though in a serious ofience, 
 such as sending threatening letters, the husband is an agent in the 
 transaction, yet, if he is so ignorantly by the artifice of the wife, she 
 alone is punishable (k). 
 
 It is no excuse for the wife that she committed the offence by her 
 husband's order and procurement, if she committed it in his absence ; 
 at least it is not to be presumed in such case that she acted by coercion, 
 S. Morris was tried for uttering a forged order, knowing it to be forged, 
 and her husband for procuring her to commit the offence ; and it appeared 
 that her husband ordered her to do it, but that she uttered the instru- 
 ment in his absence. Upon a case reserved, the judges held that the 
 presumption of coercion at the time of the uttering did not arise, as the 
 husband was absent at that time ; and that the wife was properly con- 
 victed of the uttering, and the husband of the procuring (/). In R. v. 
 Hughes (m), where the prisoner was indicted for forgery and uttering 
 Bank of England notes, the principal witness stated, that, in consequence 
 of a conversation which he had had some time before with the prisoner's 
 husband, he went to the husband's shop ; that the husband was not 
 present, but he bought of her three two pound notes, at one pound four 
 shillings each ; that he paid her for the notes, and was to receive eight 
 shillings in change ; and before he had received the change, the husband 
 looked into the room, but did not come in or interfere with the business 
 further than by saying, ' Get on with you.' After this the witness and 
 the prisoner returned into the shop where the husband was ; the prisoner 
 gave him the change, and both the prisoner and her husband cautioned 
 him to be careful. The counsel for the prisoner objected that she acted 
 under the coercion of her husband ; that the evidence would have been 
 sufficient to have convicted the husband, if both the husband and wife 
 had been upon their trial ; and that therefore the prisoner ought to be 
 acquitted (w). But Thomson, B., said, ' I am very clear as to the law 
 on this point. The law, out of tenderness to the wife, if a felony be 
 committed in the presence of the husband, raises a presumption prima 
 facie, and friina facie only, as is clearly laid down by Lord Hale, that 
 it was done under his coercion (o) : but it is absolutely necessary that 
 the husband should in such case be actually present, and taking a part 
 in the transaction. Here it is entirely the act of the wife ; it is indeed 
 in consequence of a communication previously with the husband, that 
 the witness applies to the wife ; but she is ready to deal, and has on 
 her person the articles which she delivers to the witness. There was 
 a putting off before the husband came : and it was sufficient if before 
 that time she did that which was necessary to complete the crime. Tlio 
 coercion must be at the time of the act done, and then the law out of 
 
 (?) 22 Ass. 40. Dalt. c. 157. Taylor, 3 Burr. 1G79). 
 
 (^) Hammond's case, 1 Leach, 447. She (/) R. '^^ Morris [1814], R. & R. 270. MS. 
 
 has also been held indictable for recusancy Bayley, J. 
 
 (Hob. 96. Foster's case, 11 Co. Rep. 02. {m) Coram Thompson, B., Lancaster 
 
 1 Sid. 410. Sav. 25) ; forestaUmg (Sid. Lent Assizes, 1813. MS. 2 Lew. 229. 
 410. 2 Keb. 634 ; but see Bac. Abr. (n) He referred to 2 East, P.O. 559. 1 
 
 Baron and Feme (G), notes) ; and for Hale, 46. Kel. 37. 
 
 selling gin contrary to 9 Geo. II. c. 23 (o) 1 Hale, 516. See R. r. Cohen, 11 Co.x, 
 
 (Croft's case, 2 Str. 1120, and see R. v. 99. R. v. Torpcy, 12 Cox, 45, ante, p. 98. 
 
 h2
 
 100 Of Criminal Responsibility. [book i. 
 
 tenderness refers it prima facie to the coercion of the husband. But 
 when the crime has been completed in his absence, no subsequent act 
 of his (although it might possibly make him an accessory to the felony 
 of the wife) can be referred to what was done in his absence.' And 
 it seems that the correct rule is, that if a felony be shewn to have been 
 committed by the wife in the presence of the husband, the pritna facie 
 presumption is that it was done by his coercion ; but such presumption 
 may be rebutted by proof that the wife was the more active party, or 
 by shewing an incapacity in the husband to coerce. Thus, if the husband 
 were a cripple, and confined to his bed, his presence would not be 
 sufficient to exonerate the wife (p). 
 
 Where an indictment describes a woman as the wife of a man with 
 whom she is jointly indicted no evidence is necessary to prove that she 
 is his wife (q). 
 
 If a man and woman are indicted together, and the woman is not 
 described in the indictment as the wife of the man, the onus of proving 
 that she is his wife is upon her. Thus, where T. W. and J. J. were indicted 
 for burglary, and the woman pleaded that she was married to W., and 
 would not plead to the name of J., the grand jm-y who found the bill 
 was sent for, and in their presence, and with their consent, the Court 
 inserted the name J. W., otherwise J., not calling her the wife of T. W., 
 but giving her the addition of spinster, upon which she pleaded ; and 
 the Court told her that if she could prove that she was married to W. 
 before the burglary, she should have the advantage of it : but on the 
 trial she could not, and was found guilty, and sentenced (r). If a woman 
 indicted as a single woman pleads to the indictment, that is prima 
 facie evidence that she is not a feme covert, but is not conclusive (s). In 
 such a case evidence must be given to satisfy the jury that the prisoners 
 are in fact husband and wife (t). But cohabitation and reputation 
 will be sufficient evidence upon such point. W. and M. A. were indicted 
 for disposing of forged bank notes ; and it appeared that they had 
 lived and passed for man and wife for some months ; upon which it was 
 put to Gibbs, C.B., whether the woman was not entitled to an acquittal, 
 and he thought she was ; and counsel for the prosecution at once 
 acquiesced (u). Where, upon an indictment against a woman for har- 
 bouring a murderer, knowing him to have committed the murder, it was 
 probable that a marriage had taken place between the parties, in Ireland, 
 at a place where the registers were very imperfectly kept, and the parties 
 had for many years considered each other as man and wife, no evidence 
 was offered for the prosecution, with the sanction of the Court (v). 
 
 (p) R. V. Ciuse. 2 Mood. 53, Tindal, C.J. MS. Bayley, J. 
 
 {q) R. V. Knight, 1 C. & P. 116, Park, J. (v) R. v. Good, 1 C. & K. 185. Alderson, 
 (r) R. V. Jones, Kel. (.J.), 37. B., observed, ' If the prisoner went through 
 (■s) R. V. Quinn, 1 Lew. 1. R. v. Wood- the ceremony of marriage, and it should 
 ward, 8 C. & P. 561, Patteson, J. have turned out that there was some irregu- 
 {t) R. V. Hassall, 2 C. & P. 434, Garrow, larity in the marriage, nevertheless if it 
 B. Qucere, whether the proper course for a appeared that she had acted under the sup- 
 woman so indicted is not to plead the wrong position that she was the wife of the mur- 
 addition on arraignment, as by pleading to derer, and accordmg to the duty which she 
 the felony she answers to the name by which considered to be cast upon her, the Court 
 she is indicted. C. S. G. would have felt it right to have inflicted a 
 (ii) R. V. Atkinson, 0. B. Jan. &iess. 1814, very slight punishment upon her.' As in
 
 CHAP. IV.] Ignorance and Mistahe. 101 
 
 IV. Ignorance and Mistake. — Ignorance of Law. — The plea or excuse 
 of ignorance applies only to ignorance or mistake of fact, and not to error 
 of law. Ignorance of the law of England is not allowed to excuse any one 
 who is of the age of discretion and compos mentis from its penalties when 
 broken (w). On an indictment for a common nuisance by keeping a 
 lottery, the jury returned a verdict of guilty, with a recommendation 
 to mercy, on the ground that ' perhaps he did not know that he was acting 
 contrary to law.' This was ruled to be a verdict for the Crown, for ' ignor- 
 ance of a statute is no excuse if the statute is violated ' (x). The rule 
 applies to aliens as well as to citizens ; and it is no defence for a foreigner 
 charged with a crime committed in England, that he did not know he 
 was doing wrong, the act not being an offence in his own country (y). 
 Where, therefore, two Frenchmen were committed on a charge of murder 
 in a duel, and alleged that they were ignorant of the law of England, 
 and believed that acting as seconds in a fair duel was not punishable 
 here, as it was not punishable in France, and that this was a fair duel, 
 it was held that they were precisely in the same position as if they were 
 native subjects of England, and the Court refused to bail them (z). And 
 as a ship, public or private, on the high seas, is, for the purpose of jurisdic- 
 tion over crimes committed therein, a part of the territory to which the 
 ship belongs, a person on board an English ship is as much amenable to 
 the criminal law of England as if he came voluntarily into an English 
 county, and ignorance of the law is no more an excuse in the one case than 
 in the other (a). 
 
 Ignorance or Mistake of Fact. — When an act is done, the law judges 
 not only of the act but of the intent with which it was done. An act 
 done with an unlawful and malicious intent may be criminal, although 
 without such intent it would be innocent (6). The criminality of the 
 intent usually depends to a great degree on the state of the knowledge 
 or behef of the person who did the act. ' At common law an honest and 
 reasonable belief in the existence of facts, which, if true, would make 
 the act for which the prisoner is indicted an innocent act, has always been 
 held a good defence.' . . . ' Honest and reasonable mistake of fact stands 
 in fact on the same footing as absence of the reasoning faculty (in infants), 
 or perversion of that faculty as in lunacy ' (c). Thus if a man moaning 
 to kill or disable a burglar in his own house, by mistake kills one of his 
 
 every case, except bigamy and criminal quisque tenetur scire, neminem excusnt, is a 
 
 conversation, living together as man and maxim as well as of oui- own law as it was 
 
 wife is sufficient evidence of a marriage, of the Roman.' 4 Bl. Com. 27. citing 
 
 (Morris v. Miller, 1 AV. Bl. C32. 4 Burr. 2057 ; Plowd. 342rt : and Dig. Lib. xxii. tit. (5, c. i. 
 
 Woodgate v. Potts, 2 C. & K. 457), there (.t) R. v. Crawshaw. 30 L. J. M. C. 58. ()4. 
 
 seems to have been abundant evidence in (y) R. v. Esop, 7 V. & P. 45(i, Bosanquct, 
 
 this case of a mai'riage between the parties ; J., and Vaughan, B. 
 
 but, assuming that not to be so, it isdcserv- (z) Barronet's case. 1 E. & B. 1. 
 
 ing of consideration whether, if a woman (a) R. v. Sattler, R. v. Lopez, D. & B. 
 
 received and comforted a felon, honestly be- 525. 
 
 lievinghim to be her husband, that would not (h) R. v. Schofield, Cald. 397, Lord Mans- 
 
 enttle her to an acquittal, upon the ground field. Cf. Dig. Lib. xxii. tit. 0. c. 1. 
 
 that no guilty intention could exist under (c) R. v. Tolson, 23 Q.B.D. ltJ8, 181. 
 
 such circumstances, but, on the contrary, CaTe, J., adopted by the Judicial Connnk- 
 
 she was domg that which she honestly be- tee m Bank of N. 8. W. v. Piper [1897], 
 
 lieved to be her duty to do. C. 8. O. A. C. 383. 390. Cf. R. v. Priiice, L. R. 2 
 
 (it) 1 Hale, 42. ' Ignoranlia juris, quod C.C.R. 154.
 
 102 Of Criminal Responsibility. [book 1. 
 
 own family, he is not criminally responsible {d). And, if a woman marries 
 again during the life of her first husband, even though he has not been 
 absent for seven years, she is not indictable for bigamy, if in good faith, 
 and on reasonable grounds, she beheved her first husband to be dead 
 when she contracted the second marriage (e). The rule above stated is 
 expressed in the phrase ' actus noti facit reum nisi mens sit rea,' which in 
 substance means that ' the full definition of every crime contains expressly 
 or by implication a proposition as to a state of mind,' and, if that mental 
 element is proved to be absent in any case, the crime so defined is not 
 committed (/). The latest and it would seem a perfectly correct 
 statement of the law on this subject is : ' There is a presumption that 
 mens rea, a knowledge of the facts which render the act unlawful, is an 
 essential ingredient in every criminal offence. That presumption is, 
 however, liable to be displaced by the words of the statute creating the 
 offence or the subject-matter with which it deals, and both must be 
 considered ' (g). The particular mental elements necessary to constitute 
 particular crimes (h) will be stated in the chapters dealing with each crime. 
 In some cases enactments by their form seem to constitute the prohibited 
 acts into crimes even in the absence of the knowledge and intention 
 necessary to constitute a 7nens rea (i). Few, if any, such enactments 
 relate to indictable offences, and usually they prohibit certain acts in the 
 interests of the public revenue or private property (j). 
 
 Corporations. — At common law a corporation aggregate is regarded 
 as in the nature of things incapable of treason, felony, or misdemeanors, 
 involving personal violence, such as riots or assaults {k), or of perjury (l), 
 or it would seem offences for which the only penalty is imprisonment or 
 corporal punishment (m). By the Interpretation Act, 1889 (52 & 53 Vict, 
 c. 63, s. 2) (w), (1) ' in the construction of every enactment relating to 
 an offence, punishable on indictment, the expression person shall, unless 
 
 {d) Levett's case, Cro. Car. 538. See (/) See R. v. Bishop, 5 Q.B.D. 259, where 
 
 post, pp. 809, 813. 4 Bl. Com. 27. 1 Hale, a conviction was upheld for contravening a 
 
 42, 43. Cf. R. V. Dennis, 69 J. P. 256. lunacy statute by receiving two or more 
 
 (e) R. V. Tolson, 23 Q.B.D. 168. lunatics into a place not registered for luna- 
 
 (/) Ibid. 187, Stephen, J. See R. v. tics, although the jury specially found that 
 
 Prince, L. R. 2 C. C. R. 154, decided on the defendant honestly and reasonably 
 
 24 & 25 Vict. c. 100, s. 55 (abduction of a believed the persons in question not to be 
 
 girl under sixteen in reasonable belief she lunatics. This decision has been justified 
 
 was sixteen or more). The dissentient as based on the scope of the Act to the 
 
 opinion of Brett, J., contains strong reason- purpose for which it was passed. R. ?'. 
 
 ing against the conclusions of the majority Tolson, 23 Q.B.D. 168, Stephen, J. 
 
 of the Court. See 48 & 49 Vict. c. 69, ss. {j) Such are the Acts against piracy of 
 
 5, 7 (post, p. 948), for statutory defence of copyright works, trespass in pursuit of 
 
 reasonable belief that a girl is of or over game, and the sale of food, drugs, intoxi- 
 
 the age of sixteen or eighteen. cants, manures, and the accuracy of weights 
 
 ((/) Toppen V. Marcus [1908], 2 Ir. Rep. and measures. See Sherras v. de Rutzen 
 
 423, 425, Palles, C.B., adopting in sub- [1895], 1 Q.B. 918. Laird v. DobeU [1906], 
 
 stance the opinion of Wright, J., in Sherras 1 K.B. 131. Emery v. NoUoth [1903], 
 
 V. de Rutzen [1895], 1 Q.B. 918,921. The 2 K.B. 269. 
 
 question in Toppen v. Marcus was, whether (k) Pharmaceutical Society I'.London and 
 
 under 3 Edw. VII. c. 44, s. 22, a general ProvincialSupply Assocn., 5 App. Cas. 857. 
 
 dealer was guilty of an offence if on making (I) Wych v. Meal, 3 Peere Wms. 310. 
 
 a purchase he innocently entered in his (m) Pearks, Gunston & Tee, Ltd. v. Ward 
 
 books as true, a false name and address [1902], 2 K.B. 1, ChanneU. J. Hawke r. 
 
 given by the seller. E. Hulton & Co. Ltd. [1909], 2 K.B. 93 
 
 ih) See Bank of N. S. W. tK Piper [1847], (Lotteries Act, 1823, s. 41). 
 
 A.C. 383. («) Re-enacting 7 & 8 Geo. IV. c. 28, s. 14.
 
 CHAP. IV.] Liability of Aliens. 103 
 
 a contrary intention appears, include a body corporate.' It would 
 seem that the common law rule affords a good guide as to the inten- 
 tion of a statute. At common law, corporations are indictable for 
 nuisance and breaches of pul)lic duty, whether existing by the com- 
 mon law or created by statute, and whether the breach of duty is 
 by misfeasance or non-feasance. Corporations are often indicted' for 
 non-repair or illegal obstruction of highways (o), and it would seem 
 that a corporation aggregate is indictable for defamatory libel (j)). 
 
 Aliens. — There is no exception in favour of aliens (q) from lia- 
 bility for offences committed in England or on British ships, either 
 on the ground of want of allegiance (r), or ignorance of the law of 
 England (.§). But neither the common law nor the statute law extends 
 to the acts of aliens outside the King's dominions (/), or outside the 
 jurisdiction of the Admiralty of England ((O^ ancl the diplomatic re- 
 presentatives of foreign states and their suites are for the purposes of 
 criminal law of England regarded as resident in the country of which 
 they are accredited (i'), and there is some doubt as to the criminal 
 liability of an alien enemy, e.g., a prisoner of war(M-). 
 
 (o) R. V. Birmingham & Gloucestei- (t) In Mortensen r. Peters [1906], 8 
 
 Railway, 2 Q.B. 47. And see Alt. -Gen. Fraser (Just.), 93, the Scots Court of 
 
 V. London & Xorth-Western Railway Justiciary held that under 58 & 59 
 
 [1900]. 1 Q.B. 78. See post, Bk. xi. Vict. c. 42, s. 10, a foreigner could be 
 
 '>.nisance.' convicted of fishing in a foreign vessel 
 
 (p) 5 App. Cas. 857, 870, per Lord at a point outside the territorial waters 
 
 Blackburji. of the British Crown. This decision, 
 
 (q) As to statutes binding aliens, see while it may be in accord with the 
 
 Y.B. 13 Edw. IV. p. 9, pi. 5. specific terms of the relevant statutes, 
 
 (r) The allegiance of an alien who is admittedly not in accord witli inter- 
 is in British territory, is local and tem- national law. See Pari. Deb. (4th ser- 
 porary. and conuuonsurate with the ies), vol. 169. p. 987. 
 protection of the English law which he (») Vide ante, p. 31. 
 obtr. ins bv his presence. See de Jager (c) See Diplomatic Privileges Act, 
 r. Att-Oeii. for Xatal [1907]. A.C. 326. 1788 (7 Ann. c. 12). post, p. 299. 
 Wharton, Conflict of Laws (2nd ed.), (ic) See R. v. Molieres. Post. 188n. 
 s. 819. R. V. Johnson, 6 East, 583. 593. De 
 
 (.s) A7ite, p. 101. Jager v. Att.-Gen. of Xatal, uhi supra.
 
 ( lOSa ) 
 
 CANADIAN NOTES. 
 
 OF CRIMINAL RESPONSIBILITY. 
 
 Justification or Excuse, Common Law Rules Retained. — Code sec. 
 16. 
 
 Infancy. 
 
 (a) Infant Under Seven 7iot Responsible. — Code sec. 17. 
 
 (&) Under Fourteeyi, Conditional Responsihility. — Code sec. 18. 
 
 (c) Under Fourteen, not Capable of Rape. — Code sec. 298. 
 
 A charge of perjury cannot be sustained against a boy under four- 
 teen years without proof of guilty knowledge of wrong-doing. Code 
 sec. 18 has not changed the common law, which presumed against guilty 
 knowledge where the accused was under the age of fourteen years. 
 E. V. Carvery, 11 Can. Cr. Cas. 331. 
 
 Section 18 refers exclusively to mental capacity to judge between 
 right and wrong. R. v. Hartlen, 2 Can. Cr. Cas. 12. 
 
 No one under the age of fourteen years can commit rape. Sec. 298. 
 
 Unsoundness of 3Iind. 
 
 Lunatic not Responsible. — A case may be reserved at the 
 instance of the Crown upon a question of law as to whether there was 
 any evidence of insanity to support the jury's verdict of not guilty 
 upon that ground. R. v. Phinney (No. 1), 6 Can. Cr. Cas. 469. 
 
 "Without evidence to go to the jury, the prisoner cannot be acquitted 
 upon the plea of insanity. If there is in such a case to be any appeal 
 after a conviction, it must be on the ground that the evidence is so 
 overwhelming in the favour of the insanity of the prisoner that the 
 Court will feel that there has been a miscarriage of justice. A new 
 trial should not be granted if the evidence were such that the jury 
 could reasonably convict or acquit. R. v. Riel (No. 2), 1 Terr. L.R. 63. 
 
 The rule laid down by the Judges in reply to a question put to them 
 by the House of Lords, in McNaghten's Case, 4 St. Tr. (N.S.) 847, 
 that the accused was guilty if at the time of committing a crime he 
 knew that he was acting contrary to law, was followed and applied in.
 
 CHAP. IV.] Ignorance and Mistake. 1036 
 
 R. V. Kiel (No. 2), 1 Terr. L.R, 63, and leave to appeal was refused by 
 the Privy Council, 10 A.C. 675. 
 
 The fact that the accused was so mentally defective that he was 
 seized with an uncontrollable impulse to do the criminal act, although 
 cognizant of its nature and quality and th'at the act was wrong, does 
 not constitute a defence in law. The King v. Creighton, 14 Can. Cr. 
 Cas. 349. 
 
 Ignorance and Mistake. 
 
 Of Laiv. — Ignorance of law is not a good defence. Code sec. 22 ; 
 R. V. Brinkley, 12 Can. Cr. Cas. 454; R. v. Mailloux, 3 Pugsley (N.B.) 
 493'; R. V. Moodie, 20 U.C.Q.B. 399. 
 
 Of Fact. — Ignorance of fact is an excuse where rnens rea is an 
 essential ingredient of the offence charged. R. v. Sellars, 9 Can. Cr. 
 Cas. 153. 
 
 Compulsion. — Compulsion by threats is, in certain circumstances, 
 an excuse of certain offences. Code sec. 20. 
 
 Compulsion of a wife by her husband is not to be presumed because 
 the offence by the wife is committed in the presence of the husband. 
 Code sec. 21. 
 
 The former common law principle that a wife was exempt from lia- 
 bility in certain criminal acts upon the ground of coercion on the part 
 of her husband, did not apply where the wife had committed the 
 offence by her husband's order or procurement if she had coimnitted 
 it in his absence. R. v. Williams, 42 U.C.Q.B. 462. And a plea of com- 
 pulsion was rebutted by proof that the wife was the more active party, 
 even when the offence was committed in the presence of her husband. 
 R. V. Williams, 42 U.C.Q.B. 462 ; R. v. Howard, 45 U.C.Q.B. 346 ; R. v. 
 MacGregor, 26 O.R. 115. 
 
 Corporations. — A corporation is not subject to indictment on a 
 charge of any crime, the essence of which is either personal criminal 
 intent or such a degree of negligence as amounts to a wilful incurring 
 of the risk causing injury to others. Consequently there is no judg- 
 ment or sentence applicable to a conviction of a corporation for man- 
 slaughter. R. V. Great Western Laundry Co., 3 Can. Cr. Cas. 514. 
 
 The liability of a corporation to summary conviction was affirmed 
 in R. V. Toronto Railway Co., 2 Can. Cr. Cas. 471, and denied in Ex 
 parte Woodstock Elec. Lt. Co., 4 Can. Cr. Cas. 107.
 
 103c CrimiuaJ Respon.sihiUiy. [book i. 
 
 Sections 247 and 252, as to want of care in the maintenance of 
 dangerous things, do not extend the criminal responsibility of corpora- 
 tions beyond what it was at eonmion law. Ibid. 
 
 Although a corporation may not be guilty of manslaughter, it may 
 be indicted under Code sec. 222, and possibly under sec. 284, for having 
 caused grievous bodily injury by omitting to maintain in a safe con- 
 dition a bridge or structure which it was its duty to so maintain, and 
 this notwithstanding that death ensued at once to the person sustain- 
 ing the grievous bodily injury. R. v. Union Colliery Company, 3 Can. 
 Cr. Cas. 523, 4 Can. Cr. Cas. 400, 31 S.C.R. 81. 
 
 Under sec. 247 the corporation may be indicted for omitting with- 
 out lawful excuse to perform the duty of avoiding danger to human 
 life from anything in its charge or under its control. The fact that the 
 consequence of the omission to perform such duty might have justified 
 an indictment for manslaughter in the case of an individual is not a 
 ground for quashing the indictment. Union Colliery Co. v. R., 4 Can. 
 Cr. Cas. 400, 31 S.C.R. 81. 
 
 There are offences, such as assaults, which it is physically impos- 
 sible for a corporation to commit, but for such offences as they can 
 commit, whether of misfeasance or malfeasance, and for which the pre- 
 scribed punishment is one they can be made to endure, they are as 
 amenable to the criminal law as are natural persons. R. v. Central 
 Supply Association, 12 Can. Cr. Cas. 371. 
 
 Adminislering the Law. — For freedom from criminal responsibility 
 when administering the laAv, see Code sees. 24, -25, 26, 27, 28, 29, 30, 31, 
 32, 33, 34, 35, 36, 37 and 38. 
 
 Protection from Criminal Responsibilit]j. — Sections 27, 28 and 29 
 deal only with criminal responsibility while in cases to which sec. 26 
 applies, the sentence or process is a justification both as to civil and 
 criminal responsibility. 
 
 A peace officer executing a warrant of arrest which he believes to be 
 good is exempt from criminal responsibility therefor by this section, 
 although the warrant was bad on its face as following a conviction also 
 bad on its face. Gaul v. Township of Ellice (1902) , 6 Can. Cr. Cas. 15. 
 
 A police officer is not the agent of the municipal corporation which 
 appoints him to the position and, if he is negligent in performing his 
 duty as a guardian of the public peace, the corporation is not respon- 
 sible for such negligence in provinces where the English common law 
 applies. McCleave v. City of Moncton, 6 Can. Cr. Cas. 219.
 
 CHAP. IV.] Defective Process. 103cZ 
 
 Defective Process. — A search warrant affords absolute justification 
 to the officer executing it if it has been issued by competent authority 
 and is valid on its face, although the warrant may in fact be bad and 
 although it be set aside by reason of a failure to comply with legal 
 requirements. Sleeth v. Hurlbert (1896), 3 Can. Cr. Cas. 197, 25 Can. 
 S.C.R. 620. 
 
 A conviction for resisting a sheriff's officer will be supported not- 
 withstanding the fact that the date of the judgment under which it 
 was issued was erroneously stated therein, such an error being an 
 irregularity only and amendable. R. v. Monkman, 8 Man. R. 509. 
 
 And a warrant of commitment which is valid on its face is a justi- 
 fication to the constable who executes it, although the imprisonment it 
 directs is not authorized by law. R. v. King, 18 O.R. 566.
 
 ( 104 
 
 CHAPTER THE FIFTH. 
 
 OF PAETIES TO THE COMMISSION OF CRIME. 
 
 Sect. I. — Preliminary. 
 
 When two or more persons are to be brought to justice for participa- 
 tion in the same crime, questions arise as to the degree in which they 
 have participated, i.e., whether they are principal offenders, acces- 
 sories, or abettors, or whether their participation is innocent so that 
 the acts done by them do not make them participes criminis. At com- 
 mon law the question of the exact degree of complicity was of more 
 importance than under the statutes which now govern trial and pun- 
 ishment of participators in crime. 
 
 To make a man responsible for a crime, whether felony or misde- 
 meanor, it is not essential that he should be present at the place 
 where the crime takes effect, if he has, in fact, set in motion the agen- 
 cies by which the crime is effected. Controversies in respect of venue 
 or jurisdiction arise when the crime is initiated in one country and 
 takes effect in another, or is initiated in one judicial district and takes 
 effect in another (a). But in case of absence from the scene of the 
 crime, to make a man responsible as a principal offender, he must 
 have set in force physical agencies or have employed an innocent 
 agent. 
 
 Innocent Agent. — If a child under years of discretion, a madman, 
 or any other person of defective mind, is incited to commit a crime, 
 the inciter is the principal ex necessitate, though absent when the thing 
 was done(6) . In point of law, the act of the innocent agent is as much 
 the act of the procurer as if he were present and did the act himself (c) . 
 Where the prisoner had induced a child of the age of nine years to 
 take money from his father's till and give it him, Wightman, J., left 
 it to the jury to say whether the child was an innocent agent, that is, 
 whether he knew that he was doing wrong or was acting altogether 
 unconsciously of guilt and at the dictation of the prisoner (d). 
 
 The rule also applies in the case of libels published through 
 the agency of the post office (e), or the transmission of poison 
 by the hands of a person of .anj^ age, who is ignorant of its 
 nature (/) and for the purpose for which he is to deliver it 
 to the person intended to be killed or injured, or the uttering 
 of a forged document through a person who does not know that 
 it is forged (gf). It is not essential that the 'principal should be 
 present at the place where the crime takes effect. This is obvious in 
 
 (a) Discussed ante, p. 52. (e) R. v. Johnson, 7 East, 65. 
 
 (b) Fost. 349. Kel. (J.) 52. (/) Fost. .349. 
 
 (c) See R. v. Brisac, 4 East, 163, (g) R. v. Palmer, 1 B. & P. (N.R.) 
 ante, p. 53. '-'6. 
 
 (d) R. r. Manley, 1 Cox, 104.
 
 CHAP, v.] Of Innocent Agents, 105 
 
 the cases of crimes such as libels and false pretences and threatening 
 letters transmitted by post, and also applies in cases where poison is 
 placed for another person, and is taken by him in the absence of the 
 person who placed it {h). 
 
 A prisoner went to a die-sinker and ordered four dies of the size of a 
 shilling to be made, stating them to be for two whist clubs. Before 
 making them, the die-sinker communicated with the officers of the Mint, 
 who directed him to execute the prisoner's order, which he did by making 
 the first and third dies, and from these counterfeit shillings could be 
 coined. It was held that the prisoner was the principal, as the die- 
 sinker was an innocent agent (/). Where the prisoners applied to an 
 artist to engrave a copy of the coupons of the Netherlands Bank, and 
 the artist suspecting that there was an intention to defraud, communicated 
 with the Dutch consul, and under his direction, employed persons to 
 engrave the j)late in pursuance of the orders given him : it was held that 
 the artist was an innocent agent [k). 
 
 B. in London, and S. on the Continent, were engaged in planning the 
 forgery of a plate, as appeared by letters which had passed between them. 
 The order for the plate was given by B. to an innocent agent in England 
 before S. came to England. On his arrival he and B. went to the manu- 
 facturer, and the j)late was given to them. It was contended that B. 
 was the principal, and that S. was only an accessory before the fact, and 
 that it was the same as if B. had engraved the plate, and, if so, S. was 
 only an accessory. Tindal, C.J., said: ' That reasoning would be good 
 if the actual maker had been a guilty party, because he would stand in 
 a different position to those who had counselled him to the commission 
 of the crime. But it altogether fails where the immediate agent is an 
 innocent one. Then, those who have plotted and arranged that he 
 should do the particular act are themselves principals. Suppose the 
 prisoners had been both abroad, and that, having planned the forgery, 
 one of them had given the order for the j)late by letter, can it be doubted 
 that they would be indictable as principals ; and can it make any differ- 
 ence that one of them is in this country 1 It seems to me, then, that 
 the circumstance of the immediate agent in this forgery being an innocent 
 person renders the rule of law as to principal and accessory inai)plicable.' 
 And Alderson, B., said : ' If a person does an act of this kind, with a 
 guilty intent, he is not the agent of any one. If he does it innocently, 
 he is the agent of some person or persons ; and if two have agreed to 
 employ him, he is the agent of both. In this case, therefore, it is a ques- 
 tion for the jury whether the prisoners were jointly acting in procuring 
 this plate to be made. If they were, then the engraver acts on behalf 
 of both. It makes.no difference whether they were in England or else- 
 where ; when they have once agreed to do the thing, the act of one is 
 the act of all, although the rest be absent at the time ' {I). 
 
 The prisoner was indicted for forging a receipt for 5/. in the name of 
 W. S., who had gone to America ten years before. On receipt from the 
 
 (h) Fost. 349. Stepli. Dig. Cr. Law (,1c) R. v. Valler, 1 Cox, 84, Gurney, B., 
 
 (6th ed.), 30. Kcl. (J.) 52. 4 Co. Rep. and Wightman, J. 
 446. (0 R. r. Bull, 1 Co.x, 281. Ante, p. 52. 
 
 (j) R. V. Bannen, 2 Mood. 309.
 
 106 Of Parties to the Commission of Crime. [book i. 
 
 prisoner of a letter addressed to M. S., M. S. sent a letter containing a post- 
 office order, directed to W. S, This letter was opened by B., who wrote 
 to the prisoner and informed him of the receipt of the post-office order. 
 The prisoner wrote a letter in reply enclosing one purporting to come from 
 W. S., desiring B. to obtain payment of the post-office order, and saying 
 that he was ' at liberty to sign his hand,' if necessary, to the post-office 
 order. In consequence of this letter B. signed the name ' W. S.' to the 
 post-office order, and received the money and transmitted the balance, 
 after paying the expenses, U. lis. Qd., to the prisoner. B. stated that 
 he considered the letter gave him sufficient authority to sign the name 
 ' W. S.,' which he wrote in his ordinary hand, without imitating any 
 person's signature. It was urged that in order to constitute forgery 
 the writing of the name by an innocent agent must be as if it were the 
 act of the person whose name was written. Here the signing was as an 
 agent, and the prisoner had only been guilty of giving an authority, 
 which he had no right to give. B. did not sign as W. S., but on the ground 
 that he was authorised to sign W. S.'s name for him. Secondly, it was 
 not sufficient to give an innocent agent ' liberty ' or licence to do an act 
 to make the party giving such licence a principal, for a bare permission 
 would not make a man a principal (m). Piatt, B., after consulting Pollock, 
 C.B., ' We agree in thinking that as B. was an innocent agent, the sign- 
 ing the name W, S. by him is just the same as if it had been signed by the 
 prisoner himself, and that it is therefore a forgery. We also think that 
 the terms of the letter, which induced B. to sign, are quite immaterial, 
 as it was in consequence of that letter that the name was written ' (n). 
 
 But if a person who receives and utters a note knows that it is forged, 
 the person who gave it will not be punishable as a principal (o) ; and 
 where a person, having incited another to lay poison, is absent at the 
 time of laying it, he is an accessory only, though he prepared the poison, 
 if the person laying it is amenable as a principal ; but is punishable as a 
 principal if the person laying the poison is not so amenable (p). 
 
 Sect. II. — Principals and Accessories in Felony. 
 
 All persons who take any part in the commission of a felony are in 
 construction of law felons (q) : but at common law a distinction is drawn 
 in the case of felony between — (i.) Principals in the first degree; (ii.) 
 principals in the second degree, or accessories at the fact ; (iii.) accessories 
 before the fact ; (iv.) accessories after the fact. This distinction was of 
 importance with reference both to procedure and punishment : but 
 much of the earlier case law on the subject has been rendered obsolete by 
 legislation. 
 
 (i.) Princifols in the First Degree. 
 
 1. Principals in the first degree are those who have committed the 
 fact with their own hands or through an innocent agent (r), whether 
 the fact be a complete crime or an incitement to commit crime, 
 
 (//() R. V. Haddock, 2 Russ. C. & M. (o) R. v. Scares, R. & R. 25. 
 
 p. 946 (4tli ed.). 1 Russ. C. & M. 57 (4th (p) Fost. 349. 
 
 ed.), and 1 Hale, 616, were cited. [q) Fost. 417. 
 
 (?i) R. V. Clifford, 2 C. & K. 202. (r) Vide ante, p. 104.
 
 CHAP, v.] Of Prmcvpals and Accessories in Felony. 107 
 
 2. In treason and in misdemeanor all persons participating are liable 
 as j)rincipals, {Vide post, p. 138.) 
 
 The first count of an indictment charged the prisoners with uttering 
 a counterfeit sixpence to A., and on the same day uttering another to B. ; 
 the second count with uttering to C. ; and a third count with uttering 
 to D. The prisoners were in a town together all the day in question, 
 and in the evening quitted a public-house together, having first changed 
 their clothes for the purpose of disguise. Each of them uttered three 
 bad sixpences, made in the same mould, and of the same metal, to shop- 
 keepers living within a short space of each other, and the prisoners were 
 found together immediately afterwards with counterfeit money on their 
 persons, but there was no proof that they were together at either of the 
 utterings. There were other facts to shew a community of purpose. 
 On these facts, Erskine, J., at first called on counsel for the prosecution 
 to elect against which of the prisoners he intended to proceed. It was 
 then contended that if the prisoners jointly provided themselves with 
 the coin for uttering, and shared the proceeds afterwards, they were 
 jointly guilty of each act of uttering ; that in misdemeanor there being 
 no accessories, the acts which would make them accessories before the 
 fact in felony made them principals on this charge, and that at all events 
 one of them could be convicted of the two utterings on the same day, 
 and the other of the single uttering, of which he was guilty, on one of the 
 other counts. Erskine, J., then directed the trial to proceed, and in 
 summing up told the jury, that if two persons, having jointly prepared 
 counterfeit coin, planned the uttering, and went on a joint expedition, 
 and uttered, in concert and by previous arrangement, the different pieces 
 of coin, then the act of one would he the act of both, though they might not 
 be proved to be actually together at each uttering. It might be different 
 if, having possession of the counterfeit coin, they shared it between them, 
 and each went his own way, and acted independently of the other. If 
 they thought they were acting in concert in the utterings charged, they 
 should convict on the whole indictment. If they thought they were 
 uttering independently of each other, they might convict one of the two 
 utterings on the first count, and the other on the other counts (s). 
 
 So, where, on an indictment against G. and J. for uttering counterfeit 
 coin, it appeared that the uttering was by J. in the absence of G. ; but 
 that both were together before the uttering, under circumstances which 
 left no doubt of their joint engagement in a common purpose of uttering 
 base shillings and sharing in the proceeds, Talfourd, J., directed the 
 jury that if they thought G. was engaged on the evening in question with 
 J. in the common purpose of uttering counterfeit shillings, having one 
 stock of such coin, for their mutual benefit ; and if, in pursuance of such 
 purpose, J. uttered the shilling, they ought to find G. guilty, subject to 
 the question of law whether the actual presence of G., in or so near the 
 neighbourhood as to amount to association in the very act, was necessary 
 to support the charge. The jury found both guilty ; but, in deference 
 to the authority of R. v. Else {t) and R. v. Page (w), the question whether 
 
 {s) R. V. Hurse, 2 M. & Rob. 360. (u) 2 ilood. 290. 
 
 (0 R. & R. 42.
 
 lOB Of Parties to the Commission of Crime. [book i. 
 
 G. was jDroperly convicted was reserved for the opinion of the judges ; 
 who were unanimously of opinion that he was rightly convicted, on the 
 ground that, at common law, persons who in felony would have been 
 accessories before the fact, in misdemeanor were principals, and there- 
 fore R. V. Else and R. v. Page were wrongly decided (v). 
 
 (ii.) Principals in the Second Degree. 
 
 Principals in the second degree are those who were present, aiding and 
 abetting at the commission of a felony. They are often termed aiders 
 and abettors, and sometimes accomplices : but the latter appellation will 
 not serve as a term of definition, as it includes all the participes criminis, 
 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 (iv). 
 
 Presence actual or constructive. — A person may be a principal in 
 the second degree in felony even if by reason of age or sex physically 
 incapable of being a principal in the first degree {x). In order to render 
 a person a principal in the second degree, he must be present aiding and 
 abetting at the fact, or ready to aiTord assistance if necessary, as when 
 one commits a murder, and another keej)s watch and ward at some con- 
 venient distance {y). But a person may be present, and, if not aiding 
 and abetting, be neither principal nor accessory : as, if A. happens to be 
 present at a murder and takes no part in it, nor endeavours to prevent 
 it, or to apprehend the murderer, this course of conduct will not of itself 
 render him either principal or accessory (2). 
 
 The presence need not be a strict actual immediate j)resence, such a 
 presence as would make him an eye-witness or ear- witness of what passes, 
 but may be a constructive presence. So that if several persons set out 
 together, or in small parties, upon one common design, felonious or 
 unlawful in itself, and each takes the part assigned to him ; some to com- 
 mit the fact, others to watch at proper distances and stations to prevent 
 surprise, or to favour, if need be, the escape of those more immediately 
 
 {v) E. V. Greenwood, 2 Den. 453, over- length it became settled law that all persons 
 
 ruling R. v. Hayes, 2 Cox, 68, and R. v. present, aidmg and abettmg, when a felony 
 
 West, 2 Cox, 237. R. v. Skeiritt, 2 C. & P. is committed, are principals in the second 
 
 427, appears also to fall with this ruling. degree. Coal-heaver's case, 1 Leach, 66. 
 
 (iv) Fost. 341. The course and order of And see Fost. 428, and R. v. Towle, R. & R. 
 
 proceeding against offenders founded upon 314. This law was by no means settled till 
 
 the distinction between principals in the after the time of Edward III. ; and so late 
 
 first degree and prmcipals in the second as the first of Queen Mary a chief justice 
 
 degree, appears to have been unknown to of England strongly doubted of it, though 
 
 the most ancient writers on our law, who indeed it had been sufficiently settled 
 
 considered the persons present aiding and before that time. 
 
 abettmg in no other light than as accesscrries [x) 1 Hale, 636. R. v. Eldershaw, 3 C. & 
 
 at the fact (Fost. 347). But as such acces- P. 396, boy under fourteen principal in 
 
 sories they were not hable to be brought to second degree in rape. R. i: Lord Balti- 
 
 trial till the prmcipal offenders had been more [1768], 4 Burr. 2179. R. v. Ram, 17 
 
 convicted or outlawed, the course of jus- Cox, 609, women principals in second 
 
 tice was frequently aiTcsted by the death degree in rape. 
 
 or escape of the principal, or from his re- (y) 1 Hale, 615. Fost. 350. 4 Bl. Com. 
 
 mainuig iniknown or concealed. With a 34. 
 
 view to obviate this mischief the judges by (z) 1 Hale, 439. Fost. 350. 
 
 degrees adopted a different rule : and at
 
 CHAP, v.] Of Princifcils and Accessories in Felony. 109 
 
 engaged ; they are all, provided the fact be committed, 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 instant, towards the 
 same common end, and the part each man took tended to give counte- 
 nance, encouragement and protection to the whole gang, and to insure 
 the success of their common enterprise [a). But there must be some par- 
 ticipation ; therefore if a special verdict against a man as a principal 
 does not shew that he did the act, or was present when it was done, or 
 did some act at the time in aid which shews that he was present, aiding 
 and assisting, or that he was of the same party, in the same pursuit, and 
 under the same expectation of mutual defence and support with those 
 who did the fact, the prisoner cannot be convicted (6). So, if several are 
 out for the purpose of committing a felony, and upon alarm and pursuit 
 run different ways, and one of them maim a pursuer to avoid being taken, 
 the others are not principals in that maiming (c). And it has been held 
 not sufficient to make a man a principal in uttering a forged note, that 
 he came with the utterer to the town where it was uttered, went out with 
 him from the inn where they put up a little before he uttered it, joined 
 him again in the street a short time after the uttering, and at a distance 
 of 150 yards from the place of uttering, and ran away when the utterer 
 was apprehended {d). In K. v. Brady (e), on an indictment for forging 
 and uttering a cheque, Graham, B., is reported to have said : ' It has 
 frequently been held that what would amount to a constructive presence 
 at common law will not be sufiicient upon an indictment under a statute. 
 A case under this statute occurred before me at Derby (/'). Two persons 
 went in concert to utter a forged note ; one went into a shop to utter it, 
 whilst the other remained at some little distance in the street ; it was 
 objected that the latter was not liable as a principal. I saved the point ; 
 and the judges were of opinion that the utterer only was liable ' {c). The 
 general rule ap25lies to offences by statute as well as at common law, viz., 
 that all present at the time of committing an offence are principals, 
 although one only acts, if they are confederates, and engaged in a common 
 design, of Avhich the offence is part (f/). And where three persons were 
 charged with uttering a forged note, other acts done by all of them jointly, 
 or by any of them separately, shortly before the offence, may be given in 
 evidence to shew the confederacy and common purpose, although such 
 acts constitute distinct felonies (/?). And what was found upon each may 
 be proved against each to make out such confederacy, although it were 
 not found until some time after the commission of the offence (i). 
 
 K. and M. were indicted for stealing oats. K. was hired by the 
 prosecutor to draw oats in sacks from a vessel to the prosecutor's ware- 
 house, and M. was employed by the prosecutor to load the sacks into 
 
 (a) Fost. 350, 2 Hawk. c. 29, ss. 7, 8. (e) 0. B. Juno, 1813. 1 Stark. Cr. PI. 
 See K. V. Howell, 9 C. & P. 437, Little- 84n. 
 
 dale, J. R. v. Vanderstein, 10 Cox, 177 (/) This seems to be R. v. Brady, ubi 
 
 (Ir.). supra. 
 
 (b) R. V. Borthwick, 1 Dougl. 207. (g) R. v. Tattersal, East. T. 1801. MS. 
 
 (c) R. V. ^^^litc & Richardson, R. & R. Bavlev, J. 
 99. (7,) "id. ibid. 
 
 (rf) R. V. Davis & Hall, East. T. 180G. (f) Id. ibid. 
 
 MS. Bayley, J. ; and R. & R. 113.
 
 110 Of Parties to the Commission of Grime. [book i. 
 
 trams belonging to K. on which they were carried. Whilst one load 
 was being conveyed to the warehouse, K. said to M., ' It's all right/ and 
 shortly afterwards M. emptied some oats out of two sacks which were 
 on a tram close to the vessel, into a nosebag which he then placed under 
 the tram. K., at this time, was absent with a load, but returned in a few 
 minutes to the vessel with an empty tram, took the nosebag from under 
 the tram, where M. had placed it, and put it on the tram, and drove ofE 
 with it, M. being, at the time K. took the nosebag from under the tram, 
 on the vessel, which lay close to the tram, and within three or four yards 
 of K. It was submitted that K. was entitled to be acquitted, as he was 
 not present at the time when the oats were stolen. Maule, J., said : ' I 
 think the evidence shews that this was all one transaction, in which both 
 concurred ; and I think both having concurred, and both being present 
 at some parts of the transaction, both may be convicted ' (j). 
 
 Upon an indictment for larceny against H. and G., it appeared that 
 G. was the foreman of the prosecutor, a canvas manufacturer, but had no 
 authority to sell any yarn. On one occasion H. sent his servants to the 
 warehouse of the prosecutor to bring away yarn, and G. delivered with 
 the yarn an invoice made out in the name of the prosecutor. Subse- 
 quently, H. sent two of his men to the warehouse of the prosecutor, and, 
 on arriving, they found H. and G. there. Some yarn was pointed out 
 as the yarn which they were to take to H.'s premises : and they there- 
 upon, in the presence of H. and G., carried away the yarn in question. 
 When H. was charged he produced the invoice which G. gave him on 
 the first occasion, and stated that, except on that occasion, he had had 
 no dealings with him. It was submitted that H. was only guilty of 
 receiving the yarn, knowing it to have been stolen, but Coltman, J., 
 held that if H. knew that in the transaction in question G. was, in fact, 
 committing a felony, he, as well as G., was guilty of the same felony ; 
 and, therefore, the question for the jury was whether, at the time of the 
 pretended sale by G., H. knew that G. was exceeding his authority and 
 defrauding his master (k). 
 
 Going towards the place where a felony is to be committed in order 
 to assist in carrying ofE the property, and assisting accordingly, will not 
 make the party a principal if he was at such a distance, at the time of the 
 felonious taking, as not to be able to assist in it. The prisoner and J. S. 
 went to steal two horses ; J. S. left the prisoner half a mile from the place 
 in which the horses were, and brought the horses to him, and both rode 
 away with them. Upon a case reserved, the prisoner was held to be an 
 accessory before the fact only, not a principal, because he was not present 
 at the original taking (l). Where a servant let a person into his master's 
 house, in order that he might steal his master's money, and he continued 
 in the house till the robbery, but the servant left the house before the 
 robbery was committed, it was held that the servant was an accessory 
 before the fact(m). On an indictment for stealing in a dwelling-house, 
 it was proved that a servant had unlocked the door of the house, in order 
 
 (/) R. V. KeUy, 2 C. & K. 379. Maule, J., & R. 421. 
 
 refused to reserve the point. (to) R. v. Tuckwell, C. & M. 215, Cole- 
 
 {k) R. V. Hornby, 1 C. & K. 305. ridge, J. It is not stated how long before 
 
 (Z) R. V. Kelly, MS. Bayley, J., and R. the theft the servant left.
 
 CHAP, v.] Of Princifols and Accessories in Felony. Ill 
 
 that another person might get in and steal the property, which he did 
 ahout twenty minutes after the servant had left the house. It was contended 
 that, as it was clear that if the servant had been indicted for house-break- 
 ing and stealing he might have been convicted {n), that shewed that he 
 was guilty of stealing the money, for that could not depend upon the form 
 of the indictment. But it was held that the servant was only an acces- 
 sory before the fact to the offence charged in the indictment (o). Where 
 three prisoners were jointly indicted for maliciously wounding with 
 intent to maim, &c., and one of them did not come up and take any part 
 until the wound had been inflicted by the others, it was held that the 
 latter only could be convicted, though the former kicked the prosecutor 
 several times after he came up {y). So, if two prisoners go to a house, 
 intending to commit a theft in it, and one enters first and is apjDrehended, 
 and then the other enters and commits the theft, the former is only an 
 accessory before the fact {q). 
 
 But where a man committed a larceny, in a room of a house, in which 
 room he lodged, and threw a bundle containing the stolen property out 
 of the window to an accomplice who was waiting to receive it, the judges 
 came to a different conclusion. The accomplice was indicted and con- 
 victed as a receiver ; and the learned judge before whom he was tried 
 was of opinion, that as the thief stole the property in his own room, and 
 required no assistance to commit the felony, the conviction of the accom- 
 plice as a receiver might have been supported, if the jury had found 
 that the thief had brought the goods out of the house, and delivered 
 them to the accomplice ; but as the jury had found that the thief threw 
 the things out of the window, and that the accomplice was in waiting 
 to receive them, he thought the point fit for consideration. And the 
 judges were of opinion that the accomplice in this case was a principal, 
 and that the conviction of him as a receiver was wrong (?•). 
 
 So, where on an indictment against G. for stealing, and H. for receiv- 
 ing pork, it appeared that the prisoners went together to the prosecutor's 
 warehouse, and G. went into the warehouse and took the pork out of a 
 tub, and brought it out of the warehouse and gave it to H., who had 
 remained on the outside, and who was not in a position to see what G. 
 did in the warehouse, but was sufficiently near to have rendered him 
 aid in case he had been taken into custody ; that is to say, the evidence 
 was sufficient to have convicted him as a principal in the second degree ; 
 and the jury having found H. guilty, upon a case reserved upon the 
 question whether a person who was a principal in the second degree 
 could, under the above circumstances, be convicted as a receiver of the 
 goods stolen, the judges were unanimously of opinion that he could not ; 
 and, therefore, the conviction of H. was wrong (s). 
 
 (w) R. V. Jordan, 7 C. & P. 432. J., and Rolfc, B. 
 
 (o) R. V. Jefferies & Bryant, Gloucester (r) R. v. Owen, 1 Mood. 96. 
 
 Spr. Ass. 1848. Cress well and Pattcson, (s) R. r. Perkins, 2 Den. 459. 'This case 
 
 JJ., 3 Cox, 85, MSS. C. S. G. The decision must not be taken to decide that a principal 
 
 seems to turn on the length of the interval cannot, under any circumstances, be a re- 
 
 between the departure of the servant and ceiver, as the marginal note would seem to 
 
 the arrival of the thief. indicate. If a principal were to deliver the 
 
 (p) R. V. M'Phane, C. & M. 212 ; Tin- goods to another, and afterwards at a dis- 
 
 dal, C.J. tance from the place where the felony was 
 
 (q) R. V. Johnson, C. & M. 218, Maule, committed were to receive them again.
 
 112 Of Parties to the Commission of Crime. [book i. 
 
 An indictment charged S. with stealing 18s. M., and C. with receiving 
 the same. S. was a barman at a refreshment bar, C, went up to the 
 bar, called for refreshments, and put down a florin, S. served C, took 
 money from his master's till in the presence of C, and gave to C. I85, Qd. 
 change for the florin, which C. pocketed. There was evidence of recogni- 
 tion and common purpose between S, and C. S, was convicted of steaUng, 
 and C. of receiving the IBs. ^d. It was held, that upon the evidence, 
 the jury should have been directed that they might convict C. as a 
 principal in the second degree, and that he was not properly convicted 
 as a receiver (0. 
 
 Common Purpose. — In order to make a person who is present when 
 a felony is committed a principal in the second degree, there must be a 
 community of purpose with the party actually committing the felony, at 
 the time when the felony is committed. One count charged H. and M. 
 with stealing from the person ; another charged them with feloniously 
 receiving the stolen property. H. was walking by the side of the 
 prosecutrix, and M. was seen just previously following behind her. The 
 j)rosecutrix felt a tug at her pocket, found her purse was gone, and, on 
 looking round saw H. behind her, walking with M. in the opposite direction 
 and saw her hand something to M. The jury were directed that, if they 
 did not think, from the evidence, M. was participating in the actual 
 theft, it was open to them on these facts to find him guilty of receiving. 
 The jury found H. guilty of stealing and M. guilty of receiving ; and it 
 was held that the direction was right, as to make M. a principal in the 
 second degree there must have been a community of purpose with H. 
 in the actual stealing (ii). 
 
 And if several act in concert to steal a man's goods, and he is induced 
 by fraud to trust one of them in the presence of the others with the pos- 
 session of the goods, and then another of the party entices the owner 
 away, in order that the party who has obtained such possession may 
 carry the goods off, all will be guilty of felony, the receipt by one, under 
 such circumstances, being a felonious taking by all (v). So, where a 
 prisoner asked a servant, who had no authority to sell, the price of a 
 mare, and desired him to trot her out, and then went to two men, and 
 having talked to them, went away, and the two men then came u^) and 
 induced the servant to exchange the mare for a horse of little value, it 
 was held that if the prisoner was in league with the two men to obtain 
 the mare by fraud and steal her he was a principal (w). 
 
 If a murder is committed iii prosecution of some unlawful purpose, 
 even a bare trespass, all persons who went to give assistance, if need were, 
 in carrying the unlawful purpose into execution, are guilty of murder. 
 But this applies only where the murder is committed in prosecution of 
 some unlawful purpose, in which the combining parties united, and for 
 the effecting whereof they are assembled ; for unless this appears, though 
 
 there can be no doubt that he might be [v) R. v. Standley, MS. Bayley, J., and 
 
 convicted as a receiver.' C. S. G. R. & R. 305. R. v. County, MS. Bayley, J. 
 
 [t) R. V. Coggins, 12 Cox, 517 (C. C. R.). As to habihty for larceny by aiding and 
 
 [u) R. V. Hilton, 1 Bell, 20, referred to abetting as ring dropping, see R. v. Moore, 
 
 in R. V. Coggins as R. v. M'Ewin. In R. v. 1 Leach, 314. 
 
 Coggins, Blackburn, J., approved the direc- {w) R. v. Sheppard, 9 C. & P. 121, Cole- 
 
 tion in R. v. Hilton. ridge, J.
 
 CHAP, v.] Of Principals and Accessories in Felony. 113 
 
 the person giving the mortal blow may himself be guilty of felonious 
 homicide, yet the others who came together for a different purpose will 
 not be involved in his guilt (x). 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, inconsiderable trespass, 
 and that the man was killed upon a sudden affray without their knowledge. 
 But the decision would have been otherwise if they had all come thither 
 with a general resolution against all opposers ; for then the murder would 
 have been committed in prosecution of their original purpose {y). 
 
 Where on a trial for murder the case for the Crown was, that the 
 prisoner and J. had followed the deceased for the purpose of robbing 
 him, and that, in pursuance of that object, one or both of them struck the 
 deceased on the head and killed him, and the preceding passage was 
 cited for the prisoner : Bramwell, B., told the jury, ' The rule of law is 
 this : if two persons are engaged in the pursuit of an unlawful object, 
 the two having the same object in view, and, in the pursuit of that common 
 object, one of them does an act which is the cause of death under such 
 circumstances that it amounts to murder in him, it amounts to murder 
 in the other also. The cases which have been referred to may be explained 
 in this way. The object for which the parties went out was a compara- 
 tively trifling one, and it is almost impossible to suppose that if one had 
 committed a murder whilst engaged in the pursuit of such an object, 
 the act could have been done in furtherance of the common object they 
 had in view, which was comparatively so unimportant. Suppose two 
 men go out together, and one of them holds a third man for the purpose 
 of enabling his companion to cut that man's throat, and his com- 
 panion does so, no one could doubt that they were both equally guilty 
 of murder. Therefore, if you find the common unlawful object in the 
 two prisoners, and death ensuing from the act of J. in pursuance 
 of that common unlawful object, under such circumstances that it was 
 murder in him, it is your duty to find the prisoner guilty ' (2). 
 
 Where there is a general resolution against all opposers, whether such 
 resolution appears upon evidence to have been actually and explicitly 
 entered into by the confederates, or may be reasonably collected from 
 
 (x) Fost. 351, 352. 2 Hawk. c. 29, s. 9. some goods. The question was, whether 
 
 See K. V. Howell, 9 C. & P. 437, per Little- this was felony in all ; and Holt, C. J., citmg 
 
 dale, J. the ease, says, ' That they were all engaged 
 
 (2/) Fost. 353. Case at SaUsbury, Lent in an unlawful act is plain, for they could 
 
 Assizes, 1G97, MS. Denton & Cliapple, 2 not justify breaking a man's house without 
 
 Hawk. c. 29, s. 8. R. v. Skcet, 4 F. & F. making a demand first ; yet all those who 
 
 931. And see R. v. Hodgson and others, were not guilty of the stealing were acquit- 
 
 1 Leach, G; and an Anon, case [1604], ted, notwithstaniling then- bemg engaged 
 
 1 Leach, 7, note (a), where several soldiers. in one unlawful act of breakmg the door ; 
 
 who were employed by the messengers of for this reason, becau.se they knew not of 
 
 the Secretary of State to assist in tlie appre- such intent, but it was a chance oppor- 
 
 hension of a person, unlawfully broke open tunity of stealing, whereupon some of them 
 
 the door of a house where the person was did lay hands, 
 supposed to be ; and having done so, some {z) R. v. Jackson, 7 Cox, 357. 
 
 of the soldiers began to plunder, and stole 
 
 VOL. I. ^
 
 114 Of Parties to tlie Commission of Crime. [book i. 
 
 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 homicide is committed will be involved in the 
 guilt of him who gave the mortal blow (a). Thus where several persons 
 are together for the purpose of committing a breach of the peace, assault- 
 ing persons who pass, and, while acting together in that common object, 
 a fatal blow is given, it is immaterial which struck the blow, for the blow 
 given under such circumstances is in point of law the blow of all, and 
 it is unnecessary to prove which struck the blow (6). 
 
 But this doctrine applies only to assemblies formed for carrying into 
 execution some common purpose, unlaivful in itself. For if the original 
 intention was lawful, and prosecuted by 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 
 manslaughter, according to the circumstances ; but the persons engaged 
 with him will not be involved in his guilt, unless they actually aided and 
 abetted him in the fact ; for they assembled for another purpose which 
 was lawful, and consequently the guilt of the person actually killing 
 cannot by any fiction of law be carried against them beyond their original 
 intention (c). 
 
 It is submitted that the true rule of law is, that where several persons 
 engage in the pursuit of a common unlawful object, and one of them 
 does an act which the others ought to have known was not improbable 
 to happen in the course of pursuing such common unlawful object, all 
 are guilty. 
 
 When several are present and abet a fact, an indictment may lay it 
 generally as done by all, or specially, as done by one and abetted by the 
 rest (d). Or if the punishment for principals in the first and second 
 degrees is the same, all may be indicted as principals in the first 
 degree (e). 
 
 Homicide Cases. — If several persons are present at the death of a 
 man, they may be guilty of different degrees of homicide, as one of murder 
 and another of manslaughter ; for if there is no malice aforethought in 
 the party striking, but malice in an abettor, it will be murder in the latter, 
 though only manslaughter in the former ( /'). Several persons conspired 
 to kill E., and set upon him accordingly, when S., who was a servant to 
 one of them, seeing the affray and fighting on both sides, joined with his 
 master, but knew nothing of his master's design. A servant of E., who 
 supported his master, was killed. The Court told the jury that malice 
 against E. would make it murder in all those whom that malice affected, 
 as the malice against E. would imply malice against all who opposed the 
 design against E. : but, as to S., if he had no malice, but took part 
 
 (a) Fost. 353,354. 2 Hawk. c. 29, s. 8. According to the old practice it was thought 
 See post, p. 721, ' Murder.' better to charge the parties according to 
 
 (b) R. V. Harrmgton, 5 Cox, 231, Mar- the facts as intended to be proved. R. v. 
 tin, B. See the Sissinghurst-house case Vide, Fitz. Corone, pi. 86. R. v. Burgess, 
 ar.d others cited post, Bk. ix. c. i. p. 721. 1813, Tr. T. Post, p. 931 et seq. As to 
 
 (c) Fost. 354, 355. 2 Hawk. c. 29, s. 9. common law indictments for murder against 
 
 (d) 2 Hawk. c. 23, s. 76, and c. 25, s. 64. several, see R. v. Gordon, 1 Leach, 515; 
 R. V. Young, 3 T. R. 98. 1 East, RC. 352. 
 
 e) This is so even in a case of rape. (/) 1 East, P.O. 350.
 
 CHAP, v.] Of Princifdls and Accessories in Felony. 115 
 
 suddenly with those who had, without knowing of the design against E., 
 it was only manslaughter in him. The jury found S. guilty of man- 
 slaughter and three others of murder, and the three were executed {(j). 
 
 If the person charged as principal in murder be acquitted, a conviction 
 of another charged in the indictment as present aiding and abetting him 
 in the murder, is good. Holt, C.J., said : ' Though the indictment be 
 against the prisoner for aiding, assisting, and abetting A., who was 
 acquitted, yet the indictment and trial of this prisoner is well enough, for 
 all are principals, and it is not material who actually did the murder ' (Ji). 
 And all who are present aiding and assisting are equally principals with 
 him who gave the stroke whereof the party died, though they are called 
 principals in the second degree {i). So that if A. is indicted for homicide, 
 or manslaughter, and C. and D. for being present and assisting A., and A. 
 does not appear, but C. and D, appear, they shall be arraigned ; and if 
 convicted shall receive judgment, though A. neither appears nor is out- 
 lawed (/). And if A. is indicted as having given the mortal stroke, and 
 B. and C. as present, aiding and assisting, and upon the evidence it appears 
 that B. gave the stroke, and A. and C. were only aiding and assisting, 
 it maintains the indictment, and judgment may be given against them 
 all ; for it is only a circumstantial variance, and in law it is the stroke of 
 all that were present aiding and abetting (A). 
 
 Where the first count charged D. as principal in the first degree in 
 the murder of W. C. by shooting him with a gun, and P. as being present 
 aiding and abetting D., and the second count charged P. as principal 
 in the first degree, alleging that he 'afterwards' assaulted 'the said W. C.,' 
 &c., and D. as being present aiding and abetting P. ; the jury found 
 both guilty, but added that they were not satisfied which of the prisoners 
 fired the gun, but were satisfied that one of them fired the gun, and that 
 the other was present aiding and abetting. It was thereupon submitted 
 that, the prisoners being charged differently in the two counts, the jury 
 must be instructed to find them guilty on one or the other of the counts 
 only ; but Coltman, J., thought that, as the evidence equally supported 
 either count, it was not necessary to give any such direction, and there- 
 fore told them that if they were satisfied that one of the two fired the gun, 
 and that the other was present aiding and abetting, they were both liable 
 to be found guilty, and the jury returned a general verdict of guilty. 
 Upon a case reserved, the conviction was held right, for both counts 
 substantially related to the same person killed and to one killing (/). 
 
 Where a count charged A. with murder, and B. and C. with being 
 present aiding and abetting in the commission of the murder, and it 
 appeared that A. was insane at the time of committing the murder, it 
 
 (g) R. V. Salisbury [1553], Plowd. 100. (k) 1 Hale, 438. Plowd. 98a. R. v. 
 
 75 E. R. 158. See 1 Hale, 44(i, and post, Mackalley, 9 Co. Rep. G7G. 1 East, P.C. 
 
 Bk. ix. c. i. 350. R. v. Turner, 1 Lew. 177, Parke, B. 
 
 (A) R. V. Wallis, 1 Salk. 334. R. v. Taylor, R. v. Phelps, C. & M. 180. 
 
 1 Leach, 360 : 1 East, P.C. 351. (/) R. v. Downing. 1 Den. 52, Maule. J., 
 
 (i) 1 Hale, 437. Plowd. 100a. An- diss. See 2 C. & K. 382. for the indictment, 
 
 ciently the man who gave the fatal stroke Now the proper course in such case would 
 
 was considered the principal, and those be simply to allege that the prisoners 
 
 present only accessories. murdered C, according to 24 & 25 Vict. 
 
 0) 1 Hale, 437. Gittin's case, Plowd. c. 100, s. ; pc.s^ p. 818. 
 
 98, 100 : 75 E. R. 155. 
 
 i2
 
 116 Of Parties to the Commission of Crime. [book i. 
 
 was held that B. and C. could not be convicted on this count (m). Where 
 a count charged B. and C. as principals in the first degree with a murder, 
 and it appeared that A., an insane person, collected a number of persons 
 together, who armed themselves, having a common purpose of resisting 
 the lawfully constituted authorities. A, having declared that he would 
 cut down any constables who came against him, and a constable having 
 come with his assistants, and a warrant to apprehend A., A., in the 
 presence of B. and C, who were two of his party, shot one of the assistants ; 
 it was held that the prisoners were guilty of murder as principals in the 
 fijst degree, and that it was no ground of defence that A. and his party 
 had no distinct or particular object in view when they assembled together 
 and armed themselves ; because, if their object was to resist all opposers 
 in the commission of any breach of the peace, and for that purpose the 
 parties assembled together and armed themselves with dangerous weapons, 
 however blank the mind of A. might be as to any ulterior purpose, and 
 however the minds of the prisoners might be unconscious of any particular 
 object, still, if they contemplated a resistance to the lawfully constituted 
 authorities of the country, in case any should come against them while 
 they were so banded together, there would be a common purpose, and they 
 would be answerable for anything which they did in the execution of it (w). 
 
 (iii.) Accessories Before the Fact. 
 
 An accessory before the fact is he who, being absent at the time of the 
 offence committed, procures, counsels, commands, or abets another to 
 commit a felony (o). The term accessory is in practice confined to cases 
 of felony. It is not used with reference to high treason {'p). In crimes 
 under the degree of felony there are no accessories : but all persons con- 
 cerned therein, if guilty at all, are principals (q). Those who by hire, 
 command, counsel, or conspiracy, or by shewing an express liking, appro- 
 bation, or assent to another's felonious design of committing a felony, 
 abet and encourage him to commit it, but are so far absent when he 
 actually commits it that he could not be encouraged by the hopes of 
 any immediate help or assistance from them, are accessories before the 
 fact (r). Thus, if A. bids his servant to hire some one, no matter whom, 
 to murder B., and furnishes him with money for the purpose, and the 
 servant procures C, a person of whom A. never saw or heard to commit 
 the murder, A. is an accessory before the fact to the murder by C. (s). 
 
 (m) R. V. Tyler, 8 C & P. (llfi, Denman, procurement or counsel, and he in law is a 
 
 C.J. Sed qiicere. procurer. In a strict sense he who caused 
 
 (n) R. V. Tyler, ibid. a forgery to be done is a forger himself, and 
 
 (o) 1 Hale, 615. 24 & 25 Vict. c. 94, s. 2. should be so charged in the indictiiient ; 
 
 (p) 2 Hawk. c. 29, ss. 2, 5. Hale, 613. R. v. Stocker, 5 Mod. 138. The assent here 
 
 Fost. 341. 4 Bl. Com. 35. mentioned must be understood of an assent 
 
 (q) R. V. Burton, 13 Cox, 71. 1 Hale, to the design of forging, before the fact of 
 
 613. 4 Bl. Com. 36. the forgery committed (2 East, P.C. 973), 
 
 (/•) 2 Hawk. c. 29, s. 16. Cf. 1 Hale, 435, since, according to Hale, (1 P.C. 684) an 
 
 as to homicide. Coke in speaking of forgery assent after the fact committed makes not 
 
 says (3 Inst. 169) that to cause is to pro- the party assenting guilty or piincipal in 
 
 cure or counsel one to forge ; to assent is to forging ; but it must be a precedent or 
 
 give his assent or agreement afterwards to concomitant assent. 
 
 the procurement or counsel of another; (s) Fost. 125. R. v. McDaniel, 19 St. 
 
 to consent is to agree at the time of the Tr. 746, 789. 2 Hawk. c. 29, ss. 1, 10.
 
 CHAP, v.] Of Principals and Accessories in Felony. 117 
 
 But words which amount to bare permission will not make an accessory, 
 as if A. says he will kill J. S., and B. says, ' You may do your pleasure for 
 me,' this will not make B. an accessory (t). 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 adjudged an 
 accessory (u). The same person may be a principal and an accessory in 
 the same felony, as where A. commands B, to kill C, and afterwards 
 actually joins with him in the fact (v). 
 
 Probably, in point of law, any degree of incitement, with the actual 
 intent to procure the commission of the crime, is sufficient, and it is no 
 defence to shew that the crime was not committed in consequence of the 
 incitement, but from some other motive (see 2 Stark, Ev. 8, 2nd ed.). 
 But there must be some degree of direct incitement. The prisoner, at the 
 request of a pregnant woman who wished to procure abortion, obtained 
 corrosive sublimate for her at her instigation, and influenced by 
 a threat that she would destroy herself if she did not get it. He knew 
 the purpose for which she wanted it, but though he gave it to her for that 
 purpose, he was unwilling that she should use it, and did not administer 
 it to her, nor cause her to take it. She, however, took it for the purpose 
 assigned, and died in consequence. On a case reserved, it was held that 
 the prisoner was not an accessory before the fact (w). The facts of the 
 case would have been sufficient to convict the prisoner upon a charge of 
 procuring or supplying poison, under sect. 59 of the Offences Against 
 the Person Act, 1861 (24 & 2-5 Vict. c. 100) (x). 
 
 Where the prisoner held the stakes for a prize fight, which resulted 
 in the death of one of the combatants, Cockburn, C.J., said : ' To support 
 an indictment for being accessory before the fact to manslaughter, 
 there must be an active proceeding on the part of the prisoner. He is 
 perfectly passive here, all he does is to accept the stakes ' (y). 
 
 At common law the offence of an accessory before the fact was 
 regarded as so different from that of a principal in the second degree, 
 that where a woman was indicted as an accessory before the fact, it was 
 held that she could not be convicted of that charge upon evidence proving 
 her to have been present aiding and abetting ; it being clearly admitted to 
 be necessary to charge a principal in the second degree with being present, 
 aiding and abetting (z). 
 
 Where D. was indicted for a burglary, and with stealing goods in the 
 house, and V. as an accessory to ' the said burglary,' and D. had been 
 acquitted of the burglary, but found guilty of the larceny, and V. found 
 
 (t) 1 Hale, 615. and evidence given only in support of the 
 
 (u) 1 Hale, 616. 2 Hawk. c. 29, s. 2.3. second ; the verdict.s appear, however, to 
 
 (v) 2 Hawk. c. 29, s. 1, where it is said have been pronounced successively. 7 St. 
 
 also that he may be charged as principal Tr. 2.31. 
 
 and accessory in the same indictment ; but (w) R. v. Fretweil, L. & C. K'l : 31 L. '1. 
 
 this was not allowed (R. r. IMadden, 1 M.C. 145. 
 
 Mood. 277; R. r. Galloway, ibid. 234) until (.r) Post, p. 864. 
 
 ll&12Vict. c. 46, s. 1. In Atkins' case, who (;/) R. v. Taylor, L. R. 2 C. C. R. 148: 
 
 was tried for the murder of Sir E. Godfrey 44 L. J. M. C. 67 : 13 Cox, 68. _ 
 
 two indictments were found against him, (2) R. r. Gordon, 1 Leach, 515 ; 1 East. 
 
 one as principal, the other as accessory ; P.C. 352. And see Heydon's case, 4 Co. 
 
 and he was arraigned upon both at the Rep. 42b. 
 
 same time. But the first was abandoned,
 
 118 Of Parties to the Commission of Crime. [book i. 
 
 guilty as accessory, it was objected that as the jury had acquitted the 
 principal of the burglary, the accessory must be acquitted altogether. 
 But a great majority of the judges were of opinion that, as D. acted in 
 order to detect the other prisoner, he was free from any felonious intent, 
 and therefore the charge against V., as accessory, of course could not be 
 supported (a). 
 
 If an Act of Parliament enacts that an offence shall be felony, though 
 it says nothing of accessories before or after, yet virtually and conse- 
 quentially those who counsel or command the offence are accessories 
 before the fact (6), and those who knowingly receive the offender are 
 accessories after (c). 
 
 Statutes as to Accessories. — The Legislature, in statutes concerning 
 accessories before the fact, has not confined itself to any certain mode of 
 expression ; but has rather chosen to make use of a variety of words all 
 conveying the same general idea. In the Accessories and Abettors 
 Act, 1861 (24 & 25 Vict. c. 94) {d), which contains general provisions 
 applicable to all felonies, whether at common law or under any statute, 
 past or future, the words used to describe an accessory before the fact 
 are, ' whosoever shall counsel, procure, or command any other person 
 to commit any felony ' (s. 2). The other Criminal Law Consolidation 
 Acts of 1861, and most modern Acts, use the word accessories simply, 
 without further words descriptive of the offence (e). Some early statutes 
 have the words abetment, procurement, helping, maintaining, and counsel- 
 ling (/); or aiders, abettors, procurers, and counsellors {g). One de- 
 scribes the offence by the words command, counsel, or hire (/?) ; another 
 calls the offenders procurers or accessories {i). One having made use 
 of the words comfort, aid, abet, assist, counsel, hire, or command, im- 
 mediately afterwards, in describing the same offence in another case, 
 uses the words counsel, hire, or command only {j). One statute calls 
 them counsellors and contrivers of felonies {k) ; and many others make 
 use of the terms counsellors, aiders, and abettors, or barely aiders and 
 abettors. Upon these different modes of expression, all j)lainly descriptive 
 of the same offence, Foster, J., thinks it may be safely concluded that in 
 the construction of statutes we are not to be governed by the bare sound, 
 but by the true legal import of the words ; and 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 Legislature an accessory 
 before the fact ; unless he is present at the fact, and in that case he is 
 a principal II). 
 
 (a) E. V. Danclly & Vaughan, 2 Marsh, (k) 1 Ann. st. 2, c. 9 (rep.). 
 
 571 ; R. & R. 310. (/) That is, a principal in the first degree 
 
 (b) 1 Hale, 613, 614, 704. 3 Co. Inst. if the actual perpetrator, or a principal in 
 59. the second degree if only an aider and 
 
 (c) R. V. James, 24 Q.B.D. 439. abettor, Fost. 131. And see Fost. 130, 
 
 (d) Post, p. 130. where, speaking of a case in 1 And. 195, in 
 (c) The same will be found in some early which an indictment was held to be suffi- 
 
 statutes : 31 Eliz. c. 12, s. 5 (rep.) ; 21 Jac. cient, though the words of the statute of 
 
 I. 0. 6 (rep.). Ph. & M. were not pursued, the words 
 
 (/) 23 Hen. VIII. c. 1, s. 3 (rep.). excitnvit, movit, et procuravif, being deemed 
 
 (g) 1 Ed. VI. c. 12, s. 13 (rep.). tantamount to the words of the statute and 
 
 (h) 4 & 5 Ph. & M. c. 4 (rep.). descriptive of the same offence, he says that 
 
 (?) 39 Eliz. c. 9, s. 2 (rep.). he takes that case to be good law, though 
 
 (/) 3 Will. & M. c. 9 (rep.). he confesses it is the only precedent he has
 
 CHAP, v.] Of Princijmls and Accessories in Felonij. 119 
 
 It is an incontrovertible principle of law that he who procures the 
 commission of a felony is a felon {m) ; and when he procures its com- 
 mission by the intervention of a third person, who is not an innocent 
 agent (w), he is an accessory before the fact ; for there is nothing in the 
 notion of commanding, hiring, counselling, aiding, or abetting, which 
 may not be affected by the intervention of a third person without any 
 direct immediate connection between the first mover and the actor, 
 And a peer was found guilty of murder, upon evidence which shewed 
 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 principal in the murder, or had corresponded with him 
 directly by letter or message (o). For it is not necessary that there 
 should be any direct communication between an accessory before the 
 fact and the principal offender. 
 
 In all felonies there may be accessories before the fact except in those 
 felonies which by judgment of law are sudden and unpremeditated. 
 
 Manslaughter. — Such are some cases of manslaughter and the like {})). 
 But there are cases of manslaughter where there may be accessories 
 before the fact. Upon an indictment for manslaughter it appeared that 
 the death of the prisoner's wife was caused by swallowing sulphate of 
 potash for the purpose of procuring abortion, she believing herself to be 
 pregnant, although in reality she was not. The prisoner purchased the 
 suljihate of potash, and gave it to his wife in order that she might swallow 
 it for the above-mentioned purpose, but he was absent at the time when 
 she swallowed it. For the prosecution, it was contended that the wife 
 committed a felony in swallowing the sulphate of potash, and as death 
 ensued therefrom, she also committed murder (7) ; that the prisoner 
 was an accessory before the fact to this felony, and to the consequent 
 murder, and might be tried under 11 & 12 Vict. c. 46, s. 1 (r), and that, 
 although the evidence shewed his offence was murder, yet it would 
 support an indictment for manslaughter. For the prisoner it was con- 
 tended that there could not be an accessory before the fact in man- 
 slaughter ; but it was held, upon the facts of this case, that the prisoner 
 might be convicted of manslaughter {s). 
 
 met with where the words of the statute 35, Tindal. C.J., Coleridge and Coltman, JJ. 
 
 have been totally dropped. Approved R. v. Richards, 2 Q. I^.D. 311. 
 
 (/«) Fost. 125, a.nf\ vide ante, -^. 116. [q) R. v. Russell, 1 Mood. 35(). See R. 
 
 In) Vide anle, p. 104. v. Fretwell, L. & C. Kil, ante, p. 117. 
 
 (o) The case of the Earl of Somerset, in- (r) Repealed in 181)1 (24 & 25 Vict, 
 
 dieted as an accessory before the fact to the c. 5)5, s. 1), and replaced by 24 & 25 Vict, 
 
 murder of Sir Thomas Overbury, 2 St. c. 94, s. 1, ]x>sf, p. 130. 
 Tr. 051. Cf. R. V. Cooper, 5 C. & P. 535, (s) R. v. Gaylor, D. & B. 288. During 
 
 Parke, .1. the argument, Bramwell, B., said, ' Suppose 
 
 (p) Bibithe's case, 4 Co. Rep. 43. Goose's a man for mischief gives another a strong 
 case, Moore (K.B.), 401 : 72 E. R. 095. Cro. dose of medicine, not intending any further 
 Eliz. 540. 4 Bl. Com. 36. 1 Hale, 615. 2 injury than to cause him to be sick and 
 Hawk. c. 20, s. 24. Tliere may be accessories inicomfortable, and death ensues, wouM 
 after the fact inmanslaughter,andif thcpiin- not that be manslaughter ? Suppose, then, 
 cipal is found guilty of manslaughter, upon another had counselled him to do it, would 
 an indictment for murder, a party charged not he who counselled be an accessory be- 
 as accessory after the fact to the murder, fore the fact ? ' See R. v. Smitli, 2 Cox, 
 may be found guilty as accessory to the 233, Parke, B. Sec the observations on 
 manslaughter. R, v, Greenacrc, 8 C. & P. this subject, Greaves' Crim. Cons. Acts, 43
 
 120 Of Parties to the Commission of Crime. [book t. 
 
 Forgery. — In the older authorities it is laid down that all are princi- 
 pals in forgery, and that whatever would make a man accessory before 
 the fact in felony would make him a principal in forgery (t) ; but this 
 must be understood of forgery at common law, which is only a misde- 
 meanor (u). And Bothe's case (v) decided upon 5 Eliz. c. 14, which 
 would seem to lead to a contrary conclusion, seems from its circumstances 
 merely an illustration of the general rule, that when a statute makes a 
 new felony, it incidentally and necessarily draws after it all the con- 
 comitants of felony, namely, accessories before and after (w). 
 
 If several combine to forge an instrument, and each executes by him- 
 self a distinct part of the forgery, they are all principals, though they are 
 not together when the instrument is completed. On an indictment for 
 forgery against A., B., and C, it appeared that A, and B. bought the 
 paper, and cut it into pieces of the proper size at their house ; it was 
 then taken to C, who struck oi? in blank all the printed part of the note 
 except the date line and the number, and impressed on the paper the 
 wavy horizontal lines. The blanks were then brought back to the house 
 of A. and B., where the water-mark was introduced into the paper ; 
 after which A., in the presence of B., impressed the date line and number, 
 and B. added the signature. It did not appear that C. was present at 
 this time. The jury found that all three concurred and co-operated in 
 the design and execution of the forgery, each taking his own part, and 
 that A. and B. acted together in completing the notes. The judges 
 were of opinion that, as each of the prisoners acted in completing some 
 part of the forgery, and in pursuance of the common plan, each was a 
 principal in the forgery ; and that although C. was not present when 
 the note was completed by the signature, he was equally guilty with the 
 others (x). 
 
 So if several make distinct parts of a forged instrument, each is a 
 principal, though he does not know by whom the other parts are executed, 
 and though it is finished by one alone in the absence of the others {y). 
 On an indictment against D., K., and S., for forging a note, and against 
 A. and C. as accessories before the fact, it appeared that S. made the 
 paper, K. engraved the plate, and struck off the impression ; and D. in 
 the absence of S. and K., filled up and finished the note. S., when he 
 made the paper, did not know that K. or D. were to have anything to do 
 with the forgery ; nor did K. know, when he engraved the plate and 
 made the impression, that D. or S. were, or were to be, concerned. A. 
 and C. were the movers, and through them all the parties were set to 
 work. D. was not upon his trial, and A. and C. could not properly be 
 tried, unless S. and K. were to be deemed principals. The judges held that 
 K. and S. were principals, that the ignorance of S. and K. of those who 
 were to effect the other parts of the forgery was immaterial ; and that 
 
 (2nd ed.) ; and see R. v. Wilson, D. & B. Morris, 2 Leach, 1096, note (a). 
 
 127 ; and R. v. Farrow, ibid. 164. {v) Goose's case, Moore (K.B.), 461. 
 
 (t) Bothe's case, Moore (K.B.I, 666: 72 (w) 2 East, RC. 973, 974. 
 
 E. R. 827. 1 Sid. 312. See also 2 Hawk. (x) R. v. Bingley, R. & R. 446. 
 
 c. 29, s. 2, and authorities cited in 2 East, (?/) R. v. Kirkwood, 1 Mood. 304. R. v. 
 
 P.C. 973. Dade, ibid. 307. R. v. Bmgley, R. & R. 
 
 (u) 2 East, RC. 973; and see R. v. 446.
 
 CHAP, v.] Of Principals and Accessories in Felony. 121 
 
 it was sufficient if they knew it was to be efEected by somebody [z). There 
 was another indictment against D. and K. for forgery. K. engraved the 
 plate, and worked off the impression from it, and D., in his absence, 
 filled up the notes ; D. was not on his trial. It was held that K. was a 
 principal {a). 
 
 It follows, from the two last cases, that those who procure and cause 
 an instrument to be forged, but execute no part of the forgery, and are 
 not present when it is executed, are accessories before the fact, and not 
 principals. 
 
 Three prisoners, S., A., and B., were charged by the indictment with 
 feloniously uttering a forged bank note for £5 knowing it to be forged, &c., 
 with intent to defraud the Bank of England. The indictment also con- 
 tained the other usual counts, for forging, and for disposing of and putting 
 away the note with the like intent ; together with counts stating the 
 intent to be, to defraud the person to whom it was offered in payment. 
 The prisoner B. offered the note in question in payment for a pair of 
 gaiters at a shop in G., and the other two prisoners, S. and A., were not 
 with B. at the time he so offered the note, but were waiting at P. till he 
 should return to them, it having been previously concerted between the 
 three prisoners that B. should go over the water from P. to G., for the 
 purpose of passing the note, and w^hen he had passed it, should return 
 to join the other two prisoners at P. ; they all three knowing that it 
 was a forged note, and having been concerned together in putting off 
 another note of the same sort, and in sharing the produce among them. 
 The counsel for the prisoners S. and A. objected, that they were not 
 guilty of the charge made against them in this indictment, not having been 
 present at the time the other prisoner uttered the note, nor so near as 
 to be able to aid and assist him ; and that they could be charged only 
 as accessories before the fact. The jury found that the forged note was 
 uttered by the prisoner B., in concert with the other two prisoners, and 
 found them all three guilty. The prisoner B. was left for execution : 
 but as to the other two, on a case reserved, the judges had no doubt that 
 they were entitled to an acquittal on this indictment charging them as 
 principals, they not being present at the time of the uttering, or so near 
 as to be able to afford any assistance to the accomplice who actually 
 uttered the note (6). 
 
 But where three persons were jointly indicted under 1 Will. IV. c. 66, 
 s. 19 (rep.), for feloniously using plates containing impressions of forged 
 foreign notes, it was held that the jury must select some one particular 
 time after all three had become connected, and must be satisfied, in order 
 to convict them, that at such time they were all either present together 
 at one act of using or assisted in one such act, as by two using, and one 
 watching at the door to prevent the others being disturbed, or the like ; 
 and that it was not sufficient to shew that the parties were general 
 dealers in forged notes, and that at different times they had singly used 
 
 {z) R. V. Kirkwood, 3 Burn's J. (D. & (h) R. v. Scares, MS. and 2 Ea.st, P.O. 
 
 W. cd.), 286: MSS. Bayley, B. R. v. Dado, 974. R. & R. 25. Ci. R. r. Badcock, 
 
 1 Mood. 307. R. «fe R. 249, and R. v. Stewart, R. & 
 
 (n) R. V. Kirkwood, 3 Burn's J. (D. & W. R. 363. 
 ed.), 286 : MSS. Bayley, B. 1 Mood. 304.
 
 122 Of Parties to the Commission of Crime. [book i. 
 
 the plates, and were individually in possession of forged notes taken 
 from them (c). 
 
 And where three prisoners were indicted under the same section, for 
 feloniously engraving a promissory note of the Emperor of Russia, and 
 it appeared that the plates were engraved by an Englishman, who was 
 an innocent agent, and two of the prisoners only were present at the 
 time when the order was given for engraving the plates, but they said 
 they were employed to get it done by a third person, and there was some 
 evidence to connect the third prisoner with the other two in subsequent 
 parts of the transaction ; it was held, that in order to find all three guilty, 
 the jury must be satisfied that they jointly employed the engraver, but 
 that it was not necessary that they should all be present when the order 
 was given, as it would be sufficient if one first communicated with the 
 other two, and all three concurred in the employment of the engraver (d). 
 
 In E,. V. Morris (e) a wife was indicted as a principal in a forgery on 
 49 Geo. III. c. 123, s. 13 (rep.), and her husband as an accessory before 
 the fact at common law. The indictment charged S. M. with forging 
 an order and certificate for receiving prize money, which had become 
 due to one H. T., a petty officer in the naval service, with intent to 
 defraud, &c. ; and J. M., with inciting, counselling, aiding, procuring, &c., 
 the said S. M. to commit the said felony. The second count charged 
 S. M. with having uttered the order and the certificate by the incitement 
 of J. M. And there were many other counts in which the offence was 
 charged, with some variations. The prisoner, S. M., who was the wife of 
 the other prisoner, J. M., and real or pretended daughter of H. T. (a petty 
 officer on a King's ship), applied to a clerk in the cheque office for the 
 payment of prize money then due to H. T. ; and produced at the same 
 time the order stated in the indictment. She went away, leaving the 
 order with the clerk, but in about four or five days came again, when 
 the order was given back to her with a request that she would not apply 
 again until she was duly informed that the money had been remitted to 
 the office. Almost immediately after this second visit, the other prisoner, 
 J. M., wrote a letter to the Clerk of the Cheque on the subject. On 
 December 8, notice was given to S. M. that the prize money was come 
 in, and that she might receive the share of it to which H. T. was entitled ; 
 upon which she went to the office with the same order and certificate, 
 which she produced ; and had nearly obtained the warrant for the pay- 
 ment of the money, when circumstances occurred which caused suspicion, 
 and she and her husband were shortly afterwards apprehended. H. T., 
 whose name purported to be signed to the order, could not write, and 
 was obliged always to make a mark whenever his signature was required ; 
 and the name of the officer, by whom the certificate purported to be 
 subscribed, was not in his handwriting. The landlord of the house in 
 which the prisoners lodged, stated that the prisoner, J. M., had, in two 
 or three instances, ordered his wife, S. M., to go to Greenwich Hospital 
 respecting about £30 of prize money due to H. T., his wife's father. He 
 
 (c) R. V. Harris, 7 C. & P. 416, Littledale Patteson, J. 
 
 and Gaselee, JJ. (e) 2 Leach, 1096. 
 
 [d] R. V. Mazeau, 9 C. & P. 676,
 
 CHAP, v.] Of Principals and Accessories in Felony. 123 
 
 also testified that he really believed that S. M, went to receive it in 
 obedience to her husband's orders. And it was proved that the prisoner, 
 J. M., had signed a paper, stating that his wife had acted in this business 
 entirely under his orders and directions. It was also proved by a witness 
 that the prisoner, J. M., represented to him that there was about £30 
 prize money due to his father-in-law, H. T., and that he would be obliged 
 to him if he would fill up the blanks in certain papers which he produced ; 
 that the witness accordingly filled up the blanks, excepting the signatures ; 
 and that, on observing there was a spare half-sheet to the papers he so 
 filled up, he advised the prisoner, J. M., to send it by the post to his 
 father-in-law ; but that he replied that his wife would get it done. This 
 witness further stated, that he afterwards met the prisoner, J. M., who 
 then told him that he had got the papers regularly signed by H. T. and 
 the captain ; and that he was going to send his wife for the money. It 
 was submitted that as S. M., in the part she took in this transaction, 
 had clearly acted under the directions and coercion of her husband, she 
 could not be found guilty (/) ; and that if she was innocent as a principal, 
 the other prisoner could not be guilty as an accessory. And the jury 
 having found both the prisoners guilty, on a case reserved, the twelve 
 judges were unanimously of opinion that the prisoner, S. M., was guilty 
 of uttering the forged instrument, knowing it to be forged ; and that the 
 prisoner, J. M., was guilty of the offence of an accessory before the fact 
 at common law. 
 
 Liability of Accessory where Principal does not follow the Precon- 
 certed Plan. — There has been much discussion as to the liability of an 
 accessory when the principal does not act in conformity with the plans 
 and instructions of the accessory. If the jmncipal totally and suhstantially 
 varies from the terms of the instigation, if being solicited to commit a 
 felony of one kind, he wilfully and knowingly commits a felony of another, 
 he will stand single in that offence, and the person soliciting will not be 
 involved in his guilt {g). Thus if A. commands 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 inconsequential nature {h). And if A. counsels B. to steal goods of 
 C. on the road, and B. breaks into C.'s house and steals them there, A. is 
 not accessory to the breaking the house, because that is a felony of another 
 kind {i). He is, however, accessory to the stealing (/). But if the princi- 
 pal complies in substance with the instigation of the accessory, varying 
 only in circumstances of time or place, or in the manner of execution, 
 the accessory will be involved in his guilt: as if A. commands B. to murder 
 C. by poison, and B. does it by a sword or other weapon or by any other 
 means, A. is accessory to this murder ; for the murder of V. was the 
 object principally in contemplation, and that is effected (A). And if 
 
 A. counsels B. to steal goods in C.'s house, but not to break into it, and 
 
 B. does break into it, A. is accessory to the breaking (/). And where 
 the principal goes beyond the terms of the solicitation, yet if, in the event, 
 
 (/) As to coercion, vide ante, p. dSetscq. (j) 1 Hale, 617. 
 
 (r/) Fost. 369. 1 Hale, 436. (A) Fost. 360, 370. 2 Hawk. c. 29, s. 20. 
 
 (k) 1 Hale, 617. 4 Bl. Com. 37. 4 Bl. Com. 37. 
 
 (i) Plowd. 475. (/) Bac. Max. Reg. 16.
 
 124 Of Parties to the Commission of Crime. [book i. 
 
 the felony committed was a 'probable consequence of what was ordered or 
 advised, the person giving such orders or advice will be an accessor}'' to 
 that felony. Thus if A. advises 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, in such a case A. is 
 accessory to the murder as well as to the robbery (m). And if A. solicits 
 B. to burn the house of C, and B. does it accordingly ; and the flames 
 taking hold of the house of D., that likewise is burnt : A. is accessory to 
 B. in the burning of the houses both of C. and of D. The advice, 
 solicitation, or orders of A. were pursued in substance ; 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 the influence and at the instigation of A. (n). 
 
 Where A. counselled a pregnant woman to miu^der her child when 
 it should be born, and she murdered it accordingly, A. was held to be 
 accessory to the murder ; the procurement before the birth being con- 
 sidered as a felony continued after the birth, and until the murder was 
 perj)etrated by reason of that procurement (o). 
 
 Commission of a Crime other than that commanded. — If A. com- 
 mands B. to beat C, and B. beats him so that he dies, A. being absent, 
 B. is guilty of murder as principal, and A. as accessory ; the crime having 
 been committed in the execution of a command which naturally tended 
 to endanger the life of another (p). It is also said, that if one commands 
 a man to rob another, and he kills him in the attempt but does 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 {q). 
 
 Where an indictment charged certain persons with the murder of B. 
 at Paris, and the prisoner as accessory before the fact, and it appeared that 
 two grenades were first thrown and exploded, and a third about a minute 
 afterwards, and that B. was one of the Gardes de Paris on duty at the 
 time, and that he died of wounds caused by the explosion ; Lord Campbell, 
 C.J., told the grand jury, ' as to the objection that the prisoner could 
 have had no intention that those who were killed by the explosion of the 
 grenades should be put to death, it may be observed that such a question 
 can only arise where the principal does not act in strict conformity with 
 the plans and instructions of the accessory. But here, if the prisoner 
 was privy to the plot, the other persons in throwing the grenades as they 
 did must be considered as having acted strictly in conformity with his 
 plans and instructions, and he is answerable as accessory for the conse- 
 quences. It is even laid down that where the principal goes beyond 
 the terms of the solicitation, yet, if in the event the felony committed 
 was a probable consequence of what was ordered or devised, the person 
 giving such orders or advice will be an accessory to that felony. . . . The 
 true test is, " was the event alleged to be the crime to which the accused 
 
 (m) Fost. 370. Com. 37. 
 
 (w) Ibid. (p) 1 Hale, 435. 2 Hawk. c. 29, s. 18. 
 
 (o) R. V. Parker, Dy. 186a., pi. 2. 1 4 Bl. Com. 37. 
 
 Hale, 617. 2 Hawk. c. 29, s. 18. 4 Bl. (q) 2 Hawk. c. 29, s. 18.
 
 CHAr. v.] Of Principals and Accessories in Felony. 125 
 
 is charged to be accessory, a probable consequence of the act he com- 
 mitted ? " ' (r). 
 
 More difficult questions arise where the principal hij mistake commits 
 a different crime from that to which he was solicited by the accessory. 
 It has been said, that if A. orders B. to kill C, and he by mistake kills D., 
 or aiming a blow at C. misses him and kills D., A. will not be accessory 
 to this murder, because it differs in the person (s). And in support of this 
 position Saunders' case {t) 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 faint attempt to save the child whom he loved, and would not have 
 destroyed) stood by and saw it eat the 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 accessory to that murder. But 
 Foster, J., 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. therefore takes upon him to describe him by his 
 stature, dress, age, complexion, &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 description, 
 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 lament- 
 able 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 murderous intention, dug 
 for C, D. through his guilt fell into and perished. For B., not knowing 
 the person of C, had no other guide to lead him to his prey than the 
 description A. gave of him. B. in following this guide fell into a 
 mistake, which it is great odds any man in his circumstances might 
 have fallen into. I therefore, as at present advised, conceive that A. was 
 answerable for the consequence of the flagitious orders he gave, since that 
 consequence appears, in the ordinary course of things, to have been highly 
 probable ' {u). 
 
 Foster, J,, then proposes the following criteria, as explaining the 
 grounds upon which the several cases falling under this head will bo 
 found to turn : ' Did the principal commit the felony he stands chaiged 
 with under the influence of the flagitious advice ; and was the event, in 
 the ordinary course of things, a probable consequence of that felony i 
 or did he, following the suggestions of his own wicked heart, wilfully 
 and knowingly commit a felony of another kind, or upon a different 
 subject ? ' (r). 
 
 Countermanding. — If A. commands B. to kill C, but before the execu- 
 tion thereof repents and countermands B., yet B. proceeds in the execution 
 thereof ; A. is not accessory, for his consent continues not, and he gave 
 
 (r) R. r. Bernard, 1 F. & F. 240: 8 St. (/) Plowd. 475. 1 Hale, 431. 
 
 Tr. (N. S.) 887, 895. (m) Fost. 370, 371. 
 
 («) 1 Hale, G17. 3 Co. lust. 51. (f) Fost. 372.
 
 126 Of Parties to the Comynission of Crime. [book i. 
 
 timely countermand to B. But even though A. had repented, yet if B. 
 had not been actually countermanded before the fact committed, A. 
 would be an accessory before the fact (iv). 
 
 (iv.) Accessories After the Fact. 
 
 An accessory after the fact is a person who, knowing a felony to have 
 been committed by another, receives, relieves, comforts, or assists the 
 felon {x), e.g., in the case of murder by assisting the murderer to conceal 
 the death or to evade the pursuit of justice {y). 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, seems to 
 be a sufficient receipt to make a man an accessory after the fact : as 
 where one assists a felon with a horse to ride away, or with money 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 (2). 
 If A. has his goods stolen by B., and B. comes to C, and delivers him the 
 goods to keep for him, C. knowing that they were stolen, and that B. 
 stole them, or if C, receives the goods to facilitate the escape of B., or if 
 C. knowingly receives them upon agreement to furnish B. with supplies 
 out of them, and accordingly supplies him, this makes C. an accessory. 
 But the bare receiving of stolen goods, knowing them to be stolen, makes 
 not an accessory ; for he may receive them to keep for the true owner, 
 or till they are recovered or restored by law (a). 
 
 Where, after setting out the conviction of a principal for robbery 
 of a £100 note, an indictment alleged that the prisoner did receive, harbour, 
 maintain, relieve, aid, comfort, and assist the principal, knowing him 
 to have committed the robbery, and it appeared that shortly after the 
 robbery the prisoner applied to his landlady to change the note, but 
 did not succeed, and that the principal went to a shop to purchase some 
 articles, for the payment of which he tendered the note, and received a 
 large part of it in change, and that during the time he was in the shop 
 the prisoner was waiting outside ; Maule, J., held that there was evidence 
 of comforting and assisting. If a man stole a horse, and another assisted 
 him in colouring and disguising him, so that he could not be known again, 
 that wovild make him an accessory. Here the prisoner assisted the party 
 who had stolen the note to get rid of it, and thus evade the justice of the 
 country (6). 
 
 Where a boy robbed the bank in which he was clerk, and the same 
 evening went to the room of the prisoner, a man, where he stayed twenty 
 
 (w) 1 Hale, 617. ensues there is no homicide committed. 
 
 {x) 1 Hale, 618. 4 Bl. Com. 37. 4 Bl. Com. 38. 2 Hawk. c. 29, s. 35. But 
 
 iy) R. V. Greenacre, 8 C. & P. 35, Tin- it would seem that he is accessory to the 
 
 dal, C. J., Coleridge and Colt man, J J. ' It is maliciously wounding.' C. 8. G. 
 
 said that if one wounds another mortally, {z) 2 Hawk. c. 29, s. 26. 1 Hale, 618, 
 
 and after the wound given, but before death 019. 4 Bl. Com. 38. 
 
 ensues, a person assists or receives the de- (a) 1 Hale, 619. 
 
 linquent, this does not make such person (b) R. v. Buttcrfield, 1 Cox, 39. 
 
 accessory to the homicide ; for till death
 
 CHAP, v.] Of Princijoals and Accessories in Felony. 127 
 
 minutes, and both of them proceeded together that evening, bv coach, 
 to Bristol, and thence to Liverpool, where they were apprehended before 
 they set sail for America, whither the prisoner had said they were goin^ : 
 it was held that this was evidence to go to the jury, upon an indictment 
 charging the prisoner with harbouring, receiving, and maintaining the 
 boy, although the places in the coaches were paid for by the boy (c). So 
 a man who employs another person to harbour the principal may be 
 convicted as an accessory after the fact, although he himself did no act 
 of relieving or assisting the principal {d). 
 
 Whoever rescues a felon from an arrest for the felony, or voluntarily 
 and intentionally suffers him to escape, is an accessory after the fact to 
 the felony (e) : and it has been said, that those are in like manner guilty 
 who oppose the apprehending of a felon ( /). A man may be an accessory 
 after the fact by receiving one who was an accessory before, as well as 
 by receiving a principal {g). And 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 (li). 
 
 In order to support a charge of receiving, harbouring, comforting, 
 assisting, and maintaining a felon, there must be some act proved to have 
 been done to assist the felon personally ; it is not enough to prove posses- 
 sion of various sums of money derived from the disposal of the property 
 stolen (*'). 
 
 An indictment alleged that M, sent letters demanding money with 
 menaces, and that the prisoner did ' feloniously receive, harbour, main- 
 tain, and assist ' the said M., knowing her to have committed the said 
 felony. The letters contained threats of exposing the immorality of the 
 prosecutor, and one of them threatened to insert a paragraph in the 
 ' Satirist ' ; and immediately afterwards articles reflecting on the prosecu- 
 tor appeared in that paper, of which the prisoner was the proprietor, and 
 on being cautioned as to the course he was pursuing, the prisoner said he 
 could not stop the publication of such articles in future, and referred to 
 M., and gave her address, and on being told that the prosecutor would 
 submit to a little extortion rather than have his character assailed, the 
 f)risoner consented to wait a week that the j)rosecutor might be spoken 
 to on the subject. Notices, however, that further articles of the same 
 nature would be published continued to appear in the ' Satirist.' It 
 was contended that there was no evidence to jirove that the prisoner 
 was an accessory ; it was answered that any assistance given to the 
 principal to enable her to carry out the object with which the felony was 
 committed was sufficient. Erie, J., said : ' I do not agree to that proposi- 
 tion ; the assistance must tend to prevent the principal felon from being 
 brought to justice. The question is, did he, after the felony was com- 
 plete, assist the felon to elude justice ? It is no part of this felony that 
 
 (c) R. V. Lee, G C. & P. 53G, Williams. J. (f) 2 Hawk. c. 29, s. 27. 
 
 (d) Pv. V. Jarvis, 2 M. & Rob. 40, (Uir- (7) 2 Hawk. c. 29, s. 1. 
 
 nev, B. (/() Fost. 123. Ciomp. Just. 41b, pi. 4 
 
 (e) 2 Hawk. c. 29, s. 27. 1 Hale, 019 ; and 5. 
 
 but not the merely .suffering him to escape, (j) R. v. Chappie, 9 C. & P. 355. Law. 
 
 where it is a bare omission. 1 Hale, liI9. Recorder, after consulting Littledale, J., 
 2 Hawk. c. 29, s. 29. and Alderson, B.
 
 128 Of Parties to the Commission of Crime. [book i. 
 
 the money should be paid : the crime is complete as soon as the demand 
 is made. Can it be said, then, that by assisting in a fresh attempt to 
 obtain money, he aided her in concealing or even carrying out the one 
 completed ? ' (j). 
 
 Where a statute makes an offence felony, without mentioning acces- 
 sories, yet those who knowingly receive the offender are accessories after 
 the fact {k). It has, however, been said, that if the statute creating the 
 felony, in express terms, comprehends accessories before, but does not 
 mention accessories after, there can be no accessories after (I). 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 is an express provision to the 
 contrary (m). Hale says that (n) ' although generally an Act of Parlia- 
 ment creating a felony consequentially brings accessories before and after 
 within the same penalty, yet the special penning of the Act in such cases 
 sometimes varies the case.' Thus, 3 Hen. VII. c. 2 (rep.), against 
 abduction of women, made the taking away, the procuring and abetting, 
 and also the wittingly receiving, all equally felonies. 
 
 It is necessary for a receiver to have had notice, either express or 
 implied, of the felony having been committed, in order to make him an 
 accessory by receiving the felon (o) ; and the felony must be complete 
 at the time of the assistance given to make 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 delinquent ; this does not 
 make him accessory to the homicide, for till death ensues that felony is 
 not committed (p). 
 
 A married woman does not become an accessory after the fact to a 
 felony committed by her husband by receiving him, nor does she become 
 a principal in receiving her husband when his offence is treason, the law 
 considering that she is bound to receive him and not to discover him {q). 
 Nor is she liable, criminally, for receiving jointly with her husband any 
 offender (/'). 
 
 Prosecutions against accessories after the fact grounded on the 
 common law are seldom instituted ; nor do they ever appear to have 
 had any great effect (s). 
 
 (j) R. V. Hansill, 3 Cox, 597. He left C. S. G. Vide ante, p. 12G, note (y). 
 
 the case to the jury, iutendmg to reserve (q) 1 Hawk. c. 1, s. 10. 2 Hawk. c. 29, 
 
 the point, but the prisoner was acquitted. s. 34. 1 Hale, 47, 621. R. v. Good, 1 C. & 
 
 (k) 1 Hale, 613. A7ite, p. 118. K. 185, and vide ante, p. 91. This applies to 
 
 (I) 1 Hale, 614. no other relation besides that of a wife to 
 
 (m) 2 Hawk. c. 29, s. 14. her husband ; and the husband may be an 
 
 (n) 1 Hist. P.O., 014, unless he means accessory for the receipt of his wife. 1 Hale, 
 
 the same penalty as is incurred by such 621. 
 
 accessories to a common law felony his (r) 1 Hale, 48, 621. But if the wife 
 
 statement is inaccurate. alone, the husband being ignorant, do 
 
 (o) 2 Hawk. 0. 29, s. 32. knowingly receive B., a felon, the wife is 
 
 (p) 2 Hawk. c. 29, s. 35. 4 Bl. Com. 38. accessory and not the husband. 1 Hale, 
 
 ' I apprehend it would make him accessory 621. 
 
 to the felony of maliciously wounding.' (s) Fost. 372.
 
 CHAP, v.] Misprision of Felony, 129 
 
 Sect. III. — Mispkision of Felony. 
 
 Misprision of felony closely resembles the offence of being accessory 
 after the fact to felony. It consists in concealing or procuring the con- 
 cealment of a felony known to have been committed (t), whether it be 
 felony by the common law or by statute (u). The offence differs from the 
 offence of the accessory in that it is not necessary to prove either privity 
 in the commission of the principal offence, or any active assistance of the 
 felon to escape from justice : but it is sufficient to shew mere silent 
 observation of the commission of a felony without using any endeavour 
 to bring the offender to justice (v), or to inform the officers of the law 
 of the commission of the felony, or that the accused has silently observed 
 the commission of a felony without any endeavour to apprehend the 
 offender (?/;). Under sect. 8 (1) of the Sheriffs Act, 1887 (50 & 51 Vict, 
 c. 55), ' Every person in a county shall be ready and apparelled at the 
 command of the Sheriff, and at the cry of the county, to arrest a felon, 
 whether within franchise or without, and in default shall, on conviction, 
 be liable to a fine ' {x). And it is said that it is the duty of a man to 
 discover the felony of another to a magistrate (y), and that the law 
 does not allow private persons the right to forgo a prosecution (z). 
 There must be mere knowledge without assent, for any assent or par- 
 ticipation will make the man a principal or an accessory (a). Conceal- 
 ment of treasure trove is described as a form of misprision of felony (6). 
 Misprision of felony is a misdemeanor at common law, punishable by 
 imprisonment without hard labour (c). Misprision of felony is also 
 distinct from theft-bote {cc) and from compounding a felony (d). 
 
 In 1275, the punishment of this offence in an officer was fixed by the 
 First Statute of Westminster (3 Edw. I. c. 9), which enacted (as amended), 
 that ' if any 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 office, for favour borne to such misdoers, and be attainted 
 thereof, they shall have one year's imprisonment, and after make a 
 grievous fine at the King's pleasure, if they have wherewith ; and if they 
 have not whereof, they shall have imprisonment of three years.' This 
 enactment has been repealed and superseded by the Sheriffs Act, 1887 
 (50 & 51 Vict. c. 55), which enacts, sect. 29 (1), that 'if a person, being a 
 
 (0 1 Hawk. cc. 20, 59. 3 Co. In.st. 139. (y) 3 Inst. 140. 
 
 1 Chit. Cr. L. 3. Sec Stoph. Dig. Cr. L. (z) R. v. Daly, 9 C. & P. 342, Gurney, 
 
 (6th ed.), p. 401. For a precedent of indict- B. ; sed quaere. Is not the duty merely to 
 
 raent, see 2 Chit. Cr. L. 232. inform of tlio crime ? 
 
 (m) 1 Hawk. c. 59, s. 2. (a) 4 Bl. Com. 121. But see 1 Hale, 61G. 
 
 {v) 1 Hale, 374, 375. 1 Hawk. c. 59, s. 2, (6) 4 Bl. Com. 121. 3 Co. Inst. 133. See 
 
 n. (1). R. V. Thomas, L. & C. 313. R. v. Toole, 
 
 (m;) 1 Hale, 371-375. 3 Co. Inst. 140. Ir. Rep. 2 Ch. 36. 
 
 1 Hawk. c. 59, s. 6. See R. v. Sherlock, (r) Vide post, p. 249. 
 
 L. R. 1 C. C. R. 20 : 35 L. J. M. C. 92. (cc) 3 Co. Inst. 134. R. v. Burgess, 16 
 
 (a;) The section also provides further penal- Q.B.D. 141, jMst, p. 579. 
 
 ties if the offender is bailiff of a franchise. (d) Post, p. 579. 
 
 VOL. I. K
 
 130 Of Parties to the Commission of Crime. [book i. 
 
 sheriff, under-sheriff, bailiff, or officer of a sheriff, whether witliin a franchise 
 or without, does any of the following things, that is to say — 
 
 (a) Conceals or procures the concealment of any felon, or 
 
 (b) Refuses to arrest any felon within his bailiwick : , . . 
 
 he shall (without prejudice to any other punishment under the provisions 
 of this Act) be guilty of a misdemeanor, and be liable, on conviction, to 
 imprisonment for a term not exceeding one year, and to pay a fine, or if 
 he has not wherewith to pay a fine, to imprisonment for a term not exceed- 
 ing three years.' The punishment in the case of other persons is imprison- 
 ment (without hard labour) for a discretionary time, or fine, or both (e). 
 
 Sect. IV. — Trial and Punishment of Accessories to Felony. 
 
 The procedure for the trial and punishment of accessories now rests 
 almost entirely on statute (/). 
 
 The Accessories and Abettors Act, 1861, which came into operation 
 on August 6, 1861, after reciting that it is expedient to consolidate and 
 amend the statute law of England and Ireland relating to accessories 
 to and abettors of indictable offences, enacts as follows : — 
 
 As to Accessories Before the Fact. — Sect. 1. ' Whosoever shall 
 become an accessory before the fact to any felony, whether the same be 
 a felony at common law or by virtue of any Act passed or to be passed, 
 may be indicted, tried, convicted, and punished in all respects as if he 
 were a principal felon ' (g). 
 
 Sect. 2. ' Whosoever shall counsel, procure, or command any other 
 person to commit any felony (h), whether the same be a felony at common 
 law or by virtue of any Act passed or to be passed, shall be guilty of felony, 
 and may be indicted and convicted either as an accessory before the 
 fact to the principal felony, together with the principal felon, or after 
 the conviction of the principal felon, or may be indicted and convicted 
 of a substantive felony, whether the principal felon shall or shall not 
 have been previously convicted, or shall or shall not be amenable to 
 
 (e) The old authorities speak of fine or his absence. It was contended, that as A. 
 
 ransom at the King's pleasure. 4 Bl. Com. had been acquitted, B. must be so also ; 
 
 121, where it is said, ' which pleasure of the for the statute had only altei-ed the form of 
 
 King must be observed, once for all, not pleading, and not the law, as to accessories 
 
 to signify any extrajudicial will of the before the fact ; but it was held, that the 
 
 sovereign, but such as is declared by his statute had made the offence of the acces- 
 
 representatives, the judges in his courts of sory before the fact a substantive felony, 
 
 justice ; voluntas Regis in curia, non in and that the old law, which made the con- 
 
 cumera.^ viction of the principal a condition prece- 
 
 ( / ) It is an old maxim that accessorius dent to the conviction of the accessory, was 
 
 sequitur naturam sui principaUs (3 Co. Inst. done away by that enactment. R. v. 
 
 139 : 4 Bl. Com. 36), and that an accessory Hughes, Bell, 242. 11 & 12 Vict. c. 46, s. 1, 
 
 cannot be guilty of a higher crime than his was held to apply to murder (Staffordshire 
 
 principal. Summer Assizes, 1850, Williams, J., MSS. 
 
 {rj) Taken from 11 & 12 Vict. c. 46, s. 1, C. S. G., which has always been held a form 
 
 upon which it was held, that it was no ob- of felony). Anon. Keilw. 91b. 2 Hale, 45. 
 
 jection to an accessory before the fact being 3 Co. Inst. 236. Greaves' Crim. Law Cons, 
 
 convicted that his principal had been Acts (2nd ed.), 20. 
 
 acquitted. A. and B. were jointly indicted {h) Incitement to commit an offence 
 
 for stealing certain cotton. A. was ac- which is not in fact committed is not within 
 
 quitted and called as a witness against B. ; ss. 1, 2, but is a misdemeanor only. R. ik 
 
 and it clearly appeared that A. liad stolen Gregory, L. R. 1 C. C. R. 77 : 36 L. J. M. C. 
 
 the 'cotton at the instigation of B., and in 60, fost, p. 203.
 
 CHAP, v.] Punishment of Accessories to Felony. 131 
 
 justice, and may thereuf)on be punished in the same manner as any 
 accessory before the fact to the same felony, if convicted as an accessory, 
 may be punished ' {i). 
 
 Accessories After the Fact. — Sect. 3. 'Whosoever shall become an 
 accessory after the fact to any felony, whether the same be a felony at 
 common law or by virtue of any Act passed or to he jmssed, may be 
 indicted and convicted either as an accessory after the fact to the principal 
 felony, together with the principal felon, or after the conviction of the 
 principal felon, or may be indicted and convicted of a substantive felony, 
 whether the principal felon shall or shall not have been previously con- 
 victed or shall or shall not be amenable to justice, and may thereupon be 
 punished in like manner as any accessory after the fact to the same 
 felony, if convicted as an accessory, may be punished' (/). 
 
 Sect, ir ' Every accessory after the fact to any felony (except 
 where it is otherwise specially enacted) {k), whether the same be a felony 
 at common law or by virtue of any Act 'passed or to he passed, shall be 
 liable, at the discretion of the court, to be imprisoned in the common 
 gaol or house of correction for any term not exceeding two years, with 
 or without hard labour ; and it shall be lawful for the court, if it shall 
 think fit, to require the offender to enter into his own recognisances, 
 and to find sureties, both or either, for keeping the peace, in addition 
 to such punishment : provided that no person shall be imprisoned under 
 this clause for not finding sureties for any period exceeding one year.' 
 
 As to Accessories Generally. — Sect. 5. ' If any principal offender shall 
 be in anywise convicted of any felony, it shall 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 (l), notwithstanding such 
 principal felon shall die, or be pardoned, or otherwise delivered hel'ore 
 attainder ; and every such accessory shall upon conviction suffer the 
 same punishment as he would have suffered if the principal had been 
 attainted (m). 
 
 Sect. 6. ' Any number of accessories at different times to any felony, 
 and any number of receivers at different times of property stolen at 
 one time, may be charged with substantive felonies in the same indict- 
 ment, and may he tried together, notwithstanding the principal felon 
 
 (*■) Taken from 7 Geo. IV. c. 64, s. 9 (E), [k] e.g., in the case of receivers of stolen 
 
 and 9 Geo. IV. c. 54, s. 1 (1). At common goods, 24 & 25 Vict. c. 96, s. 91, post. 
 
 law the accessory might bo tried with the p. 1405. S. 4 is general, and may bo 
 
 principal offender, but could not without held to overlap the similar provisions of 
 
 his consent be separately tried till the the Crimmal Law Consolidation Acts of 
 
 principal offender had been convicted or 18()1, post, ]). l.'}3. 
 
 outlawed. 2 Hawk. c. 29, s. 45. (0 There is now no attainder on convic- 
 
 (j) Taken from 11 & 12 Vict. e. 46, s. 2. tion of treason or felony. 33 & 34 Vict. 
 
 At common law the accessory could not, c. 23, s. 1, jxi^-t. p. '2M. 
 
 except by his own consent, be tried until (m) Taken from 7 Geo. IV. e. 64, s. 11 (E) 
 
 the guilt of the principal offender had been and 9 Geo. IV. c. 54, s. 25 (I). At common 
 
 ascertained by conviction or outlawry, law an accessory could not be tried unless 
 
 unless they were tried together. 2 Hawk. the principal offender had been attainted, 
 
 c. 29, s. 45. Fost. 360. 1 Hale, 623. A so that if he stood mute of maUce or 
 
 person indicted as a principal cannot be con- challenged peremptorily above the legal 
 
 victed as an accessory after the fact. R. v. number of jurors, or refused directly to 
 
 Fallon, L. & C. 217 (indictment for stealing answer to the charge, the accessory could 
 
 from the person). Richards v. R., 66 L. J. not be tried. Fost. 362. 1 Hale, 625. 1 
 
 Q.B. 459. St. Tr. 314. 
 
 K 2
 
 132 Of Parlies to the Commission of Criyne. [book i. 
 
 shall not be included in the same indictment, or shall not be in custody 
 or amenable to justice ' (n). 
 
 Sect. 7. ' Where any felony shall have been wholly committed 
 within England or Ireland, the offence of any person who shall be an 
 accessory either before or after the fact to any such felony may be dealt 
 with, inquired of, tried, determined, and punished by any court which 
 shall have jurisdiction to try the principal felony, or any felonies com- 
 mitted in any county or place in which the act by reason whereof such 
 person shall have become such accessory shall have been committed ; 
 and in every other case the offence of any person who shall be an accessory 
 either before or after the fact to any felony may be dealt with, inquired 
 of, tried, determined, and punished by any court which shall have juris- 
 diction to try the principal felony or any felonies committed in any county 
 or place in tvhicli such person shall he apprehended or he in custody, whether 
 the principal felony shall have been committed on the sea or on the land, 
 or begun on the sea and completed on the land, or begun on the land 
 and completed on the sea, and whether within His Majesty's dominions 
 or without, or partly within His Majesty's dominions and partly without ; 
 provided that no person who shall be once duly tried either as an accessory 
 before or after the fact, or for a substantive felony under the provisions 
 hereinbefore contained, shall be liable to be afterwards prosecuted for 
 the same offence ' (o). 
 
 This section, like 7 Geo. IV. c. 64, s. 9, from which it was framed, appears 
 to extend only to accessories who at common law could be tried with 
 or after the principal, and not to make persons triable who could not 
 be tried at common law as accessories {p). 
 
 By the earlier part of sect. 7, where the principal felony is wholly 
 committed in England or Ireland, the accessory may be tried either in 
 the county where the principal felony may be tried, or in the county 
 where the act by which he became an accessory was done. But where 
 the principal felony is not committed wholly in England or Ireland, the 
 accessory may be tried by any court which has jurisdiction to try the 
 principal, or in any county in which the accessory may be apprehended 
 or be in custody. The object of this latter provision is to meet cases 
 
 (?)) Framed from 14 & 15 Vict. c. 100, become accessories at one and the same 
 
 s. 15, with the addition of the words in time and place.' C. S. (i. 
 
 italics. ' The Committee of the Commons (o) Taken from 7 Geo. IV. c. 64, ss. 9, 
 
 who sat on 14 & 15 Vict. c. 100, struck out 10 (E) : 9 Geo. IV. c. 54, ss. 23, 24 (I); and 
 
 those words, not perceiving that they were 11 & 12 Vict. c. 46, s. 2. Under those enact- 
 
 the only important words in the clause : ments accessories might be tried by any 
 
 for there never was any doubt that separate Court which had jurisdiction to try the 
 
 accessories and receivers might be included principal, whether the principal felony had 
 
 in the same indictment under the circum- been committed on the sea or on land, and 
 
 stances referred to in s. 15 ; the doubt whether within the Queen's dominions or 
 
 was, whether they could be comfelled to be without, and where the principal felony 
 
 tried together in the absence of the princi- was committed in one county, and the act 
 
 pal, where they separately became acces- by which the person became an accessory 
 
 sories, or separately received. was done in another county, the accessory 
 
 ' The marginal note to the section " several might be tried in either, 
 
 accessories, &c.," was erroneously altered (p) R. v. Russell, 1 Mood. 356, where it 
 
 after the Bill went to the House of Lords. was held that R. could not be tried under 
 
 It began " separate accessories," because 7 Geo. IV. c. 64, s. 9, as accessory before the 
 
 the clause applies only to accessories at fact to felo de se. Cf. R. v. Leddington, 
 
 different times. " Several " persons may 9 C. & P. 79, Alderson, B.
 
 CHAP, v.] Punishment of Accessories to Felony. 133 
 
 where the principal felony may have been committed, either on land or 
 sea, out of England and Ireland. In such cases no court had jurisdiction 
 to try the principal until he was apprehended in England or Ireland, and 
 consequently where the principal in such cases had not been apprehended, 
 the accessory would not have been triable at all under the former enact- 
 ments. The words in italics cure this defect of the law. 
 
 As to Other Matters. — 24 & 25 Vict. c. 94, s. 9. ' Where any person 
 shall, within the jurisdiction of the Admiralty of England or Ireland, 
 become an accessory to any felony, whether the same be a felony at 
 common law or by virtue of any Act passed or to be passed, and whether 
 such felony shall be committed within that jurisdiction or elsewhere, or 
 shall be begun within that jurisdiction and completed elsewhere, or 
 shall be begun elsewhere and completed within that jurisdiction, the 
 offence of such person shall be a felony ; and in any indictment for any 
 such offence the venue in the margin shall be the same as if the offence 
 had been committed in the county or place in which such person shall 
 be indicted, and his offence shall be averred to have been committed 
 " on the high seas " ; provided that nothing herein contained shall alter 
 or affect any of the laws relating to the government of His Majesty's land 
 or naval forces ' (q). 
 
 Each of the Criminal Law Consolidation Acts of 1861 contains a section 
 in substantially identical terms providing that ' in the case of every 
 felony punishable under this Act, every principal in the second degree, 
 and every accessory before the fact, shall be punishable in the same 
 manner as the principal in the first degree is by this Act punishable ; 
 and every accessory after the fact to any felony punishable under this 
 Act [except murder] (r) shall be liable to be imprisoned for any term not 
 exceeding two years with or without hard labour ; and every accessory 
 after the fact to murder shall be liable, at the discretion of the Court, to 
 be kept in penal servitude for life or for any term not less than three years, 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour . . . ' {s). These enactments were passed, and came 
 into effect on the same day as the Accessories, &c., Act, 1861 {supra). 
 
 Similar provisions are made by the Piracy Act, 1837 (7 Will. IV. 
 & 1 Vict. c. 88), s. 4 and the Explosive Substances Act, 1883 (46 & 47 
 Vict. c. 3), s. 7. 
 
 Whenever it is doubtful whether a person is a principal or an accessory 
 before the fact, an indictment under sect. 1 {ante, p. 130), will be sufficient, 
 whether it turns out on the evidence that such person was a principal or 
 accessory before the fact, as well as where it is clear that he was either the 
 one or the other, but it is uncertain which he was. But cases of 
 accessories a^'ler the fact must be indicted as such, and not as principals. 
 
 (q) The object of the earlier part of this (r) These words are only in 24 & 25 Vict. 
 
 section is to remove a douljt, perhaps un- c. 100, s. ()7. 24 & 2") Vict. c. 90, s. 08, 
 
 founded, wiiether a person who hecaiiie an excepts receivers of stolen property. 
 accessory on the sea in the cases mentioned (.v) 24 & 25 Vict. e. 9(), s. 98 (larceny) ; 
 
 in it, was a felon. 7 (ieo. IV. c. (14, s. 9, c. 97, s. 5() (malicious daniaf,'e) ; c. 98, s. 49 
 
 contained a similar enactment. The latter (forgery) ; c. 99, s. 35 (coinage offences) ; 
 
 part of the section is framed from 7 & 8 c. 100, s. 07 (offences against the person). 
 
 Vict. c. 2. By sect. 10, ' nothing in this Act For the rest of the .sections, which deal with 
 
 contained shall extend to Scotland, except as misdemeanors, see post, p. 139. 
 hereinbefore otherwise expressly provided.'
 
 134 Of Parties to the Commission of Crime. [booK i. 
 
 Where the offence of the principal is local, e.g., a burglary committed 
 in county A., if it is proposed to try the accessory in county B., it will be 
 prudent to include a count under sect. 2 {ante, p. 130), since sect. 1 
 only allows the accessory to be tried under it as a principal felon, i.e., 
 in county A, (t) : although sect. 7 may be read as authorising indictment 
 and trial in county B., where the evidence shews that the accused became 
 accessory before the fact in that county. 
 
 Where an indictment stated that L. cast away a vessel, and that the 
 prisoner incited him to commit the said felony, it was objected that 
 the indictment was not properly framed as for a substantive offence, 
 under 7 Geo. IV. c. 64, s. 9 (rep.), but was in the form of an indictment 
 at common law against principal and accessory, and as the principal had 
 not been convicted, and was not on his trial, the accessory could not be 
 tried. But it was held that the description of the offence was not altered 
 by the statute. It might have been put in a different shape, but every 
 allegation in this indictment would have been included in any other (u). 
 So where M. was indicted for sending letters demanding money with 
 menaces, and H. with receiving, harbouring, &;c., M., knowing her to 
 have committed the said felony, Erie, J., held that H. might be tried 
 before M. on this indictment under 11 & 12 Vict. c. 46, s. 2 (t?), as that 
 clause was only intended to alter the course of trial, and not the mode 
 of describing the offence {w). In one case an indictment alleging that 
 a certain evil-disposed person feloniously stole, and that before the said 
 felony was done the prisoner did feloniously incite the said evil-disposed 
 person to commit the said felony, was held bad as being too uncertain (x). 
 
 Where the proceedings are against the accessory alone for receiving 
 stolen goods, the name of the principal need not be stated (y). Where 
 the proceedings are against both principal and accessory, the indictment 
 may contain counts for a substantive felony, e.g., receiving stolen goods, 
 without naming the principal, and upon such an indictment the receiver 
 may be convicted, although the person indicted as principal is acquitted (z), 
 
 A man cannot be convicted as accessory after the fact to murder on an 
 indictment for the principal offence (a). But a count charging a person 
 with being accessory before the fact may be joined with a count charging 
 the same person with being accessory after the fact to the same felony, 
 and the prosecutor cannot be compelled to elect upon which he will 
 proceed, and the party may be found guilty upon both (b). In one case 
 
 t) It might, however, be held that s. 1 (w) R. v. Hansill, 3 Cox, 597. 
 
 in effect makes every mdictment charging (x) R. v. Caspar, 2 Mood. 101. 
 
 a person as principal in felony, charge him (y) R. v. Jervis, 6 C. & P. 156, Tindal, 
 
 also as accessory before the fact. In the C.J. R. v. Wheeler, 7 C. & P. 170, Cole- 
 
 6th edition of this work there is a discussion ridge, J. R. v. Caspar, 2 Mood. 101. 
 
 as to challenging the indictment by writ of (2) R. v. Pulham, 9 C. & P. 280, Gurney, 
 
 error (now abolished) or motion in arrest of B. R. v. Austin, 7 C. & P. 796, Parke and 
 
 judgment. It would seem that technical BoUand, Bs. 
 
 objections of this kind would be disregarded (a) R. v. Fallon, L. & C. 217. Richards 
 
 under the Crimmal Appeal Act, 1907, jmsl, v. R., 66 L. J. Q.B. 459. R. v. Bubb, 70 
 
 Bk. xii. c. 4. J. P. 143 (C. C. R.). 
 
 (u) R. V. Wallace, 2 Mood. 200, C. & M. (b) R. v. Blackson, 8 C. & P. 43, Parke, 
 
 200. But see R. v. Ashmall, 9 C. & P. 237. B., and Patteson, J. R. v. Tuffin, Surrey 
 
 (v) Repealed in 1861 (24 & 25 Vict. c. 95), Assizes, July, 1903, Darling, J. Arch. Cr. 
 
 but re-enacted as 24 & 25 Vict. c. 94, s. 3, PI. (23rd ed.) 89, 1307 ; 19 T. L. R. 640. 
 ante, p. 131.
 
 CHAP, v.l Punishment of Accessories to Felony. 135 
 
 a party was indicted and tried both for receiving stolen goods, 
 and for receiving, harbouring and comforting, the felon, and was 
 convicted (c). 
 
 A count charged a prisoner with stealing certain cotton, and another 
 count charged him with receiving the property aforesaid, and it was 
 proved that the prisoner had solicited a servant to rob his master ; which 
 he did, and took the cotton to the prisoner, in whose possession it was 
 afterwards found, and he stated that he had got it from the servant, 
 and the jury found a general verdict of guilty ; on a case reserved, it 
 was held, that the jury might upon this evidence reasonably convict the 
 prisoner as an accessory before the fact upon the count for stealing, under 
 11 & 12 Vict. c. 46, s. 1 {d), and that there was no inconsistency in 
 finding that he was guilty of being an accessory before the fact, and that 
 he received the goods knowing them to have been stolen (e). But where 
 one count charged the prisoner with stealing sheejD, and another with 
 receiving the said sheep knowing them to have been stolen, and the jury 
 found a verdict of guilty on both counts, the verdict and judgment was 
 set aside on the ground that this was an inconsistent verdict. The 
 Court assumed that the counts were inserted under 11 & 12 Vict. c. 46, 
 s. 3, and held that that statute only authorised the jury to convict either 
 of stealing or receiving, and not of both (/'). 
 
 An indictment against an accessory should state that the principal 
 committed the offence ; and it is not sufficient merely to state, that he 
 was indicted for it {g). 
 
 Even at common law a man indicted as accessory to two or more 
 persons might be convicted as accessory to one {h). 
 
 (c) R. V. Blackson, «6i5«^., per Parke, B. or receiving ; but it does not forbid them 
 
 \d) Repealed in 1861, and re-enacted as to convict of both. Suppose a written con- 
 
 24 & 25 Vict. c. 94, s. 1, ante, p. 130. fession of the prisoner proved both offences, 
 
 (e) R. V. Hughes, Bell, 242. how can a jury on their oaths acquit of 
 
 (/■) R. V. Evans, 7 Cox, 151 (Jr.). The either ? In point of law there never wa.? 
 
 Court said that, ' it might be possible that a any objection to the msertion of several 
 
 man may have stolen goods, and, after dis- distinct felonies in one indictment ; it was 
 
 posing of them, may afterwards get them no ground of demurrer, arrest of judgment 
 
 into his hands knowing them to be stolen, or error (1 Chit. Cr. L. 253), but it was mere 
 
 and be thus guilty of steahng and receiving matter for the discretion of the judge to put 
 
 the same goods.' Now, suppose, on the the prosecutor to elect on which charge he 
 
 trial of this indictment, the facts had been would proceed. 11 & 12 Vict. c. 46, s. 3, 
 
 as thus stated, it seems plain that the jury had taken away that discretion in this case, 
 
 ought to have found the verdict they did, and made a prisoner triable at the same 
 
 and upon the finding as it stood the Court time for stealing and receiving, and as the 
 
 were bound to presume that the evidence Act contains no prohibitory words, the 
 
 proved both counts. But the Court add, necessary consequence follows that the jury 
 
 ' The statements in this record negative may convict of both if the evidence prove 
 
 such a state of facts ; ' and ' the unity of both offences. If it were otherwise, they 
 
 the offence in the ordinary language is put must find a false verdict either on the 
 
 beyond doubt, the stealing and receiving one or other count, and thereby save the 
 
 are of the same chattel, laid as the property prisoner from the punishment of one of 
 
 of the same person, on the same day.' This the two offences he had committed. 
 
 is a plain error ; the property must be the C. S. G. ^ t> ^^A 
 
 same, and the time laid is perfectly imma- (g) Lord Sanchar's case, 9 Co. Rep. 114, 
 
 terial ; but even if it were material, a man 117a. R. v. Read, 1 Cox, 65. R. v. But- 
 
 may on the same day steal goods at one terfield, 1 Cox, 39. 
 
 place, part with them, and receive them (h) Fost. 361, 9 Co. Rep. 119. 1 Hale, 
 
 again at another place. Again, 11 & 12 624. 2 Hawk. c. 29, s. 46. Plowd. 98, 99. 
 
 Vict. c. 46, s. 3, only said, ' it shall be law- Fost. 361. See 24 & 25 Vict. c. 94, s. 6, 
 
 ful ' for the jury to convict either of stealmg ante, p. 131.
 
 136 Of Parties to the Commission of Crime. [book i. 
 
 Formerly if A. were indicted as principal and acquitted, he might 
 have been afterwards indicted as accessory before the fact (^), and if 
 he were indicted and acquitted as accessory he might be indicted again 
 as principal (j). But now an acquittal as principal is a bar to an 
 indictment for being accessory before the fact ; for on an indictment 
 as principal an accessory before the fact may be convicted under 24 & 25 
 Vict. c. 94, s. 1 {ante, p. 130). If a man is indicted as principal and 
 acquitted, he may be indicted as accessory ' after the fact ' ; and if indicted 
 as accessory before the fact and acquitted, he may be indicted as accessory 
 after the fact (Jc). The Act of 1861 enacts, that no person who shall 
 be once duly tried for any offence of being an accessory shall be liable 
 to be again indicted or tried for the same offence (l). 
 
 An indictment charged four prisoners with feloniously inciting a 
 certain evil-disposed person unknown to forge a will ; another count 
 charged two of them with uttering the will, and three of them as accessories 
 before the fact to the uttering. The evidence did not shew any joint 
 act done by the prisoners, but only separate and independent acts at 
 separate and distinct times and places. After all the evidence on the 
 part of the prosecution had been given, one of the prisoners pleaded 
 guilty, and it was argued that all the other prisoners were entitled to 
 an acquittal ; that the indictment charged a joint inciting, and there 
 being no evidence of any joint acting, and one prisoner being convicted 
 the others could not be convicted jointly with her ; but Williams, J., 
 overruled the objection (m). 
 
 Where the principal and accessory are tried together upon the same 
 indictment, the accessory may enter into the full defence of the j)rincipal, 
 and avail himself of every matter of fact and every point of law tending 
 to his acquittal ; for the accessory is in this case to be considered as 
 'particeps in lite ; and this sort of defence necessarily and directly tends 
 to his own acquittal. Where the accessory is brought to trial after 
 the conviction of the principal, and it comes out in evidence upon the 
 trial of the accessory that the offence of which the principal was convicted 
 did not amount to felony in him, or 7wt to that species of felony with ivhich 
 he was charged, the accessory may avail himself of this, and ought to be 
 acquitted {n). For though it is not necessary upon such trial for the 
 prosecution to enter into details of the evidence on which the conviction 
 of the principal was founded, and the record of the conviction is sufficient 
 evidence against the accessory to put him upon his defence (o) ; yet 
 the presumption raised by the record that everything in the former 
 
 (i) R. V. Birchenough, Ry. & M. 477, decision was wrong. Suppose the incitings 
 
 overruling 1 Hale, 626 ; 2 Hale, 244, vide had each been in a different county, it is 
 
 post, Bk. xii. c. ii. ' Avtrefois Acquit.'' quite clear that at common law (if triable 
 
 (j) See 1 Hale, 625. R. v. Gordon, 1 at all) each could only have been tried in 
 
 Leach, 515. 1 East, P.C. 35. the county where it took place, and this 
 
 (k) 1 Hale, 626. proves that they are separate and distinct 
 
 (/) 24 & 25 Vict. c. 94, s. 7, ante, p. 13?. felonies. And no rule is more clearly 
 
 Cf. 52 & 53 Vict. c. 63, s. 33, a7ite, pp. 4, 6. settled than that on a joint charge j^cu 
 
 As to pleas of autrefois acquit, vide post, must prove a joint offence.' C. S. G. See 
 
 Bk. xii. c. ii. ante, p. 131, as to including several acces- 
 
 (m) R. V. Barber, 1 C. & K. 442. R. v. sories in the same indictment. 
 
 Messingham, 1 Mood. 257, was cited in sup- (n) Fost. 365. R. v. M'Daniel, 19 St. Tr 
 
 port of the objection. ' I have always been, 806. 
 
 and still am, clearly of opinion that this (a) But see R. v. Turner, post, p. 137.
 
 Chap, v.] Punishment of Accessories to Felony. 137 
 
 proceeding was rightly and properly transacted must, it is conceived, 
 give way to facts manifestly and clearly proved ; and as against the 
 accessory the conviction of the principal will not be conclusive, being 
 as to him res inter alios acta (p). This was the opinion of Foster, J., 
 upon it, counsel for an accessory was allowed 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 felony, and was 
 only a breach of trust (q). And in a later case, it was also admitted 
 that the record of the conviction of the principal was not conclusive 
 evidence of the felony against the accessory, and that he has a right to 
 controvert the propriety of such conviction (r). 
 
 It seems that the accessory may insist upon the innocence of the 
 principal. Foster, J., 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 require that the accessory should be acquitted. 
 A. is convicted upon circumstantial evidence, strong as that sort of 
 evidence can be, of the murder of B. ; C. is afterwards indicted as accessory 
 to this murder ; and it comes out upon the trial, by incontestable 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 witnesses 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' (s). 
 
 Upon an indictment against an accessory, the guilt of the principal 
 cannot be proved by his confession, but must be proved aliunde, especially 
 if the principal be alive, and could be called as a witness ; and it seems 
 that even the conviction of the principal would not be admissible to 
 prove the guilt of the principal. The prisoner was indicted for receiving 
 sixty sovereigns, which had been stolen by R. A confession by R., 
 made before a magistrate in the presence of the prisoner, in which she 
 stated various facts implicating the prisoner, was tendered in evidence. 
 Patteson, J., refused to receive anything said by R., respecting the 
 prisoner, but admitted what she said respecting herself only. R. had 
 been found guilty on another indictment, but had not been sentenced, and 
 might have been called as a witness. The judges (t) were of opinion that 
 R.'s confession was no evidence against the prisoner ; and many of them 
 appeared to think that had R. been convicted, and the indictment against 
 the prisoner stated not her conviction, but her guilt, the conviction would 
 not have been any evidence of her guilt, which must have been proved 
 by other means (u). Upon the authority of this case, where an accessory 
 
 (p) Fost. 365. tliat where the principal ha-s been ennvicted 
 
 iq) Smith's case, 1 Leach, 288. it is nevertlieless on the trial of the acccs- 
 
 (r) R. V. Prosser (mentioned in a note to sory competent to tiie defendant to prove 
 
 R. V. Smith, 1 Leach. 2!)()). Car. Could, J. the' principal innocent. And see R. v. 
 
 See R. V. Blick, 4 C. & P. 377, Hosamiuet, .T. M'Daniel. 19 St. Tr. 800. 
 
 and R. v. M'Daniel, 19 St. Tr. 80(). {t) Lyndhurst, C.B., and Taunton, J., 
 
 {s) Fost. 307, 3r)8 ; and see Cook v. wore absent. 
 
 Field, 3 P:sp. 134, where it was stated by («) K. r. Turner, 1 Mood. 347 : 1 Lew. 
 
 Bearcroft, and assented to by Lord Kenyon, 119.
 
 l38 Of Parties to the Commission of Crime. [BOoK; i. 
 
 before the fact to a murder was tried after the principal had been con- 
 victed and executed, Parke, B., ordered the proceedings to be conducted 
 in the same manner as if the principal was then on his trial (v). And 
 where two persons were indicted together, one for stealing and the other 
 for receiving, and the principal pleaded guilty. Wood, B., refused to 
 allow the plea of guilty to establish the fact of the stealing by the principal 
 as against the receiver (w). 
 
 The prisoner was indicted as an accessory after the fact to M., who 
 was charged with sending letters demanding money with menaces, and 
 Erie, J., held these letters admissible against the accessory as evidence 
 of acts done, for it was necessary to prove a demand of the money, and 
 these letters constituted the demand {x). But where R. was indicted 
 as accessory before the fact to felony by S., Maule, J., refused to admit 
 in evidence conversations with S. held in the absence of B. (y). Where, 
 on an indictment against H. and P. for murder, P. was tried first, and 
 H. was alleged to have fired the fatal shot in a duel, it was held that 
 it might be proved that H. on the morning before the duel had said, ' I 
 will shoot him as I would a partridge/ Erie, J., saying, ' This statement 
 is an act indicating malice aforethought in H., and that is a fact which 
 the jury have to ascertain. The intentions of a person can only be inferred 
 from external manifestations, and words are some of the most usual 
 and best evidence of intention. It is not a declaration after the act 
 done narrating the past, but it shows the mind of the party ' (2). In 
 the same case, Erie, J., held that what H. said after the duel relating 
 to what passed at the spot where the duel took place was not admissible. 
 
 As to harbouring thieves, &c., in public-houses and brothels, see the 
 Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112, ss. 10, 11), as 
 amended by 39 & 40 Vict. c. 20, s. 5 (S. L. B.). These offences are punish- 
 able on summary conviction. 
 
 Sect. V. — Abettors in Misdemeanor. 
 
 In the case of misdemeanor, no distinction in respect of j^rocedure 
 or punishment hLs ever been made between parties or privies to the 
 offence who could, in the case of felony, be principals in the ^rst or second 
 degree, or accessories he/ore the fact. Indeed, there is no such person 
 as accessory in point of law to a misdemeanor (a). 
 
 The Accessories and Abettors Act, 1861, enacts as follows : — 
 Sect. 8. ' Whosoever shall aid, abet, counsel, or procure the com- 
 mission of any misdemeanor (6), whether the same be a misdemeanor 
 at common law or by virtue of any Act fussed or to he passed, shall 
 be liable to be tried, indicted, and punished as a principal offender ' (c). 
 
 (v) R. V. Ratcliffe, 1 Lew. 121. and abettor as a principal in the second 
 
 (w) Anon., cited in R. v. Turner, supra. degree. 
 
 {x) R. V. Hansill, 3 Cox, 597. (b) This is not limited to indictable mis- 
 
 (y) R- 1'- Read, 1 Cox, 65. demeanors. Du Cros v. Lambourne, uhi 
 
 (z) R. V. Pym, 1 Cox, 339. sup-a. 
 
 (a) R. V. Burton [1875], 13 Cox, 71, (c) Framed from 7 & 8 Geo. IV. c. 30, 
 
 Blackburn, J., cited and approved in Du s. 26 ; 9 Geo. IV. c. 56, s. 33 (I), &c., and 
 
 Cros V. Lambourne [1907], 1 K.B. 40, 43, reaUy only a declaration of the common 
 
 Alverstone, C.J. Darling, J., at p. 47, it law on the subject (R. i'. Greenwood, 2 Den. 
 
 is submitted erroneously, spoke of an aider 453. Du Cros v. Lambourne, ^loi supra.
 
 CHAP, v.] Abettors in Misdemeanor. 13D 
 
 Each of the Criminal Law Consolidation Acts of 1861, except the 
 Coinage Offences Act, 1861, contains as to the misdemeanors punish- 
 able under such Act a clause in the terms of this section. See 24 & 25 
 Vict. c. 96, s. 98 ; c. 97, s. 56 ; e. 98, s. 49 ; c. 100, s. 67. And there is a 
 similar provision in sect. 12 of the Foreign Enlistment Act, 1870 (33 & 
 34 Vict. c. 90) . Like provisions are made as to misdemeanors piuiish- 
 able on summary conviction by the Summary Jurisdiction Act, 1848 
 (11 & 12 Vict. c. 43), which enacts (s. 5), that 'every person who shall 
 aid, abet, counsel, or procure the commission of any offence which is 
 or hereafter shall be punishable on summary conviction, shall be liable 
 to be proceeded against and convicted for the same, either together 
 with the principal offender, or before or after his conviction, and shall 
 be liable, on conviction, to the same forfeiture and punishment as such 
 principal offender is or shall be liable(d). 
 
 In R. V. Bubb(e), on an indictment of T. and B. as principals in 
 misdemeanor, the jury returned a verdict against T. as a principal, 
 and against B. .as accessory after the fact. A judgment of guilty, en- 
 tered on the latter verdict, was quashed by the Court for Crown Cases 
 Reserved. The Court declined to construe the verdict as meaning that 
 B. was a principal in the second degree, or an accessory at the time 
 when the misdeameanor was committed, and held that she was not in- 
 dictable under 24 & 25 Vict. c. 94, s. 8(/). Aiders and abettors in mis- 
 demeanors may be charged either separately or as principals ( /7 i. 
 
 In R. V. de Marny(/i), it was held that a man could lawfully be 
 convicted of aiding and abetting the publication in England of ob- 
 scene literature by sending it through the post, contrary to sect. 4 of 
 the Post Office Protection Act, 1884 (47 & 48 Vict. c. 76) {i), on evi- 
 dence that by inserting advertisements, which he knew to relate to 
 such literature, in a paper published in England, he had facilitated, or, 
 as the judges held, procured and caused the sending of such literature 
 from abroad into England through the post. 
 
 R. V. (le Marney [1907], 1 K.B. 388); stated, ante, p. 1.31 note(j), as to 
 
 by whicH all persons, who would be ac- felonies. 
 
 cessories in felony, are principals in (/) Darlinj.'. J.. snf,'<^ested tliat the 
 
 misdemeanor, hence it follows that a statute did not preclude an indictment 
 
 person indicted for committing a mis- (cju. at common law) of an accessory 
 
 demeanor may be convicted, if it ap- after tiie fact to riisdemeanor. 
 
 pear that he caused it to be committed, {()) Stacey r. Whitehurst. 18 C.B. 
 
 although he is absent when it is com- (X.S. ) 4. I)u C'ros r. Laml)ourne 
 
 mitted. R. v. Clavton, 1 C. & K. 128. [10071. K.B. 40, 44, Alverstone, L.C.J. 
 
 R. V. Moland, 2 Mood. 276. ( /( ) | 10(17 |. 1 K.B. 388. 
 
 (d) As to this section, see Benford (i) S. 4 is repealed and re-enacted 
 V. Sims [1898], 1 Q.B. 641. as s. 63 of the Post Olliee Act. 1908 (8 
 
 (e) [1900] 70 J.P. 143. (C.C.R.) Edw. VII. c. 48). 
 The Court followed the rule already
 
 139a ) 
 
 CANADIAN NOTES. 
 
 OF PARTIES TO THE COMMISSION OF CRIME. 
 
 Sec. 1. — Preliminary. 
 
 Innocent Agent. — As to freedom from criminal responsibility, see 
 notes to the last preceding chapter. 
 
 Sec. 2. — Principals and Accessories before the Fact. 
 
 See Code sec. 69. (This section is subject to sees. 17 and 18 of the 
 Code, as to children.) 
 
 This section makes any person who does an act for the purpose of 
 aiding any other person. to commit an offence or who abets any other 
 person in commission of an offence, a party to the offence committed 
 by such other person. To abet is to be personally or constructively pre- 
 sent at the commission of an offence, and to assist in the criminal act ; 
 but to aid is to help, or in any way to promote, facilitate or bring about 
 the accomplishment of any criminal purpose by another, and this may 
 be done without being present when the offence is perpetrated. Under 
 the old rule of law the abettor, or the person who was present inciting 
 or helping, was a principal in the second degree, while the person who, 
 being absent, counselled, helped or facilitated in any way the commis- 
 sion of an offence which was afterwards perpetrated was an accessory 
 before the fact. R. v. Roy, 3 Can. Cr. Cas. 472. 
 
 To counsel and procure a person to commit an offence constitutes 
 the counsellor or inciter a party to the offence, when it is committed ; 
 and by this section he can be proceeded against as a principal. The 
 Queen v. Gregory, L.R. 1 C.C.R. 79. 
 
 The words aider, abettor, accessory and accomplice as applied to 
 crimes, are often used as having the same meaning. But they are by 
 no means synonymous. It is unlawful to aid or encourage the com- 
 mission of a crime. It is unlawful under certain circumstances 
 to conceal the commission of a crime. One who aids is, in ordinary 
 language, called an aider or abettor. An accessory is one who takes an 
 active, but subordinate, part. An accomplice, according to the ordin- 
 ary meaning of the word, would seem to imply one who not only takes 
 an active part, but positively aids in the accomplishment or completion 
 of the crime. R. v. Smith, 38 U.C.Q.B. 281, 287. 
 
 To make a person an "aider and abettor" he must have been pre- 
 sent actually or constructively. A person is present in construction
 
 CHAP, v.] Principals and Accessories. 139^ 
 
 of law aiding and abetting if with the intention of giving assistance, 
 he is near enough to afford it shouhl occasion arise, or to favour the 
 escape of those who were immediately engaged ; he would be a principal 
 in the second degree. Per j\lacj\Iahon, J., in R. v. Lloyd, 19 O.R. 352. 
 
 If a person sees that a crime is about to be committed in his pres- 
 ence and does not interfere to prevent it, that is not a' participation 
 rendering him liable, without evidence that he was there in pursuance 
 of a common unlawful purpose with the principal offender. R. v, 
 Curtley, 27 U.C.Q.B. 613. 
 
 Aid rendered to the principal offenders after the commission of the 
 crime is alone insufficient to justify a conviction of the person so aided 
 as a principal under this section. R. v. Graham, 2 Can. Cr. Cas. 388. 
 
 On an indictment for, with three other persons, attempting to steal 
 goods in a store, evidence was given by an accomplice that ])risoner 
 went w^ith him to see a store, that prisoner went into the store to buy 
 something to see how the store could be got into, and that they and 
 others planned the robl)er3^ and fixed the date ; the prisoner saw them 
 off', but did not go with them ; the others went out and made the 
 attempt, which was frustrated. It was held that as those actually 
 engaged were guilty of the attempt to steal, the prisoner was ])i-()perly 
 convicted under 27 and 28 Vict. ch. 19, sec. 9. which enacted tliat who- 
 soever shall aid, a))et, counsel or procure the commission of any mis- 
 demeanour shall be liable to be tried, indicted and j^unished as a prin- 
 cipal oft>nder. R. v. Esmonde, 26 U.C.Q.B. 152. 
 
 A person who knowingly assists a thief to conceal stolen money 
 which he is in the actual and proximate act of carrying away, by 
 receiving money for the purpose of concealing it, is guilty of aiding 
 and abetting in theft and may under sub-sec. (c) be convicted as a 
 principal. R. v. Campbell, 2 Can. Cr. Cas. 357. 
 
 Although the theft may be complete by the mere taking and carry- 
 ing away of stolen property the subsequent carrying of same to a place 
 of concealment by a person who did not participate in the taking, if 
 done with a guilty knowledge and as a continuation of and proximately 
 at the same time as the theft is an ''aiding and al)etting" of tiie same. 
 Ibid. 
 
 An act done which may enter into the offence, although the crime 
 may be complete without it, may be considered as a continuation of the 
 criminal transaction so as to make the participator an aider and 
 abettor, although his participation occurs only after such acts have 
 been done as in themselves would constitute the crime. Ibid. 
 
 If the accused were not an aider and abettor or a principal in tlie 
 second degree in the commission of the tlieft. the circumstance tliat he 
 was an accessory before the fact by counselling and procuring the com- 
 mission of the theft, and therefore liable under sec. ()9 to be convicted
 
 139c Parties to Grime. [book i. 
 
 as a principal, does not prevent his conviction for the substantive 
 offence of afterwards receiving the stolen property knowing it to have 
 been stolen. Silch an accessory before the fact who afterwards becomes 
 a receiver of the stolen property may be legally convicted both of the 
 theft and of ''receiving." R. v. Hodge, 2 Can. Cr. Cas. 350. Note. — 
 The theft here was complete before the ' ' receiving. ' ' 
 
 If it be contrary to law to sell liquor or any other article in a shop, 
 a sale by any clerk or assistant in his shop would prima facie be the act 
 of the shopkeeper. It may be, if he could shew that the act of selling 
 was an isolated act wholly unauthorized by him, and not in any way in 
 the course of his business, but a thing done wholly by the unwarranted 
 g or wilful act of the subordinate he might escape personal responsibility. 
 Where one H. swore that he got a bottle of brandy and paid for it one 
 dollar in K. 's shop, that a woman served him, and no one else was in 
 the store at the time, K. was convicted and the Court upheld the con- 
 viction. E. V. King, 20 U.C.C.P. 247. 
 
 In R. V. Williams, 42 U.C.Q.B. 462, it was said that whereas both 
 employer and employed may be liable, yet both ought not to be pun- 
 ished for the same offence. 
 
 In R. V. King, 20 IT.C.C.P. 246, the accused was convicted for 
 a sale in his absence by his son, the statute enacting a presumption of 
 authority by the father which the magistrate held was not rebutted by 
 the direct evidence of the father, on which he did not rely. 
 
 A broker who merely acts as such for two parties, one a buyer the 
 other a seller, without having any pecuniary interest in the transaction 
 beyond his fixed conmiission, and without any guilty knowledge on his 
 part of the intention of the contracting parties, to gamble in stocks 
 and merchandise, is not liable as an accessory. R. v. Dowd, 4 Can. 
 Cr. Cas. 170. 
 
 Common Purpose. — Where a parcel containing revolvers was 
 thrown into a cab conveying prisoners, and the accused and at least one 
 of the other prisoners in the cab armed themselves with the revolvers 
 and formed the common intention of prosecuting the unlawful purpose 
 of escaping from lawful custody, by the use thereof, and of assisting 
 each other therein, the shooting by one of them of the constable in 
 charge was an offence committed by one of them in the prosecution of 
 such common purpose, and the commission thereof was or ought to 
 have been known to be a possible consequence of the prosecution of 
 such common purpose ; each of them was, therefore, a party to such 
 offence, and the offence being murder in the actual perpetrator thereof, 
 was murder in the defendant, even if he were not an actual perpetrator 
 thereof, and he was properly found guilty by the jury of that offence. 
 R. V. Rice. 5 Can. Cr. Cas. 509, 4 O.L.R. 223. 
 
 Trade Mark Offences. — No servant of a master, resident in Canada, 
 who bond fide acts in obedience to the instructions of such master, and.
 
 CHAP, v.] Accessories. ■ 139cZ 
 
 on demand made by or on behalf of the prosecutor, gives full informa- 
 tion as to his master, is liable to any prosecution or punishment for 
 any offence defined in the part of the Code relating to trade mark 
 offences, sec. 495. 
 
 Liability of an Accessory before the Fact where the Principal does 
 not Follow the Preconcerted Plan. — Code sec. 70. 
 
 Commission of Crime other than that Commanded. — See Code sec. 
 70(2). 
 
 Accessory after the Fact.—^ee Code sees. 71, 76, 267, 574, 575, 849. 
 
 Misprision of Felony. — The Code makes no provision as to this. 
 The common law, therefore, is still in force concerning it. Burbidge 
 on Criminal Law, 508.
 
 (140) 
 
 CHAPTER THE SIXTH. 
 
 op attempting, conspiring, and inciting to commit crimes. 
 
 Preliminary. 
 
 For the purposes of classification and punishment a distinction is 
 drawn between completed crimes in cases in which the whole of that 
 which was intended has been successfully done, and those preparations 
 to commit crimes which are punishable, although the complete offence 
 has not been accomplished, e.g., where there has been a conspiracy, an 
 incitement, or an attempt to .accomplish the complete offence. 
 
 In the case of high treason, no distinction is drawn between the at- 
 tempt, incitement, or conspiracy and the full offence, such acts as could 
 in other cases be evidence of inchoate crime being treated as overt acts 
 of high treason (a). All attempts, incitements, or conspiracies to commit 
 felony or misdemeanor are indictable as misdemeanors at common law 
 unless a statute directs that the particular form of attempt, &c., shall 
 be treated as a felony. In the case of an unsuccessful attempt or incite- 
 ment to commit crime, it would seem that the law as to aiders and 
 abettors {ante, p. 138) is applicable in the same manner as in the case 
 of completed crimes, and when the attempt or incitement is made 
 felony by statute the law as to accessories would seem to apply {ante, 
 p. 116). 
 
 A. — Attempts to Commit Crime. 
 
 It is a misdemeanor indictable at common law to attempt to commit 
 any felony (&), including felo de se{c), or any misdemeanor (d), whe- 
 ther such felony or misdemeanor is an offence at common law or is 
 created by statute (e). In certain cases which will be stated in later 
 chapters the attempt to commit an offence is by statute punishable in 
 the same manner as the completed offence, or is specifically punished 
 as a substantive felony or misdemeanor (ee). 
 
 (a) This rule is expressed by the (c) R. v. Burgess, L. & C. 258. R. 
 phrase, 'voluntas reputatur pro facto,' v. Doody, 6 Cox, 463. 
 
 and seems, by early writers, to have (d) In R. v. Scofield [1784], Cald. 
 
 been extended to homicide. 'Sed haec 397. 403, Lord Mansfield denied the 
 
 voluntas non intellecta fuit de voluntate ^^I'd^*/ ^^ ^ distinction drawn between 
 
 -. ^ . ' , ^ , acts done with intent to commit a 
 
 nudts verbis aut scriptis propalata sed ^^^ ^^^^ ^^^^ ^^^^ ^^^^^ ^^^^^^ ^^ 
 
 mundo mamfestata juit per apertum commit a misdemeanor. 
 
 factum.' 3 Co. Inst. 5. Fost. 193. (g) r, ^ Cartwright [1806], R. & 
 
 (b) n. V. Higgins, 2 East, 5, 21. R. R. i07n. R. v. Higgins, 2 East, 5, 8, 
 V. Kinnersley, 1 Str. 196. 1 Hawk. c. Grose, J. R. v. Welham, 1 Cox, 192, 
 25, s. 3. That attempts to commit Parke, B. R. v. Chapman, 1 Den. 432. 
 felony are indictable misdemeanors is R. v. Butler, 6 C. & P. 368, Patteson, 
 recognised by the statute empowering J. R. v. Roderick, 7 C. & P. 795. R. v. 
 Courts to award imprisonment with Martin, 2 Mood. 123. 
 
 hard labour for such attempts. 3 Geo. (ee) e.g., 8 Edw. VII. c. 45, s. 1(3), 
 
 IV. c. 114, post, p. 212. post, p. 973.
 
 CHAP. VI.] 
 
 Attempts to Commit Crime. 
 
 Ul 
 
 No act is indictable as an attempt ^ to commit felony or misdemeanor, 
 unless it is a step towards the execution of his criminal purpose (/), and 
 as an act directly approximating to, or immediately connected with, 
 the commission of the offence which the person doing it has in view. 
 There must be an overt act intentionally done towards the commission 
 of some offence ; one or more of a series of acts which would constitute 
 the crime if the accused were not prevented by interruption ( /'), or physical 
 impossibility, or did not fail for some other cause in completing his 
 criminal purpose. 
 
 In R. V. McPherson (f/), it was held that a prisoner could not be properly 
 convicted of breaking and entering a building and attempting to steal 
 goods which were not there. It was at one time considered that when 
 the full offence was physically impossible, there could be no conviction 
 for the attempt. In R. v. Collins {h), it was held that a man who, with 
 intent to steal put his hand into an empty pocket, could not be convicted 
 of an attempt to steal. But in R. v. Brown (?'), it was held that the 
 prisoner had properly been convicted of the statutory misdemeanor of 
 
 (f) Where a particular intent is an essen- 
 tial element in the definition of the com- 
 pleted crime, certain difficulties arise in 
 applying the rule as to attempts. If a man 
 in a sudden passion struck at another with 
 a knife, and his hand was arrested, it would 
 be an attempt to inflict grievous bodily 
 harm, and yet there might be no intent to 
 inflict grievous bodily harm, but the intent 
 might be to prevent apprehension or other- 
 wise. There is in short such an offence as 
 attempting to wound with intent to do 
 grievous bodily harm, and another offence of 
 attempting to inflict grievous bodily harm 
 without that particular intent. So also 
 by statute a felony is committed by any one 
 who throws a stone upon a railway line 
 with intent to obstruct an engine, and a 
 person might be found guilty of attempting 
 to commit that felony. But by the same 
 statute a misdemeanor is committed by 
 any one who obstructs an engine, and a 
 person might be found guilty of attempting 
 to obstruct an engine, although he had no 
 intent to obstruct it ; but if he has at- 
 tempted to do an act which would end if 
 uninterfered with in an offence within the 
 section, he has committed an attempt to 
 obstruct, and his attempt involves no (loubt 
 an intentional act, but it is not a felonious 
 
 ' intent to obstruct ' within the meaning of 
 the felony section, bvit an implied intent to 
 do what is forbidden by the misdemeanor 
 section. And see 1 Hawk. c. 55. Some 
 boys were indicted at Derby (1875) March 
 Assizes, for throwing the coping-stone off 
 a bridge upon the railway, with intent to 
 obstruct an engine. They were only ' lark- 
 ing,' and the jury negatived the ' intent to 
 obstruct.' They were also indicted for 
 obstructing, but as it happened the stone 
 fell so as not to obstruct the line, the learned 
 counsel for the prosecution sul)mitted that 
 they might be found guilty of attempting 
 to obstruct ; but the learned commissioner 
 thought that as the jury had negatived the 
 intent to obstruct, they could not be found 
 guilty of the attempt. But it is submitted 
 that if the jury thought the j)risoners wil- 
 fully tried to throw the stone upon the line, 
 they might have been found guilty of the 
 attempt, as the probable consequence of 
 throwing the stone on the line would be the 
 obstruction of the engine. M.S. H. S. See 
 R. V. Holroyd, 2 M. & Rob. 339, ante, 
 p. 12. 
 
 (r/) D. & B. 199. 
 
 (h) L. & C. 471 : 33 L. J. M. C. 177. 
 
 (i) 24 Q.B.D. 357 : 59 L. J. M. ('. 47. 
 
 American Note. 
 
 ' ' Attempts ' are defined by Bishop as 
 follows : ' Where the non-consummation of 
 the intended criminal result is caused by an 
 obstruction in the way, or by the want of 
 the thing to be operated upon, if such an 
 impediment is of a nature to be iniknown 
 to the offender, who used what seemed 
 appropriate means, the punishable at- 
 tempt is committed.' S. 752 (2) or (3). 
 ' Whenever the laws make criminal one 
 step toward the accomplishment of an 
 
 unlawfvd object done with the intent or 
 ])ur)iose of aceom]>lishing it, a person taking 
 that step with that intent or purpose, and 
 himself capable of doing every act on his 
 part to accomplish that object, cannot 
 protect himself from responsibility by 
 showing that by reason of some fact un- 
 known to him at the time of his criminal 
 attempt it could not be fully carried into 
 effect in the particular instance.' See C. i'. 
 Jacobs, 9 Allen (Mass.), 274.
 
 142 Attempting, Coyispiring, &c., to Commit Crimes, [book i. 
 
 attempting to commit an unnatural offence, although on physical grounds 
 perpetration of the complete offence was impossible ; and R. v. Collins 
 was declared no longer law. And in E.. v. Ring [j), a conviction for 
 attempt to steal from a woman unknown by hustling her and endeavour- 
 ing to find her pocket, was held good, and R. v. Collins was stated to be 
 overruled {k). In R. v. Ring there was also a count for assaidt with 
 intent to commit a felony. 
 
 A man may have in his mind a criminal purpose to commit a felony 
 or misdemeanor, but so long as that purpose rests' in bare intention (?), 
 he does not become amenable to the criminal law (w). Attempting to 
 commit a crime is distinct from intending to commit it {n). 
 
 In Dugdale v. R. (o), the defendant was charged (1) with preserving 
 and keeping in his possession obscene prints, with intent unlawfully to 
 utter the same, and (2) with obtaining and procuring obscene prints with a 
 like intent. It was held that the first set of charges were bad, for they were 
 consistent with the possibility that the prisoner might have originally 
 had the prints in his possession with an innocent intention, and there 
 was no act shewn to be done which could be considered as the first step 
 in the commission of a misdemeanor ; but that the second set of charges 
 were good, for the procuring of such prints was an act done in the 
 commencement of a misdemeanor. 
 
 Questions have arisen whether the possession of materials or imple- 
 ments for coining or house-breaking for the purpose of committing these 
 offences, can without more be treated as criminal at common law. The 
 preponderating weight of the decided cases is against considering posses- 
 sion as such an act as would constitute the offence of attempting or 
 preparing for, the commission of the full offence. I21 R. v. Sutton {p), 
 the defendant was indicted for having coining instruments in his custody, 
 with intent to coin half guineas, shillings and sixpences, and to utter 
 them as and for the current coin, Lord Hardwicke, who tried the case, 
 doubted what the offence was. But the Court of King's Bench held 
 the offence to be a misdemeanor ; Lee, J., saying, that ' all that was 
 necessary in such a case was an act charged, and a criminal intention 
 joined to that acf {q). This doctrine, if correct, does not appear to 
 have been applicable to the facts of the case as charged, which did not 
 amount to a criminal act by the defendant. It aj^pears to have been 
 
 (j) 01 L. J. M. C. 29. Cf. R. V. Green- 1074. 
 away, 72 ,J. P. 389; 1 Cr. App. R. 31, {q) In this case there were cited, in sup- 
 attempting to ring the changes. port of the prosecution, a case of a convic- 
 
 {k) The judgment in R. v. Brown, which tion of three persons for having in their 
 
 also completely overrules R. v. McPherson, custody divers picklock keys tcith intent to 
 
 has been criticised as unsatisfactory. Prit- break houses and steal goods ; R. v. Lee, 
 
 chard, Quarter Sessions (2nd ed.), 900. Old Bailey, 1689 ; and a case of an indict- 
 
 (/) R. V. Sutton [1736], Cas. K.B. temp. ment for making coining instruments, and 
 
 Hardw. 370, 372, Lee, J. 2 Str. 1074. having them in possession with intent to 
 
 (m) R. V. Eagleton, Dears. 515. ' The make counterfeit money. R. v. Bran- 
 devil himself cannot try the thought of a don. Old Bailey, 1698 ; and also a case 
 man,' Brian, C.J. Y. B. 17 Edw. IV. 2, where the party was indicted for buying 
 p!. 2. counterfeit shillings with an mtent to utter 
 
 {n) R. V. McPherson, D. & B. 199, Cock- them in payment. R. v. Cox, Old Bailey, 
 
 burn, C.J. 1690. As to the unlawful possession of 
 
 (o) 1 E. & B. 435. coining implements, see fost, p. 365, 
 
 [p) Cas, K.B. temp. Hardw, 370. 2 Str. ' Coinage Offences,'
 
 CHAP. VI.] AUempis to Commit Crime. 143 
 
 accepted by Lord Mansfield as good law in R. v. Scofield (r) : but R. v. 
 Sutton was disapproved in R. v. Stewart (s), where it was held that 
 having counterfeit silver in possession Avitli intent to utter it as good is 
 no offence, there being no criminal act done. The prisoner had been 
 found guilty of unlawfully having in possession counterfeit silver coin 
 with intent to utter it as good : but the judges were of opinion that 
 there must be some act done to constitute a crime, and that the having 
 in possession only was not an act (s). 
 
 Legislation has been passed with respect to persons having implements 
 for house-breaking, &c., in their possession with a, felonious intent. The 
 Vagrancy Act, 1824 (5 Geo. IV. c. 83, s. 4), makes persons having in their 
 possession implements of house-breaking or weapons with intent (t) to 
 commit any felonious act, liable to summary conviction as rogues and 
 vagabonds. Sect. 58 of the Larceny Act, 1861 (24 & 25 Vict. c. 96), 
 makes persons armed with offensive weapons, or in possession of imple- 
 ments of house-breaking, guilty of a misdemeanor. And in some instances 
 an act, accompanied with a certain intent, has been made a felony by 
 particular statutes ; as by sect. 38 of the same Act, the severing with 
 intent to steal the ore of any metal, or any coal, &c., from any mine, 
 bed, or vem thereof, is made felony punishable by two years' imprison- 
 ment (with or without hard labour). And by sect. 14 of the Malicious 
 Damage Act, 1861 (24 tic 25 Vict. c. 97), damaging certain articles 
 in the course of manufacture, with intent to destroy them, and entering 
 certain places with intent to commit such offence, is made felony. 
 
 In R. V. Hensler (u), the defendant was held to have been rightly con- 
 victed of attempting to obtain money by false pretences contained in a 
 begging letter, though he had, in fact, received money in answer to a 
 letter from the recipient who knew the pretence to be false (v). 
 
 In R. V. Williams (w), it was held that a boy under fourteen could 
 not, by reason of his age, be convicted of a felony under sect. 4 of the 
 Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69) ; but Hawkins, 
 J., with the apparent concurrence of Cave. J., seems to have been pre- 
 pared to hold when the case arose that the boy might, under sect. 9 
 of the Act, be convicted of an attempt to commit a felony within sect. 4. 
 Coleridge, L.C.J., seems to have been of a contrary opinion (x). 
 
 The question in each case is whether the acts relied on constituting 
 the attempt were done with intent to commit the complete offence, and 
 as one or more of a series of acts or omissions directly forming some of 
 the necessary steps towards completing that offence, but falling short 
 
 (r) [1784] Cakl. 397, 403. tempt to steal from a man who i.s too strong 
 
 (s) [1814] R. & R. 288. R. v. Heath to permit you.' Mellor, J., said, ' An at- 
 
 [1810], R. & R. 184. A.S to this offence, tempt may he made to steal a watch that 
 
 see 24 & 25 Vict. c. 99, ss. 10, 11, post, is too strongly fastened by a guard. Here 
 
 pp. 357, 358. the prosecutor had the money, and was 
 
 (0 See 34 & 35 Vict. c. 112, s. 7 ; 54 & capable of being deceived, and the prisoner 
 
 55 Vict. c. G9, s. 6. attempted to deceive him.' Kelly, C.B., 
 
 (m) [1870] 11 Cox, 570 (C. C. R.). In R. i-. said, ' So soon as ever the letter was put in 
 
 Mills [1857], 7 Cox, 263 (C. C. R.), it has the post the attempt was committed.' 
 
 been decided that a convict ion for obtaining ()(•) [1893] 1 Q.B. 320. 
 
 money by false pretences cannot be had if (x) See the discussion of this case in R. v. 
 
 the prosecutor parted with his money Angus [1907], 24 N. Z. L. R. 948, Dcnni- 
 
 knowing the pretences to be false. ston, J. 
 
 (v) Blackburn, J., said, ' You may at-
 
 144 Attemfting, Cons^riring, <&c., to Commit Crhnes. [book i. 
 
 of completion by the intervention of causes outside the volition of the 
 accused, or because the offender of his own free will desisted from com- 
 pletion of his criminal purpose for some reason other than mere change 
 of mind. 
 
 In R. V. Eagleton {y), a baker was indicted for attempting to obtain 
 money by false pretences. He had contracted with a poor law authority 
 to deliver loaves of a certain weight to poor people, in exchange for tickets 
 given to them by the relieving officer, which the baker was to retain on 
 delivering the loaves, and to present weekly to the relieving officer as 
 vouchers for payment, with a statement of the amount of the loaves. 
 The amount shewn by the statement and vouchers was credited to the 
 baker, and was payable at a later date, subject to a right to make deduc- 
 tions for breach of contract. The defendant had delivered to the poor 
 short weight against the tickets presented, and returned to the relieving 
 officer the tickets received. It was held that he was guilty of attempting 
 to obtain money by false pretences by fraudulently obtaining credit 
 with the relieving officer for a weight of bread in excess of that delivered, 
 on the ground that the baker had done the last act depending on him- 
 self towards obtaining payment, and that that act was sufficiently proxi- 
 mate to (and) or not too remote from the offence of obtaining money by 
 false pretences (e). 
 
 In R. V. Cheeseman (a), the prisoner was servant to an army meat 
 contractor, who, in the course of his duties, took meat daily into camp, 
 where it was weighed by a quartermaster-sergeant, for distribution 
 to the troops, and the surplus meat, after satisfying the day's require- 
 ments, was to be taken back to the contractor. The prisoner fraudulently 
 falsified the scales used so as to give the troops short weight, and to leave 
 a larger surplus for return to the contractor. His intention was to 
 appropriate the difference between the just surplus and the actual surplus. 
 The fraud was detected and he absconded. It was held that he was guilty 
 of an attempt to steal the difference, as he had done all that was necessary 
 to complete his criminal purpose, except to carry away and dispose of the 
 proceeds of the fraud, which he would have done if not interrupted by 
 detection of his scheme. 
 
 In R. V. Taylor (6), a man was tried for the statutory felony of attempt- 
 ing to set fire to a stack of corn, on proof that he had asked for work and 
 money of the prosecutor, and, on refusal, threatened to burn him up, 
 and that he was then seen to go to a stack, and kneeling down close to 
 it to light a lucifer match, though, on seeing that he was watched, he 
 blew out the match and went away. Pollock, C.B., ruled that to warrant 
 a conviction, the act must be one tending directly and immediately to 
 the execution of the principal crime, and done under such circum- 
 stances that the prisoner had the power of carrying his intention into 
 execution (c). 
 
 Certain acts done in furtherance of a criminal purpose have been held 
 
 (y) [1855] 24 L. J. M. C. 158, argued be- (a) 31 L. J. M. C. 89. 
 
 fore the fifteen judges ; judgment of the (h) [1859], 1 F. & F. 511, Pollock, C.B. 
 
 Court delivered by Parke, B. (c) The last part of the ruling must be 
 
 (2) The Court were in some doubt whether read subject to R. v. Brown, ante, p. 141. 
 the attempt was to obtain credit or cash.
 
 CHAP. Vi.j Attempts to Commit Crim,e. 145 
 
 to be indictable misdemeanors, which cannot exactly he described as 
 attempts, but are closely analogous. Such are abandoning a child without 
 food with intent that it may die (d) ; making a false oath before a surro- 
 gate to obtain a marriage licence (e) ; procuring dies for the purpose of 
 counterfeiting coin (/') ; procuring indecent prints for the purpose of 
 publishing them {g) ; handing poison to A., and endeavouring to get A. 
 to administer it to B. (h), attempting to bribe a Cabinet minister and mem- 
 ber of the Privy Council to give the defendant an office in the Colonies (i) ; 
 promising money to a member of a corporation to vote for the elec- 
 tion of B. as mayor {j) ; attemj^ting, by bribery, to influence a juryman 
 in giving his verdict {k) ; or a judge in his decision (l) ; or attempting 
 to bribe a customs officer (m). Certain acts intended or calculated to 
 pervert, delay, or defeat the course of justice which are regarded as 
 indictable (w), as being attempts to the prejudice of the community (o), 
 are separately treated, post, Book VII. p. 537. A fraudulent attempt 
 to get a conviction set aside by means of false declarations has, in 
 Australia, been held to be a misdemeanor at common law (p), on the 
 authority of O'Mealy v. Newell (q). 
 
 The cases where an attempt to commit crime is a misdemeanor at 
 common law are distinct from those in which by statute an act is made 
 felony, if done with a certain intent, but a misdemeanor if done without 
 such intent. The criminal quality of the completed act in such cases 
 varies with the intent with which it was done. 
 
 Whether the attempt is a common-law misdemeanor or a statutory 
 offence, the rules already stated as to what is sufficient to constitute 
 an attempt apply, unless the statute dealing with the subject-matter 
 provides another criterion (r). 
 
 Attempts to murder, which at common law are misdemeanors, are 
 dealt with as felonies in unnecessary detail in ss. 11-15 of the Offences 
 against the Person Act, 1861 (s). 
 
 On an indictment for an attempt it is unnecessary to negative the 
 commission of the full offence {t) : and it is for the defendant to shew, if 
 he please, that the minor was merged in the greater offence. 
 
 {(1) R. V. Renshaw, 2 Cox, 285. It Ls exhibited, 
 
 doubtful whether this could be brought (/) 3 Co. Inst. 147. 
 
 within 24 & 25 Vict. c. 100, s. 15. (m) R. i-. Cassano, 5 Esp. 231. 
 
 (e) R. V. Chapman, 1 Den. 432. The («) 1 Hawk. c. 21, s. 15. 2 East, P.C. 
 
 offence is not perjury, and it is not a statu- p. 816. 
 
 tory offence to obtain a marriage licence by (o) R. v. Higgins, 2 East, 5, Lawrence, 
 
 a false oath. Sec posi, p. 528. J. R. v. Vrcones [1891], I Q.B. SCO, 
 
 (/) R. V. Roberts, Dears. 539 ; 25 L. J. an indictment for fabricating evidence for 
 
 M. C. 17. The prisoner was held indictable the purpose of a contemplated arbitration, 
 
 for a misdemeanor, altliougli his acts in Vide /)0.s7, p. 530. 
 
 furtherance of his criminal purpose were (p) White i'. R. [190()], 4 Australian Com- 
 
 not sufficiently proximate to the complete monwealth L. R. 152. 
 
 offence to support an indictment for an (q) 8 East, 374. 
 
 attempt to execute it. Hcc post, \). 36') etseq. (r) See R. v. Duckworth [1892], 2 Q.B. 
 
 (7) Dugdale v. R., 1 E. & B. 435. 83, as to what is an attempt to shoot. Vide 
 
 (h) R. V. Williams, 1 Den. 39. post, p. 842. 
 
 (i) R. V. Vaughan, 4 Burr. 2494. Sec (s) Post, p. 839. 
 
 post, p. 627, ' Bribery.' (t) None of the precedents of indict- 
 
 0) R. V. Plympton, 2 Ld. Raym. 1377. mcnts for attempts to ravish or rob containa 
 
 (k) R. V. Young, 2 East, 14, 16 cit. In any such negative averment. See 3 Chit. Cr. 
 
 this case a criminal information was L. 807, 816. Archb. Cr. PI. (23rd cd.), 1295. 
 
 VOL. I. L
 
 146 
 
 Of Criminal Conspiracy. 
 
 [BOOK 1. 
 
 B. — Of Criminal Conspiracies. 
 
 Criminal conspiracy consists in ' an unlawful combination of two 
 or more persons (u), to do that which is contrary to law, to cause a 
 public mischief (v), or to do that which is wrongful and harmful towards 
 another person' (w), or to do a lawful act for an unlawful end (x), or 
 by unlawful means (y), or wrongfully to prejudice a third person {2). 
 It has even been said that if several illegally concur in doing an act 
 with a common object, they may be guilty of conspiracy, though they 
 were previously unacquainted with each other (a). But few things are 
 left so doubtful in the criminal law as the point at which a combination 
 of several persons for a common object becomes unlawful (b). 
 
 The best established definition of the offence is that given by Willes, J., 
 on behalf of all the judges in Mulcahy v. R. (e), and accepted by the 
 House of Lords in that (d) and subsequent cases {e). 
 
 ' A conspiracy consists not merely in the inteMtion of two or more, 
 but in the agreement of two or more to do an unlawful act, or to do a 
 lawful act by unlawful means. So long as a design rests in intention 
 only it is not indictable. When two agree to carry it into effect, the 
 very plot is an act in itself, and the act of each of the parties, promise 
 against promise, actus contra actum, capable of being enforced if lawful, 
 punishable if for a criminal object or for the use of criminal means ( /'). 
 And so far as proof goes conspiracy, as Grose, J., said in R. v. Brisac ((/), 
 
 (w) Husband and wife are regarded as 
 one person and as incapable of conspiring 
 together (1 Hawk. c. 72, s. 8), though they 
 can severally or jointly conspire with other 
 persons. R. v. Whitehouse, 6 Cox, 38, 
 Piatt, B. 
 
 [v) R. V. Brailsford [1905], 2 K.B. 730, 
 745 {post, p. 151) and cases there cited, and 
 see R. V. Boulton. 12 Cox, 87. 
 
 (w) Quinn v. Leathern [1901], A.C. 495, 
 528 : 70 L. J. P.C. 76, Ld. Brampton. In 
 R. V. Vincent, 9 C. & P. 91, Alderson, B., 
 laid it down tliat conspiracy is ' a crime 
 which consists either in a combination and 
 agreement by persons to do some illegal 
 act, or a combination and agreement to 
 effect a legal purpose by illegal means.' 
 In 0"Connell v. R. (11 CI. & F. 155 ; 5 St. Tr. 
 ^N. S.) 1), Tindal, C.J., in dehvering the 
 opinion of all the judges, said : ' The crime 
 of conspiracy is complete if two, or more 
 than two, should agree to do an illegal 
 thing ; that is, to effect something in itself 
 unlawful, or to effect, by unlawful means, 
 something which in itself may be indifferent 
 or even lawful.' In R. v. Seward, 1 A. & 
 E. 713, Denman, C.J., said, ' An indictment 
 for conspiracy ought to show either that it 
 was for an unlawful purpose, or to effect a 
 lawful purpose by unlawful means ; ' but 
 in R. V. Peck, 9 A. & E. 686, upon this 
 dictum being cited he said, ' I do not think 
 the antithesis vciy correct ; ' and in R. v. 
 King, 7 Q.B. 782, he said, ' The words " at 
 
 least " should accompany that statement.' 
 In R. V. Jones, 4 B. & Ad. 345; 1 N. 
 & M. 78, however, several judges gave a 
 similar definition of the crime of conspiracy. 
 C. S. G. 
 
 (a;) ' With a corrupt intent,' 8 Mod. 320. 
 1 Wils. (K.B.) 41. See R. v. Delaval, 3 Burr. 
 1434, 1439. 
 
 iy) See Mulcahy v. R., infra. 
 
 [z) 1 Hawk. c. 72, s. 2. Quinn v. Leathem 
 [1901], A.C. 495, n. Unless the word 
 ' wrongfully ' means criminally, the author- 
 ities cited by Hawkins do not support his 
 proposition. Wright on Conspiracy, p. 12. 
 
 («) By Lord Mansfield in the case of the 
 prisoners in the King's Bench, Hil. T. 26 
 Geo. III. 1 Hawk. c. 72, s. 2, in the notes. 
 See the instance given in R. v. Parnell, 14 
 Cox, 508, 515, post, p. 174. 
 
 {h) 3 Chit. Cr. L. 1130. 
 
 (c) L. R. 3 H. L. 306, 317. 
 
 (d) I.e. 374, Lord Cairns. 
 
 (e) Quinn v. Leathem [1901], A.C. 495, 
 529, Lord Brampton. See R. v. Brailsford 
 [1905], 2 K.B. 730, 746. 
 
 (/) A civil action does not lie for a con- 
 spiracy unless it is put into execution and 
 causes damage. 9 Co. Rep. 57. W. Jones, 
 93. Savile v. Roberts, 1 Ld. Raym. 378. 
 1 Wms. Saund. 229b, 230. Barber v. 
 Lesiter, 7 C. B. (N. S.) 175. Quinn v. Lea- 
 them [1901], A.C. 495, 510, Lord Mac- 
 naghten : 542, Lord Lindley. 
 
 ('j) 4 East, 171.
 
 CHAP. VI.] 
 
 Gist of the Offence. 
 
 147 
 
 is generally " a matter of inference deduced from certain criminal acts 
 of the parties accused, done in pursuance of an apparent criminal purpose 
 in common between them" (h). The number and the compact give weight, 
 and cause danger, and this is more especially the case in a conspiracy 
 like that charged in this indictment.' The gist of the offence of conspiracy 
 then lies, not in doing the act, or effecting the purpose for which the 
 conspiracy is formed, nor in attempting to do them, nor in inciting others 
 to do them, but in the forming of the scheme or agreement between 
 the parties (i). The external or overt act of the crime is concert by 
 which mutual consent to a common purpose is exchanged (/). In an 
 indictment, it suffices if the combination exists and is unlawful, because 
 it is the combination itself which is mischievous, and which gives the 
 public an interest to interfere by indictment {k). 
 
 In order to make any person criminally responsible for conspiracy, 
 it is essential to establish that he entered into an agreement falling within 
 the above definition with one or more other persons (/), whether charged 
 with him in the indictment or not, and whether known or unknown {m). 
 So where two persons were indicted for conspiring together (no other 
 parties being alleged), and one was convicted, and the jury disagreed 
 as to the other, it was held that the conviction of the one could not 
 stand (w) ; and where three were charged jointly with conspiring together, 
 and one pleaded guilty, but the other two were tried and acquitted, it was 
 held that the sentence imposed on the one who had pleaded guilty could 
 not stand (o). As a matter of procedure it would seem that if A. be 
 indicted and tried alone for conspiring with others, he could be lawfully 
 convicted, though the others referred to or included in the indictment 
 had not appeared or pleaded (p), or were dead before (q) or after the 
 
 (h) The question involved was whether 
 a conspiracy, charged and proved, was an 
 overt act of felony within the Treason 
 Felony Act, 1848 (11 & 12 Vict. c. 12). 
 
 (0 1 East, P.C. 462. R. v. Best, 2 Ld. 
 Raym. 11G7 : 6 Mod. 185. R. v. Spragg 
 [1700], 2 Burr. 993 (conspiracy to indict for 
 a capital offence). R. v. Risjial [1702], 3 
 Burr. 1320, where conspiracy to injure a 
 man by a false charge was lield unlawful 
 and a trespass tending to a breach of the 
 peace. See O'Connell y. R., 11 CI. & F. 155: 
 5 8t. Tr. (N. S.) 1. 
 
 (j) Sir W. Eric on Trade Unions, p. 31, 
 adopted by Bruce, .J., in R. v. riuinmer 
 [1902], 2 K.B. 339, 348. And sec Mulcahy 
 V. R., L. R. 3 H. L. 30<i, 328, Lord Chelms- 
 ford. 
 
 (k) Mogul SS. Co. V. McGregor, 21 Q.B.D. 
 544, Coleridge, C.J. In certain of the 
 older authorities reference is made to a bare 
 conspiracy, unexecuted, as criminal. Sec 
 R. V. Rispal, 3 Burr. 1320. 1 Lev. (i2, 125. 
 1 Ventr. 304. 1 Ld. Raym. 379. 1 Salk. 
 174. 1 Str. 193. T. Raym. 417. 
 
 {I) ' One alone cannot conspire.' Hari- 
 son ('. Errington [15G5], Poph. 202. Cf. R. 
 V. Thorp, 5 Mood. 221 : Comb. 228. 
 
 {m) 1 Hawk. c. 72, s. 8. 3 Chit. Cr. L. 
 
 1141, In R. V. Heme, cited in R. v. Kin- 
 nersley, 1 Str. 193, 195, the indictment 
 alleged that Hcrne with A., et multis aliis, 
 did conspire to accuse a man of an offence ; 
 the grand jury ignored tlie bill as to A., but 
 found it as to Heme, who was convicted ; 
 and it was moved in arrest of judgment, 
 tliat there being an iynoramii'i as to A., 
 Heme could not be guilty of conspiring 
 with liim ; but tlie wliolc Court lu-kl that 
 it was suOicient, it being found tliat he, 
 cum multis aliis, did conspire, and that it 
 might have been laid so at first. 
 
 (n) R. V. Manning, 12 Q.B.D. 241 : 53 
 L. J. M. C. 85. 
 
 (o) R. V. Plummer. [1902], 2 K.B. .339: 
 71 L. J. K.B. 805, Wriglit, .1., approving a 
 dictum of Cockbum, C.J., in Robinson v. 
 Robinson, 1 Sw. & Tr. 3ti2, 392. 393. The 
 Court miglit have allowed tiic plea of 
 guilty fo be withdrawn at any time I)eforc 
 judgment. R. v. Plummer, at pp. 347, 
 349. 
 
 (/)) R. V. Kinnersley, 1 Str. 193. 
 
 (v) R. v. Nieiiols. 2 Str. 1227 : better 
 reported 12 East. 412n. A conspiracy by 
 N. with B., who iiad died before indictment 
 found. 
 
 l2
 
 148 
 
 Of Criminal Conspiracy. 
 
 [BOOK i. 
 
 indictment was preferred (r), or before pleading not guilty (s), or were 
 subsequently and separately tried. But it is not settled whether, in 
 cases of separate trials of the conspirators, the acquittal of those tried 
 later would avoid the conviction of one earlier tried and convicted for 
 the same conspiracy (t). When the indictment alleges a conspiracy 
 between several, a verdict that two or more, but not all, entered into 
 the conspiracy will support a conviction (u). 
 
 In R. V. Sudbury (v), where only two out of three were found guilty 
 of riot and there was no allegation of cum aliis, judgment v/as arrested. 
 Holt, C.J., said, ' If the indictment had been that the defendants, with 
 divers other disturbers of the peace, &c., had committed this riot and 
 battery, and the verdict had been as in this case, the King might have- 
 had judgment.' 
 
 In R. V. Thompson (w), all the counts of the indictment alleged that A., 
 
 (?■) R. V. Scott [1761], 3 Burr. 12(52. An 
 indictment of four for riot. Conviction of 
 two held good, though the other two had 
 died before trial. 
 
 (s) R. V. Kenrick, 5 Q.B. 49. 
 
 (t) R. V. Plummer [1902], 2 K.B. 339, 
 344. It is said that where one of several 
 defendants charged with a conspiracy has 
 been acc£uitted, the record of acquittal is 
 evidence for another defendant subse- 
 quently tried. R. v. Home TooliC, 1 Chit. 
 Bum. 823. See note {w), infra. 
 
 (u) R. V. Quinn, 19 Cox, 78 (Ir.), Fitz- 
 gibbon, L.J. But see O'Connell v. R., 11 
 CI. & F. 155 : 5 St. Tr. (N. S.) 1. 
 
 (v) 1 Ld. Raym. 484: 12 Mod. 202. 
 Cited and adopted in R. v. Plummer 
 [1902], 2 K.B. 339, 343, Wright, J. 
 
 {w) 16 Q.B. 832, Erie. J., diss. Camp- 
 bell, C.J., Patteson, J., and Coleridge, J., 
 rested the decision on the ground that 
 ' other persons ' must mean persons other 
 than Tillotson and Maddock ; and that the 
 acquittal of those defendants, therefore, 
 must have the same effect as if Thomjison, 
 Tillotson and Maddock had alone been 
 charged with the conspiracy ; in which 
 case it was clear Thompson must have been 
 acquitted. Campbell, C.J., said : ' The 
 acquittal of two involves the acquittal of 
 the third,' and Patteson, J., said : ' I cannot 
 see how Thompson can be convicted of con- 
 spiring with persons unknown ; upon the 
 evidence he conspired, if at all, witli Tillot- 
 son or Maddock.' Erie, J., was of opinion 
 that, ' according to the rules of pleading, 
 this charge, as to each individual, must be 
 construed as if lie were charged solely, and 
 it follows that the acquittal of the two bo- 
 comes immaterial ; and the verdict may be 
 found in any terms comprised in the indict- 
 ment. The finding may be that Thompson 
 conspired with Tillotson, or with Maddock, 
 or with other persons unknown ; and so 
 there may be similar findings as to the 
 others. Therefore if any one be found 
 guilty, the verdict must stand as against 
 him ; the judge must take the opinion of 
 
 the jury.'as to each, whatever may be the 
 finding as to the others. " Are you of 
 opinion that Thompson conspired with 
 Tillotson ? " " No." " With Maddock ? " 
 " No. But we are satisfied that he con- 
 spired with some one ; we do not know 
 whom." The conspiracy, then, cannot be 
 truly predicated of either Tillotson or Mad- 
 dock, because the jury do not know which of 
 these two was the conspirator; they do, how- 
 ever, know that one of them was ; so that 
 against Tliomi^son, the verdict should be that 
 he conspired with some one, it is not known 
 with whom.' R. v. Thompson was accepted 
 as good law in R. t). Plummer [1902], 2 
 K.B. 339, 343, 345, and the criticisms on 
 R. V. Thompson by Mr. Greaves, in the 4th 
 edition of this work (vol. iii. p. 146), were 
 treated as ill-founded in law. He said : ' It 
 is quite an error to suppose that the word 
 " other," as used in indictments, means 
 " difl^erent from." It is a mere word of form, 
 used like "further" and "afterwards." 
 See R. V. Downing, 1 Den. 52. If the in- 
 dictment had contained three counts, the 
 first alleging a conspiracy between Thomp- 
 son and Tillotson, the second between 
 Thompson and Maddock, and the third 
 between Thomjison and divers other per- 
 sons to the jurors unknown, and the facts 
 had been as in this case, the verdict must 
 have been not guilty on the first two counts, 
 and guilty on the third ; and yet each count 
 in this indictment was in point of law 
 exactly the same as such three counts.' 
 
 'The authorities seem to show, that if 
 several persons are indicted for a riot or a 
 conspiracy, and the jury acquit all except 
 two in riot and one in conspiracy, the latter 
 must also be acquitted. It is very confi- 
 dently submitted that these authorities 
 rest on a fallacy, viz., that because some 
 are acquitted, therefore the others could 
 not have been guilty of the offence together 
 with tliose that are acquitted. The acquit- 
 tal of A. necessarily amounts to no more 
 tlian that A. was not proved to be guilty. 
 Suppose A. and B. are indicted for a con-
 
 CHAP. VI.] • Gist of the Offence. 149 
 
 B., and C. conspired, &c., ' with divers other persons to the jurors aforesaid 
 unknown/ The jury stated their opinion, upon the evidence, to be 
 that A. had conspired with either B. or C, but that they did not know 
 with which. No evidence was given of participation by any other party ; 
 and thereon the judge directed a verdict of not guiltv as to B. and ('., 
 and a verdict of guilty as to A. ; and it was held that as B. and C. had 
 been acquitted, the verdict could not be supported against A. 
 
 In R. V. Cooke (x), on an indictment against four for a conspiracy, 
 two pleaded not guilty ; one pleaded in abatement, to which plea there 
 was a demurrer ; and the fourth never appeared. Before the argument 
 of the demurrer the record was taken down for trial, and one of the 
 defendants who had pleaded not guilty acquitted, and the other found 
 guilty of conspiracy with him who had pleaded in abatement. The 
 demurrer was afterwards argued, and judgment of respondeat ouster 
 given, whereupon a plea of not guilty was pleaded. The Court of King's 
 Bench held that judgment might be pronounced upon the one found 
 guilty before the trial of the other ; for although it was possible that 
 the latter might be acquitted, yet the Court were not warranted in coming 
 to the conclusion that that would be so against the verdict that had been 
 found, or in forbearing to pronounce judgment upon the defendant found 
 guilty (a;). In R. v. Ahearne (y), where three prisoners were indicted 
 in Ireland for the (then capital) offence of conspiring to murder, and, 
 having refused to join in their challenges, one of them was tried alone 
 and convicted ; it was held, on a case reserved, that he had been properly 
 tried and convicted, and that there was no ground for respiting or 
 arresting the judgment. 
 
 In R. V. Quinn (z), also an Irish case, the indictment was against 
 eight persons for conspiring together to defraud a railway comjjany by 
 
 spiracy, and A. has made a written confes- dale, J., said, ' If the other defendant .shall 
 
 .sion that he did conspire with B., and B. hereafter be acquitted, perhaps this judg- 
 
 with him, but the evidence fails as against ment may be reversed.' Mr. Greaves 
 
 B., is A. to be acquitted? Suppose, in (Russell on Crimes (4th cd.), vol. iii. p. 140) 
 
 such a case, A. had pleaded guilty, is his queried this ruling on grounds to a largo 
 
 plea to be set aside because B. for want of extent equally applicable to the case of a 
 
 evidence is acquitted ? This shows that in joint trial, sa3'ing : ' Such acquittal would 
 
 fact one may be guilty, though the rest are not necessarily sliow that the verdict of 
 
 acquitted, and that the doctrine in question guilty on the former trial was wrong, as 
 
 rests on an entire fallacy.' This reasoning witnesses might be dead or absent who 
 
 has been rejected as involving the danger- were examined on the former trial, or the 
 
 ous theory that a verdict of not guilty docs one defendant might have been convicted 
 
 not fully establish the innocence of the on his own confession, which would not be 
 
 person to whom it relates. R. v. Plummer admissible against the other defendant.' 
 
 [1902], 2 K.B. 339, 349, Bruce, J. Sec R. But in R. v. Plummer [1902], 2 K.B. 239, 
 
 r. Stoddart [1909], 25 T. L. R. 612. Again 345, Wright, J., considered the criticism 
 
 it is conceived that a still more fatal objec- not justified by the authorities already* 
 
 (ion to the doctrine exists. It is appre- stated in the text. 
 
 bended that the acquittal of B. can in no (?/) [1852] U Cox, fi : 2 Ir. Rep. C. L. 381. 
 
 case be admissible in evidence for A. It is In \\. v. Plummer [1902], 2 K.B. 339, 344, 
 
 obvious that the conviction of A. would not AVright, J., seems to have wrongly inferred 
 
 be evidence against B. And the rule is, from the fact that the prisoners were sen- 
 
 that 'no record of a conviction or verdict fenced to death, that the indictment was 
 
 can be given in evidence, but such whereof for murder. 
 
 the benefit may be mutual.' See R. v. (z) [1898] 19 Cox. 78, Fitzgibbon, L.J. 
 
 Warden of the Fleet, Holt, 133 ; and other He distinguished O'Connell v. R., 11 CI. & 
 
 cases, 2 Phill. Evid. c. 1, s. 1. F. 155 : 5 St. Tr. (N. S.) 1. 
 {x) 5 B. & C. 538. 7 D. & R. 673. Little-
 
 150 Of Criminal Conspiracy. [book i. 
 
 stealing and selling uncancelled but used railway tickets. Three were 
 convicted of conspiracy, two of misdemeanor,, and tw^o were acquitted. It 
 was ruled that the count was good and was sustainable by a finding that 
 two or more were concerned in the conspiracy charged. 
 
 In R. V. Duguid (a), it was held that D. could lawfully be convicted of 
 conspiring with the mother of a child under fourteen to take the child 
 by force from the possession of its lawful guardian, although sect. 56 
 of the Offences against the Person Act, 1861, under which such abduction 
 is criminal, contains an express provision excepting from criminal liability 
 a person who shall have claimed any right to the possession of such 
 child. The mother was not tried with D. nor amenable to justice. The 
 Court did not determine whether the mother came within the exception, 
 but ruled that her immunity if established had no legal bearing on the 
 question whether a conspiracy by D. with her to commit the statutory 
 crime was criminal so far as concerned D (aa). 
 
 In consequence of the nature of the crime, it has been held where an 
 indictment for conspiracy was tried in the Court of King's Bench, a new 
 trial granted as to one of several convicted of conspiracy operated as a 
 grant of a new trial as to the others convicted, although the grounds 
 for the grant of the new trial applied only to the one. But where 
 of those indicted for conspiracy some were convicted and some acquitted, 
 the grant of a new trial in favour of those convicted did not affect the 
 verdict of acquittal (6). A new trial can no longer be granted in England 
 on conviction of any criminal offence (c) ; but the principles involved in 
 the above rulings may have to be considered in the event of an appeal 
 by one conspirator where several have been convicted. 
 
 Conspiracies to commit Offences Punishable by the Criminal Law. — 
 Whatever doubt may exist as to other forms of conspiracy, it is 
 clearly established that every conspiracy to commit an offence punish- 
 able by law is an indictable ofience. Where the conspiracy is executed, 
 it appears to merge in the completed offence (d). Conspiracies of this 
 kind are merely auxiliary to the law which creates the principal crime (e). 
 
 It is immaterial whether the principal offence is a felony (/') or a misde- 
 meanor (g), or wdiether it is an offence at common law or by statute (h), 
 
 (a) [1906] 75 L. J. K.B. 470: 70 J. P. (/) Conspiracy to commit treason or 
 294. Cf. R. V. Whitchurch, 24 Q.B.D. 420. treason felony is an overt act of treason 
 
 (aa) In R. v. Q-ossman, 24 T. L. R. 157, or treason felony. Mulcahy v. R., L. R. 
 
 on an apjjlication on behalf of the mother 3 H. L. 306. P'or an indictment for con- 
 
 (who was out of the jurisdiction) to compel spirina to take from the United States Consul 
 
 the withdrawal of a warrant against her in Samoa and lynch a man committed for 
 
 for taking part in the conspiracy, the Court trial for murder, see Hunt v. R. [1878], 
 
 declined to decide, in the absence of the Fiji Reports (Udal), 29. 
 
 mother, whether she was liable for the con- (g) For precedents of conspiracies to 
 
 spiracy. commit riots see 2 Chit. Cr. L. 506, note (a). 
 
 (b) R. V. Gompertz, 9 Q.B. 824. Cf. R. R. r. Vincent. 9 C.&R 91. In R. ?•. Pollman, 
 V. Quinn, 19 Cox, 78 (Ir.). As to the rule 2 Camp. 229, it seems to have been held 
 where one is convicted and the rest ac- that to purchase an office under the Customs 
 quitted, see R. i\ Plummer, avte, p. 47. was a misdemeanor at common law (see 
 
 (c) 7 Edw. VII. c. 23, s. 20, post. Bk. xii. R. v. Vaughan, 4 Burr. 2494), and it was 
 c. iv. For former practice see Archbold, held that conspiring to obtain money by 
 Cr. PI. (23rd ed.), 291 : Crown Office Rules, procuring an appointment to such office 
 1906, rr. 156 et seq. : and Short & Mellor, was indictable. See 49 Geo. III. c. 126, 
 Crown Practice (1st ed.). 253. post, p. 621. 
 
 (d) See Ld. Raym. 711. (h) See R. r. Best, [1705], 2 Ld. Raym. 
 
 (e) Wright on Conspiracy, 80, 1167.
 
 CHAP. VI.] Incitinf) and Inducing to Connnit Crimes. 151 
 
 and whether punishable on indictment or on summary conviction (?'), or 
 hrevi manu, as in the case of contempt of court. And this form of con- 
 spiracy inchides combination to violate the provisions of a statute (/), 
 or of a by-law made, or a proclamation issued, under statutory authority, 
 if the violation of the statute, by-law, &c., is a misdemeanor at common 
 law, or visited by a specific criminal penalty (k) ; and also extends to 
 include combination to commit a breach of the peace {I). The fact 
 that conspiracy to commit felony is indictable, was recognised by the 
 provision for pa^^ment out of public funds of the costs of prosecuting such 
 an offence (14 & 15 Vict. c. 55, s. 2). A person may be convicted of con- 
 spiracy to commit a crime of which he could not, if he stood alone, be 
 convicted. Thus, a woman has been held to have been properly con- 
 victed of conspiring with others to administer drugs to herself, or use 
 instruments to herself, with intent to procure abortion {m), when it was 
 proved that she believed erroneously that she was with child (n). 
 
 Convictions have been had for cons]>iracies to poison human beings (o) 
 or horses (/j), to commit forgery {q), larceny {r), marine barratry with 
 intent to defraud underwriters {s), and prison breach [t), and to form an 
 unlawful assembly [u). Conspiracy to murder is a statutory felony (r), 
 as are certain combinations or agreements for the purpose of treason, 
 felony, or sedition {post, p. 327). 
 
 In R. V. Brailsford (w), it was held to be criminal for two to conspire 
 to obtain a passport from the Foreign Office in the name of one of them 
 by falsely pretending that he desired to travel in Russia, and with intent 
 that the passport should be used by another person. The passport was 
 obtained and sent to the other person and used in Russia by a revolu- 
 tionist. The conspiracy was laid as being in fraud of the Foreign Office 
 to the injury, prejudice, and disturbance of the lawful free and customary 
 intercourse between the King's subjects and those of the Czar, and to 
 the public mischief of the King's subjects, and to the endangermcnt of 
 peaceful relations between the King and Czar, and between their respective 
 subjects. It was argued for the Crown that the offence w^as indictable 
 at common law independently of conspiracy (a"). This contention the 
 Court considered well founded as to frauds and cheats, and apparently 
 as to any other acts tending to produce a public mischief (//), and held 
 that obtaining a passport by a false pretence, i.e., cheating and deceiving 
 
 (0 R. V. Bunn, 12 Cox, 310, Brett, J. (;>) R. r. King [1820], 2 Chit. (K.B.), 217. 
 
 On the objections to this extension, sec {q) R. v. Brittain [1848], .3 Co.x, 7H. 
 
 Wright on Conspiracy, 83. (r) R. v. Taylor, 21 L. T. (N. S.) 75. 
 
 {)) II. V. Thompson, 10 Q.B. 832, ntitc, (.s) R. v. Kohn [1804], 4 F. & F. 08, post, 
 
 p. 148. In tliat case it was said that as p. ]78. 
 
 conspiracy is an offence at common law, if (/) R. v. Desmond [1808], 11 Cox. 14(i. 
 
 parties conspire to commit an offence («) J^ r. Hunt [1820], 3 B. & Aid. 500; 
 
 created by statute, tliey may be indicted 1 St. Tr. N. S. 171. 
 
 for such conspiracy, althovigli the statute (v) 24 & 25 Vict. c. 100, s. 4, post, p. 835. 
 
 be repealed before the indictment is pre- (w) [1905] 2 K.B. 730. 
 
 ferred. \x) They cited : R. v. Hipgins. 2 East, 5, 
 
 (k) See Wright on Conspiracy, 83. 21, Lawrence, J. R. v. AN'heatly. 2 Burr. 
 
 (/) 4 St. Tr. (N. S.) 1347. 1125, 1127 ; 1 W. Bl. 273. Lord Mansfield. 
 
 (m) A felony within 24 & 25 Viet. c. 100, Young v. R., 3 T. R. 08, 104, cit. Bullcr, J. 
 
 s. 58, posl. p. 829. R. v. Vauglian, 4 Burr. 2494. 
 
 (n) R. V. Whitchurch, 24 Q.B.D. 420. (//) Thev relied on R. v. dc Bercnger, 
 
 Cf. R. V. Duguid. 70 J. P. 294, ante, p. 1.50. 3 JI. & S. 07, and R. v. Dixon, 3 M. & S. 11, 
 
 (o) R. V. Maudsley [1820], 1 Lew. 51,
 
 152 Of Criminal Conspiracy. [book i. 
 
 the Foreign Office, was an act whicli would render a conspiracy to carry 
 it into effect criminal, and that the particular conspiracy was clearly 
 calculated and intended to produce a grave public mischief, because it 
 sought to obtain by false representations and improper purpose the issue 
 of a public document by a public department of state. 
 
 Conspiracy for seditious purposes is indictable, sedition itself being 
 a criminal offence (z). In R. v. Vincent (a), some of the counts of an 
 indictment charged the defendant with conspiring to cause a great 
 number of persons to meet together for the purpose of exciting discontent 
 and disaffection in the minds of the subjects of the Queen, and for the 
 purpose of exciting the said subjects to hatred and contempt of the 
 government and constitution, and it appeared that a large number of 
 persons had assembled at meetings, at which violent sj)eeches had been 
 made respecting the government and constitution and the people's 
 charter. Alderson, B., told the jury, ' The purpose which the defendants 
 had in view, as stated by the prosecutors, was to excite disaffection and 
 discontent, but the defendants say that their purpose was by reasonable 
 argument and proper petitions to obtain the five points mentioned by 
 their learned counsel. If that were so, I think it is by no means illegal 
 to petition on those points. The duration of Parliaments and the extent 
 of the elective franchise have undergone more than one change by the 
 authority of Parliament itself ; and with respect to the voting by ballot, 
 persons whose opinions are entitled to the highest respect are found 
 to differ (6). There can also be no illegality in petitioning that members 
 of Parliament should be paid for their services by their constituents ; 
 indeed, they were so paid in ancient times, and they were not required 
 to have a property qualification till the reign of Queen Anne (c), and are 
 now not required to have it in order to represent any part of Scotland 
 or the English Universities.' And he directed the jury to say whether 
 they were satisfied that the defendants conspired to excite disaffection, 
 and if they were to find them guilty of conspiracy. 
 
 The first count in an indictment against Daniel O'Connell {d) and others 
 alleged that the defendants, intending to create discontent and disaffec- 
 tion amongst the subjects of the Queen, and to excite the said subjects 
 to hatred of the government and constitution, &c., unlawfully and 
 seditiously did conspire, &c., to create discontent and disaffection amongst 
 the subjects of the Queen, and to excite such subjects to hatred and 
 contempt of the government and constitution and to unlawful and seditious 
 opposition to the government and constitution, and to stir up jealousies and 
 ill-will between different classes of Her Majesty's subjects, and especially 
 to promote among Her Majesty's subjects in Ireland feelings of ill-will 
 
 (2) R. V. Redhead Yorke, 25 St. Tr. 1003. made inciting to violence. R. v. Burns, 
 
 R. V. Hunt, 1 St. Tr. (N. S.) 171 ; 3 B. & Aid. 16 Cox, 355, where the earlier authorities 
 
 566. O'Connell f. R., 11 CI. &F. 155; 5St.Tr. are discussed. 
 
 (N. S.) 51. R. V. McHugh [1901], 2 Ir. Rep. (a) 9 C. & P. 91. Cf. R. v. SheUard, 9 
 
 569. See post, p. 327 et seq., 'Sedition.' It C. & R 277. 
 
 is not seditious candidly, fully and freely to (b) See the Ballot Act, 1872 (35 & 36 
 
 discuss public matters or criticise the Gov- Vict. c. 33, temp.). 
 
 ernment, unless the discussion or criticism (c) Nor since 1858, when it was abolished 
 
 is under circumstances calculated or in- by 21 & 22 Vict. c. 26. 
 tended to create tumult, or statements are (d) 11 CI. & F. 155 : 5 St. Tr. (N. S.) 1,
 
 CHAP. VI.] Seditious Combinatio7is. 153 
 
 and hostility towards and against Her Majesty's subjects in the other 
 parts of the United Kingdom, and especially in that part called England 
 and further, to excite discontent and disaffection amongst divers of Her 
 Majesty's subjects serving in the army ; and further, to cause and procure, 
 &c., divers subjects unlawfully and seditiously to meet and assemble 
 together in large numbers, at different places in Ireland, for the unlawful 
 and seditious purpose of obtaining, by means of the intimidation to be 
 thereby caused, and by means of the exhibition of great physical force 
 at such assemblies and meetings, changes and alterations in the govern- 
 ment, laws, and constitution ; and further, to bring into hatred and 
 disrepute the courts by law established in Ireland for the administra- 
 tion of justice, and to diminish the confidence of the said subjects in 
 Ireland in the administration of the law therein, with the intent to induce 
 the subjects to withdraw the adjudication of their differences from the 
 cognizance of the said courts, and to submit the same to the determina- 
 tion of other tribunals to be constituted for that purpose. The count 
 then alleged various overt acts done in order to excite discontent with, 
 hatred of, and disaffection to the government, laws, and constitution. 
 The second count was exactly like the first, but omitted the overt acts. 
 The third count alleged that the defendants, intending to create discon- 
 tent and disaffection amongst the subjects of the Queen, and to excite 
 the said subjects to hatred and contemj)t of the government and constitu- 
 tion, &c., unlawfully and seditiously did conspire, &c., to raise and create 
 discontent and disaffection amongst the subjects of the Queen, and to 
 excite such subjects to hatred and contempt of the government and 
 constitution, and to unlawful and seditious opposition to the said 
 government and constitution, and to stir up hatred, jealousies, and ill-will 
 between different classes of the said subjects, and especially to promote 
 amongst the said subjects in Ireland feelings of ill-will and hostility 
 against the said subjects in other parts of the United Kingdom, and 
 especially in that part called England ; and further, to excite discontent 
 and disaffection amongst divers subjects serving in Her Majesty's army; 
 and further, to cause and procure, &c., divers subjects to meet and 
 assemble together in large numbers at different places in Ireland, for the 
 unlawful and seditious purpose of obtaining, by means of the intimida- 
 tion to be thereby caused, and by means of the exhibition of great physical 
 force at such assemblies and meetings, changes in the government, laws, 
 and constitution ; and further, to bring into hatred and disrepute the 
 courts in Ireland for the administration of justice, &c. The fourth count 
 was the same as the third, omitting the charges as to creating discontent 
 in the army, and the diminishing the confidence in the courts of law. 
 The fifth count alleged that the defendants, intending to cause and create 
 discontent and disaffection amongst the liege subjects of the Queen, 
 and to excite the said subjects to hatred and contempt of the govern- 
 ment and constitution, &c., unlawfully and seditiously did conspire, &c., 
 to raise and create discontent and disaffection amongst the liege subjects 
 of the Queen, and to excite the said subjects to hatred and contempt 
 of the government and constitution, and to unlawful and seditious opposi- 
 tion to the government and constitution, and also to stir up jealousies, 
 hatred, and ill-will between different classes of the said subjects, and
 
 154 Of Criminal Conspiracy. [book t. 
 
 especially to promote amongst the said subjects in Ireland feelings of 
 ill-will and hostility against the subjects in the other parts of the United 
 Kingdom, and especially in England. Tindal, C.J., in expressing to 
 the House of Lords the opinion of the consulted judges, said : ' There 
 can be no question but that the charges contained in the first five counts 
 do amount, in each, to the legal offence of conspiracy, and are sufficiently 
 described therein. There can be no doubt but that the agreeing of 
 divers persons together to raise discontent and disaffection amongst the 
 liege subjects of the Queen, to stir up jealousies, hatred, and ill-will 
 between different classes of Her Majesty's subjects, and especially to 
 promote amongst Her Majesty's subjects in Ireland feelings of ill-will 
 and hostility towards Her Majesty's subjects in other parts of the United 
 Kingdom, and especially in England — which charges are found in each 
 of the first five counts — do form a distinct and definite charge in each, 
 against the several defendants, of an agreement between them to do 
 an illegal act (e) ; and it therefore becomes unnecessary to consider the 
 other additional objects and purposes alleged in some of these counts to 
 have been comprised within the scope of the agreement of the several 
 defendants. 
 
 The eighth count in the indictment charged a conspiracy to bring 
 the tribunals of justice into contempt, and to cause the subjects to with- 
 draw their differences from the said tribunals, and to submit the same 
 to other tribunals. The ninth was similar to the eighth, but substituted 
 for withdrawing their differences, &c., ' to assume and usurp the preroga- 
 tive of the Crown in the establishment of courts for the administration 
 of the law.' The tenth count charged a conspiracy to bring into disrepute 
 the tribunals for the administration of justice. And the eleventh count 
 alleged that the defendants, intending by means of intimidation and 
 demonstration of physical force, &c., by causing large numbers of persons 
 to meet and assemble in Ireland, and by means of seditious and inflamma- 
 tory speeches to be delivered to the said persons, and by means of publish- 
 ing divers unlawful and seditious writings, to intimidate the Lords 
 Spiritual and Temporal and Commons of the Parliament of the United 
 Kingdom, and thereby to effect changes in the laws and constitution, 
 unlawfully and seditiously did conspire, &c., to cause large numbers of 
 persons to meet together in divers places and at divers times in Ireland, 
 and by means of seditious speeches to be made at the said places and 
 times, and by means of publishing to the subjects of the Queen unlawful 
 and seditious writings, &c., to intimidate the Lords Spiritual and Temporal 
 and the Commons of the Parliament of the United Kingdom, and thereby 
 to effect and bring about changes and alterations in the laws and constitu- 
 tion. Tindal, C.J., in giving to the House of Lords the opinion of the 
 consulted judges, said (/ ) : ' We all concur in opinion that the object and 
 purpose of the agreement entered into by the defendants, as disclosed upon 
 these counts, is an agreement for the performance of an act, and the 
 attainment of an object, which is a violation of the laws of the land. 
 We think it unnecessary to state reasons in support of the opinion that 
 
 (e) Qu. a criminal act, (/ ) H CI. & F. 155 ; 5 St. Tr. (N. S.) 1,
 
 CHAP. VI.] Combinations fo Cause Nuisance. 155 
 
 an agreement between the defendants to diminish the confidence of Her 
 Majesty's subjects in Ireland in the general administration of the law 
 therein, or an agreement to bring into hatred and disrepute the 
 tribunals by law established in Ireland for the administration of justice, 
 are each and every of them agreements to effect purposes in manifest 
 violation of the law. Upon the sufficiency of the eleventh count, no 
 doubt whatever has been raised.' 
 
 Conspiracy to obtain money by getting from the lords of the treasury 
 the appointment of a person to an office in the customs has been 
 held a misdemeanor at common law. Counsel for the defendant 
 proposed to argue that the indictment was bad on the face of it, 
 as it was not a misdemeanor at common law to sell or to purchase 
 an office like that of a coast waiter, and that, however reprehensible 
 such a practice might be, it could only be made an indictable offence 
 by Act of Parliament. But Ellenborough, C.J., said : ' If that be a 
 question it must be debated on a motion in arrest of judgment, or on a 
 writ of error. But after reading the case of R. v. Vaughan (g), it will be 
 very difficult to argue that the offence charged in the indictment is not 
 a misdemeanor.' And Grose, J., in passing sentence, likewise observed 
 that there could be no doubt that the indictment was sufficient, and that 
 the offence charged was clearly a misdemeanor at common law (h). 
 
 Nuisance. — It is said to be criminal to conspire to injure the public 
 health as by selling unwholesome food. Many acts tending to the injury 
 of the public health are nuisances at common law, or punishable sum- 
 marily, or on indictment, and conspiracies to commit such offences would 
 be criminal under the rule stated, cmte, p. 150. The selling unwholesome 
 provisions may be in some cases treated as a cheat or fraud at common 
 law {i). In R. v. Mackarty (j), the indictment charged that the defendants, 
 F. and M., falsely and deceitfully intending to defraud T. C, &c., 
 together deceitfully bargained with him to barter, sell, and exchange a 
 certain quantity of pretended wine, as good and true new Portugal wine, 
 of him the said F., for certain goods of C. ; and that, upon such bartering, 
 &c., the said F. pretended to be a merchant, and to trade as such in 
 Portugal wines, when, in fact, he was no such merchant, nor traded as 
 such in wines ; and the said M., on such bartering, &c., pretended to be 
 a broker, when, in fact, he was not, and that the said C, giving credit to 
 the said deceits, did barter, sell, and exchange to F., and did deliver to 
 M., as the broker between the said C. and F., for the use of F., goods, for 
 the pretended new Portugal wine ; and that M. and F., on such bartering, 
 &c., affirmed that it was true new wine of Portugal, and was the wine 
 of F., when, in fact, it was not Portugal wine, nor was it drinkable or 
 wholesome, nor did it belong to F., to the great deceit and damage of the 
 said C, and against the peace, &c. It is observed of this iniiictmrnt, 
 which was for a cheat at common law, that though it did not charge that 
 th£ defendants conspired eo nomine, yet it charged that they together, 
 &c., did the acts imputed to them, which might be considered to be 
 
 (.7) 4 Burr. 2494. xi. o. iii. 
 
 (h) R. V. Pollman, 2 Camp. 229. (/) 2 Lfl. Raym. 1179; 3 ifl. .32.') ; Mod. 
 
 (r) Vide post, Bk. x. p. 1501, rt. .seq. ; Bk. 301 ; 1 Salk. 286 ; G Ea,«t, 133. 141 cit.
 
 156 Of Criminal Conspiracy. [book i. 
 
 tantamount (k). The case was considered as one of doubt and difficulty, 
 but it seems that judgment was ultimately given for the Crown (l). In 
 Treeve's case (m) it was ruled that an indictment lay for wilfully, 
 maliciously, and deceitfully supplying to prisoners of war food unfit for 
 human food. According to the statement of Alverstone, C.J., in R. v. 
 Brailsford [1905], 1 K.B. 730-745, the ratio decidendi was not that stated 
 in 1 East, P.O. 822, that to do as alleged lucri causa was indictable, 
 but that the acts tended to produce a public mischief. 
 
 Conspiracies as to Paupers. — By the Poor Law Act, 1844 (7 & 8 Vict, 
 c. 101), s. 8, it is a misdemeanor for any officer of any union, parish, or 
 place to induce any person to contract a marriage by any threat or 
 promise respecting any application to be made or order to be enforced 
 with respect to the maintenance of a bastard child. 
 
 Conspiring and contriving, by sinister means, to marry a pauper of 
 one parish to a settled inhabitant of another, in order to bring a charge 
 upon it, has been held indictable (n). It is observed respecting a con- 
 spiracy of this kind, that, considering the offence is a prostitution of the 
 sacred rites of marriage, for corrupt and mercenary purposes, and that, 
 by artful and sinister means, persons are seduced into a connection for 
 life without any inclination of their own, and contrary to that freedom 
 of choice which is peculiarly required in forming so close an union, and 
 on which the happiness of them both so entirely depends ; and this for 
 the sake of some gain or saving to others who bring about such marriage ; 
 in this light it seems a fit ground for criminal cognisance, not only as being 
 a great oppression upon the parties themselves more immediately inter- 
 ested, but as an offence against society in general, being an abuse of that 
 institution by which society is best continued and legal descents preserved, 
 and a perversion of the purposes for which it was ordained (o). Upon an 
 indictment against parish officers for a conspiracy of this kind, it appeared 
 that a man of one parish having gotten with child a woman belonging to 
 another parish, the defendants had agreed with the man (who was of the 
 age of twenty-nine), with the approbation of his father, to give him two 
 guineas if he would marry the woman, and that he afterwards married 
 her on such condition, and received the money from the defendants 
 immediately after the marriage ; and it was also sworn, both by the man 
 and the woman, that they were willing to marry at the time. Buller, J., 
 directed an acquittal, notwithstanding the proof of the money having 
 been given to procure such consent; and this after the putative father 
 had been arrested under a justice's warrant, and was in custody of the 
 overseers. He ruled that it was necessary, in support of such an indict- 
 ment, to shew that the defendants had made use of some violence, threat, 
 or contrivance, or used some sinister means to procure the marriage with- 
 out the voluntary consent or inclination of the parties themselves ; and 
 
 (Jc) The indictment was for bai-tering said that R. v. Mackarty was a case of 
 
 pretended port wine alleged to be unwhole- conspiracy as well as of false tokens, 
 
 some. In R. v. Southerton, 6 East, 133, (/) 2 East. P.C. c. 18, s. 5. 
 
 Ellenborough, C.J., said that the vending (m) [1796] 2 East, P.O. 821. 
 
 of such an article was clearly indictable, a (n) R. i\ Tarrant, 4 Burr. 2106. R. r. 
 
 deceit or public cheat, but the indictment Herbert, 1 East, P.C. 461. R. v. Compton, 
 
 was not framed for conspiracy. In R. v. Cald. 246. See R. v. Edwards, 8 Mod. 320. 
 
 Wheatly, 2 Burr. 1127, 1129, Denison, J., i (o) 1 East, P.C. 461.
 
 CHAP. VI.] Combinations Contra Bonos Mores. 157 
 
 that the act of marriage, being in itself lawful, a conspiracy to procure 
 it could only amount to a crime by the practice of some undue 
 means (p). 
 
 Where the indictment stated the marriage to have been procured by 
 threats and menaces against the peace, &c., it was held sufficient, without 
 averring in terms that the marriage was against the will or consent of 
 the parties, though that must be proved (q). 
 
 And an indictment does not lie for conspiracy merely to exonerate 
 one parish from the charge of a ^Jauper and to throw it on another, nor 
 for conspiring to cause a male pauper to marry a female pauper for that 
 purpose, it not being stated that the conspiracy was to effect such 
 marriage by force, threats, or fraud, or that it was so effected in pursuance 
 of the conspiracy (r). An allegation in such an indictment that a poor 
 unmarried woman in a parish was with child is not equivalent to an 
 allegation that she was chargeable to such parish (s). And it has been 
 doubted whether an allegation that the defendants conspired together 
 for the j)^irpo^® ^^ exonerating, is equivalent to allegation that they 
 conspired to exonerate (t). 
 
 Upon an indictment for conspiring to give and giving a man money 
 to marry a poor helpless woman, who was an inhabitant of B., in order to 
 settle her in the parish of A., where the husband was settled, judgment 
 was arrested, because it was not averred that she was last legally settled 
 in B. (u). But it seems perfectly immaterial where the woman's settle- 
 ment was, if it were not in A., provided that fact distinctly appeared {v). 
 It was, however, usual to aver the settlements of the parties in their 
 respective parishes, and also that the woman was chargeable to her own 
 parish at the time, though this latter has never been adjudged to be 
 necessary, nor seems to be required according to the general rules which 
 govern the offence of conspiracy (w) : for in such cases both the purpose 
 and the means used are clearly unlawful. 
 
 Conspiring to let a pauper land to the intent that he may gain a 
 settlement is illegal {x). 
 
 Acts Contra Bonos Mores. — Conspiracy to do acts regarded as contra 
 bonos mores, is punishable by ecclesiastical law, but not criminal or 
 tortious by common law or statute. In the seventeenth century the 
 Court of King's Bench assumed jurisdiction to superintend offences 
 contra bonos mores (y). 
 
 Conspiring to charge a man with being the father of a bastard child 
 is indictable, whether the intent be to extort money or not. Where the 
 object is stated to be to extort money, it is immaterial whether the woman 
 
 (p) R. V. Fowler, 1 East, P.C. 401. And (/) IVr Williams, J., ibid., citing R. v. 
 
 the learned judge said that this point had Nield, (i East, 417. But in R. v. Ridgway, 
 
 been so ruled several times by several 5 B. & Aid. 527, R. v. Nield was doubted by 
 
 judges. Tenterdcn, C.J. 
 
 (q) R. V. Parkhouse, 1 East, P.C. 402, {u) R. v. Edwards, 8 Mod. 320. 
 
 Bullcr, J. {(•) 1 Ea.st, P.C. 402. 
 
 (r) R. V. Seward, 1 A. & E. 700. Cf. a (w) Id. ibid, 
 
 precedent in 4 Wentworth, 129, to bring (x) R. r. Edwards. 8 Mod. 'MO. 
 
 a pregnant pauper to settle in a parish. (y) R. v. Delaval [1703], 3 Burr. 1434, 
 
 (s) Per Denman, C.J., and Taunton, J., 1438, per Lord Mansfield, 
 ibid.
 
 158 Of Criminal Conspiracy. [BOOK i. 
 
 is or is not pregnant (z), or whether the charge is or is not false (a), or 
 that the child was likely to be chargeable (a). In a case where no intent 
 to extort was alleged, the Court doubted upon the objection that the 
 charge was not stated to be false, but ultimately held the indictment to 
 be sufficient, as the defendants were at least charged with conspiring to 
 accuse the prosecutor of fornication, and although that was a spiritual 
 offence, conspiring to accuse of it was a temporal offence («). 
 
 The same rule seems to have been applicable to conspiracies to charge 
 with heresy, or any other spiritual defamation (a) or to charge another 
 with slanderous matter (c). Combinations to subvert religion are said to 
 be criminal (d). 
 
 It has been held criminal to conspire to prevent the burial of a corpse, 
 or take up dead bodies for dissection (e). Digging up dead bodies with- 
 out lawful authority is indictable at common law (/'), and it is also 
 contrary to ecclesiastical law and modern statutes ((/), 
 
 In the follov/ing cases it has been held criminal at common law to 
 conspire to debauch females under twenty-one. Lord Grey and others 
 were charged, by an information at common law, with conspiring and 
 intending the ruin of the Lady Henrietta Berkeley, then a virgin unmarried, 
 within the age of eighteen years, one of the daughters of the Earl of 
 Berkeley (she being under the custody, &c., of her father), and soHciting 
 her to desert her father, and to commit whoredom and adultery with 
 I;ord Grey, who was the husband of another daughter of the Earl of 
 Berkeley, sister of the Lady Henrietta, and to live and cohabit with him ; 
 and, further, the defendants were charged, that in prosecution of such 
 conspiracy, they took away the Lady Henrietta at night from her father's 
 house and custody, and against his will, and caused her to live and 
 cohabit in divers secret places with Lord Grey, to the ruin of the lady 
 and to the evil example, &c. The defendants were found guilty, though 
 there was no j^roof of any force, but, on the contrary, it appeared that 
 the lady, who was herself examined as a witness, was desirous of leaving 
 her father's house, and concurred in all the measures taken for her 
 departure and subsequent concealment. It was not shewn that any 
 artifice was used to prevail on her to leave her father's house ; but the 
 case was put upon the ground that there was a solicitation and enticement 
 of her to unlawful lust by Lord Grey, who was the principal person 
 concerned, the others being his servants, or persons acting by his 
 command, and under his control (h). 
 
 A count charged that the prisoners did between themselves conspire, 
 
 (z) R. V. Armstrong, 1 Ventr. 304 ; 1 Cliit. Cr. L. 36. 
 
 Lev. 02. R. V. Timberley, 1 Sid. 68. See (/) R. v. Lynn, 2 T. R. 733. 
 
 Wright on Conspiracy, 2L (q) See pust, Bk. xi. c. v. 
 
 (a) R. V. Best, 2 Ld. Raym. 1167. Vide (h) R. i-. Lord Grey, 9 St. Tr. 127 ; 1 East, 
 
 1 Hawk. c. 72, s. 8. R. *'. Hollingberry, P.O. 460. In Wright on Conspiracy, 26, 
 
 4 B. & C. 329. R. V. Jacobs, 1 Cox, 173. 106, it is suggested that the offence charged 
 
 The truth or falsity of the charge may be was not conspiracy but abduction from her 
 
 material on the question of intent. father's house and procurement of a girl of 
 
 (c) See R. v. Armstrong, supra. R. i\ seventeen, and that this offence was punish- 
 Best, 1 Salk. 174. R. v. Kinnersley, 1 Str. able at common lav/. The word conspir- 
 193. antes is regarded by Mr, Wright as meaning 
 
 (d) Fitzgibbon, 66. Vide post, p. 393. ' contriving.' 
 
 (e) See R. v. Young, 2 T. R. 733, cit. : 2
 
 CHAP. VI.] Combinations Contra Bonos Mores. 159 
 
 combine, confederate, and agree together knowingly and designedly to 
 procure, by false representations, false pretences, and other fraudulent 
 means, J. C, a poor child, under the age of twenty-one years, to wit, of 
 the age of fifteen years, to have illicit carnal connection with a man whose 
 name was to the jurors unknown, and, upon a case reserved, the judges 
 were unanimously of opinion that this count charged an indictable offence 
 at common lav/ (i). 
 
 A count alleged that the prisoners unlawfully conspired, &c., to solicit, 
 persuade, and procure, and in pursuance of the said conspiracy did 
 unlawfully solicit, incite, and endeavour to procure L. M., an unmarried 
 girl, within the age of eighteen years, to become and be a common prosti- 
 tute, and to commit whoredom and fornication for lucre and gain with 
 men ; and it was urged, in arrest of judgment, that the count was bad, 
 as it did not aver that the girl was chaste ; the fact of a loose woman 
 committing fornication was not punishable by law ; but it was held that 
 the count was good, as it charged a consj)iracy to bring about an illegal 
 condition of things (/). 
 
 In R. V. Delaval [k]., leave was given to exhibit a criminal information 
 against a master, an attorney, and a gentleman to assign over a female 
 aj3prentice by her own consent for purposes of prostitution. 
 
 In R. V. Robinson and Taylor (/), a woman was indicted for con- 
 spiring with a man that he should personate her master, and in that 
 character should solemnise a marriage with her, for the purpose of after- 
 wards raising a specious title to the property of the master, in pursuance 
 of which conspiracy the parties intermarried. It was held that it was the 
 province of the jury to collect, from all the circumstances of the case, 
 whether there was not an intention to do a future injury to the person 
 whose name was assumed, and that it was not necessary to prove any 
 direct or immediate injury (/). Marriage under a false name is now a 
 criminal offence (»i). 
 
 In R. V. Serjeant [n) the defendant was held to have been properly 
 convicted on an indictment, which charged that M. A. W. was a person 
 of ill-fame and bad character, and a common prostitute, and that W. B. S. 
 was an infant within the age of twenty-one years, and that M. A. W. and 
 P. D. and S. J., intending to defraud the said W. B. S. of his property, 
 
 (t) R. V. Hears, 2 Den. 79 : 20 L. J. M. C. Wright on Conspiracy, 106. By s. 1 of the 
 
 .59. See Wright on Conspiracy, p. 33. Tlie Criminal Law Amendment Act, 1885, it is 
 
 indictment also contained two counts criminal to procure or attempt to procure 
 
 framed to charge an attempt to commit an any woman or girl to become eitiier within 
 
 offence under 12 & 13 Vict. c. 70 (rep. 1891, or without the King's dominions a common 
 
 S. L. R.), but no opinion was expressed as to prostitute. 
 
 these counts. By .ss. 4 & 5 (1) of the Criminal (A) [17G3] 3 Burr. 1434 : 1 W. Bl. 410. 
 
 Law Amendment Act, 1885 (48 & 49 Vict. It is suggested in Wright on Conspiracy, p. 
 
 c. (i9), having or attempting carnal know- 32, that it is an offence at common law 
 
 ledge of a girl under sixteen is criminal, for a master to induce his apprentice to 
 
 and by s. 3 (2) it is criminal by false pre- ])ractise prostitution for his profit, 
 
 tences or false representation to procure any (/) 1 Leach, 37 ; 2 East, P.C. 1010. In 
 
 woman or girl not being a common prosti- Wade v. Broughton, 3 V. & B. 172, it was 
 
 tute or of known immoral character to have said that persons conspiring to procure the 
 
 any unlawful carnal connection. marriage of a female for the sake of her 
 
 0) R. V. Howell, 4 F. & F. 160, Bram- fortunJ may be indicted for a conspiracy, 
 
 well, B., and Russell (iurney. Recorder. (m) Vidv jMst. ]). 1013. 
 
 The dicta of Bramwell, B., go too far. See («) Ry. & M. 352.
 
 160 Of Criminal Consfiracy. [book i. 
 
 conspired for the purpose aforesaid to procure a marriage to be solem- 
 nised between the said W. B. S. and the said M, A. W., by means of 
 a false oath to be taken by the said M. A. W., and by divers false 
 pretences, and without the consent of the mother of the said W. B. S., 
 his father being dead, and that the said M. A. W. and P. D. and S. J., in 
 pursuance of the said conspiracy, did prevail on the said W. B. S. to con- 
 sent to marry the said M. A. W., and by means of such persuasion, and 
 by means of a false oath taken by the said M. A. W., in order to obtain a 
 licence for the solemnisation of marriage between the said W. B. S. and 
 the said M. A. W., did cause the said W. B. S. to marry the said M. A. W., 
 and a marriage by such licence was accordingly solemnised between them, 
 without the leave of the mother of the said W. B. S., who then was such 
 infant as aforesaid. 
 
 In Gibbon Wakefield's case (o), an indictment was held to lie for 
 conspiring to carry away a woman under twenty-one from the custody 
 of her parents and instructors, and afterwards to marry her to one of 
 the offenders, contrary to the provisions of 4 & 5 Ph. &M. c, 8, ss. 3 &4 (rep.), 
 and also for conspiring to commit the capital felony (under 3 Hen. VII. 
 c. 2, s. 1 (rep.)) of taking away an heiress against her will, and afterwards 
 marrying her to one of the defendants. The young lady, who was the 
 heiress of a gentleman of large fortune, and was only fifteen years of age, 
 was induced to leave the house where she had been placed, by means of 
 a fictitious letter, fabricated by the defendants, who conveyed her to 
 Gretna Green, where she was induced by means of false representations 
 to go through the ceremony of a Scotch marriage, and to consent to 
 become the wife of one of the defendants : and the defendants were 
 convicted. 
 
 Public Justice. — All combinations to subvert public justice are now 
 regarded as indictable. They fall into three classes : — 
 
 1. Conspiracies to make false accusations of crime or unfounded civil 
 
 claims. 
 
 2. Conspiracies to threaten to make false accusations or claims. 
 
 3. Conspiracies to interfere with the fair trial of pending proceedings. 
 Conspiracies to make False CAar^/es.— According to Sir R. S. Wright, 
 
 conspiracy is a crime of statutory origin {y), and historically the oldest 
 form of criminal conspiracy is that defined by the old statutes and 
 ordinances, 28 Edw. I. c. 10 {q), and 33 Edw. I. But in O'Connell v. R. (r), 
 Tindal, C.J., after saying that ' The crime of conspiracy is complete 
 if two, or more than two, should agree to do an illegal thing ; that is, 
 to effect something in itself unlawful, or to effect, by unlawful means, 
 
 (o) R. V. Wakefield, 2 Lew. 1. The that, a conspiracy to prefer one subjected 
 marriage being in Scotland, an indictment the offenders to the villainous judgment, 
 for felony under 3 Hen. VII. c. 2, s. 1, could 1 Edw. III. st. 2, c. 11 ; 2 Co. Inst. 384. This 
 not have been supported, and there was no judgment does not seem to have been pro- 
 evidence to support an indictment under nounced since the time of Edw. III. R. v. 
 4 & 5 Ph. «& M. c. 8, s. 4. An indictment Spragg, 2 Burr. 996, 997. 
 was preferred upon 4 & 5 Ph. & M. c. 8, s. 3, (g) This statute seems to give only civil 
 but no judgment given upon it. See remedies. 
 Murray's report of the case. (r) 13 CI. & F. 15.5, citing R» v. Best, 2 
 
 (p) It is said that a false indictment is no Ld. Raym. 167, and R. v. Edwards, 8 Mod. 
 
 crime as referred to the individual, but 320.
 
 CHAP. VI.] Combinations to Accuse Falsely. 161 
 
 something which in itself may be indifferent, or even lawful,' adds ' that 
 it was an offence known to the common law, and not first created by the 
 33 Edw. I, Stat. 2 (s), is manifest. That statute speaks of conspiracy 
 as a term at that time well known to the law, and professes only to be 
 "■ a definition of conspirators." It has accordingly always been held to 
 be the law, that the gist of the offence of conspiracy is the bare engage- 
 ment and association to break the law, whether any act be done in 
 pursuance thereof by the conspirators or not/ 
 
 The description of conspirators in the ordinaeio de conspiratorihus 
 (33 Edw, I.) (t), is that ' conspirators be they that do confeder or bind 
 themselves by oath, covenant, or other alliance, that every of them shall 
 aid and bear the other falsely and maliciously to indict, or cause to indict, 
 or falsely to move and maintain pleas ; and also such as cause children 
 within age to appeal men of felony, whereby they are imprisoned and 
 sore grieved (s) : and such as retain men in the country with liveries or 
 fees for to maintain their malicious enterprises, and to drown the truth ; 
 and this extendeth as well to the takers, as to the givers ; and stewards 
 and bailiffs of great lords, who by their seigniory, office, or power, 
 undertake to bear or maintain quarrels, pleas, or debates, that con- 
 cern other parties than such as touch the estate of their lords or 
 themselves' (u). The ordinance is repealed as to combinations with 
 respect to wages (v), and the definition contained in it is, of course, 
 not exhaustive of the varieties of conspiracy (w). 
 
 One of the oldest definitions of conspiracy is ' a consultation and agree- 
 ment between two or more to appeal, or indict an innocent person falsely 
 and maliciously of felony, whom accordingly they cause to be indicted 
 or a^jpealed ; and afterwards the party is lawfully acquitted by the verdict 
 of twelve men ' (x). 
 
 From the statutory definition it seems clearly to follow that not only 
 those who actually cause an innocent man to be indicted, and also to 
 be tried upon the indictment, whereupon he is lawfully acquitted, are 
 properly conspirators, but that those also are guilty of this offence, 
 who barely conspire to indict a man falsely and maliciously, whether 
 they do any act in prosecution of such conspiracy or not ; for the 
 words of the statute seem expressly to include all such confederacies 
 under the notion of conspiracy, whether there be any prosecution or 
 not (y). 
 
 It appears not only from the words of the statute but also from the 
 plain reason of the thing, that no confederacy whatsoever to maintain a 
 
 (s) Appeals of felony were abolished in (y) 1 Hawk. c. 72, s. 2. In R. v. Rpragg. 
 
 1819, (59 (Jeo. 3 c. 4(), rep.) 2 J3urr. 99.3, 998, Serjeant Davy said: 
 
 (t) Sometimes cited as 21 Edw. I. 'There is a distinction between a writ of 
 
 (u) The latter part of the ordinance deals conspiracy and an indictment for conspi- 
 
 with maintenance {q. v. post, p. 587). In racy. In an action the damage is the gist 
 
 some old books confederacy is applied to of the action ; and therefore the writ and 
 
 agreements to maintain, and conspiracy to declaration must charge " that he was in- 
 
 agreements to indict. See Wright on Con- dieted and sustained damage " ; but that 
 
 spiracy, 18. is not necessary in an indictment, which is 
 
 (v) By 6 Geo. IV. e. 129, s. 2. As to for an offence against the public. And 
 
 combinations affecting trade, see pos<, p. 170, this distinction explains Lord Coke's mcan- 
 
 (tv) R. V. Tibbits [1902], 1 K.B. 77, 89. ing in 3 Inst. 143,' 
 
 (x) 3 Co. Inst. 143. 4 Bl. Com. 13(). 
 
 VOL, I. M
 
 162 Of Crimmal Conspiracy. [book i. 
 
 suit can come within the words of the 33 Edw, I. stat. 2, unless it is both 
 false and malicious (2^). 
 
 By the conjoint effect of the ordinance and the common law (a), 
 it is criminal unlawfully to agree to injure any person by a false charge, 
 whether the offence charged is a temporal or an ecclesiastical offence (6), 
 and whether it is treason felony or misdemeanor, or merely a charge 
 affecting his credit or reputation. 
 
 This form of conspiracy is not criminal if the charge was to be pre- 
 ferred honestly and with reasonable belief in its truth (c). Several 
 persons may lawfully meet together and consult to prosecute a guilty 
 person, or one against whom there is probable cause of suspicion ; but not 
 to prosecute one who is innocent, right or wrong {d). And associations 
 to prosecute felons, and even to put the laws in force against political 
 offenders, are lawful (e). 
 
 It seems not to be any justification of a conspiracy to carry on a 
 false and malicious prosecution, that the indictment which was preferred, 
 or intended to be preferred in pursuance of it, was insufficient, or that 
 the Court wherein the prosecution was carried on or designed to be 
 carried on had no jurisdiction of the cause, or that the matter of the 
 indictment did import no manner of scandal, so that the party grieved 
 was, in truth, in no danger of losing either his life, Hberty, or reputation. 
 For notwithstanding the injury intended to the party against whom 
 such a conspiracy is formed may perhaps be inconsiderable, yet the 
 association to pervert the law, in order to procure it, is criminal ( / ). 
 On an indictment for wickedly and unlawfully conspiring to accuse 
 another of taking hair out of a bag, without alleging it to be an unlawful 
 and felonious taking, it was said by Lord Mansfield that the gist of the 
 offence was the unlawful conspiracy to do an injury to another by a 
 false charge, and that whether the conspiracy were to charge a man 
 with criminal acts or such only as may affect his reputation, it was 
 sufficient (g). 
 
 It is immaterial whether the conspirators proceed to indict the 
 object of the conspiracy or whether they stop short at the formation of 
 the conspiracy or at any point short of the actual indictment and 
 trial. Where the indictment has been preferred and tried it is not 
 essential to prove acquittal (h) to found an indictment for conspiracy to 
 prefer the charge. 
 
 In K. V. M'Daniel, the defendants were charged with a con- 
 spiracy, in causing a man to be executed for a robbery, of which they 
 knew he was innocent, with intent to get into their possession the 
 
 (z) 1 Hawk. c. 72, s. 7. (e) R. v. Murray [1823], Abbott, C.J., 
 
 (a) In 1 Hawk. c. 72, s. 2, it is said to be 1 Chit. Burn's Just. 817 ; Matth. Dig. 90. 
 
 safer and more advisable to indict at com- The law as to maintenance does not apply 
 
 mon law because it does not seem to have to the maintenance of criminal proceedings. 
 
 been resolved that persons offending by a See post, p. 588. 
 
 false and malicious accusation against (/ ) 1 Hawk. c. 72, s. 3. 
 
 another are indictable under the statute. (gr) R. v. Rispal, 3 Burr. 1320 ; 1 W. Bl, 
 
 (6) R. V. Best, 2 Ld. Raym. 1167 ; 1 368. Cf. Pippet v. Hearn, 5 B. & Aid. 634. 
 
 Salk. 174. W 2 Hawk. c. 72, s. 2. See R. v. Spragg, 
 
 (c) R. V. Jacobs, 1 Cox, 173. 2 Burr. 993, 998. In this case the conspi- 
 
 (d) R. V. Best, vbi sup. ; and see 1 Hawk. racy was executed bv actual indictment, 
 c. 72, s. 7.
 
 CHAP, vi.j Co7nbination to Pervert, do., Justice. 163 
 
 reward offered by Act of Parliament (i). And it would have been 
 equally a conspiracy, though the defendants had failed in their infamous 
 design, and the man had been acquitted. 
 
 2. A conspiracy to indict for the purpose of extorting money is criminal 
 whether the charge is true or false (/), and so is a conspiracy to 
 enforce by legal process the payment of money known by the conspirators 
 not to be due {k). A conspiracy to threaten prosecution or exposure, or 
 injury, with a view to extort are clearly criminal, becavise such threats 
 by an individual are criminal (/), either absolutely or when made without 
 reasonable and probable cause for the demand made (m). 
 
 In the case of a conspiracy to extort, it is immaterial whether the 
 charge or imputation threatened to be made is true or false (n). 
 
 Where the plaintiff had been arrested at the suit of C, and B. had be- 
 come bail for her, and some proceedings had been taken against him as bail, 
 and B., C, and others went to the plaintiff's lodgings, and B. said he must 
 have his money or the plaintiff must go to gaol, and stated that two others 
 were officers, which was not the fact ; and the plaintiff being frightened, 
 delivered to B. a watch and other articles, and two of the others wrote 
 two papers, which were signed by the plaintiff and B., and which papers 
 stated that the articles were deposited with B. as a security ; Lyndhurst, 
 C.B., held that, as the defendants all acted in concert, they were guilty of a 
 conspiracy, for which they might all have been indicted (o). 
 
 3. Conspiracies to interfere with the fair trial of proceedings, civil 
 or criminal, are indictable (p). The interference itself is in many, if 
 not in all cases summarily punishable as contempt of court {q), if the 
 proceedings are pending in a superior court of record, and is indictable 
 in whatever court the proceedings are pending (r). 
 
 The following conspiracies have been held criminal : — 
 To interfere with the course of Justice, or to pervert the minds of 
 magistrates or jurors, by publishing, pending criminal proceedings, matter 
 calculated to prejudice a fair trial, e.g., by publishing in newspapers 
 assertions of the guilt or imputations against the character of a prisoner 
 awaiting trial (s). 
 
 To dissuade or prevent witnesses from giving evidence {t), or to prevent 
 
 {i) 19 St. Tr. 745; 1 Leach, 45. And (C. C. R.) ; and cf. R. v. Craig [1903], 29 
 
 see Fost. 130. It would seem that the only Victoria L. R. 28. 
 
 objection to this being treated as a con- (/i) R. v. HoUingberry, ubi sup. 
 
 spiracy was that which might arise from its (o) Bloonitield v. Blake, 6 C. & P. 75. 
 
 being considered as a crime of the highest (p) This form of conspiracy is described 
 
 degree {i.e., murder), in which the misdc- in the argument in R. r. Mawbey, 6 T. R. 
 
 meanor would be merged. As to the im- (519, as one ' where the subject-matter is 
 
 propriety of prosecuting for conspiracy malum prohibitum as referred to the indi- 
 
 when the offence contemplated has been vidual, and the criminality in law is thereby 
 
 completed, see R. v. Rowlands, 5 Cox, 497 ; aggravated when executed.' 
 
 R. V. Boulton, 12 Cox, 87; R. v. Good- {q} See post, p. 537. 
 
 fellow, 10 Canada Cr. Cas. 424. (r) R. v. Parke [1903], 2 K.B. 432. R. 
 
 (;■) R. V. HoUingberry, 4 B. & C. 329. v. Davies [1900]. I K.B. 32. 
 
 Cf. R. V. Jacobs, 1 Cox, 173. (s) R. i-. Tibbits [1902], 1 K.B. 77. 
 
 (k) R. V. Taylor, 15 Cox, 205, 2(58. where the earlier authorities are collected. 
 
 (/) 24 & 25 Vict. c. 96, ss. 44-49 (threats (<) R. v. Lawlcy, 2 Str. 904 ; 1 Hawk, 
 
 to accuse of crime, &c.) ; 24 & 25 Vict. c. 21, s. 15. R. v. Stoventon. 2 Ea.st. 302. 
 
 c. 100, s. 16 (threats to murder) ; 24 & 25 In R. v. Gray [1903], 22 N. Z. L. R. rr2. an 
 
 Vict. c. 97, s. 56 (threats to burn or destroy); indictment was preferred for dissuading a 
 
 6 & 7 Vict. c. 96, s. 3 (threats to publish witness from giving evidence. Cf. R. v. 
 
 libel), post. Vol. ii. pp. 1156 et seq. Loughran, 1 Crawf. & Dix. (Jr.), 79, 
 
 (m) See R, v. Chalmers, 10 Cox, 450 
 
 M 2
 
 164 Of Crnninal Conspiracy. [bouk i. 
 
 a witness from attending the trial ('/), or to prepare witnesses to 
 suppress truth (v). To bribe or tamper with jurors {w), or to corrupt 
 judges (x). Deceit and collusion in Courts of Justice by submitting fabri- 
 cated evidence or otherwise {y). As to conspiring to indemnify bail, 
 see R, V. Stockwcll, 66 J.P. 376. 
 
 Secreting Witness. — A count alleged that S., J., and B. had been 
 committed for trial for obtaining money by false pretences from H., 
 and that H. agreed with W. and P. and the wife of B., intending to defeat 
 the due course of law, that H. should not attend to prosecute or give 
 evidence, and should receive, in consideration thereof, 400?. from the 
 said wife of B., and then alleged that H. did receive the 400?. The three 
 following counts alleged the object to be to defeat and obstruct the due 
 course of law. The averments were proved. For the defendants it was 
 alleged that B. had such influence over H. that the latter had made an 
 affidavit exculpating B. from any participation in the fraud, and that 
 he was thus placed in the dilemma that, if he did not prosecute, he for- 
 feited his recognisances, and, if he did prosecute, he might be indicted 
 for perjury ; and that P., who was his guardian, in order to extricate 
 his ward from this position, had been a party to the compromise, but 
 without any intention to do wrong, or to obstruct the course of justice. 
 But Campbell, C.J., held that, if the necessary effect of the agreement 
 was to defeat the ends of justice, that must be taken to be the object ; 
 and the jury were directed to say, on the first and second counts, whether 
 the defendants did not agree not to prosecute as therein alleged ; and 
 on the third and fourth counts whether they conspired to obstruct and 
 defeat the ends of justice. If they did so agree and conspire, whatever 
 might be their private reasons, it was the duty of the jury to convict the 
 defendants (2). 
 
 Fabricating Evidence. — In R. v. Mawbey (a), it was held that a 
 certificate by justices of the peace that an indicted highway is in repair, 
 is a legal instrument, recognised by the courts of law, and admissible in 
 evidence after conviction, when the Court is about to impose a fine ; 
 and that, consequently, it was illegal to conspire to pervert the course 
 of justice by producing a false certificate in evidence to influence the judg- 
 ment of the Court. The indictment stated that a highway was indicted 
 as being out of repair, and a plea of not guilty, but that it was intended 
 to apply to withdraw the plea and plead guilty ; that two justices of the 
 county, and two other persons, conspired to pervert the course of justice 
 
 (u) R. V. HaU, 2 W. Bl. 1110. In R. v. (y) R. v. Vreones [1891], 1 Q.B. 360. See 
 
 Roderick, at the Glamorgan Summer 3 E. 1 (Stat. West. 1), c. 29 (deceits by 
 
 Assizes (Aug. 1906), before Jelf, J., two jileaders or others, not repealed), 
 
 persons were convicted of conspiring to [z) R. v. Hamp, 6 Cox, 167. Campbell, 
 
 keep away from the assizes a girl who was C. J., held that the facts did not support 
 
 prosecutrix in a charge of criminal assault, counts charging a conspiracy to obtain 
 
 by sending her to the United States. money from the wife of Broome, with intent 
 
 (f) 3 Co. Inst. 106. Hollis's case. Hob. to cheat him of it. The first count had 
 
 271 ; see 2 Show. 1. It is incitement, only the word ' agree ' and not conspire, 
 
 procurement, or subornation, of perjury. and on its being said that this count did not 
 
 [w) Co. Litt. 157. 32 Hen. VIII. c. 9, s. 3. charge a conspiracy. Lord Campbell said, 
 
 6 Geo. IV. c. 50, s. 61. 1 Wms. Saund. 300. ' Nothing turns on that. Conspire is 
 
 1 Ld. Raym. 148. 1 Burr. 510. 4 T. R. nothing : agreement is the thing.' 
 
 285, vide post, p. 598. («) 6 T. R. 619. 
 
 {x) 3 Edw. I. c. 29. 2 Co. Inst. 212, 217.
 
 CHAP. VI.] Coynhimitions to Defraud. 165 
 
 and impose on the Court by producing a false certificate from the two 
 defendants, who were justices, that the road was in repair, and that they 
 did so. There was a verdict against the two justices, and a rule was 
 obtained to arrest the judgment, but after full argument was dis- 
 charged. Ashhurst, J., said: 'The principal question is whether a 
 conspiracy to pervert the course of justice by producing in evidence 
 a false certificate be or be not a crime ? It seems to me a greater 
 offence can hardly be stated than that of obstructing or perverting 
 the course of justice, on which the lives and properties of all the subjects 
 depend,' Grose, J., said: 'It is laid down in some of the cases 
 that an attempt to persuade another not to give evidence in a Court of 
 justice is indictable ; then it cannot be doubted but that an attempt 
 to mislead the Court by misrepresentation is equally criminal. The 
 course of justice is perverted if the certificate of the justices be false. If 
 they agree to certify that a road is in repair for the purpose of perverting 
 the course of justice it is a crime and indictable ; and it is not necessary 
 that they should know at the time of such agreement that the road 
 is out of repair ; it is sufficient that they did not know that the fact 
 which they certified to be true was true.' Lawrence, J., said : ' The 
 question is, whether a conspiracy to do an act from which the public 
 may receive any damage be or be not indictable ? At first I thought 
 this a very doubtful case, because it struck me that this was an act by 
 which the public would not suffer, as the Court of the Assizes were not 
 bound to receive the certificate of the defendants, it not being on oath. 
 But on examination it appears that the practice of receiving the certifi- 
 cates of magistrates respecting the state of roads, has existed as far as 
 the memory of living persons extends, and the books carry it still further 
 back. I have not been able to discover how or when the practice of 
 receiving these certificates arose ; but a practice that has been adopted 
 in the Courts at least as long back as the reign of Charles the First, goes 
 a great way to show what the law is upon the subject. And this is not 
 the only instance of receiving certificates in evidence ; certificates of 
 bishops with respect to marriages are received ; the customs of London 
 are certified by the recorder ; so formerly were certificates received from 
 the captain of Calais ; and in Cro. Eliz. 502, this court said that they would 
 give credit to the certificates of the judges in Wales respecting the practice 
 of their Court, and that the custom of the Court is a law in that Court.' 
 
 Where one brother had executed a conveyance of land to another for the 
 avowed object of giving the latter a colourable qualification to kill game, 
 and to get rid of an information then pending against him, it seeni.s to have 
 been considered as quite clear that they were both guilty of conspiracy (6). 
 
 Conspiracy to Cheat and Defraud.— It is said that private deceits 
 coupled with conspiracy are indictable (c), and it is cleaily criminal to 
 conspire to commit public frauds in trade {d) or public cheats (e), whether 
 
 (6) Doe d. Roberts v. Roberts, 2 B. & Aid. a candidate at an election (to a provincial 
 
 3G7. legislature), the electors of the division, and 
 
 (c) 6 Mod. 42, 301. R. v. Wheatly, 2 Burr. the public,' by illegally obtaining the return 
 1127,1129. R. t'.Mackartv,OMod.;?()l; 2Ld. of the opposing candidate. R. r. Sniclair 
 Raym. 1179. 3 Ld. Raym. 325. 2 Str. Sdti. [19U(iJ. 12 Canada CV. Cas. 20. 
 
 (d) Comb. 16. 1 Sess. Cas. 217. 1 Sid. (<) See /x>5<, vol. ii. p. loOl. 2 Txl. Raym. 
 409. 1 Ventr. 13. In Canada it has been Sli.'S. 1 Barnard. (K.B.) 330. 1 Latch. 20-. 
 held not indictable to conspire ' to defraud 1 Rolk- Rep. 2. 5 St. Tr. 4Si).
 
 166 Of Criminal Conspiracy. [book i. 
 
 the fraud or cheat, if done by an individual without conspiracy would 
 give only a ground for civil remedies at law or in equity, or would be 
 criminally punishable. Conspiracies to obtain property by false pre- 
 tences may be treated as conspiracies to commit a crime punishable 
 by law ( /"). But it is usual also to charge the conspiracy as one to 
 cheat by subtle means and devices (r/). And it is under the head of 
 conspiracy that many forms of swindling are reached by the criminal law. 
 
 Sales. — Thus it is criminal to conspire to defraud another in the sale 
 of goods or chattels. Thus where the defendants conspired to make a 
 false representation that horses were the property of a private person 
 and not of a horse-dealer, and were quiet to ride and drive, and thereby 
 induced a gentleman to buy them at a large price, they were held to have 
 been rightly convicted on a count which charged them with conspiring 
 by false pretences and subtle means to cheat the gentleman of his 
 money {h). 
 
 An indictment against B. and C. for conspiracy alleged that one S. 
 sold to B. a mare for £39, and that the prisoners, whilst the said sum was 
 unpaid, conspired by false and fraudulent representations that the said 
 mare was unsound of her wind, and that she had been examined by a 
 veterinary surgeon, who had pronounced her a roarer, and that B. had 
 sold her for £27 to induce S. to receive a much less sum in payment for 
 the said mare than B. had agreed to pay S. for the same, and thereby to 
 cheat S. of a large part of the said sum agreed to be paid for the said 
 mare. The mare had been sold by S. to B. for the price as alleged on 
 credit. The prisoners afterwards conspired to send a false account of 
 the mare to S., and thereby to get him to forgo part of the agreed price ; 
 and sent a letter to S. stating that the mare was unsound and had been 
 examined by a veterinary surgeon, and he had pronounced her a roarer. 
 In consequence of this letter S. saw C, who stated that he had examined 
 the mare and that she was unsound, which he knew to be false. S. after- 
 wards saw B., who told him that he had sold the mare for £27 only (which 
 was false), and persuaded him to receive that sum in satisfaction of his 
 claim, but no receipt or other discharge was given. Upon a case reserved, 
 it was held that the indictment was sustainable, and that the facts given 
 in evidence did sustain it. The substance of the charge was that the 
 prisoners conspired to use unlawful means, namely, false representations, 
 to induce the prosecutor to forgo a part of his claim ; and there was no 
 force in the argument that, because the prisoners did not by means of 
 their false representations alter the right of the prosecutor to his full 
 claim, the indictment is not sustainable ; since in no case where a change 
 is made in the possession of a chattel through a fraud is the property 
 altered. It was not necessary that the fraud should be successful. 
 The offence charged and proved came within the legal definition of a 
 conspiracy (i). 
 
 ( /■ ) 8 & 9 Vict. c. 109, s. 17 (cheating at J., after consulting Coleridge, J. R. v. 
 
 games). 24 & 25 Vict. c. 96, ss. 88-90. Hudson, Bell, 263, post, p. 167. 
 Post, vol. ii. p. 1514, et seq. (h) R. v. Kenrick, 5 Q.B. 49. 
 
 ((/) On such an indictment it is not (/) R. v. Carlisle, Dears. 337. Cf. R. v. 
 
 necessary to prove the statutory false pre- Read, 6 Cox, 134. 
 tence. R. v. Yates, 6 Cox, 441, Crompton,
 
 CHAP. VI.] Comhinations to Defraud. 167 
 
 Games. — A count alleged that the prisoners unlawfully did con.spire by 
 divers unlawful and fraudulent devices and contrivances, and by divers 
 false pretences, unlawfully to win from R. the sum of £2 10s. of his money, 
 and unlawfully to cheat him of the same. The prisoners and R. were 
 in a public-house, and in concert with the other two prisoners, D. placed 
 a pen-case on the table, and left the room to get writing-paper. Whilst 
 he was absent the other prisoners, H. and S., were alone with R., and H. 
 took up the pen-case, and took the pen from it, placing a pin in the place 
 of it, and put the pen he had taken out under the bottom of R.'s drinking 
 glass, and H. then proposed to R. to bet D., when he returned, that 
 there was no pen in the pen-case, R. was induced by H. and S. to stake 
 fifty shillings in a bet with D. that there was no pen in the pen-case, 
 which money R. placed on the table, and H. snatched up to hold. The 
 pen-case was then turned up into R.'s hand, and another pen with the 
 pin fell into his hand, and then the prisoners took his money. It was 
 contended, on a case reserved, that this was a mere deceit not concerning 
 the public, and that there was no false pretence on which any of the 
 prisoners could have been convicted of obtaining money by false pre- 
 tences. The prosecutor intended to cheat D., and was a party to the 
 fraud, and could not maintain this indictment. Pollock. C.B., said, 
 ' We are all of opinion that the conviction is good. The expression " by 
 false pretences "' used in the count is not to be construed in the technical 
 sense contended for by the counsel for the prisoners. We think that 
 there was abundant evidence of a conspiracy to cheat. Though it be an 
 ingredient in that conspiracy to induce the man who is cheated to think 
 that he is cheating some one else, that does not prevent those who use 
 that device from being amenable to punishment ' (/). 
 
 False Accounts, &c. — Where an indictment alleged that a joint stock 
 company had been established, the capital of which was to consist of 
 2,000 shares, and charged the defendants with conspiring to fabricate 
 a great number of other shares in addition to the said 2,000, and it 
 appeared that the company had not been legally established, Abbott, C. J., 
 was of opinion that if, in point of fact, a combination to the effect stated 
 in the indictment were made out, such conduct, in point of law, con- 
 stituted a criminal conspiracy, notwithstanding the original imperfection 
 of the company's formation (k). If bankers combine to deceive and 
 defraud their shareholders by publishing false balance sheets, they arc 
 indictable for a conspiracy {I). 
 
 An indictment against the manager and secretary of a joint stock 
 bank, contained many counts, some charging that the defendants con- 
 curred in making and publishing false statements of the affairs of the 
 bank, and others that they conspired together to do so. The prosecutors 
 were put to elect on which set of counts they would rely, and they having 
 elected to rely on the counts for conspiracy, it was held, that it was not 
 
 (?) R. V. Hudson, Bel], 263 (see 8 & 9 obtain the money, which is the substance 
 
 Viet. 109, s. 17), Channcll, B. : 'If the of the third count, is there not evidence for 
 
 count had omitted the words " by false the jury ? ' 
 
 pretences," it would have been good.' (k) R. v. Mott. 2 C. & P. 521. 
 
 Blackburn, J. : 'If proof was given of (?) R. v. Esdaile, 1 F. & F. 2i:h •'. c as R 
 
 an agreement by fraudulent devices to c. Brown, 7 Cox, 442.
 
 168 Of Criminal Conspiracy. [BOOK I. 
 
 enough to prove that the defendants made and put forth false statements 
 intended and calculated to deceive, unless they had entered into a pre- 
 cedent and fraudulent conspiracy to do so. The chief count relied upon 
 not stating an intent to defraud any particular parties ; it was held, that 
 though there were auditors, whose duty it would be to discover any 
 frauds, that was no answer to the prosecution, if the defendants were 
 party to such conspiracy to deceive them and the directors. But, on 
 the other hand, the jury were told that evidence that the directors were 
 privy to all that was done was very material, with a view to negative 
 such conspiracy, on the part of the defendants, to deceive (m). 
 
 An indictment charged that the defendants H., B., and M., fraudu- 
 lently and unlawfully conspired that B. should write his acceptance to a 
 certain paper- writing, purporting to be a bill of exchange, &c., for £30 (the 
 tenor of which was set out), in order that H. might, by such acceptance, 
 and by the name M. being indorsed on the back thereof, negotiate the said 
 paper-writing as a good bill of exchange, truly drawn at Bath, by one 
 J. C, for S. and Co., as partners in the business of bankers, under the 
 style of Bath Bank, as persons well known to them the said defendants, 
 and thereby fraudulently to obtain from the King's subjects goods and 
 monies ; that B., in pursuance of such conspiracy and agreement, did 
 fraudulently and unlawfully write his acceftance to the said paper-writing, 
 well knowing the firm of S. & Co. to be fictitious ; that the defendants 
 procured the indorsement ' B. M." to be written on the same, and that 
 the said H., in pursuance of such fraudulent conspiracy, did utter the 
 said paper-writing to one S. R., as and for a good bill of exchange, truly 
 drawn, &c., and accepted by the said B. as a person able to pay the said 
 sum of £30, in order to negotiate the same, and by means thereof did 
 fraudulently obtain a gold watch, value eighteen guineas, and £11 2s. in 
 money ; whereas, in truth, at the time of drawing, accepting, and uttering 
 the said bill, there were no such persons as S. & Co. in the business of 
 bankers at Bath, and the said B. was not of sufficient ability to pay the 
 said £30, they, the defendants, well knowing the same, &c., whereby 
 they defrauded the said S. R. of the said goods and monies. The facts 
 so charged being fully proved, the defendants were convicted (n). 
 
 It has been held criminal to conspire to cause the conspirators or 
 others to be believed persons of large property for the purpose of defraud- 
 ing tradesmen (o) : and to conspire to enable a person to get goods on 
 credit by means of a false character, knowing that he did not intend to 
 pay for them {f). 
 
 Knock outs. — In Levi v. Levi (9), an action for slander, it appeared 
 that certain brokers were in the habit of agreeing together to attend 
 sales by auction, and that one of them only should bid for any particular 
 article, and that after the sale they should have a meeting consisting of 
 
 (m) R. V. Burch, 4 F. & F. 407. See R. L.J. In this case it was ruled that obtain- 
 
 V. Barry, 4 F. & F. 389. ing credit without means to pay though not 
 
 (w) R. V. Hevey, 1 Leach, 229 : 2 East, criminal was unlawful. By 32 & 33 Vict. 
 
 RC. 856. c. 62, s. 13 (1), it is a misdemeanor to obtain 
 
 (o) R. V. Roberts, 1 Camp. 339, EUen- credit under false pretences or by means of 
 
 borough, C.J. See R. v. Whitehouse, 6 any other fraud. l7c/ej:o5<. Vol. ii. jjp. 1451 
 
 Cox, 38, fost, p. 195. et seq. 
 
 (p) R. V. Orman, 14 Cox, 381, Bramwell, (q) 6 C. & P. 239.
 
 CHAP. Vl.i Combinations to Defraud. 1(39 
 
 themselves only, at another place, to put up to sale among themselves, 
 at a fair price, the goods that each had bought at the auction, and that 
 the difference between the price at which the goods were bought at the 
 auction, and the fair price at this private resale, should be shared among 
 them ; Gurney, B., was of opinion that, as owners of goods had a right 
 to expect at an auction that there would be an open competition from 
 the public, if a knot of men went to an auction upon an agreement among 
 themselves of the kind that had been described, they were guilty of an 
 indictable offence, and might be tried for a conspiracy. But this ruling 
 has in a later case of higher authority been declared to be a mere nisi 
 priiis dictum (r). 
 
 Mock Auctions. — A mock auction, with sham bidders, who pretend 
 to be real bidders, for the purpose of selling goods at prices grossly above 
 their worth, is an offence at common law ; and persons aiding or abetting 
 such a proceeding may be indicted for a conspiracy with intent to 
 defraud (s). 
 
 Bankruptcy. — It is criminal to conspire to defeat creditors by disposing 
 of goods in contemplation of bankruptcy (t) ; and to conspire to conceal 
 and embezzle the personal estate of a bankrupt (u) ; or within four 
 months before the presentation of a bankruptcy petition to fraudulently 
 remove the debtor's property to the value of £10 (v), and this last form 
 of conspiracy is criminal if the agreement to remove the goods was made 
 in contemplation of bankruptcy, even if in the result no adjudication 
 was obtained (u). 
 
 Partnership Matters. — It has been held criminal to conspire to cheat 
 by false representations as to the amount of profits of a business 
 carried on by one of the defendants, whereby they induced a third person 
 to enter into partnership with one of them (x). On the dissolution of 
 a partnership between the prisoner and L., the prisoner agreed with 
 W. and P. to forge documents, and to make false entries in the books 
 and accounts of a partnership, so as to make it appear that debts existed 
 and were owing which did not exist, so as to reduce the amount divisible 
 between the partners, with intent to cheat and defraud L. Held, that 
 the prisoner was rightly convicted of conspiring with W. and P. to 
 defraud L. (_?/). 
 
 Stocks and Shares. — The defendants were indicted, as directors and 
 
 (r) Doolubdass v. Ram Loll, 5 Moore (v) Heymann v. R., L. R. 8 Q.B. 102. 
 
 Iiul. App. 109 : 18 E. R. 830, Parke, B. This case is reported mainly as to the form 
 
 is) K. V. Lewi*, 11 ("ox, 404, Willes, J. of iiulictnicnt. In s>icli an indictnient it 
 
 (0 R. V. Hall, 1 F. & F. 33, Watson, B. is expedient and perhaps essential to stat<' 
 
 See the provisions of the Debtors Act, 18ti0, that the conspiraey was formed in conti-m- 
 
 post. Vol. ii. p. 1451. plation of bankruptey. See Myersfin r. 
 
 («) Sec R. V. Jones, 4 B. & Ad. 34.5 : 1 R., 5 Au.stralian C. L. R. 597, when« 
 
 N. & M. 78. This case was decided on Heymann v. R. is discussed. 
 () (Jeo. IV. e. 10 (rep.). The old Bankruptcy \w) Ibid. 
 
 Acts were limited to traders. The Debtors (.r) R. v. Timothy, 1 F. & F. 39, Channcll. 
 
 Act, 1809, and the Bankruptcy Acts, 1883 B. It was held that the conspiracy wa-< 
 
 and 1890, are not so limited. In R. »-. Jones indictable, although the rcprcsentationn, 
 
 it was laid down that the indictment not being in writing, gave no cause of action, 
 
 must set out the petitioning creditor's 9 Geo. IV. c. 14, s. 10. 
 
 debt, the trading, and the act of bank- (y) R. r. Warburton, L. R. 1 C. C. R. 
 
 ruptcv. This seems now to be needless. 274 : 4n L. J. M. C. 22. 
 32 & 33 Vict. c. 02, s. 19.
 
 170 Of Criminal Consfiracy. [book 1. 
 
 promoters of a limited company, for conspiring to induce the committee 
 of the Stock Exchange to order a quotation of the shares of the company 
 in their official list, and thereby to induce and persuade divers subjects 
 of the Queen, who should thereafter buy and sell the shares of the said 
 company, to believe that the said company was duly formed and con- 
 stituted, and had in all respects complied with the rules and regulations 
 of the . . . Stock Exchange, so as to entitle the said company to have 
 their shares quoted in the ojB&cial list of the said Stock Exchange. Held, 
 that the indictment disclosed an indictable offence, since there was an 
 agreement to cheat and defraud by means of false pretences those subjects 
 who might buy shares in the company (2). But in Ireland an indict- 
 ment charging a conspiracy ' by false pretences to defraud all such 
 persons as should apply ' to the prisoners for a loan of money, was 
 held bad (a). 
 
 It is criminal to conspire on a particular day by false rumours to 
 raise the price of the public government funds, with intent to injure the 
 subjects who should purchase on that day, and that the indictment was 
 well enough without specifying the particular persons who purchased 
 as the persons intended to be injured, and that the public government 
 funds of this kingdom might mean either British or Irish funds, which 
 since the Union were each a part of the United Kingdom. After argu- 
 ment in arrest of judgment. Lord Ellenborough, C. J., said : ' I am perfectly 
 clear that there is not any ground for the motion in arrest of judgment. 
 A public mischief is stated as the object of this conspiracy ; the conspiracy 
 is by false rumours to raise the price of the public funds and securities, 
 and the crime lies in the act of conspiracy and combination to effect 
 that purpose, and would have been complete, although it had not been 
 pursued to its consequences, or the parties had not been able to carry 
 it into effect. The purpose itself is mischievous ; it strikes at the jDrice 
 of a vendible commodity in the market, and if it gives a fictitious price 
 by means of false rumours, it is a fraud levelled against all the public, 
 for it is against all such as may possibly have anything to do with the 
 funds on that particular day.' Bayley, J., said : ' It is not necessary 
 to constitute this an offence that it should be prejudicial to the public 
 in its aggregate capacity, or to all the King's subjects, but it is enough 
 if it be prejudicial to a class of the subjects. Here then is a conspiracy 
 to effect an illegal end, and not only so, but to effect it by illegal means, 
 because to raise the funds by false rumours is by illegal means. And 
 the end is illegal, for it is to create a temporary rise in the funds without 
 any foundation, the necessary consequence of which must be to prejudice 
 all those who become purchasers during the period of that fluctuation.' 
 Dampier, J. : ' I own I cannot raise a doubt, but that this is a complete 
 crime of conspiracy according to any definition of it. The means used 
 are wrong, they were false rumours ; the object is wrong, it was to give 
 a false value to a commodity in the public market, which was injurious 
 to those who had to purchase ' (6). 
 
 (z) Aspinallw. R., 1 Q.B.D. 738 : 2 Q.B.D. decision was treated as correct in Scott v. 
 
 48: 46 L. J. M. C. 145. Brown [1892]. 2 Q.B. 724 (C. A.), and applied 
 
 (a) White v. R., 13 Cox, 318 (Jr.). in R. v. BraiLsford [1905], 2 K.B. 730, ante, 
 
 (b) R. I', de Berenger, 3 M. & S. 67. This p. 151. Cf. R. v. Gurney, 11 Cox, 414.
 
 CHAP. VI.] Combinations to Commit Wrongs. 171 
 
 It seems also to be criminal to raise the price of a commodity bv 
 fictitious sales (c). And it has been held criminal to conspire to deal 
 fraudulently in railway tickets {d). 
 
 Conspiracy to do Acts not wrongful if done by one Person.— In many 
 cases an agreement to do a certain thing has been considered as the subject 
 of an indictment for conspiracy at common law, though the same act, if 
 done separately by each individual without any agreement amongst 
 themselves, would not have been criminal or even actionable (e). 
 
 The application of this theory has caused much difficulty and contro- 
 versy, especially as to combinations with reference to trade, or of 
 employers against workmen or workmen against employers ( f ) ; and 
 the rule has been altered by statute with respect to certain acts done 
 legitimately and not maliciously in furtherance of trade disputes (r/). 
 
 This theory has been applied to an agreement between several to main- 
 tain each other right or wrong [h), and to a combination between military 
 officers of the East India Company to resign their commissions in order 
 to intimidate the Company into granting certain allowances {i). 
 
 It has been said with respect to premeditated and systematic tumults 
 at a theatre, that ' the audience have certainly a right to express by 
 applause or hisses the sensations which naturally present themselves 
 at the moment ; and nobody has ever hindered, or would ever question, 
 the exercise of that right. But if any body of men were to go to the 
 theatre with the settled intention of hissing an actor or even of damning 
 a piece, there can be no doubt that such a deliberate and preconcerted 
 scheme would amount to a conspiracy, and that the persons concerned 
 in it might be brought to punishment' [j). 
 
 The accepted authority with respect to this branch of the law of 
 conspiracy is the judgment of Bowen, L.J., in Mogul Steamship Co. v. 
 McGregor, Gow & Co. (k), approved and adopted in the H. L., on appeal (/) 
 
 It would seem that the acts of the defen- {)) By Sir James Mansfield, C.J., in Ciif- 
 
 dants were criminal independently of con- ford ?'. Brandon, 2 Camp. 369. See Gregory 
 
 spiracy. 7 & 8 Vict. c. 24, s. 1, fost, Bk. v. Duke of Brunswick, M. & (;. 953, ap- 
 
 xi. c. ix., specially refers to and keeps alive proved in Quinn v. Leathem [1901 1, A.C. 
 
 ' the offence of spreading or conspiring to 495, 503. In an unreported case, K.B. 18 
 
 spread any false rumour with intent to or 19 Geo. III., Lord Mansfield is said to 
 
 enhance or decry the price of any goods or have ruled that where several conspired to 
 
 merchandise.' liiss at the Birmingham theatre it was 
 
 (c) R. V. Hilbers, 2 Chit. (K.B.) lt)3. indictable, though each might have hi.ssed 
 This was a motion for a criminal informa- separately. This seems to be R. v. Leigh, 
 tion for a conspiracy to raise the price of 1 C. & K. 28n. : 2 Camp. 372n. ; G M. & (i. 
 oil by making fictitious sales, and the Court 217n. ; 4 Wentw. 1*1. 443. See Wright on 
 held that it must appear that two combined Conspiracy, 37. 
 
 together, as it was no olTcnce for an indi- [k) 23 Q.B.D. 598. In this case an 
 
 vidual separately to endeavour. associated body of traders endeavoured to 
 
 (d) R. V. Absolon, 1 F. & F. 498. get the whole of a limited trade into their 
 
 (e) R. V. Mawbey, 6 T. R. G36, Grose, J. own hands by offering exceptional and 
 R. V. Journeymen Tailors of Cambridge, very favourable terms to customers who 
 8 Mod. 11 (a common-law conspiracy by would deal exclusively with them, — terms 
 workmen to raise wages). R. v. Rowlands, so favourable that but for the object of 
 17 Q.B. 671. R. V. Parnell, 14 Cox, 508. keeping the trade to themselves they would 
 
 (/) These are discussed po.s^ p. 176 f/.s('7. not have given such terms, but with the 
 
 (q) Post, p. 177. See Quinn v. Leathem, intention not of injuring tlieir rivals but of 
 
 [1901], A.C. 495, 512, Ld. Macnaghten. preventing rival traders from competing 
 
 (h) 9 Co. Rep. 56. with tluin. The combination was held not 
 
 (j) See Vertue v. Clive, 4 Burr. 2472, to be an indictable conspiracy. 
 
 2476, Yates, J. (/) [1892] A.C. 25.
 
 172 Of Omninal Consfiracy. [BooK I. 
 
 and in subsequent cases {m). He said, ' Of tlie general proposition that 
 certain kinds of conduct not criminal in any one individual may become 
 criminal if done by combination among several, there can be no doubt. 
 The distinction is based on sound reason, for a combination may make 
 oppressive or dangerous that which if it proceeded only from a single 
 person would be otherwise, and the very fact of the combination may 
 shew that the object is simply to do harm and not to exercise one's 
 own just rights (n). In the application of this undoubted principle 
 it is necessary to be very careful not to press the doctrine of illegal con- 
 spiracy beyond that which is necessary for the protection of individuals 
 or of the public (o). . . . But what is the definition of an illegal com- 
 bination 1 It is an agreement by one or more to do an unlawful act, 
 or to do a lawful act by unlawful means ; O'Connell v. R. (p), K. v. 
 Parnell {q), and the question to be solved is whether there has been 
 any such agreement here. Have the defendants combined to do an 
 unlawful act 1 Have they combined to do a lawful act by unlawful 
 means ? . , . The truth is that the combination of capital for purposes 
 of trade and competition is a very different thing from such a com- 
 bination of several persons against one with a view to harm him as 
 falls under the head of an indictable conspiracy. There is no just cause 
 or excuse in the latter class of cases. There is such a just cause or excuse 
 in the former. There are cases in which the very fact of a combination 
 is evidence of a design to do that which is hurtful without just cause, — - 
 is evidence (to use a technical expression) of malice. But it is per- 
 fectly legitimate, as it seems to me, to combine capital for all the mere 
 purposes of trade for which capital may, apart from combination, be 
 legitimately used in trade. . . . Would it be an indictable conspiracy 
 to agree to drink up all the water from a common spring in a time of 
 drought ; to buy up by preconcerted action all the provisions in a 
 market or district in times of scarcity (see R. v. Waddington) (r) ; 
 to combine to purchase all the shares of a company against a coming 
 settling day, or to agree to give away articles of trade gratis in order 
 to withdraw custom from a trade ? May two itinerant match- vendors 
 combine to sell matches below their value in order by competition to 
 drive a third match-vendor from the street ? . . . The question must 
 be decided by the application of the test I have indicated. Assume 
 that what is done is intentional and that it is calculated to do harm 
 to others. Then comes the question. Was it done without just cause 
 
 (m) e.g., Allen v. Flood [1898], A.C. 1, law of conspiracy is based on this undeni- 
 
 93, Lord Watson. Qiiinn v. Leathern [1901], able truth.' 
 
 A.C. 495, 535, Lord Lindley. (o) See hereon Giblan v. National Anial- 
 
 (m) In S. Wales Miners Federation v. gamated Labourers Union [1903], 2 K.B. 
 
 Glamorgan Coal Co. [1905], A.C. 239, 252, 600, 622, Stirling, L.J. 
 
 Ld. Lindley said : ' It is useless to try and (p) 11 CI. & F. 155 : 5 St. Tr. (N. S.) 1. 
 
 conceal the fact that an organised body of [q] 14 Cox, 508, and see Mulcahy v. R., 
 
 men working together can produce results ante, p. 146. 
 
 very different from those which can be (r) 1 East 143. In this case it was held 
 
 produced by an individual without assist- that even if a convicted prisoner waived his 
 
 ance. Moreover, laws adapted to indivi- motion in arrest of judgment the Court 
 
 duals not acting in concert with others would not pass sentence if they could see 
 
 require modification and extension if they that no crime was shewn. See R.i'. Plum mor 
 
 are to be applied with effect to large bodies [1902], 2 K.B. 339, 346. 
 of persons acting in concert. The English
 
 CHAP. VI. J Combinations to Commit Wromjs. 173 
 
 or excuse ? If it was hona fide clone in the use of a man's own property, 
 in the exercise of a man's own trade, such legal justification would, I 
 think, exist not the less because what was done might seem to others to 
 be selfish or unreasonable (see R. v. Eowlands, 17 Q.B. 671). But such 
 legal justification would not exist when the act was merely done with 
 the intention of causing temporal harm without reference to one's own 
 lawful gain or the lawful enjoyment of one's own rights. The good 
 sense of the tribunal which had to decide would have to analyse the 
 circumstances, and to discover on which side of the line each case fell. 
 But if the real object were to enjoy what was one's own, or to acquire 
 for one's self some advantage in one's property or trade, and what was 
 done was done honestly, peaceably, and without any of the illegal acts 
 before referred to, it could not in my opinion properly be said that it 
 was done without just cause or excuse. One may with advantage borrow 
 for the benefit of traders what was said by Erie, J., in R. v. Rowlands, 
 17 Q.B. 671, 687, of workmen and of masters. " The intention of 
 the law is at present to allow either of them to follow the dictates of 
 their own will with respect to their own actions and their own property, 
 and either, I believe, has a right to study to promote his own advantage 
 or to combine with others to promote their mutual advantage." ' 
 
 It has been held criminal for two or more to combine to make for sale 
 pirated copies of copyright music in order to obtain profits out of that 
 music to which the conspirators are not entitled. Such a combination 
 has been regarded as a conspiracy for the unlawful purpose of depriving 
 the owner of his property or civil rights {s). 
 
 ' A combination to violate without just cause ' (t) ' private rights, con- 
 tractual or other, in which the public has a sufficient interest, is a criminal 
 conspiracy if the violation of the private right is an actionable wrong' (?/). 
 ' It is not necessary, in order to constitute a conspiracy, that the acts 
 agreed to be done should be acts which if done would be criminal. It is 
 enough that the acts agreed to be done, although not criminal, are wrong- 
 ful, i.e., amount to a civil wrong ' (v). An agreement by members of either 
 House of Parliament to deceive the House by making false defamatory 
 statements in Parliament has been held not to be indictable (w). 
 
 A combination without justification (x) to insult, annoy (y), injure, 
 or impoverish (z) another person is a criminal conspiracy. 
 
 In R. V. Starling (a), it was held criminal to combine to depauperate 
 
 (s) R. V. WiUetts [1906], 70 J.P. 127, (x) Quinn v. Leathern [1901], A.C. 495. 
 
 Bosanquet, Common Serjeant. It is not Giblan v. National Amalgamated Lab- 
 
 a criminal act to infringe copyright, nor is ourers Union [1903], 2 K.B. 600, 618, 
 
 it larceny to pirate music. R. v. Kidd Romer, L.J. 
 
 [1907], 72 J.P. 104, Bosanquet, C.S. (y) Mogul case [1892], A.C. 25, 38, ap- 
 
 42 L. J. (Newsp.) 785. In 1906 it was proving the ruling in R. v. Druitt, 10 Cox, 
 
 made an offence to be in possession of 592. 
 
 pirated music (6 Edw. VII. c. 36, s. 1). (2) Mogul SS. Co. v. McGregor [1892], 
 
 (t) Mogul SS. Co. V. McGregor, 23 Q.B.D. A.C. 25, 38. Quinn v. Leathem [1901], A. 
 
 614, Bowen, L.J., a?!<e, p. 171. C. 495, 511, Lord Macnaghten, and see 
 
 («) Mogul SS. Co. V. McGregor [1892], AUen v. Flood [1898], A.C. 1, 72. 
 
 A.C. 25, 48, Lord Bramwcll. (a) 1 Sid. 174 ; 1 Lev. 125 ; 1 Keb. 650, 
 
 {v) R. V. Warburton, L. R. 1 C. C. R. 276, 655. In Thorp's case, 5 Mod. 224, it seema 
 
 cited with approval in Quinn v Leathem to have been thought that the conspiracy 
 
 [1901], A.C. 495, 529, Ld. Brampton. in R. v. Starling was to brew nothing but 
 
 {w) Ex parte Wason, 38 L. J. Q.B. 302. small beer.
 
 174 Of Criminal Conspiracy. [book i. 
 
 the farmers of excise, because the information shewed that the excise 
 was parcel of the revenue of the crown, and so the impoverishment of the 
 farmers of excise tended to prejvidice the revenue of the crown. This 
 case is treated in R. v. Daniell (6), as one to do an act of a pubHc nature. 
 
 In R, V, Eccles (c), several persons were convicted on an indictment 
 which charged them with conspiring to impoverish one H. B., a tailor, 
 and to prevent him, by indirect means, from carrying on his trade. This, 
 however, appears to have been considered as a conspiracy in restraint of 
 trade, and so far a conspiracy to do an unlawful act affecting the public {d). 
 So far as this case depends on the theory of restraint of trade, it seems 
 now of little authority (e). 
 
 An indictment cannot be supported for a conspiracy to deprive a 
 man of the office of secretary to an illegal unincorj)orated trading company. 
 Ellenborough, C.J., said that the society being certainly illegal, to 
 deprive an individual of an office in it could not be treated as an injury : 
 and that when the prosecutor was secretary to the society, instead of 
 having an interest which the law would protect, he was guilty of a 
 crime ( /'). 
 
 In R. V. Parnell (g), it was held to be criminal to combine to solicit 
 tenants of land in Ireland to refuse to pay rent, and to prevent tenants from 
 paying their lawful rent by threatening them with boycotting or social 
 excommunication. This ruling was approved in Quinn v. Leathem (h). 
 
 Trespass to Land. — InR. v. Turner {i), it was ruled that an indictment 
 would not lie for conspiring to commit a civil trespass to land, by agree- 
 ing to go, and by going into, a preserve for hares, the property of another, 
 for the purpose of snaring them, though it was alleged to be done in the 
 night-time, and that the defendants were armed with offensive weapons, 
 for the purpose of opposing resistance to any endeavours to apprehend or 
 obstruct them (i). Lord Ellenborough, C.J., in pronouncing the judg- 
 ment of the Court, said : ' I should be sorry that the cases in conspiracy 
 against individuals, which have gone far enough, should be pushed still 
 farther. I should be sorry to have it doubted whether persons agreeing 
 to go and sport upon another's ground, in other words, to commit a civil 
 trespass, should be thereby in peril of an indictment for an offence 
 which would subject them to infamous punishment ' (n). It may be 
 observed that it was not stated in the indictment that the weapons were 
 
 {b) [1704] 6 Mod. 99; 1 Salk. 380. (0 13 East, 228, 231. 'But qu. as to 
 
 Wright on Conspiracy, 38. what is reported in this case (p. 230) to 
 
 (c) 1 Leach, 274 ; 13 East, 230n. ; Willes have been said by Lord Ellenborough in 
 
 Rep. 583n. ; 1 Hawk. c. 72, s. 2. The in- the course of the argument, viz. that '" all 
 
 dictment in R. v. Druitt, 10 Cox, 572, was the cases in conspiracy proceed upon the 
 
 framed on this case. ground that the object of the combination 
 
 {d) R. V. Turner, 13 East, 228, Ellen- is to be effected by some falsity." The 
 
 borough, C.J. See R. v. Duffield, 5 Cox, facts stated in this case would constitute 
 
 404, Erie, J. R. v. Rowlands, 17 Q.B. 671, an offence within 9 Geo. IV. c. 69, and it is 
 
 Campbell, C.J. Mogul Steamship Co. v. conceived that a conspiracy to commit an 
 
 McGregor, Gow & Co., 23 Q.B.D. at p. 631, offence within that statute would be in- 
 
 Fry, L.J. die table, although not carried into effect. 
 
 (e) See Wright on Conspiracy, 45. See R. v. Wakefield, ante, p. 160. See also 
 
 (f) R. V. Stratton, 1 Camp. 549n. See the observations on this case in Deac. 
 R. V. Hunt, 8 C. & P. 642. Game L. 175.' C. S. G. 
 
 ig) 14 Cox, 509. (n) Vide ante, p. 160, note [p). 
 
 (h) [1901] A.C. 495, SIL
 
 CHAP. VI. J Combinations to Commit Wrongs. 175 
 
 dangerous, nor that the defendants conspired to go, &c., with strong hand. 
 But m R. V. Rowlands (/), Campbell, C.J., said of R. v. Turner : ' I 
 have no doubt whatever that it was wrongly decided. Going into the 
 prosecutor's close against his will, armed with offensive weapons for the 
 purpose of opposing any persons who should endeavour to apprehend, 
 obstruct, or prevent them, would in itself be an indictable offence ; and 
 conspiring to commit such an offence must be an indictable conspiracy.' 
 
 In R. -y. Druitt {jj), the indictment was for a conspiracy by un- 
 lawful ways, contrivances, and stratagems to impoverish P. and others 
 in their trade and business, and to restrain their freedom of trade 
 and of personal action. The defendants were members of a tailors' trade 
 union, and during a strike instigated by the union picketed the doors of 
 employers to note work-people who went in and out, in order to deter 
 them from continuing to work and to induce them to join the union. 
 This conduct was ruled to be intimidation and molestation and obstruction 
 within the statutes then restricting the combination of workmen (6 Geo. 
 IV. c. 129, s. 3, and 22 Vict. c. 34, s. 1). Bramwell, B., ruled that it was 
 not an offence to picket if the picketing were done in a way to excite no 
 reasonable alarm, and not to coerce or annoy those who were subject to 
 it, and that peaceful persuasion without coercion or intimidation was 
 lawful {k). He also said that the right to personal liberty which the law 
 protected included liberty of the mind and will as well as of the body {I), 
 and that ' if any set of men agreed among themselves to coerce that 
 liberty of mind and thought by compulsion and restraint they would be 
 guilty of a criminal offence, namely, that of conspiring against the liberty 
 of mind and freedom of will of those towards whom they so conducted 
 themselves. He was referring to coercion or compulsion — something 
 that was unpleasant and annoying to the mind operated upon — and he 
 laid it down as clear and undoubted law that if two or more persons 
 agreed that they would by any such means co-operate together against 
 that liberty they would be guilty of an indictable offence.' This ruling 
 was discussed and questioned by Coleridge, C.J., in Gibson v. Lawson (w?), 
 and the Mogul case {n) : but in the latter case (o) Lord Halsbury said : 
 ' I am unable to concur with the Lord Chief Justice's criticism, if 
 its meaning was rightly interpreted, which I very much doubt, on the 
 observations made by my noble and learned friend Lord Bramwell in 
 R. V. Druitt, if that was intended to treat as doubtful the proposition 
 that a combination to insult and annoy a person would be an indictable 
 conspiracy. I should have thought it beyond all doubt or question that 
 such a combination would be an indictable misdemeanor.' 
 
 In R. V. Bunn ( j)), Brett, J., ruled that an indictment would lie at com- 
 mon law for conspiring to commit an offence which under statute was 
 summarily punishable. The indictment was for conspiracy by gas stokers 
 to force their employers to conduct their business contrary to their own 
 will by improper threats or improper molestation, by forcing the employers 
 
 ij) 17 Q.B. Cul. Lcathom [1J)01], A.C. 495, 525, Ld. Bramp- 
 
 (jj) [18()7J 10 Cox. 592. (m) [1891J 2 Q.B. 545. (.ton. 
 
 {k) It is so declared l)v <J Edw. VII. c. 47, (w) 21 Q.B.D. 551. 
 
 s. 2 (1), fost. Vol. ii. p. U)12. (o) [1892] A.C. 25, 38. 
 
 (0 Quoted with approval in Quinn v. (p) [1872] 12 Cox, 316.
 
 176 
 
 Of Criminal Conspiracy. 
 
 [BOOK I. 
 
 against their will to employ a man whom they objected to employ, and 
 alleged that they endeavoured to obtain the object of their combination 
 by simultaneously breaking their contracts of service. The result of 
 this combination was to create a great public mischief by leaving London 
 unlit. Other rulings in the case led to the repeal of 34 & 35 Vict. c. 32, 
 and the enacting of 38 & 39 Vict. c. 86 (q). 
 
 Conspiracies with Reference to Trade Disputes.— Prior to 1871, it had 
 often been held criminal to conspire under certain circumstances — for 
 workmen to combine to raise the rate of wages (r) ; or to injure or obstruct 
 employers (s); or to induce workmen to leave their employment (t) ; 
 or to procure their discharge (u) ; or to strike {v) ; or to picket the works 
 of the employers (w). 
 
 Many cases in the books relate to such conspiracies. Certain of these 
 cases relate to conspiracies in breach of statutes relating to combination 
 by workmen. The earlier Acts were repealed in 1824, and replaced by 
 5 Geo. IV, c. 95, itself repealed in 1826, and replaced by 6 Geo, IV. 
 c. 129. That Act and subsequent amending Acts were repealed in 1871 (x) 
 and replaced by the Trade Union Acts, 1871 (y), and 1876 (z), and by 
 the Conspiracy and Protection of Property Act, 1875 (a), and the Trade 
 Disputes Act, 1906 (6). The portions of these Acts relating to the con- 
 stitution, registration, and internal government of trade unions are 
 not relevant to the purposes of this treatise (c). By sect. 16 of the Act 
 of 1876 (d) : The term " trade union " means any combination, whether 
 temporary or permanent, for regulating the relations between workmen 
 and masters, or between workmen and workmen, or between masters 
 and masters, or for imposing restrictive conditions on the conduct of 
 any trade or business, whether such combination would or would not, 
 if the principal Act (of 1871) had not been passed, have been deemed to 
 have been an unlawful combination by reason of some one or more of its ■ 
 
 (q) See Gibson v. Lawson [1891], 2 Q.B. 
 545, where R. v. Bunn is disapproved, as 
 laying down that acts expressly legalised 
 by statute remain crimes at common law. 
 And see Wright on Conspiracy, 50-59. 
 There seems nothing to prevent indictment 
 at common law for combining to do acts 
 which if done by individuals are punishable 
 under the Act of 1875 (vide post, p. 177). 
 
 (r) R. V. TaUors of Cambridge [1721], 
 8 Mod. 10. R. V. Mawbey, 6 T. R. 119. 
 Quinn v. Leathem [1901], A.C. 495, 530. 
 3 Steph. Hist. Cr. Law, 217. Wright on 
 Conspiracy, 54. 
 
 (s) Hilton V. Eckersley, 6 E. & B. 47. R. 
 V. Rowlands, 17 Q.B. 671. 
 
 (t) R. V. Rowlands, 5 Cox, 436 (in error, 
 17 Q.B. 671, supra). In this case the 
 question of intimidation was involved. 
 
 (m) R. v. Bykerdyke, 1 M. & Rob. 179. 
 
 (v) Wright on Conspiracy, 57. 
 
 (w) R. V. Druitt, ante, p.' 175. 
 
 ix) 34 & 35 Vict. c. 32. s. 7. 
 
 (y) 34 & 35 Vict. c. 31, passed on the 
 report of a Royal Commission of 1867, 
 made in 1869 (Pari. Pap., 1869, c. 4123.) 
 
 (2) 39 & 40 Vict. c. 22. 
 
 (a) 38 & 39 Vict. c. 86, passed on the 
 reports of a Royal Commission of 1874. 
 (Pari. Pap. 1874, c. 1094. & 1875, c. 1157.) 
 
 (b) 6 Edw. VII. c. 47, passed after the 
 report of a Royal Commission. (Pari. Pap. 
 1906, c. 2825.) 
 
 (c) By s. 18 of the Act of 1871, 'If 
 any person with intent to mislead or de- 
 fraud gives to any member of a trade union 
 registered under this Act, or to any person 
 intending or applying to become a member 
 of such trade union, a copy of any rules or 
 of any alterations or amendments of the 
 same other than those respectively which 
 exist for the time being, on the pretence 
 that the same are the existing rules of such 
 trade union, or that there are no other rules 
 of such trade union, or if any person with 
 the intent aforesaid gives a copy of any 
 rules to any person on the pretence that 
 such rules are the rules of a trade union 
 registered under this Act which is not so 
 registered, every person so offending shall 
 be deemed guilty of misdemeanor.' 
 
 (d) This section supersedes s. 23 of the 
 Act of 1871.
 
 ChAp. VI.] Comhinations as to Trade Bis'puteS, lit 
 
 purposes being in restraint of trade.' By sect. 5 (2) of the Trade Disputes 
 Act, 1906 (6 Edw. VII. c. 47), this definition is extended so as to ' include 
 any combination as therein defined, notwithstanding that such combina- 
 tion may be the branch of a trade union.' To this definition the following 
 proviso of sect. 23 of the Act of 1871 applies :— 
 ' Provided that this Act shall not affect — 
 
 1. Any agreement between partners as to their own business \ 
 
 2. Any agreement between an employer and those employed by him 
 
 as to such employment ; 
 
 3. Any agreement in consideration of the sale of the goodwill of a 
 
 business or of instruction in any profession, trade, or handicraft.' 
 
 * Trade Dispute.' — In the Conspiracy and Protection of Property Act, 
 1875 (38 & 39 Vict. c. 86), and in the Trade Disputes Act, 1906 (6 Edw. VII. 
 c. 47) , the expression ' trade dispute ' means any dispute between employers 
 and workmen, or between workmen and workmen, which is connected 
 with the employment or non-employment, or the terms of employment, 
 or with the conditions of labour of any persons, and the expression ' work- 
 men ' means all persons employed in trade or industry, whether or not 
 in the employment of the employer with whom a trade dispute arises (e). 
 
 Restraint of Trade. — By the Act of 1871, sect. 2, ' The purposes 
 of any trade union shall not, by reason merely that they are in restraint 
 of trade, be deemed to be unlawful, so as to render any member of such 
 trade union liable to criminal prosecution for conspiracy or otherwise ' (/). 
 
 By sect. 3, ' The purposes of any trade union shall not, by reason 
 merely that they are in restraint of trade, be unlawful so as to render 
 void or voidable any agreement or trust.' 
 
 Offences punishable under the above Acts independently of 
 conspiracy are dealt with in Book XI. Chapter VIII. 
 
 By sect. 3 of the Conspiracy and Protection of Property Act, 1875 
 (38 & 39 Vict. c. 86), as amended by sect. 1 of the Trade Disputes Act, 
 1906, ' An agreement or combination by two or more persons to 
 do or procure to be done any act in contemplation or furtherance of a 
 trade dispute {(j) , . . shall not be indictable as a conspiracy if such act 
 committed by one person would not be punishable as a crime ' (/?). 
 
 (e) 6 Edw. VII. c. 47, s. 5 (3), passed in 2 Q.B. 545. (As to earlier views of 
 
 consequence of the decision in Quinn v. the criminality ot strikes, see Hilton v. 
 
 Leathern [1901], A.C. 495. Eckersley, 6 E. & B. 47. Walsby i-. Anley, 
 
 (/) See Quinn v. Leathern [1901], A.C. 30 L. J. M. C. 121. Erie on Trade Unions, 
 
 495, 526, Ld. Brampton. The Act is not 85.) Wood v. Bowron, L. R. 2 Q.B. 21 ; 
 
 limited to registered trade unions. See Wright on Conspiracj^ 43. It would be 
 
 Chamberlain's Wharf, Ltd. V. Smith [1900], more accurate to say that the Act takes 
 
 2 Ch. 605. Registration is not compulsory, away the criminality of combinations in the 
 
 and if the purposes of the trade union are cases to which it applies. It docs not aflfect 
 
 unlawful, registration is void (34 & 35 Vict. civil remedies in respect of such combina- 
 
 c. 31, s. 6). tions. Quinn v. Leathem [1901], A.C. 495, 
 
 (</) 6 Edw. VII. c. 47, s. 5 (2), defines 511, Ld. Macnaghten ; 527, Ld. Brampton. 
 
 ' trade dispute,' id sujira, and repeals the And the words ' the broadest terms ' are 
 
 words between ' employer ' and ' workman ' too wide. ' It is plainly legal now for 
 
 in 38 & 39 Vict. c. 86, a. 3, as to which, workmen to combine not to work except on 
 
 see Quinn v. Leathem [1901], A.C. 495. their own terms. On the other hand, it is 
 
 [h) It has been held that this clause dis- clearly illegal for them or anyone else, by 
 
 tinctly legalises strikes in the broadest force or threats of violence, to prevent 
 
 terms, subject to the exceptions enumc- other people from working on any terms 
 
 rated in ss. 4, 5. Gibson r. Lawson [1891], which they think proper,' ibid. 541, Ld. 
 
 VOL. I. N
 
 178 Of Criminal Conspiracy. [book 1. 
 
 ' An act done in pursuance of an agreement or combination by two 
 or more persons shall, if done in contemplation or furtherance of a trade 
 dispute, not be actionable unless the act, if done without such agreement 
 or combination, would be actionable ' {i). 
 
 Nothing in this section shall exempt from punishment any persons 
 guilty of a conspiracy for which a punishment is awarded by any Act of 
 Parliament. 
 
 Nothing in this section shall affect the law relating to riot, unlawful 
 assembly, breach of the peace, or sedition, or any offence against the 
 State or the Sovereign. 
 
 A crime for the purposes of this section means an offence punishable 
 on indictment, or an offence which is punishable on summary conviction 
 and for the commission of which the offender is liable, under the statute 
 making the offence punishable, to be imprisoned either absolutely or at 
 the discretion of the Court, as an alternative for some other punishment. 
 
 Where a person is convicted of any such agreement or combination as 
 aforesaid to do or procure to be done an act which is punishable only on 
 summary conviction, and is sentenced to imprisonment, the imprison- 
 ment shall not exceed three months, or such longer time, if any, as may 
 have been prescribed by the statute for the punishment of the said act 
 when committed by one person ' {j). 
 
 The offences bv individuals against the Act are dealt with j)Ost, 
 Book XI. Chapter VIII. 
 
 Jurisdiction, Venue and Court of Trial. — A conspiracy within the 
 realm, to do outside the realm, and outside the Admiralty jurisdiction 
 acts which would be crimes by English law, appears to be indictable 
 in England. In the case of conspiracy to murder, this is definitely 
 provided by statute {k). 
 
 In Gibbon Wakefield's case (/), the conspiracy was to abduct an heiress 
 and to marry her in Scotland. By the construction put by some of the 
 judges on the statute on which the crime of abduction then depended, 
 it was of the essence of the crime that the purposes of the abduction 
 should be consummated, and they took the view that the consjjiracy 
 did not amount to an attempt to commit the full crime in England. 
 But the law of conspiracy gave jurisdiction by attaching criminahty to 
 the agreement, as evidenced by acts done in England in furtherance 
 of the design, although these acts did not amount to an attempt to 
 commit the crime in England {m). 
 
 In E. V. Kohn (?^), the prisoner, a foreigner, was indicted for conspiring 
 at Ramsgate with the owner, the master, and the mate of a ship, to 
 cast away the ship, with intent to prejudice the underwriters. (See 
 
 Lindley. He held that a combination to [j) This Act does not apply to seamen 
 
 annoy a person's customers, so as to compel or apprentices to the sea service (s. 16). 
 
 them to leave him unless he obeyed the R. v. Lynch [1898], 1 Q.B. 61 ; Kennedy v. 
 
 combination, was not permitted by s. 3. Cowie [1891], 1 Q.B. 77. 
 
 .See Lyons v. Wilkins (No. 1) [1896], 1 Ch. {Ic) 24 & 25 Vict. c. 100, s. 4, which re- 
 
 811 : No. 2 [1899], 1 Ch. 255. moved doubts raised in R. v. Bernard, 8 St. 
 
 (i) This paragraph was added by 6 Edw. Tr. (N. S.) 887 : 1 F. & F. 240. 
 
 VII. c. 47, s. 1, to override Quinn i\ Lea- (/) Ante, p. 160. 
 
 them, ?/?)ts?</)., and appUes to civil remedies (m) Wright on Conspiracy, 81. 
 
 s. 3 of the Act of 1875, as amended in 1906. (n) 4 F. & F. 68.
 
 CHAP, vi.i Jurisdiction, Venue and Court of Trial. 179 
 
 24 & 25 Vict. c. 97, s. 43.) The ship was a Prussian merchant vessel, 
 and arrived at Ramsgate, and afterwards sailed thence, and she was in 
 six days' time scuttled and sunk by the prisoner and others. The prisoner 
 was apprehended, and made statements implicating himself, the captain, 
 and the mate. He said that the mate had said in Ramsgate that the 
 ship would never reach her place of destination, and spoke of the making 
 away of the ship in an unlawful manner ; and when the prisoner said : 
 ' Then we had better sink her here at once on the bar,' the mate replied 
 that was too close to land to make away with the ship in an unlawful 
 manner, or to sink her. Martin, B., told the jury: 'The ship w^as a 
 foreign ship, and she was sunk by foreigners far from the English coast, 
 and so out of the jurisdiction of our courts. But the conspiracy in this 
 country to commit the offence is criminal by our law. And this case does 
 not raise the point which arose in R. v. Bernard, 1 F. & F. 240 (o), as 
 to a conspiracy limited to a criminal offence to be committed abroad. 
 For here, if the prisoner was party to the conspiracy at all, it was not 
 so limited ; for it was clearly contemplated that the ship might be 
 destroyed off the bar at Ramsgate, which would be within the jurisdic- 
 tion. The offence of conspiracy would be committed by any persons 
 conspiring together to commit an unlawful act to the prejudice or 
 injury of others, if the conspiracy was in this country, although the 
 overt acts were abroad. . . . The question is, was it agreed by and 
 between the prisoner and any other person at Ramsgate that the ship 
 should be destroyed, whether at sea or in port ? ' {-p) 
 
 In an indictment for conspiracy the venue should be laid where 
 the conspiracy was, and not where the result of such conspiracy was 
 put in execution {q). But there seems to be no reason why the crime 
 of conspiracy, amounting only to a misdemeanor, may not be tried, 
 wherever one distinct overt act of conspiracy is in fact committed, as 
 well as the crime of high treason, in compassing and imagining the 
 King's death, or in conspiring to levy war (r). So in R. v. Quinn is), 
 Fitzgibbon, L.J., said : ' Some one or more of the peoj)le who had the 
 common intention must entertain or manifest it by something done 
 within the venue, and they are entitled to be tried in any of the 
 counties where that had taken place.' And in R. v. Bowes {t), 
 the trial proceeded upon this principle ; and, though no proof of actual 
 conspiracy, embracing all the several conspirators in Middlesex, where 
 the trial took place, was attempted to be given, arid though the individual 
 acts of some of the conspirators were wholly confined to other counties 
 than Middlesex, yet the conspiracy as against all having been proved, 
 from the community of criminal purpose, and by their joint co-operation 
 in forwarding the objects of it, in different places and counties, the locality 
 required for the purpose of trial was held to be satisfied by overt acts, 
 
 (o) Vide 8 St. Tr. (N. S.) 887. In this case the conspiracy was on the high 
 
 [p) See R. V. Boulton, 12 Cox, 87, as to seas or in Shetland, to fabricate vouchers 
 putting in evidence acts done outside the for stores, which in pursuance of the con- 
 jurisdiction, spiracy were transmitted to Middlesex, and 
 
 {q) R. t\ Best [1705], 1 Salk. 174 ; 2 Ld. there delivered with fraudulent intent. 
 
 Raym. IKi?; G Mod. 185. (s) [1898] 19 Cox, 78 (Ir.). 
 
 (/•) R. V. BHsac, 4 East, 104, ante, p. 5.3. {<) Cited in R. v. Brisac, 4 East. 104, 171. 
 
 n2
 
 180 Of Criminal Conspiracy. [book i. 
 
 done by some of them, in prosecution of the conspiracy in the county 
 where the trial was had. 
 
 By the Quarter Sessions Act, 1842 (5 & 6 Vict. c. 38), s. 1, ' neither 
 the justices of the peace acting in and for any county, riding, division, 
 or liberty, nor the recorder of any borough, shall, at any session of the 
 peace, or at any adjournment thereof, try any person or persons, for 
 {inter alia) unlawful combinations and conspiracies, except conspiracies 
 or combinations to commit any offence which such justices or recorder 
 respectively have or has jurisdiction to try when committed by one 
 person ' (w). 
 
 To a count alleging that the prisoners conspired, by divers false pre- 
 tences, against the form of the statute in that case made and provided, to 
 defraud the prosecutor of his money it was objected that the facts ought to 
 have been set out so as to shew that the offence intended to be committed 
 was within the jurisdiction of the sessions, by whom the indictment had 
 been tried. It was held (after verdict) that the jury must be taken to 
 have found the accused guilty of conspiracy to defraud by such false 
 pretences as were cognisable by a Court of Quarter Sessions (v). 
 
 In R. V. King {w) the Court refused to change the venue in an indictment 
 for a cons23iracy to destroy foxes and other vermin, on the ground that 
 the persons who were likely to serve on the jury to try the indictment 
 were much addicted to fox-hunting. 
 
 Indictment.— Indictments for conspiracy are subject to the provisions 
 of the Vexatious Indictments Act, 1859 (22 & 23 Vict. c. 17), as amended in 
 1867 (30 & 31 Vict. c. 35) {ww). The technical averment of the agreement 
 and conspiracy, generally used in the indictment, charges that the defend- 
 ants ' did conspire, combine, confederate, and agree together ' ; but it 
 is said that other words of the same import seem to be equally proper (x). 
 To the counts for a conspiracy may be joined counts for such other 
 misdemeanors as the circumstances of the case may seem to require {y). 
 
 But the Court may, if the joinder embarrasses the defendants, sever 
 the trials of the counts or of the defendants (z), or put the prosecution 
 to election which count they will proceed. Thus, where an indictment 
 contained counts for a conspiracy and counts for libel, and there was 
 no evidence to affect one of the two defendants as to the libel ; 
 Coleridge, J., at the close of the case for the prosecution, put the 
 prosecutor to elect upon which charge he would proceed (a). 
 
 In E. V. Warren (6), an indictment for a long firm conspiracy con- 
 tained, besides a general count for conspiracy between all the defendants, 
 a series of counts charging other conspiracies between two or more of 
 the defendants. Bosanquet, Common Serjeant, quashed the several 
 counts, being of opinion that it was unfair to the defendants, and embar- 
 
 (m) In R. V. Rispal, 3 Burr. 1320; (a;) 3 Chit. Cr. L. 1143. See R. t'. Hamp, 
 
 1 W. Bl. 368, conspiracy was described ante, p. 164. 
 
 as a trespass against tlie peace indictable (y) See R. v. Johnson, 3 M. & S. 550, 
 
 at quarter sessions. Cf. R. v. Edwards Ellenborough, C.J. 
 
 [1724], 8 Mod. 320; 2 Str. 707; 2 ^Sess. (z) R. v. Ahearne [1852], 2 Ir. C. L. 
 
 Cas. 836. ^ Rep. 381. 
 
 (V) Latham v. R., 5 B. & S. 635. («) R. v. Murphy, 8 C. & R 297. 
 
 (w) 2 Chit. (K.B.) 217. (b) 71 J. R Rep. 566 ; 147 Cent. Cr. Ct. 
 
 {ww) Post, Bk. xii. c. i. Sess. Pap. 1023.
 
 CHAP. VI.] Form, of tJw Indictment. 181 
 
 rassing to the Court and jury, to throw difEerent crimes upon the accused 
 separately, after giving evidence of a general conspiracy between them 
 all. In R. V. Ferryman (c), A. T. Lawrence, J., explained this ruling 
 as meaning that, where separate and independent conspiracies were 
 charged, they should not be included in one indictment, but that it did 
 not preclude the inclusion in one indictment in cases where a conspiracy 
 was formed, and other persons later came in and joined in an existing 
 conspiracy. 
 
 Though it is usual first to state the conspiracy, and then to aver 
 that in pursuance of it certain overt acts were done, it is sufficient to 
 state the conspiring alone (d). Where the conspiracy is to commit a 
 criminal offence it is not necessary to state the means by which the 
 object was to be effected, as the conspiracy may be complete before the 
 means to be used are taken into consideration. Thus in R. v. Gill (e), 
 an indictment for conspiring by divers false pretences and subtle means 
 and devices to get money from J. S., and cheat him thereof, is not objec- 
 tionable on the ground that it is too general, or does not sufficiently 
 show the corpus delicti, or specify any overt act. So a count alleging 
 that the defendants ' unlawfully, fraudulently, and deceitfully did 
 combine, conspire, confederate, and agree together by divers false pre- 
 tences and subtle means and devices to obtain and acquire to themselves 
 from one G. W. F. divers large sums of money of the monies of the said 
 G. W. F., and to cheat and defraud him thereof,' has been held good ( /'). 
 So R. V. Gompertz (g), where a count alleged that the defendants unlaw- 
 fully, falsely, fraudulently, and deceitfully did conspire, combine, con- 
 federate, and agree together, by divers false pretences and indirect 
 means, to cheat and defraud the prosecutor of his monies, the Court of 
 Queen's Bench held that this count was good, on the authority of R. v. 
 Gill (supra), and in Sydserff v. R. (h). So where a count alleged that 
 the defendants ' unlawfully, fraudulently, and deceitfully did conspire, 
 combine, confederate, and agree together to cheat and defraud ' the 
 prosecutor ' of his goods and chattels ; ' upon error in the Exchequer 
 Chamber it was held that this case was not distinguishable from R. v. 
 Gill, and that the count was good (h). 
 
 Where the alleged conspiracy is to effect objects made unlawful by 
 statute it is sufficient to follow the terms of the statute. But as a general 
 rule where the conspiracy is not to commit an offence, but to do an unlaw- 
 ful act or a lawful act by unlawful means the indictment must, it is said, 
 allege the doing of the unlawful act or the use of the unlawful means, or 
 it will be insufficient (?'). 
 
 A count alleged that C. C. died possessed of certain East India stock, 
 and that the defendants conspired, &c., by divers false, fraudulent, 
 and unlawful ways, means, and contrivances, and by false pretences 
 
 (r) Cent. Crim. Ct., Nov. 6, 1907. 42 (g) 9 Q.B. 824. It appears from thi.s 
 
 L. J. (Newsp.) 683. case that R. v. Biei-s, 1 A. & E. 327, has 
 
 {d) R. V. Best, 2 Ld. Raym. 1167 ; 1 Salk. never been consiclcrcd as overruling R. v. 
 
 174; 3 Chit. Cr. L. 1 143. roultercrs' case. Gill. R. v. Biers was also discussed in 
 
 9 Co. Rep. 55. R. v. Kimberly, 1 Lev. 62. Sydserff v. R.. 11 Q.B. 245. 
 
 R. r. Starling, 1 Lev. 125. {h) 11 Q.B. 245. Cf. R. v. Seward, 1 A. 
 
 (e) 2 B. & Aid. 204. & E. 706. 
 
 ( /') R. V. Kcnrick, 5 Q.B. 49. (t) R. v. Rowlands. 17 Q.B. 671.
 
 182 Of Criminal Consfiracy. [book i. 
 
 and false swearing, unlawfully, &c., to obtain the means and power 
 to and for S. P. of transferring and disposing of the said stock ; and that 
 in pursuance of the said conspiracy the defendants afterwards caused a 
 certain false deposition, purporting to have been made on oath by S. P. 
 as one of the lawful children of the said C. C, wherein S. P. falsely stated 
 that the widow of the said S. P. died without having taken upon her 
 letters of administration of his goods, to be exhibited in the Prerogative 
 Court of Canterbury ; and did then fraudulently procure letters of admin- 
 istration to be issued of the goods of C. C. to S. P., as one of the lawful 
 children of C. C. After alleging two other overt acts of a similar kind, 
 the count alleged that the defendants presented such letters of adminis- 
 tration to the East India Company, and did, by such false ways, &c., false 
 pretences and false swearing, fraudulently obtain the means and power 
 to and for S. P. of transferring and disposing of the stock ; and that 
 S. P. did transfer and dispose of the said stock, &c., with intent to de- 
 fraud the widow of C. C. It was objected (1) that the conspiracy as 
 alleged did not amount to any offence, as no legal meaning could be 
 ascribed to obtaining ' the means and power ' of doing an act : (2) 
 that the person intended to be defrauded ought to have been shewn 
 with more certainty : (3) that it ought to have been stated to whom 
 the stock belonged. But the Court held that the statement of the 
 means used for effecting the object of the conspiracy was so interwoven 
 with the charge of conspiracy as to shew on the face of the count an 
 unlawful conspiracy. But if that were not so, the overt acts shewed 
 an indictable misdemeanor (/). 
 
 Where the indictment is for conspiring to obtain property by ' false 
 pretences ' these words are not construed in the technical sense in which 
 they are used in indictments for obtaining by false pretences (k), nor 
 is it necessary under such a count to prove a statutory false pretence (/), 
 that the prosecutor was innocent of the crime imputed to him by the 
 conspirators (m). Where the conspiracy is to accuse falsely of crime, the 
 indictment need not aver the innocence of the prosecutor, the principle 
 being that innocence must be intended until the contrary appears (w) . In a 
 case of a conspiracy to charge a person with being the father of a bastard 
 child, it was held unnecessary to aver that the prosecutor was not the father. 
 The words of the indictment were ' didi falsely conspiie falsely to charge,' 
 &c. ; but even without those words the indictment was held sujSicient, it 
 being deemed unnecessary to state that the charge was false, or that the 
 child was likely to become chargeable, &c. (o). And an indictment for a 
 
 (j) Wright V. R., 14 Q.B. 148, affirmed spired by false, &c., and unlawful pretences, 
 
 ibid. 180, on the authority of Sydserff v. R., &e., to obtain and get into their possession 
 
 supra. The indictment contained several of and from one S. B. divers large sums of 
 
 other counts, varying the intent to defraud, money with intent to defraud S. B. The 
 
 and omitting some of the overt acts. The Court of Queen's Bench arrested the judg- 
 
 seventh count alleged that H. M. C. was ment on these counts, 
 
 entitled to the stock, and that the defend- (k) R. v. Hudson, Bell, 263, ante, p. 167. 
 
 ants conspired by false, &c., and unlawful (?) R. v. Whitehouse, 6 Cox, 38, Piatt, B. 
 
 ways and means, and by false pretences, (m) R. ik Kinnersley, 1 Str. 193. 
 
 unlawfully to obtain the means and power (h) R. v. Best, 1 Salk. 174 ; 2 Ld. Raym. 
 
 to and for S. P. of transferring and dispo- 1167. 
 
 sing of the said stock. The eleventh count (o) R. v. Best, 2 Ld.' Raym. 1167. 
 stated that the defendants unlawfully con-
 
 CHAP. VL] Form of Indictment. 183 
 
 conspiracy was held good, although it was not alleged in the charge itself 
 that the defendants conspired falsely to indict the prosecutor, and although 
 it did not appear of what particular crime or o fence they conspired to indict 
 him, but only in general that the defendants did wickedly and maliciously 
 conspire to indict and prosecute the prosecutor for a capital crimev(p). 
 
 Where the act conspired to be done is in itself illegal {i.e., either 
 wrongful or criminal), it is not necessary to state the means by which 
 the conspiracy was effected. Thus where an indictment charged that 
 the defendants conspired together by indirect means to prevent one 
 H. B. from exercising the trade of a tailor, and it was contended that 
 it should have stated the fact on which the conspiracy was founded, — 
 the means used for the purpose ; Lord Mansfield, C.J., said : ' The con- 
 spiracy is stated and its object ; it is not necessary that any means should 
 be stated;' and Buller, J., said: ' If there be any objection it is that 
 the indictment states too much ; it would have been good certainly 
 if it had not added " by indirect means," and that will not make it bad ' (q). 
 And where an indictment charged that the defendants conspired, by 
 divers false pretences and subtle means and devices, to obtain from A, 
 divers large sums of money, and to cheat and defraud him thereof ; 
 it was held that the gist of the offence being the conspiracy, it was quite 
 sufficient to state that fact, and its object, and not necessary to set out 
 the specific pretences. Bayley, J., said: 'That when parties had once 
 agreed to cheat a particular person of his monies, although they might 
 not then have fixed on any means for that purpose, the offence of con- 
 spiracy was complete' (r). But where the act only becomes illegal from 
 the means used to effect it, the illegality of it should be explained 
 by proper statements, as in the cases which have been cited of 
 conspiracies to marry paupers (s). 
 
 In the indictment in O'Connell v. R. (t), the sixth count alleged that the 
 defendants unlawfully and seditiously intending, by means of intimida- 
 tion and the demonstration of great physical force, to procure and effect 
 changes to be made in the government, laws, and constitution, unlawfully 
 and seditiously did conspire, &c., to cause, and procure, &c., divers subjects 
 of the Queen to meet and assemble together in large numbers, at various 
 times and at different places in Ireland, for the unlawful and seditious 
 purpose of obtaining, by means of intimidation to be thereby caused, 
 and by means of the exhibition and demonstration of great physical 
 force at such assemblies and meetings, changes in the government, laws, 
 
 ip) R. r. Spragg, 2 Burr. 993. Of this case, racy actually carried into execution ; and 
 
 Tindal, C.J., in R. v. King, 7 Q.B. 782, said : this he holds to be clearly sufficient, and no 
 
 ' The point decided in that case appears to doubt it was so ; for, rejecting the aver- 
 
 have been merely this, that, in an indict- mcnt of the unexecuted conspiracy, the 
 
 nient for a conspiracy, though the conspi- indictment undoubtedly contained a com- 
 
 racy be insufficiently charged, yet if the plete description of a common-law misdc- 
 
 rest of the indictment contains a good meanor.' 
 
 charge of a misdemeanor, the indictment is (q) R. v. Eccles, 13 East, 230n. 
 
 good. Lord Mansfield distinguishes be- (r) R. v. Gill, 2 B. & Aid. 204. In R. v. 
 
 tween the allegation of the unexe<!uted Parker, 3 Q.B. 292, Williams, J., said : ' It 
 
 conspiracy to prefer an indictment, as to has been always fliougiit tliat in R. v. (Jill 
 
 the sufficiency of which he gave no opinion, the extreme of laxity was allowed.' 
 and that of the actual preferring of tlic in- (s) Ante, p. 156, and .sec R. v. Steward, 
 
 dictment maliciously and without probable I A. & E. 70(>. 
 cause, which he calls a completed conspi- (t) 11 CI. & F. 155; 5 St. Tr. (X. S.^ 1.
 
 184 Of Criminal Cons-piracy. [book i. 
 
 and constitution, &c. The seventh count was like the sixth, with the 
 addition, ' and especially, by the means aforesaid, to bring about and 
 accomplish a dissolution of the legislative union now subsisting between 
 Great Britain and Ireland.' Tindal, L.J., in giving to the House of Lords 
 the opinions of the consulted judges, said : ' With respect, however, to 
 the sixth and seventh counts, we all concur in opinion that they do not 
 state the illegal ^purpose and design of the agreement entered into between 
 the defendants with such proper and sufficient certainty as to lead to the 
 necessary conclusion that it was an agreement to do an act in violation of 
 the law. Each of those two counts does in substance state the agree- 
 ment of defendants to have been " to cause and procure divers subjects 
 to meet together in large numbers, for the unlawful and seditious purpose 
 of obtaining, by means of the intimidation to be thereby caused, and by 
 means of the exhibition and demonstration of great physical force at 
 such meetings, changes in the government, laws, and constitution of the 
 realm." Now, though it may be inferred from this statement, that the 
 object of the defendants was probably illegal, yet it does not appear to 
 us to be so alleged with sufficient certainty. The word " intimidation " is 
 not a technical word ; it is not vocabulum artis, having a necessary 
 meaning in a bad sense ; it is a word in common use, employed on this 
 occasion in its popular sense ; and in order to give it any force, it ought 
 at least to appear from the context what species of fear was intended, 
 or upon whom such fear was intended to operate. But these counts 
 contain no intimation whatever upon what persons this intimidation was 
 intended to operate ; it is left in complete uncertainty whether the 
 intimidation was directed against the peaceable inhabitants of the sur- 
 rounding places, against the subjects of the Queen dwelling in Ireland 
 in general, against persons in the exercise of public authority there, or 
 even against the legislature of the realm. Again, the mere allegation 
 that these changes were to be obtained by the exhibition and demonstra- 
 tion of physical force, without any allegation that such force was to be 
 used, or threatened to be used, seems to us to mean no more than the mere 
 display of numbers, and consequently to carry the matter no further.' 
 
 In an indictment for conspiring to pervert the course of justice by 
 producing in evidence a false certificate of a justice of peace, it was held 
 unnecessary to set forth that the defendants knew at the time of the 
 conspiracy that the contents of the certificate were false, on the ground 
 that it is criminal for persons with intent to obstruct the course of justice 
 to conspire to state a fact as true, which they do not know to be true ; 
 and that the defendants were bound to have known that the fact was 
 true which they agreed to certify as such (w). 
 
 The question with respect to the sufficiency of an indictment for 
 conspiracy is whether the counts are framed with sufficient certainty, 
 with respect to the substance of the charge of conspiracy ; for if 
 any such counts are framed in so loose, uncertain, or inapt a manner, 
 that the defendants might have availed themselves of the insufficiency 
 
 (li) R. V. Mawbey, 6 T. R. 619. Ante, at the time whether the fact be true or 
 
 p. 164. Lawrence, J., said that it was not false ; which is as much perjury as if he 
 
 unlike the case of perjury where a man knew the fact to be false, and equally 
 
 swears to a particular fact without knowing indictable.. Vide post, p. 476.
 
 CHAP. VI.] Indictment : Particulars. 185 
 
 of the indictment upon demurrer, there was nothing to prevent them 
 from taking the same advantage of the objection by appeal, or case 
 stated, except where the defect is such as would be cured by verdict (v). 
 
 Particularity. — The Court refused to quash on motion an indictment 
 charging the defendants with conspiring ' to defraud J. W. of divers 
 goods, and in pursuance of that conspiracy defrauding him of divers 
 goods, to wit, of the value of £100 ' ; on the ground that the gist of the 
 indictment was the conspiracy, and that there might be so much uncer- 
 tainty in the transaction, which was the subject of the indictment, that 
 the allegation could not be made with greater certainty, as the conspiracy 
 might be to defraud the prosecutor, not of any particular goods, but of 
 any goods the prisoner could get hold of (iv). 
 
 In R. V. de Berenger (x), it was held that an indictment which alleged 
 an intention to injure the subjects who should purchase public funds on 
 a particular day was good ; for it followed from the nature of the charge 
 that the persons could not be named, because the charge was of con- 
 spiracy on a previous day to raise the funds on a future day, so that it was 
 uncertain who would be the purchasers ; and the offence being to raise 
 the funds on a future day, its object was to injure all those who should 
 become purchasers on that day, and not some individuals in particular (x). 
 
 So where a count stated that the defendants conspired to defraud 
 divers of Her Majesty's subjects, who should bargain with the defendants 
 for the sale of goods of the said subjects without making payment for the 
 same, with intent to acquire to the said defendants divers sums of money ; 
 it was held that it was no valid objection that the count did not state 
 what particular creditors the defendants meant to defraud ; for if the 
 offence went no further than the conspiracy, it could not be known what 
 particular persons fell into the snare. But the count was held defective 
 for not stating with sufficient particularity what the defendants con- 
 spired to do ; for obtaining goods without making payment was not 
 necessarily a fraud, as the words of the indictment might apply to the 
 obtaining goods to sell on commission (y). The second count alleged 
 that the defendants being ' indebted to divers persons in large sums of 
 money,' conspired to defraud the said creditors of the defendants of 
 payment of their said debts, and in pursuance of the said conspiracy 
 unlawfully did execute a certain false and fraudulent deed of bargain 
 and sale and assignment of certain fixtures, stock in trade, and goodwill, 
 of great value, belonging to the said defendants, from two of themselves 
 to the third, for divers false and fraudulent considerations, with intent 
 thereby to procure to the said defendants divers sums of money and 
 other emoluments. This count was held bad because it did not state 
 in what respect the deed was false and fraudulent, and therefore the 
 
 (i) O'Conncll t'. R., 11 CI. & F. 155, per ticular goods were not .specified, and 
 
 Tindal, C.J., 5 St. Tr. (X. .S.) 1. The law probably only so much as shewed that was 
 
 lords concurred in this opinion. AVrits of stated in the report. In an indictment for 
 
 error, referred to in that case, arc abolished larceny the goods stolen must be specified, 
 
 in England. See post, Bk. xii. c. ii. ' Plead- post. Vol- ii. p. 129(5. 
 
 ing ' : c. iv. ' Appeal.' (x) 3 M. & S. G8, ante, p. 170. 
 
 (w) Anon. [1819], 1 Chit. (KB.) G98. In (//) R. v. Peck, 9 A. & E. 686. Peck r. 
 
 R. V. Parker, post, p. 186, it was said that R.. 8 L. J. M. C. 22. 
 the objection in this case was that the par-
 
 186 
 
 Of Criminal Conspiracy. 
 
 [BOOK I. 
 
 Court had only the prosecutor's general opinion upon this point, not the 
 facts on which it was founded (z). 
 
 An indictment alleged that an issue in an action between H. B. and 
 G. C. was tried, and that the plaintiff recovered a verdict for £17, and 
 that the judge certified that execution ought to issue forthwith, and that 
 the defendants ' did conspire falsely and fraudulently to cheat and 
 defraud the said H. B. of the fruits and advantages of the said verdict 
 and certificate/ Denman, C.J., held the indictment bad, as the 
 allegation was too general, and did not convey any specific idea which 
 the mind could lay hold of, to determine whether any unlawful act had 
 been done or attempted, and because the terms used did not import in 
 what manner the plaintiff was to be deprived of the fruits and advantages 
 of his verdict, and it was not even alleged that the verdict would lead to 
 any fruits and advantages (a). Where a count for conspiracy is framed 
 in a general form in accordance with the rule in K. v. Gill, the Court may 
 make an order for particulars giving such information as would be given 
 in a special count, even though the details are contained in the depositions 
 taken at the preliminary inquiry (h). 
 
 In the British Bank case an order had been made on the first day of 
 the trial that particulars of Cameron's debt, which was stated to be 
 £36,000, should be delivered to him ; and it was objected that until the 
 particulars had been given that case could not be gone into. It was 
 answered that Cameron had had access to the accounts for some months : 
 and Campbell, C.J., ruled that the Crown could not be precluded from 
 giving evidence on that part of the case (c). 
 
 Where an indictment charged a conspiracy between the defendants 
 and divers other persons, not adding ' to the jurors unknown,' the 
 prosecution were ordered to give the names of such persons (d). 
 
 The particulars need not state the specific acts the defendants are 
 charged with having done, or the times or places at which such acts are 
 alleged to have taken place. But where a count alleges overt acts, the 
 Court will not order particulars to be delivered, where there is no affidavit 
 on the part of the defendant that he has no knowledge of the overt acts 
 charged, and does not possess sufficient information to enable him to 
 meet them. The particulars may be ordered to be given forthwith, 
 so as to avoid the necessity of adjourning the trial (e). 
 
 In R. V. Parker (f), the first count alleged that the defendants, 
 intending to cheat and defraud divers of the subjects of the Queen of their 
 goods, &c., unlawfully conspired by divers false pretences to obtain from 
 
 (z) R. V. Peck, supra. 
 
 (a) E. V. Richardson, 1 M. & Rob. 402. 
 
 {h) R. V. Hamilton, 7 G. & P. 448, Little- 
 dale, J., after consulting several of the other 
 judges. R. V. Rycroft, 6 Cox, 76, Williams, 
 J. R. V. Probert, Dears. 32 [a] ; Archb. 
 Cr. PI. {23rd ed.), 70. ' In Anon. 1 Chit. 
 (K.B.), 698, the Court refused to order such 
 particulars to be given on motion, but inti- 
 mated that the correct course was to ai:)ply 
 to the prosecutor to give some information 
 as to the particulars upon which he meant 
 to rely in support of the indictment, and if 
 
 he refused, then an application might be 
 made to postpone the trial in order that 
 the question might be more maturely dis- 
 cussed. From which it is to be inferred 
 that the motion had been made without 
 any previous application for particulars to 
 the prosecutor.' C. S. G. 
 
 (f) R. V. Stapylton, 8 Cox, 69. 
 
 {d) R. V. Esdaile, 1 F. & F. 213. 
 
 (e) R. V. Perrin [1908], 73 J. P. 144; 
 24 T. T>. R. 487, Walton, J. 
 
 if) 3 Q.B. 292; 11 L. J. M. C. 102,
 
 CHAP. VI.] » indictment : Particularity. 187 
 
 divers of the subjects, &c., then carrying on business in the City of London, 
 to wit, T. T. and D. L., warehousemen and copartners, and E. F. and 
 R. F., cotton yarn manufacturers and copartners, &c., divers goods of 
 great value, to wit, &c., and to cheat and defraud the said liege subjects 
 of the said goods. The count then set out several overt acts as to 
 obtaining goods from the parties above named, and concluded by averring 
 that the defendants did by the means aforesaid obtain from the said 
 T. T. and D. L., and E. F. and R. F., &c., the goods aforesaid, and did 
 cheat and defraud them thereof. The second count was similar, but did 
 not state the overt acts. The third count stated the conspiracy to be to 
 cause it to be believed that one of the defendants, who was then an 
 uncertificated bankrupt, was not B. P., but J. P., and that he carried on 
 an extensive shipping business, and was a man of large property, and had 
 a large capital in the business, and by means of the said belief to obtain 
 from divers liege subjects (not naming them) divers goods, wares, and 
 merchandise, and to cheat and defraud the said liege subjects of the said 
 goods, &c. The fourth count charged that the defendants unlawfully 
 combined by divers false pretences to obtain from divers liege subjects 
 (not naming them) divers other goods of great value, and to cheat and 
 defraud the said liege subjects of the said goods, &e.]:,^The defendants 
 having been convicted, judgment was arrested on the ground that the 
 indictment was bad for not stating to whom the goods belonged, it being 
 consistent with the statements in the indictment that the goods belonged 
 to the defendants. The Court said that where the object charged was a 
 conspiracy to obtain from certain persons named divers goods, and to 
 cheat and defraud them of the same, and they were obtained, and the 
 parties defrauded, no precedent was to be found to shew that an indict- 
 ment was good which omitted to state whose the goods were. The first 
 count, therefore, was imperfect, and the objection applied more strongly 
 to the fourth count., where the conspiracy charged was to obtain divers 
 goods and to cheat and defraud certain persons named, not with intent to 
 cheat and defraud them of the same, though perhaps that would have 
 made no difference. As there was no statement to w^hom the goods 
 belonged, the charge did not, in the view of the Court, of necessity, import 
 any offence, as it was consistent with an attempt by the defendants 
 to obtain by some means their own goods unlawfully detained from 
 them ; and to hold that the use of the words ' to cheat and defraud ' 
 necessarily implied that the goods belonged to the parties who were 
 stated to be defrauded, would be letting in a generality, which was not 
 shewn ever to be allowed {g). 
 
 (g) Sec R. v. Bullock, Dears. 653. Al- there the indictment ought to specify prc- 
 
 though there appears at first sight to be cisely what has been effected, as the parlies 
 
 some little discrepancy in the cases upon injured, the property obtained, and to 
 
 this point, perhaps they are not irrecon- whom it belonged. The reason of such a 
 
 cilable. The correct distinction to be distinction is tliat in the one case it is im- 
 
 drawn from them ajDpears to be this, that practicable to state with minuteness what 
 
 where tliere has been merely a conspiracy never was carried beyond the intention, 
 
 for a particular purpose [e.g.. to raise the whereas in the other case what was actually 
 
 fund.s), and such conspiracy has not been effected may easily be stated. The ease 
 
 carried into execution, an indictment in may be compared to the cases of burglary 
 
 general terms will be sufficient ; but where with intent to steal, and burglary accom- 
 
 there has not only been a conspiracy, but panied by an actual stealing ; in the former 
 
 such conspiracy has been carried into effect, it is sufficient to state that the prisoner
 
 188 
 
 Of Criminal Conspiracy. 
 
 [BOOK I. 
 
 In an indictment for obtaining property by false pretences, it is not 
 necessary to state to whom the property belongs (h), and it is submitted 
 that it is not necessary to have greater particularity in indictments for 
 conspiracy to obtain by false pretences (i). 
 
 In R. V. Blake (/), a count alleged that the defendants did unlawfully 
 combine, conspire, confederate, and agree together to cause and procure 
 certain goods, in respect whereof certain duties of customs were due and 
 payable to the Queen, to be taken away from the port of London and 
 delivered to the respective owners thereof without payment to the Queen 
 of a great part of the duties of customs payable thereon with intent to 
 defraud the Queen in her revenue of the customs. A motion was made 
 to arrest judgment on the ground that the count was insufficient, because 
 no description of the goods was given, by which it could be judged whether 
 the goods were liable to duty. But the Court held that it was not neces- 
 sary to specify the goods ; that it was matter of evidence what the goods 
 were to which the conspiracy related ; that the parties might have 
 conspired without knowing what they were ; and that they might have 
 laid their heads together to cheat the Queen of whatever customable 
 goods they could pass. 
 
 In R. V. King (k), a count alleged that W. H. King, E, A. Birch, and 
 A. D. Phillips, did ' unlawfully combine, conspire, confederate and agree 
 together to cheat and defraud certain liege subjects of our Lady the 
 Queen, being tradesmen, of divers large quantities of their goods and 
 chattels : ' and that B., in pursuance of the said conspiracy, did fraudu- 
 lently order and obtain upon credit from W. A. W. and C, W. divers 
 goods, &c., belonging to the said W. A. W. and C. W. ; from F. B. and 
 W. J., divers goods, &c., belonging to the said F. B. and W. J. ; and 
 from divers other tradesmen whose names are to the jurors unknown, 
 divers other goods, &c., belonging to the said last mentioned persons ; 
 and that E. A. B., ' in further pursuance of the said conspiracy,' and in 
 
 broke and entered the house with intent to 
 steal the goods (without describing them) 
 of one A. B. ; and in the latter the goods 
 stolen must be particularised. So where a 
 conspiracy has been detected before it is 
 carried into execution so far as to ascertain 
 the parties intended to be injured by it, an 
 indictment would be good without naming 
 such parties. R. v. de Berenger, ante, p. 170. 
 But where the conspiracy had proceeded 
 so far as to fix the parties intended to be 
 injured, such parties should be expressly 
 named, and if the object was to defraud 
 them of their goods, or their goods had been 
 actually obtained thereby, the indictment 
 should state in the one case the intent to 
 defraud them of their goods, and in the 
 other that they were defrauded of their 
 goods. This position has been fully borne 
 out by R. V. King, infra. It may, perhaps, 
 admit of some doubt whether the possibility 
 of the goods belonging to the defendants 
 in the principal case necessarily rendered 
 the indictment bad ; for as a party may be 
 guilty of larceny in stealing his own goods, 
 there seems no reason why parties who 
 
 conspired to obtain their own goods from 
 another, and thereby to cheat and defraud 
 him, under such circumstances as did not 
 amount to larceny, should not be indictable 
 for a conspiracy. The better ground to 
 rest the decision upon would seem to be 
 that the indictment did not adopt such a 
 degree of particularity as the facts enabled 
 the prosecutor to do, and the rules of 
 criminal pleading require to be adopted 
 where it is practicable. C. S. G. 
 
 (h) 24 & 25 Vict. c. 96, s. 88, post, Vol. ii. 
 p. 1514. 
 
 (?) But in White v. R., 13 Cox, 318, 
 C. C. R. (Ir.), the contrary seems to have 
 been held. 
 
 (j) 6 Q.B. 126. Cf. R. V. Rispal, 3 Burr. 
 1320. All the reasoning in the judgment 
 of the Exchequer Chamber in R. v. King, 
 infra, tends to shew that this decision was 
 wrong, as the goods had been imported and 
 clearly ascertained. The terms ' a great 
 part of the duties of customs ' seem very 
 objectionable. 
 
 (k) 7 Q.B. 782.
 
 CHAP, vi.j Indictment : Generality. 189 
 
 order that the said goods might be taken in execution as hereinafter 
 mentioned, did order the said goods to be delivered at her house ; and that 
 the said goods were so delivered, and no payment made for the said goods 
 by any of the defendants at any time ; and that, ' in further pursuance 
 of the said conspiracy,' the said E. A. B. did procure the said goods to 
 remain in her house until they were taken in execution as hereinafter 
 mentioned, and that the defendants, ' in further pursuance of the said 
 conspiracy,' did falsely and fraudulently pretend that certain debts 
 were due from the said E. A. B. to the said W. H. K. and A. D. P. respec- 
 tively, and that the said W. H. K. and A. D. P., ' in further pursuance 
 of the said conspiracy, and in order to obtain payment of such false and 
 fictitious debts,' did commence by collusion with the said E. A. B. separate 
 actions against the said E. A. B. And that afterwards, ' in further 
 pursuance of the said conspiracy,' judgments were collusively signed by 
 the said W. A. K. and A. D. P. in each of the said actions for want of a 
 plea. And that afterwards, ' in further pursuance of the said conspiracy, 
 writs of fieri facias were collusively sued out upon the said judgments ; 
 by virtue of which writs the said goods were, before the expiration 
 of the said respective times of credit, taken in execution and sold 
 in due course of law to satisfy the fictitious debts falsely and fraudulently 
 alleged to be due from the said E. A. B. And so the jurors aforesaid 
 find that the defendants, in manner and by the means aforesaid, unlaw- 
 fully did cheat and defraud the said W. A. W. and C. W., F. B. and W. J., 
 &c., of their said goods ' (?). A conviction on this indictment was quashed 
 in the Exchequer Chamber. Tindal, C.J., in delivering the judgment 
 of the Court, said : ' The charge is that the defendants conspired to cheat 
 and defraud divers liege subjects, being tradesmen, of their goods, &c. ; 
 and the objection is that these persons should have been designated by 
 their Christian and surnames, or an excuse given, such as that their names 
 are to the jurors unknown ; because this allegation imports that the 
 intention of the conspirators was to cheat certain definite individuals, 
 who must always be described by name, or a reason given why they are 
 not ; and if the conspiracy was to cheat indefinite individuals, as for 
 instance those whom they should afterwards deal with, or afterwards 
 fix upon, it ought to have been described in appropriate terms, shewing 
 that the objects of the conspiracy were, at the time of making it, unascer- 
 tained, as was in fact done in the case of R. v. de Berenger (m), and R. v. 
 Peck (n) ; and it was argued that if, on the trial of this indictment, it 
 had appeared that the intention was not to cheat certain definite indi- 
 viduals, but such as the conspirators should afterwards trade with or 
 select, they would have been entitled to an acquittal ; and we all agree 
 in this view of the case, and think that the reasons assigned against the 
 validity of this part of the indictment are correct. But then it was 
 urged on the part of the Crown that this defect in the allegation of the 
 conspiracy was cured by referring to the whole of the indictment, the 
 part stating the overt acts as well as that stating the conspiracy ; and 
 R. V. Spragg (o) was cited as an authority that the whole ought to be 
 
 (?) The indictment is set out in R. r. (n) 9 A. & E. 686, ante, p. 185. 
 
 Wiiitehouse, 6 Cox, 46n. (o) 2 Burr. 99.3. See ante, p. 183, note 
 
 (w) 3 M. & S. 67, ante, p. 170. [p], for the remarks on this case.
 
 190 Of Criminal Conspiracy. [book i. 
 
 read together. But if we examine the allegations in this indictment, 
 there is no sufficient description of any act done after the conspiracy 
 which amounts to a misdemeanor at common law. None of the overt 
 acts are shewn by proper averments to be indictable. The obtaining 
 goods, for instance, from certain named individuals upon credit, without 
 any averment of the use of false tokens, is not an indictable misdemeanor ; 
 and if it is said that because it is averred to have been done in pursuance 
 of the conspiracy before mentioned, it must be taken to be equivalent to 
 an averment that the conspiracy was to cheat the named individuals of 
 their goods, the answer is, first, that it does not necessarily follow, because 
 the goods were obtained in pursuance of the conspiracy to cheat some 
 persons, that the conspiracy was to cheat the persons from whom the 
 goods were obtained ; they might have been obtained from A. in the 
 execution of an ulterior purpose to cheat B. of his goods. And secondly, 
 if the averment is to be taken to be equivalent to one that the goods 
 were obtained from the named individuals in pursuance of an illegal 
 conspiracy to cheat and defraud those named individuals of their goods, 
 it would still be defective, as not containing a direct and positive averment 
 that the defendants did conspire to cheat and defraud those persons, 
 which an indictment for a conspiracy, where the conspiracy is itself the 
 crime, ought certainly to contain. The other allegations of what are 
 termed overt acts are open to the same objection. In none is there com- 
 plete description of a common-law misdemeanor independently of the 
 conspiracy ; and the allegation of the conspiracy is insufficient, and 
 not direct and positive. For these reasons the judgment must be 
 reversed' (p). 
 
 In R. V. Button (q), a count charged that the defendants were em- 
 ployed by L. as his servants in the management of the business as a dyer, 
 and that it was their duty as such servants to employ the vats and dye 
 of L. for his benefit and for dyeing such materials as might belong to 
 themselves or be intrusted to them by L. for those purposes, and for no 
 other purposes and on no other materials ; and that the defendants un- 
 lawfully conspired, fraudulently, and without the consent of L., to employ 
 the vats and dye in dyeing materials not belonging to themselves and 
 not intrusted to them by L., and to obtain thereby to themselves large 
 profits, and to deprive L. of the use and benefit of the said vats and dye ; 
 and that the defendants, in pursuance of the said conspiracy, wilfully 
 and without the consent of L., received into their possession divers large 
 quantities of materials, and wilfully and without the consent of L., at his 
 expense and with his said vats and dye, dyed the same materials for their 
 own profit and benefit. It was objected that the count did not shew 
 that the goods which the defendants dyed were not their own, and that 
 it appeared by the record that they had permission to dye their own 
 goods ; but the count was held good on the ground that it was clear that 
 the essential part of the count was the charge of a conspiracy ; so that 
 
 (p) In the argument in the Court of held that this was not necessary, and this 
 
 Queen's Bench in this case it was also ob- point does not appear to have been raised 
 
 jected that the conspiracy ought to have in the Exchequer Chamber, 
 been laid to defraud divers tradesmen of {q) 11 Q.B. 929. 
 
 their goods ' respectively,'' but the Court
 
 CHAP. VI,] 
 
 Evidence. 
 
 191 
 
 if the evidence proved the conspiracy the count would have been suffi- 
 ciently proved, even if there was no proof of the overt acts, i.e., that the 
 conspiracy was carried into effect (r). 
 
 Evidence. — The existence of a conspiracy is in most cases ' a matter 
 of inference deduced from criminal (or unlawful) acts done in pursuance 
 of a common criminal purpose ' {s). 
 
 The evidence in support of an indictment for a conspiracy is generally 
 circumstantial ; and it is not necessary to prove any direct concert, 
 or even any meeting of the conspirators, as the actual fact of conspiracy 
 may be collected from the collateral circumstances of the case {t). 
 Although the common design is the root of the charge, it is not necessary 
 to prove that the defendants came together, and actually agreed in 
 terms to have the common design, and to pursue it by common means, 
 and so to carry it into execution, for in many cases of the most clearly 
 established conspiracies there are no means of proving any such thing {v). 
 If, therefore, two persons pursue by their acts the same object, often 
 by the same means, one performing one part of an act, and the other 
 another part of the same act, so as to complete it, with a view to the 
 attainment of the common object they were pursuing, the jury are free to 
 infer that they have been engaged in a conspiracy to effect that object {w). 
 It is not necessary to prove the existence of a conspiracy before giving 
 in evidence of the acts of the alleged conspirators, and isolated acts 
 may be proved as steps by which the conspiracy itself may be estab- 
 lished {x). In R. V. Duffield (y), Erie, J., directed the jury that it does 
 not happen once in a thousand times when the offence of conspiracy is 
 
 (r) There was another count similar to 
 the above, which was objected to on the 
 ground that it did not allege any duty in 
 the defendants not to employ the dye for 
 their own profit ; but the Court held it 
 good, as the allegation of the conspiracy 
 was sufhcient. There was also a question 
 as to the conspiracy having merged in the 
 felony decided in this case. But as 14 & 
 1.5 Vict. c. 100, s. 12, has got rid of all such 
 questions it has been omitted. In R. v. 
 Ward, 1 Cox, 101, a count alleged that the 
 defendants, having in their possession two 
 horses, conspired by divers false pretences 
 to obtain large sums of money from such 
 persons as might be desirous of purchasing 
 the said horses, and to cheat and defraud 
 such persons of such sums of money, and 
 that the defendants, in pursuance of the 
 said conspiracy, made certain false pre- 
 tences, which were set out ; and that the 
 defendants, in pursuance of the said con- 
 spiracy, did obtain from W. A. an order for 
 the payment of £11.5 10s. It was objected 
 that this count was bad, because it did not 
 shew that W. A. was one of the persons 
 who was desirous of purchasing the horses, 
 and therefore he was not shewn to be within 
 the objects of the conspiracy. The count 
 is said to have been held bad. If correctly 
 reported this ruling is clearly erroneous. 
 
 The allegation that the defendants did ob- 
 tain the money from W. A. ' in jjursuance. 
 of the conspiracy ' is the regular mode of 
 connecting the overt act with the con- 
 spiracy, especially where, as in this case, 
 the overt act could not be foreseen at the 
 time when the conspiracy was entered into. 
 The overt act. therefore, was well laid. 
 But even if it had been otherwise, the count 
 was good without it ; for the conspiracy 
 was clearly well laid ; and where that is 
 the case, an acquittal of the overt act is 
 immaterial. R. v. Starling, 1 Lev. 125, 
 shews that the overt act is in such a case 
 immaterial. 
 
 (.s) R. V. Brisac, 4 East, 164, 171, anU\ 
 p. 53, approved by the consulted judges in 
 Mulcahy v. R., L. R. 3 H. L. 306, 317. See 
 Taylor, Evidence (10th ed.), s. 591. 
 
 (t) R. V. Parsons, 1 W. Bl. 392. 
 
 [v) R. V. Murphy, 8 C. & P. 297, Coleridge, 
 J. R. V. Brittain, 3 Cox, 76, Coltman, J. 
 See the case mentioned in R. v. Parnell, 
 14 Cox, 505, where two Irish Americans 
 who had fought on different sides in the 
 American Civil War and had never met 
 were indicted for participation in the Fenian 
 conspiracy, a treason felony. 
 
 {w) R. V. Murphy, supra. Coleridge, J. 
 
 {x) Ford V. Elliott, 4 Ex. 78, Aldcrson, B. 
 
 'y) 5 Cox, 404.
 
 192 Of Criminal Consfiracy. [book i. 
 
 tried that anybody comes before the jury to say that he was present at 
 the time when the parties did conspire together, and when they agreed 
 to carry out their unlawful purposes ; that species of evidence is hardly 
 ever to be adduced before a jury ; but the unlawful conspiracy is to be 
 inferred from the conduct of the parties ; and if several men are seen 
 taking several steps, all tending towards one obvious purpose, and they 
 are seen through a continued portion of time taking steps that lead to 
 one end, it is for the jury to say whether those persons had not combined 
 together to bring about that end, which their conduct appears so obviously 
 adapted to effectuate. In R. v. Cope {z), a husband and wife, and their 
 servants, were indicted for consjDiring to ruin the trade of the King's 
 card-maker. The evidence against them was, that they had at several 
 times given money to his apprentices to put grease into the paste, which 
 had spoiled the cards ; but there was no account given that ever more 
 than one at a time was present, though it was proved they had all 
 given money in their turns ; it was objected that this could not be a 
 conspiracy, on the ground that several persons might do the same thing, 
 without having any previous communication with each other. But it 
 was ruled that the defendants being all of a family, and concerned in 
 making of cards, it would amount to evidence of a conspiracy. And it 
 seems to have been ruled that a banker who permitted a sum of money 
 to be lodged at his house, to be paid over for corruptly procuring an 
 appointment under government, might be indicted for conspiring with 
 those who were to procure the appointment, and receive the money (a). 
 
 The following rule has been suggested with respect to the acts or 
 words of one conspirator being evidence against the others. Where 
 several persons are proved to have combined together for the same 
 illegal purpose, any act done by one of the party, in pursuance of the 
 original concerted plan, and with reference to the common object, is in 
 the contemplation of law the act of the whole party, and therefore, the 
 proof of such act would be evidence against any of the others who were 
 engaged in the same conspiracy ; and declarations, made by one of the 
 party at the time of doing such illegal act, seem not only to be evidence 
 against himself, as tending to determine the quality of the act, but 
 against the rest of the party, who are as much responsible as if they had 
 themselves done the act. But what one of the party may have been 
 heard to say at some other time, as to the share which some of the others 
 had in the execution of the common design, or as to the object of the 
 conspiracy, is not admissible as evidence to affect them on their trial 
 for the same offence (6). And, in general, enough must be proved to 
 make a case for the Court, or proof of concert and connection must be 
 given, before evidence is admissible of the acts or declarations of any 
 person done or made in the absence of the prisoner (c). It is for the 
 Court to judge whether such connection has been sufficiently established ; 
 
 (2) 1 Str. 144. Caroline's case, 2 B. & B. 302. R. v. 
 
 (a) R. V. PoUman, 2 Camp. 233. Jacobs, 1 Cox, 173. R. v. Duffield, 5 Cox, 
 
 (6) 1 PhiU. Evid. {7th ed.), 94, 95; 404. See R. t;. Gurney, 11 Cox, 414, where 
 
 9th ed. 201. Taylor, Evidence (10th ed.), defendants were indicted for a conspiracy 
 
 s. 590. to cheat and defraud by means of a false 
 
 (r) 1 East, P. C. 96. 2 Stark. Evid. prospectus of a public company. 
 82 (J, and 1 Phill. Evid. 477, citing Queen
 
 CHAP. VI.] Evidence. I93 
 
 but when that has been done, the doctrine appHes that each party is 
 an agent for the others, and that an act done by one in furtherance of 
 the unlawful design, is in law the act of all, and that a declaration made 
 by one of the parties, at the time of doing such an act, is evidence against 
 the others. Thus, where S. was indicted for treason, and one of the 
 overt acts charged was conspiring with J. and others to collect intelli- 
 gence, and to communicate it to the King's enemies in France, &c. 
 after evidence had been given to connect the prisoner with J. in the 
 conspiracy as charged, the Secretary of State for the Foreign department 
 was called to prove that a letter of J.'s, containing treasonable inform- 
 ation, had been transmitted to him from abroad, but in a confidential 
 way, which made it impossible for him to divulge by whom it was 
 communicated ; and such letter was received in evidence {d). So, after 
 evidence had been given of a treasonable conspiracy, in which the prisoner 
 was concerned, it was held that papers found in the lodging of a co- 
 conspirator, at a period subsequent to the apprehension of the prisoner, 
 might be read in evidence, upon strong presumptive proof being given 
 that the lodgings had not been entered by any one in the interval between 
 the apprehension of the prisoner and the finding of the papers, 
 although no absolute proof had been given of their existence previous 
 to the prisoner's apprehension (e). But it seems that if such papers 
 had not been proved to have been intimately and immediately connected 
 with the objects of the conspiracy, they would not have been admis- 
 sible ; as, in the same case, a paper containing seditious questions 
 and answers, found in the possession of a co-conspirator, was 
 not read in evidence, the court doubting whether it was sufficiently 
 connected by evidence with the object of the conspiracy to render it 
 admissible (/). 
 
 Every person concerned in any of the criminal parts of the transaction 
 alleged as a conspiracy may be found guilty, though there is no evidence 
 that such persons joined in concerting the plan, or that they ever met 
 the others, and though it is probable they never did, and though some 
 of them only join in the latter parts of the transaction, and probably 
 did not know of the matter until some of the prior parts of the transaction 
 were complete {(j). If several persons meet from different motives, and 
 then join in effecting one common and illegal object, it is a conspiracy. 
 Where, therefore, upon an information for a conspiracy to ruin M., an 
 actor, in his profession, it was objected that in support of the prosecution 
 evidence should be given of a previous meeting of the parties accused 
 for the purpose of confederating to carry their object into execution ; 
 Sir James Mansfield, C.J., overruled the objection, saying that if a 
 number of persons met together for different purposes, and afterwards 
 joined to execute one common purpose to the injury of the person, 
 property, profession, or character of a third party, it was a conspiracy, 
 
 (d) R. V. Stone, 6 T. R. 527. strument was to be used for the purposes of 
 
 (e) R. V. Watson, 2 Stark. (N.P.) 140; the conspiracy, it would clearly be admis- 
 32 St. Tr. 1. See R. v. MacCaffcrty, 10 sible. 
 
 Cox, G03. R. V. Meancy, 10 Cox, 50U. (g) R. v. Lord Grey, 9 St. Tr. 127. R. v. 
 
 (/ ) R. V. Watson, supra. But it was held Murphy, 8 C. & P. 297, Coleridge, J. R. v. 
 
 that if proof were to be given that the in- Parnell, 1-1 Cox, 508, 515. 
 
 VOL. I. O
 
 194 Of Criminal Consfiracy. [book i. 
 
 and it was not necessary to prove any previous consultation or plan 
 among the defendants against the person intended to be injured {h). 
 
 It appears to have been held that upon an indictment for a conspiracy, 
 where, from the nature of the case, it would be difficult to prove the 
 privity of the parties accused, without first proving the existence of a 
 conspiracy, the prosecutor may go into general evidence of its nature, 
 before it is brought home to the defendants. The indictment charged 
 the defendants, who were journeymen shoemakers, with a conspiracy 
 to raise their wages ; and evidence was offered on the part of the prose- 
 cution of a plan for a combination amongst the journeymen shoemakers, 
 formed and printed several years before, regulating their meetings, 
 subscriptions, and other matters for their mutual government in for- 
 warding their designs. This evidence was objected to by counsel for 
 the defendant ; but Kenyon, C.J., said, that if a general conspiracy 
 existed, general evidence might be given of its nature, and of the conduct 
 of its members, so as to implicate men who stood charged with acting 
 upon the terms of it years after those terms had been established, and 
 who might reside at a great distance from the place where the general 
 plan was carried on ; and he, therefore, permitted a person, who was a 
 member of this society, to prove the printed regulations and rules of the 
 society, and that he and others acted under them, in execution of the 
 conspiracy charged upon the defendants, as evidence introductory to 
 the proof that they were members of such society, and equally concerned ; 
 but he observed, that it would not be evidence to affect the defendants 
 until they were made parties to the same conspiracy (^). And in several 
 important cases, evidence has been first given of a general conspiracy 
 before any proof of the particular part which the accused parties have 
 taken (/). 
 
 The prosecutor may either prove the conspiracy, which renders 
 the acts of the conspirators admissible in evidence, or he may prove the 
 acts of the different persons, and thus prove the conspiracy. Where, 
 therefore, a party met, which was joined by the prisoner next day, it 
 was held that directions given by one of the party on the day of their 
 meeting as to where they were to go and for what purpose, were admis- 
 sible, and the case was said to fall within E.. v. Hunt (3 B. & Aid. 566), 
 where evidence of drilling at a different place two days before and hissing 
 an obnoxious person was held receivable (k). 
 
 But after such general evidence has been received the parties before 
 the Court must be affected for their share of it. And mere detached 
 declarations and confessions of persons not defendants, not made in 
 the prosecution of the object of the conspiracy, seem not to be evidence 
 to prove its existence, although consultations for the purpose, and letters 
 
 (/i) R. V. Leigh or Lee, 1 C. & K. 28n ; going on at Manchester, and in France, 
 
 2 Camp. 372n.; (5 M. & G. 217n.; 2 Stark. Scotland, and Ireland, at the same time. 
 Evid. 324 ; 2 M'Nally, Evid. 634. See R. (j) Lord Stafford's case, 7 St. Tr. 1218. 
 
 V. Murphy, 8 C. & P. 297, Coleridge, J. Lord Russell's case, 9 St. Tr. 577. Lord 
 
 Vide, ante, p. 191. Lovat's case, 18 St. Tr. 530. R. v. Hardy, 
 
 («■) R. V. Hammond, 2 Esp. 718. Lord 24 St. Tr. 129. R. v. Home Tooke, 25 St. 
 
 Kenyon referred to the state trials in 1745, Ti. 1. 
 
 where from the nature of the charge it was [k) R. v. Frost, 9 C. & P. 129, Tindal, 
 
 necessary to go into evidence of what was C. J., Parke, B., and AVilliams J.
 
 CHAP. VI.] Evidence. 195 
 
 written in prosecution of the design, but not sent, are admissible (l). 
 The admissibility of the act or declaration of a co-conspirator against 
 the party defendant before the court, does not depend on whether such 
 co-conspirator is indicted or not, or tried or not with the defendant {m). 
 The evidence is admitted on the ground that the act or declaration of 
 one is' the act or declaration of both when united in one common 
 design. 
 
 W.here the indictment charged the defendants with conspiring to 
 cause themselves to be believed persons of large property for the pur- 
 pose of defrauding tradesmen, evidence was given of their having hired 
 a house in a fashionable street, and represented themselves to one trades- 
 man employed to furnish it as people of large fortune ; and then a witness 
 was called to prove that at a different time they had made a similar 
 representation to another tradesman. The evidence of this witness 
 was objected to on the ground that it was not competent to the prosecutor 
 to prove various acts of this kind, and that he was bound to select 
 and confine himself to one. But EUenborough, C.J., said, ' This is an 
 indictment for a conspiracy to carry on the business of common cheats, 
 and cumulative instances are necessary to prove the offence ' (w). And, 
 in a similar case, the same course was allowed as to acts done both in and 
 out of the county where the indictment charged the conspiracy to have 
 been (o). 
 
 Upon an indictment for conspiring to annoy a broker who distrained 
 for church-rates, it was proved that one of the defendants, in the presence 
 of the other, excited the persons assembled at a public meeting to go in a 
 body to the broker's house. It was held that evidence was admissible 
 to shew that they did so go, although neither of the defendants 
 went with them, but that evidence of what a person, who was at the 
 meeting, said a few days after the meeting when he himself was dis- 
 trained on for church-rates, was not admissible (p). And where an 
 indictment charged the defendant with conspiring with J., who had 
 been previously convicted of treason, to raise insurrections and riots, 
 and it was proved that the defendant had been a member of a Chartist 
 association, and that J. was also a member, and that in the evening 
 of November 3 the defendant had been at J.'s house, and was heard 
 to direct the people there assembled to go to the race-course, where 
 J. had gone on before with others ; it was held that a direction given 
 by J. in the forenoon of the same day to certain parties to meet on the 
 race-course was admissible ; and it being further proved that J. and 
 the persons assembled on the race-course went thence to the New Inn, 
 it was held that what J. said at the New Inn was admissible, as it was 
 all part of the same transaction {q). 
 
 Where a number of persons were charged with murder committed by 
 an act done in the course of a conspiracy for the purpose of liberating 
 a prisoner, of which conspiracy he was cognisant : it was held that acts 
 
 (I) Taylor, Evid. (10th ed.) ss. 589, 593. G Cox, 38. 
 
 (m) 2 Stark. Evid. 329. (p) R. v. Murjihy, 8 C. & P. 297, Cole- 
 
 (n) R. V. Roberts, 1 Camp. 399, ante, ridge, J. 
 p. 168. (q) R. V. ShcUard. 9 C. & P. 277, Pat- 
 
 io) R. I'. Whitehouse, JISS. C. S. G. and teson, J. 
 
 O 2 — )-
 
 196 Of Crimnal Conspiracy. [book l 
 
 of that prisoner within the prison, and articles found upon him, were 
 admissible in evidence against the persons so charged (r). 
 
 On an indictment under sect. 3 of the Treason Felony Act, 1848 
 (11 & 12 Vict. c. 12), which makes it a felony to compass, &c., to deprive 
 the Queen of her crown or to levy war, &c., it appeared that the prisoners 
 from July 26 to August 16 had attended meetings where plans for securing 
 the people's charter and the repeal of the union were organised, and took 
 a prominent part at those meetings ; large bodies of men were formed 
 into societies, with class leaders, &c. ; some of them were selected and 
 organised as fighting men, and an attempt at insurrection was to be made 
 on August 16 ; and on that night a great number of the conspirators 
 were found at the several places of meeting previously fixed, provided 
 with arms, &c. A witness stated that at a meeting, at which none of the 
 prisoners were present, he received a leaf of a book from one B., which 
 was to serve as an introduction to a subsequent meeting ; and on July 20 
 he attended a second meeting, and produced the leaf ; the chairman 
 compared it with a book, and the witness was admitted. The prisoners 
 were not shewn to have been parties to the conspiracy at the time. But 
 it was held that the witness might prove what B. said to him when he 
 gave him the leaf, and also what took place at the second meeting, on 
 the ground that the prosecution had a right to go into general evidence 
 of the nature of the combination between the persons assembled, though 
 the prisoners might not be present (s). And it having been proved 
 that a large number of armed men were found assembled at a public- 
 house on August 16, the time which had been fixed for the general 
 outbreak, but none of these men had been previously connected with the 
 conspiracy, nor did it appear that the house had ever been recognised 
 as a place of meeting ; it was held that evidence was admissible of what 
 was done at that public-house ; because it appeared that on this day there 
 was to be a collection of armed persons (t). 
 
 In R. V. Duffield {u), on an indictment for conspiracy to prevent work- 
 men from continuing in their service as tin-plate workers, it appeared that 
 the workmen had been holding shop meetings and discussions, and the 
 prosecutor, a manufacturer, had published a placard offering constant 
 employment to tin-plate workers, and after that a handbill was circu- 
 lated about the town, and copies of it stuck up in the windows of 
 beer-shops and public- houses, and one of them in a window of a 
 public-house frequented by the tin-plate workers, and another at a public- 
 house at which one P., G., and W., alleged conspirators, lodged, and the 
 defendants had been continually into those houses whilst the bill was 
 in the windows. The bill was signed by P. as general secretary, and 
 mentioned G. and W. as having visited the prosecutor, but did not 
 mention any of the defendants. Erie, J., held that the bill was not 
 admissible as the act of the defendants, either by themselves or as 
 published or recognised by them. ' You may make a handbill evidence 
 against a man, if I may so say, by retrospective light arising from his 
 
 (r) R. V. Desmond, 11 Cox, 146. 566, expressly in point, and refused to 
 
 (s) R. V Lacy, 3 Cox, 517, Piatt, B., and reserve the point. See ante, p. 194. 
 
 Williams J., who considered R. v. Frost, (t) Ibid. 
 
 9 C. &. P. 129, and R. v. Hunt, 3 B. & Aid. (u) 5 Cox, 404.
 
 CHAP. VI.] Evidence,. 197 
 
 conduct. If a handbill says that certain things will be done by certain 
 persons, and that handbill is circulated, where those persons probably 
 saw it, and they do the very thing that the handbill indicates they would 
 do, when that is in evidence, I am of opinion that the bill would be 
 admissible against them ; but we are not at that stage yet.' But in R. v. 
 Rowlands (v), another indictment arising out of the same transactions, 
 where, in addition to the evidence in the previous case, it was proved 
 that R. had been at the ' Swan ' whilst the bill was exhibited there, and 
 P. had been seen going in and out, and the bill was in such a situation 
 that he must have seen it ; Erie, J., held that it was admissible. ' If it 
 is evidence against any one of the defendants, it is admissible.' ' I 
 believe it is admissible against those in respect of whom I draw the infer- 
 ence that they saw it in the window; those in respect of whom it announces 
 any intention. G. and W. are the two that are named in it. It purports 
 to be an instrument by P., and I think there is evidence before me, from 
 which I am of opinion that P. had seen that instrument, and it is 
 probable, by his not objecting to it, that he permitted his name to be used 
 to that instrument.' ' I am clear that it is evidence as against one of 
 the defendants, it being published in his name, and, according to the 
 evidence, being probably seen by him ' (w). 
 
 In R. V. Blake (x), on an information for a conspiracy with one T. to pass 
 imported goods without paying the full duty, it appeared that T. acted 
 as agent for the importer of the goods, and B. as landing- waiter at the 
 Custom-house, and that it was T.'s duty to make an entry known de- 
 scribing the quantity and particulars of the goods necessary to determine 
 the amount of duty. The entry was left at the Custom-house, and 
 the particulars were copied into a Blue-book at the Custom-house, which 
 was delivered to B., whose duty was to examine the goods, and, if he 
 found them correspond with the particulars in the Blue-book, to write 
 ' Correct ' across the entry, whereupon the goods would be delivered to the 
 importer upon payment of the duties so ascertained. The goods were 
 passed to T., the duty having been paid on the entry made out by T., 
 which corresponded with the entry in the Blue-book. It was then pro- 
 posed to put in T.'s Day-book, and to shew by T.'s own entry therein that 
 the quantity of goods was much larger than appeared by the Perfect 
 Entry and the Blue-book, and that the importer had been charged the 
 duties by T. on such larger amount, and had paid them accordingly. It 
 was objected for B. — T. not being on his trial — that the entry in T.'s 
 book was not evidence against B. ; but Denman, C.J., admitted the 
 evidence ; and on a motion for a new trial it was held that the Day-book 
 was evidence of something done in the course of the transaction, and 
 was properly admitted as a step in the proof of the conspiracy (x). 
 Evidence was also given to shew that a cheque drawn by T. for a certain 
 sum, and dated after the goods were passed, had been cashed, and the 
 proceeds traced to B. It was then proposed to put in evidence the 
 counterfoil of the cheque in T.'s cheque-book, on which was written an 
 account shewing that the cheque was drawn for a sum amounting to 
 
 (v) 5 Cox, 436. Bench. See 17 Q.B. G71. 
 
 (iv) This ruUng does not appear to have (.r) G Q.B. 12G, 
 
 been questioned in the Court of Queen's
 
 198 Of Criminal Conspiracy. [book i. 
 
 half the profit arising from transactions, including the alleged fraud on 
 the revenue, as manifested by the several items in that account. It was 
 held that this evidence was not admissible, for the conspiracy to defraud 
 the customs had been carried into effect before the cheque was drawn ; 
 and the writing on the counterfoil was in effect a declaration by T. for 
 what purpose he had drawn the cheque, and how the money was to be 
 applied ; and no declaration of T. could be received in evidence against 
 B. which was made in B/s absence, unless it related to the furtherance 
 of the common object ; which this did not (y). 
 
 On an indictment for conspiracy to defraud the shareholders of the 
 British Bank by falsely representing its affairs to be prosperous, the 
 examination of one of the defendants, which had been taken on a petition 
 for winding up the bank after the date of the alleged conspiracy, was 
 tendered in evidence. This examination shewed that this defendant was 
 aware of the insolvency of the bank, and alleged that the other directors 
 had the same knowledge. It was objected that this examination was 
 not evidence of any act done in furtherance of the conspiracy ; and that 
 it was not admissible until the other defendants were connected with 
 this defendant in the conspiracy. But Campbell, C.J. (after consulting 
 the other judges of the Queen's Bench), said : ' We are all of oj^inion that 
 the deposition is admissible against this defendant, as tending to shew his 
 knowledge before and at the time of his committing the overt act, but not 
 as against the other defendants. Therefore only such parts should be 
 read as refer to the deponent alone' (2). 
 
 Where an indictment alleged that the defendants conspired falsely to 
 accuse the prosecutor of having feloniously forged a cheque, and that in 
 execution of such conspiracy a letter was written by one of the defendants, 
 in which he stated that he had been employed to investigate the circum- 
 stances attending the forging of the cheque, and proof was given of the 
 letter, and also of conversations referring in like manner to a cheque, 
 which the defendants charged the prosecutor with having forged, but the 
 cheque itself was not produced ; it was objected that the cheque was so 
 incorporated with the evidence, that the prosecutor was not entitled to 
 prove the conversations without producing the cheque to which they 
 referred, which it appeared from the evidence was in existence, and in 
 the possession of the defendants. Tenterden, C.J., ruled that it was not 
 essential to prove the contents of the cheque or to produce it, but that it 
 was enough to take the conversations as they passed ; and on a motion for 
 a new trial this ruling was affirmed, the Court being of opinion that the 
 whole of the charge against the defendants was founded on the letter 
 set out in the indictment, which was written by one of the defendants 
 upon the application of the other ; and they having taken upon them- 
 selves to treat as an existing thing a cheque, it was not necessary, on the 
 part of the prosecutor, to produce it in evidence, even although it appeared 
 that it actually existed. But it might be a fabrication on the part of 
 the defendants ; there might be no such cheque, and then it could not be 
 produced (a). 
 
 iy) R. V. Blake, supra. («) R. v. Ford and Aldridge, 1 N. & M. 
 
 (2) R. V. Esdaile, 1 F. & F. 213. 776.
 
 CHAP, vi] Evidence. 109 
 
 A count alleged that the defendants, a husband, wife, and daughter, 
 being in low and indigent circumstances, conspired to cause the husband 
 to be reputed and believed to be a person of considerable property, and 
 in opulent circumstances, for the purpose and with the intent of cheating 
 and defrauding divers tradesmen who should bargain with them for the 
 sale to the husband of goods, the property of such tradesmen, of great 
 quantities of such goods, without paying for the same. The wife and 
 daughter were usually together, and on some occasions represented that 
 they were in independent circumstances, having an income derived from 
 the interest of money coming in monthly ; and in others the wife had 
 said her husband was in independent circumstances. These statements 
 were made in the absence of the husband ; but it was proved that he 
 either occupied the lodgings which were hired under these representa- 
 tions, or that the goods were delivered at the places where all the 
 defendants lodged. Piatt, B., is reported to have held that there was no 
 evidence of any conspiracy to represent the husband as a person of 
 considerable property (6). Another count alleged the conspiracy in the 
 same manner as the preceding, but charged the intent to be to defraud 
 persons who should let the husband lodgings for hire, of divers large sums 
 of money, being the sums agreed to be paid for the hire of such lodgings ; 
 and Piatt, B., is reported to have held that this count was not supported, 
 as well on the ground on which the preceding count was not supported, 
 as because the object of the defendants was to obtain possession of the 
 lodgings, and to deprive the landlord of the use of the rooms, but not to 
 dej)rive him of the price, which was only incidental to their occupation. 
 They had no object in depriving him of the profits of the rooms, apart 
 from their own occupation of them (<?). 
 
 Two counts of an indictment charged the defendants with conspiring 
 to obtain from the prosecutor certain bills of exchange accepted by him, 
 and to cheat and defraud him of the proceeds of the said bills ; other 
 counts charged a conspiracy to defraud the prosecutor of his monies. 
 Evidence was given to shew the obtaining of the acceptances, but it 
 appeared that the prosecutor had not parted with any money, and there 
 was no reason to suppose that he intended to take up the acceptances, 
 and it was not shewn that the bills which he accepted were ever in his 
 hands, except for the purpose of his writing his acceptances, they having 
 been brought to him complete, except as to his signature. The jury 
 having found the defendants guilty on these counts, a new trial was 
 moved for on the ground that the verdict was unsupported by the evidence, 
 because the charge was of a conspiracy to obtain acceptances from the 
 prosecutor, whereas he proved that the acceptances were ready written, 
 and in possession of the defendants, or some of them, and nothing was 
 sought but his signature. But the Court of Queen's Bench considered 
 that it was only by the signature of the prosecutor that the bills became 
 
 (b) R. V. Whitehouse, (3 Cox, 38. the town together, lived togetlier, and 
 
 (c) Ibid. ' I was counsel for the Crown enjoyed the fruits of their fraud together ; 
 in this case, and my recollection of it is that but the conspiracy could only be inferred 
 the case went to the jury on all the counts. from a great number of isolated acts, in 
 The main question in the case was whether none of which were all of the jH-isonerg 
 every representation made was the repre- engaged,' C. S. G. 
 
 scntation of all. The prisoners came to
 
 200 Of Criminal Conspiracy. [book i. 
 
 complete ; and his acceptance when given, being without any considera- 
 tion, was at the instant his, and in his possession. It was also urged that 
 the entire transaction, as proved by the evidence, was at variance with 
 the indictment, as all parties well knew that the prosecutor had no 
 money, nor could be defrauded of any ; and that the real fraud was on 
 the prosecutor's part, to the prejudice of some expected lender of the 
 sums mentioned in the bills, in return for acceptances of no value. But 
 the court held that, though there might be some ground for this imputa- 
 tion on the prosecutor, yet it would not disprove the fraud practised upon 
 him, by inducing him to accept bills without a corresponding advance of 
 cash. Though there was little appearance of solvency in the prosecutor, 
 those who fraudulently induced him to incur the liability must have 
 speculated on some pecuniary advantage from it ; and though the money 
 could in such case only have come from his respectable friends, as he had 
 no funds of his own, the money intended to be so procured might well be 
 described for this purjDose as his money (d). 
 
 A. and C. were indicted for conspiring to defraud a railway company 
 by obtaining and selling to others non-transferable excursion tickets. 
 A. had sold the tickets to C. at B., and C. attempted to use them for the 
 purpose of sending some children back to London. It did not appear 
 how A. got the tickets ; he had others in his possession. Wightman, J., 
 left it to the jury to determine whether the prisoners did concert together 
 that the tickets should be obtained and used for the purpose of defrauding 
 the company (e). 
 
 On an indictment for conspiracy to cause tinplate-workers to leave 
 their employment, it appeared that the prosecutors, in consequence of 
 their workmen leaving their service, had employed Frenchmen, Erie, J., 
 held that it was not competent to prove how much the firm had lost by 
 these Frenchmen, as the amount of loss by any particular set of workmen 
 was clearly unconnected with the issue whether there was a conspiracy or 
 not ; but that the sum total of the loss might be proved ; for the very 
 issue in the matter was the intention to obstruct the business, and the 
 result of the operations was a relevant fact as to that (/). 
 
 Two persons were indicted for felony, in attempting to poison A. B., 
 by administering certain poisonous ingredients, as set forth in the indict- 
 ment. At the same time, an indictment was found against them for 
 conspiracy to poison the same individual by the same means. On the 
 trial of the first indictment, the prisoners were acquitted, there being no 
 proof that the ingredients were poisonous. Parke, J., thereupon directed 
 an acquittal for the conspiracy also, there being no other proof of a 
 conspiracy to poison than that by which it was attempted to establish 
 the felony, viz., that the ingredients were poisonous (</). 
 
 Where an indictment against A., B., C, and D., charged that they 
 conspired together to obtain, ' viz., to the use of them the said A., B., 
 and C, and certain other persons to the jurors unknown,' a sum of money 
 for procuring an appointment under government ; and it appeared that 
 D. (although the money was lodged in his hands, to be paid to A. and B. 
 
 {d) R. V. Gompertz, 9 Q.B. 824. counts ended, ' to the great damage ' of 
 
 (e) R. V. Absolon, 1 F. & F. 498. the prosecutors. See 17 Q.B. 671. 
 
 (f) R. V. Rowlands, 5 Cox, 436. All the (g) R. v. Maudsley, 1 Lew. 51.
 
 CHAP. VI.] Evidence : Trial : Verdict. 201 
 
 when the appointment was procured) did not know that C. was to have 
 any part of it, or was at all implicated in the transaction ; it was held, 
 that the averment concerning the application of the money was material, 
 though coming under a viz., and that as to D., the conspiracy was not 
 proved as laid (A). 
 
 Husband and Wife. — On an indictment for conspiracy, the wife 
 of one defendant was held not to be a competent witness for the others, 
 a joint offence being charged, and an acquittal of all the other defendants 
 being a ground of discharge for the husband (i). And, upon an indict- 
 ment against the wife of W. S. and others for a conspiracy in procuring 
 W. S. to marry, it was held that W. S. was not a competent witness in 
 support of the prosecution (j). The present position of the law as to 
 calling the husband or wife of a defendant as witness against the defendant 
 is considered post, Book XIII. Chapter V., ' Evidence.' 
 
 Trial and Verdict. — Counsel for the Crown is entitled, before opening 
 his case, to have any of the defendants acquitted, ^vithout the assent of 
 the other defendants, in order that he may call them as witnesses (k). 
 
 In R. V. Kroehl (1), the indictment was against A., B., and C. ; and 
 after the case for the prosecution was closed, C. only called a witness, 
 whom he examined as to a conversation between himself and A. It was 
 ruled, that counsel for the prosecution might cross-examine such witness 
 as to any other conversation between A. and C, although the evidence 
 should tend chiefly to criminate A. (1). 
 
 If upon an indictment for conspiracy, the jury find the defendants 
 guilty of so much of the indictment as amounts to a misdemeanor, the 
 Court may pass judgment upon the defendants. The defendants were 
 indicted for conspiring falsely to indict A. B. for keeping a gaming-house, 
 for the purpose of extorting money from A. B., and the jury found 
 the defendants guilty of conspiring to indict A. B., for the purpose of 
 extorting money, but not to indict him falsely ; and it w^as held that 
 enough of the indictment was found to enable the Court to give judg- 
 ment; for, in criminal cases, it is sufficient for the prosecutor to prove 
 so much of the charge as constitutes an offence punishable by law ; and 
 tlie jury had found the defendants guilty of conspiring to prefer an indict- 
 ment for the purpose of extorting money, and that is a misdemeanor, 
 whether the charge were or were not false (m). 
 
 Before the Criminal Appeal Act, 1907 (7 Edw. VII. c. 23), post, 
 Vol. ii. p. 2009, it was ruled, that after a conviction for a conspiracy, 
 the defendants must be present in court when a motion was made on 
 their behalf in arrest of judgment (n). It was not a sufficient excuse 
 for absence that they were in custody on civil process ; but if they were 
 in custody on criminal jirocess, the case would be different, for then they 
 might be charged with the conspiracy also (o). But where an indictment 
 had been removed into the Court of King's Bench, after verdict, but 
 
 (h) R. V. PoUman, 2 Camp. 231. (m) Pv. v. HoUingbcrry, 4 B. & C. 329. 
 
 (i) R. V. Lockyer, 5 Esp., EUcnborouCTh, (n) R. v. Spragg, 2 Burr. 928 ; 1 W. Bl. 
 
 C.J. R. V. Frederick [1738]. 2 .Str. 1095. R. 209. As to new trials see R. v. Teal. 11 
 
 ij) R. V. Serjeant, Ry. & M. 3.")2. East, 307. R. v. Askew, 3 M. & H. 9. R. v. 
 
 {k) R. V. Rowland, Ry. & M. 401, Abbot, Lord Cochrane, 3 M. & S. 10. 
 
 C.J. (o) R. ?'. Hollingbeny, vbi sup. 
 
 (I) 2 Stark. (N. P.) 343.
 
 202 Of Criminal Conspiracy. [book i. 
 
 before judgment, it does not appear to have been necessary that the 
 defendants should a2)pear in the Court of King's Bench, the proceeding 
 being in the nature of a special verdict, and the party not being con- 
 sidered as convicted, until after the Court had determined upon the 
 verdict (p). The Criminal Appeal Act, 1907, deals with special verdicts 
 and abolishes new trials, but does not deal specifically with motions in 
 arrest of judgment (q). 
 
 Where a count contains only one charge of conspiracy against several 
 defendants, the jury cannot find one of them guilty of more than one 
 charge. Where, therefore, a count charged several defendants with 
 conspiring to do several illegal acts, and the jury found one of them guilty 
 of conspiring with some of the defendants to do one of the acts, and 
 guilty of conspiring with others of the defendants to do another of the 
 acts, the finding was held bad ; as it amounted to finding that one defend- 
 ant was guilty of two conspiracies, though the count charged only one(f). 
 So where a count charged eight defendants with one conspiracy to effect 
 certain objects, a finding that three of the defendants were guilty generally 
 and that five of them were guilty of conspiring to effect some, and not 
 guilty as to the residue of these objects, was held to be bad and repugnant ; 
 for the finding that three were guilty was a finding that they were guilty 
 of conspiracy with the other five to effect all the objects of the conspiracy ; 
 whereas, by the finding as to the five, it appeared that those five were 
 guilty of conspiring to effect only some of those objects (s). 
 
 Punishment. — The present (t) punishment for most forms of con- 
 spiracy, which are indictable as misdemeanors, is by imprisonment, fine, 
 and sureties for the good behaviour, at the discretion of the Court (u). 
 
 By 14 & 15 Vict. c. 100, s. 29, whenever any person shall be convicted 
 of any conspiracy to cheat or defraud, or to extort money or goods, or 
 falsely to accuse of any crime, or to obstruct, prevent, pervert, or defeat 
 the course of public justice, the court may award imprisonment for any 
 term now warranted by law, and hard labour during the whole or any 
 part of such imprisonment. By 24 & 25 Vict. c. 100, s. 4, conspiracies 
 to murder are punishable as statutory felonies. 
 
 Where a general verdict is returned on some or all of the counts of 
 an indictment for conspiracy, framed on the same facts, judgment should, 
 be entered separately on each count to which it applies, so that if any 
 count is subsequently declared bad the judgment may stand on the good 
 counts (v). 
 
 (p) R. V. Nicholls, 2 Str. 1227. Short & for life ; to have those lands wasted, their 
 
 Mellor, Cr. Pr. (2nd ed.), 122. houses razed, their trees rooted uji, and their 
 
 (q) iShort & Mellor, Cr. Pr. (2nd ed.), 142. bodies committed to prison. But this judg- 
 
 (r) O'Connell V. R., 11 CI. & F. 155; 5 ment was not mflicted upon those who were 
 
 St. Tr. (N. S.) 1. convicted only of conspiracies of a less aggra- 
 
 (s) Ibid. vated kind, at the suit of the party. 1372, 
 
 (t) Informer times, persons convicted of a 46Ass. 11, pi. 307 ; Wright on Conspiracy, 
 
 conspiracy at the suit of the King to accuse 20 ; 1 Hawk. c. 72, s. 9 ; 4 Bl. Cora. 136. 
 
 another person of a capital offence, were The pillory was also part of the punishment 
 
 liable to receive what was called the villain- until its abolition, vide post, p. 250. 
 
 01/.9 judgment, used in attaints for crimes of (u) Post, pp. 211, 217, 218, 249, tit. 
 
 falsity in relation to justice, that is, to lose ' Punishments.' 
 
 their Zi'&eram ?egrcm, whereby they were dis- (v) O'Connell v. R., 11 CI. & F. 155. 
 
 credited and disabled as jurors or witnesses; Castro v. R., 6 App. Cas. 229. R. v. Gom- 
 
 to forfeit their goods and chattels and lands pertz, 9 Q.B. 824.
 
 CHAP. VI.] Soliciting or hiciting to Commit Crime. 203 
 
 By 38 & 39 Vict. c. 86, s. 3 {ante, p. 178), the punishment is limited 
 in the case of conspiracies to commit offences punishable on summary 
 conviction, to three months' imprisonment or such longer term as could 
 be imposed if the offence had been committed by one person. 
 
 C. — Soliciting or Inciting to Commit a Crime. 
 
 It has already been shewn {ante c. v.) that where a crime has been 
 committed, those who counselled, procured, or commanded its commis- 
 sion are liable as accessories before the fact in felony, and as principals 
 in misdemeanor. Even where a crime is not in fact committed, those 
 who have unsuccessfully solicited or incited another to commit it are, at 
 common law, guilty of an indictable misdemeanor (whether the crime 
 to which the solicitation or incitement related is either by common law 
 or statute a felony {w) or a misdemeanor), quite distinct from the 
 offences dealt with by the Accessories and Abettors Act, 1 861 {ante 
 p, 130) {x). The line between inciting to commit a crime and ' attempt- 
 ing ' to commit a crime is not very clearly defined. Where a person was 
 indicted for soliciting a servant to conspire to cheat and defraud his master, 
 and it was proved that such person had offered a bribe to the servant as 
 an inducement to sell his master's goods at less than their value, it was 
 held that he might properly be convicted of inciting {y). And it has been 
 held an indictable misdemeanor to endeavour to provoke another to 
 commit the misdemeanor of sending a challenge to fight a duel {z) : and 
 to attempt to incite a lad to commit a felony by sending him a letter 
 which did not reach him {a), or which he did not read {b). The first of 
 these cases is rather of provocation than incitement, and the second treats 
 incitement as a substantive misdemeanor, and an attempt to incite is 
 also a misdemeanor ; conversely it would seem to be an offence to incite 
 another to attempt to commit a crime (c). In an old case, attempt to 
 suborn another to commit perjury was held a misdemeanor {d). The 
 offence would now be described as inciting to commit perjury, for the 
 offence of subornation of perjury is not committed unless the perjury 
 itself is committed. From one point of view it may be said that the 
 term attempt applies to a person who tries to commit the crime himself, 
 and the terms solicitation or incitement to the person who tries to get 
 another to commit the crime, who, if the crime were committed, would 
 be an accessory before the fact. 
 
 The gist of the offence of incitement here under discussion is that 
 the person incited has not committed the crime to which the incitement 
 
 (w) In R. ;-. Lecldington, 9 C. & P. 79, (a) R. v. Banks, 12 Cox, 393. 
 
 Alderson, B., is reported as having ruled (6) R. v. Ran.sford, 13 Cox, 9. In tliiH 
 
 that an indictment did not lie for inciting case Pollock, B., relied on R. v. Scofield 
 
 another to commit suicide : .sed qucere. [1784], Cald. 397. 
 
 ■See Steph. Dig. Cr. Law ((ith ed.), art. 48, (f) See R. v. Brown, M.S. Archb. Cr. 
 
 and pofit, pp. Biil el seq. PI. (23rd ed.), 1294, an indictment for in- 
 
 [x) R. I'. Gregory, L. R. 1 C. C. R. 77 : citing to commit an offence against 24 & 25 
 
 36 L. J. M. C. GO. " Vict. e. 100, s. oB. /)o.s/. \^. 82!). 
 
 {y) R. V. de Kromme, 17 Cox, 492. [d] Anon, before Adams, B.. cited in R. 
 
 (2) R. V. Phillips, (i East, 464. LaAV- v. Scofield, Cald. 400, and R. v. Higgins, 
 
 rence, C.J., there said, ' All such acts or 2 East, 14, 17, 22. This is probably the 
 
 attempts as tend to the prejudice of the same case as R. v. Edwards, ISIS. Sum. tit. 
 
 community are indictable.' ' Perjury.'
 
 204 Soliciting or Inciting to Commit Crime. [book i. 
 
 relates. To solicit a servant to steal, or to conspire with the inciter to 
 steal his master's goods, or to solicit a person to conspire to cheat and 
 defraud, is a misdemeanor, and on an indictment for the solicitation 
 it is not necessary to aver or prove that the servant stole the goods, or 
 entered into the proposed conspiracy to steal them, nor to prove more than 
 the soliciting and inciting (e). In such a case it is left for the defendant to 
 prove that the incitement was merged in the completed offence, whether 
 felony or misdemeanor, and that consequently the indictment does not lie 
 for the incitement, i.e., that the alleged inciter was, in fact, accessory before 
 or at the fact. The question has been raised whether a person can be 
 guilty of inciting another to commit a crime, unless the person incited 
 knows the act intended is a crime (/). Mr. Greaves was of opinion that 
 the guilt of the inciter cannot depend on the state of mind of the incited, 
 and that the state of mind and intention of the inciter, coupled with 
 the act of incitement, that constitute the offence (f/). It is well established 
 that a man is liable as a principal who commits a crime through an 
 innocent agent (A). B. may incite A. to do an act which B. knows to 
 be a crime, e.g., to carry away goods which B. does, and A. does not 
 know, belong to C, or to present a cheque which B. knows and A. does 
 not know to be forged. In the view of Sir James Stephen {i), the facts 
 in R. V. Welham indicate that the accused incited H. to carry off corn 
 which H. supposed the accused to have a right to remove, and he considers 
 that the offence was an attempt to commit a felony by an innocent agent, 
 and not an incitement to commit a felony. In a case where incitement 
 to commit a felony (murder) was made a statutory felony, it was held 
 that to warrant conviction for the statutory offence it must be proved 
 that a letter or communication containing the incitement actually reached 
 the person incited, but that in the case of the common-law misdemeanor 
 of incitement it would be enough to shew that the mcitement had been 
 posted to the person on whom it was intended to operate (/). 
 
 (e) R. V. Higgins, 2 East, 5. R. v. 1 Deai-s. 547, where instigation to A. 
 
 Gregory, uhi sup. R. v. de Kromme, to administer poison to B. under circum- 
 
 vbi sup. stances which would have rendered A. an 
 
 (/ ) R. V. Welliam, 1 Cox, 192, Patteson, accessory before the fact if poison had been 
 
 J., after consulting Parke, B. Felony was given, was held not to be an attempt to 
 
 here m question. administer poison within 7 Will. IV. & I. 1 
 
 ig) 1 RusseU on Crimes (6th ed.), 196n. Vict. c. 85, s. 1, now replaced by 24 & 25 
 
 (h) Ante, p. 104. Vict. c. 100, s. 11. 
 
 (i) Dig. a-. Law (6th ed.), note ii. p. 399. (/) R. v. Krause [1902], 66 J. P. 121, 
 
 He supports his opinion by reference to R. Alverstone, C.J. 
 V. Williams, 1 Den. 39, cited in R. v. Roberts,
 
 ( 204a ) 
 
 CANADIAN NOTES. 
 
 OF ATTEMPTING. CONSPIRING, AND INCITING TO COMMIT CRIME. 
 
 (a) Attempt to Commit Crime. — An act or omission with intent to 
 commit an offence is an attempt to commit the offence. — Code sec. 72. 
 
 (1) Punishment for Attempt to Commit Certain Indictable Of- 
 fences. — Code sec. 570. 
 
 (2) To Commit other Indictable Offences. — Code sec. 571. 
 
 (3) To Commit Statutory Offences. — Code sec. 572. 
 Indictment not Insufficient for Lack of Detail.- — Code sec. 863. 
 Special provision is made by the Code in respect of "attempted" 
 
 offences as follows : To take imlawful oath, sec. 130 ; to influence 
 member of a mimicipal council, sec. 161 (&) ; to obstruct justice, sec 
 180 (f/) ; to break prison, sec. 188; to commit sodomy, sec 
 203 ; to procure indecent act with a male person, sec. 206 
 girl to have unlawful carnal connection with a third party, sec 
 216 ; to carnally know an idiot, sec. 219 ; to commit murder, sec. 264 
 to commit suicide, sec. 270 ; to choke, see. 276 ; to cause bodilj^ injuries 
 by explosives, sec. 280 ; to commit rape, sec. 300 ; to defile children 
 under fourteen, sec. 301 ; to commit arson, sec. 512 ; to set fire to crops, 
 sec. 514 ; to wreck, sec. 523 ; to injure or poison cattle, sec. 536 , 
 
 When the complete commission of the offence charged is not proved, 
 but the evidence establishes an attempt to commit the offence, the 
 accused may be convicted of such attempt and punished accordingly. 
 Code sees. 949 and 951. 
 
 When an attempt to connnit an offence is charged, l)ut the evi- 
 dence esta])lishes the commission of the full offence, the accused shall 
 not be entitled to be acquitted, but the jury may convict him of the 
 attempt unless the Court before which such trial is liad thinks fit, 
 in its discretion, to discharge the jury from giving any verdict upon 
 such trial, and to direct such person to be indicted for the complete 
 offence. 
 
 (2) After a conviction for such attempt, the accused shall not be 
 liable to be tried again for the offence which he was charged with 
 attempting to commit. Code see. 750. 
 
 An indictment, charging that the accused unlawfully attempted 
 to steal from the person of an unknown person the property of such 
 unknown person, without giving the name of the person against 
 whom the offence was committed, or the description of the property
 
 2046 Indictment for Attempt. [book i. 
 
 the accused attempted to steal, is sufficient. And where a prisoner 
 is indicted for an attempt to steal, and the proof establishes that the 
 offence of larceny was actually committed, the jury may convict of 
 the attempt, unless the Court discharges the jury and directs that the 
 prisoner be indicted for the complete offence (Code sec. 712). R. v. 
 Taylor (1895), 5 Can. Cr. Cas. 89 (Que.). 
 
 A defendant charged with offering money to a person to swear 
 that A, B and C gave him a certain sum of money to vote for a 
 candidate at an election, was admitted to bail and a recognizance taken 
 by one justice of the peace. It was held that the offence was not 
 an attempt to commit the crime of subornation of perjury, but 
 something less, being an incitment to give false evidence or particu- 
 lar evidence regardless of its truth or falsehood, and was a misde- 
 meanour at common law, and that the recognizance was properly 
 taken by one justice, who had power to admit the accused to bail 
 at common law, and that section 696 of the Code did not apply. 
 R. v. Cole, 5 Can. Cr. Cas. 330, 3 O.L.R. 389. 
 
 If a person is charged with the commission of an offence and 
 there is not sufficient evidence to convict him of the offence charged, 
 but there is evidence of an attempt to commit the offence notwith- 
 standing that the accused was acquitted, he could not again be put 
 on trial for an attempt to commit the offence for that was included 
 in the charge on which he was tried, and he should have been con- 
 victed of the attempt. R. v. Cameron, 4 Can. Cr. Cas. 385. 
 
 This provision applies to the summary trial of indictable offences, 
 as well as to speedy trials and trials by jury. And when the prisoner 
 consented to be tried summarily upon a charge of pocket picking, 
 he must be taken to have assented to be tried summarily for what- 
 ever off'ence he might properly be found guilty of upon the said 
 charge, and having been properly found guilty upon the said charge of 
 an attempt to commit the offence charged, he must be held to have 
 been legally convicted upon the said trial. R. v. Morgan (No. 1), 5 
 Can. Cr. Cas. 272, 3 O.L.R. 356. 
 
 Where on an indictment for a principal offence, and for an at- 
 tempt to commit such offence, the evidence is wholly directed to the 
 proof of the principal offence, the jury's verdict of guilty of the 
 attempt only will not be set aside, although there were no other wit- 
 nesses in respect of the attempt than those whose testimony, if wholly 
 believed, shewed the commission of the greater offence. It. is within 
 the province of the jury to believe, if it sees fit to do so, a part only 
 of a witness's testimony, and not to believe the remainder of the same 
 witness's testimony, and it may therefore credit the testimony in re- 
 spect of a greater offence only in so far as it shews a lesser offence, 
 R. v. Hamilton, 4 Can. Cr. Cas. 251.
 
 CHAP. VI.] Iiicitiiif/ (iik] Aftemptiin/. 204c 
 
 Note. — It is an irrebutable presumption of law that a boy under 
 fourteen is not capable of having carnal knowledge, and therefore 
 cannot be convicted of rape or sodomy. R. v. Allen, 1 Dennison 's Cr. 
 Cas. 364; R. v. Hartlen, 2 Can. Cr. Cas. 12. Could he be convicted 
 of an attempt to commit either offence, in view of Code sec. 72? The 
 elements of intent and an overt act would be present, and the section 
 says that possibility of accomplishment is not an essential to the 
 commission of the offence. The Imperial Draft Code, 1879, says: 
 "Everyone who, believing that a certain state of facts exists, does or 
 omits an act, the doing or omitting of which would, if that state of 
 facts existed, be an attempt to commit an offence, attempts to commit 
 that offence, although its commission in the manner proposed was, by 
 reason of the non-existence of that state of facts at the time of 
 the act or omission, impossil)le. " 
 
 The Imperial Bill of 1880 adopted the language now used in sec- 
 tion 72 of the Canadian Code, and in Taschereau's Criminal Code, p. 
 44, it is said that the section is "somewhat altered in shape and phrase- 
 ology, but not in substance," from the English Draft Code of 1879, 
 quoted above. 
 
 In C. V. Jacobs, 9 Allen (Mass.) 274, it is said that an accused 
 "himself capable of doing every act on his part to accomplish that 
 object cannot protect himself from responsibility by shewing that by 
 reason of some fact unknown to him at the time of his criminal 
 attempt, it could not be carried fully into effect in the particular 
 instance." 
 
 The Code of 1879 in enacting that the non-existence of certain 
 facts should not be a defence to the charge of an attempt, deals, ap- 
 parently, with facts extrinsic to an accused himself capable of com- 
 pletely committing the crime attempted, whereas the incapacity of a 
 minor is a fact, irrebutably presumed, intrinsic to the accused, who 
 under the definition in the Massachusetts case above cited, would not 
 be guilty of an attempt, not l)eing "himself capable." 
 
 It is suggested that the language of Code sec. 72 is broader than 
 the words of the section in the Code of 1879, and wide enough to 
 cover even the intrinsic incapacity of the accused, and, therefore, 
 that a boy under fourteen can be convicted of an attempt to commit 
 rape or sodomy. 
 
 (h) Conspiracy. 
 
 The offence of conspiracy is treated of in the following Code 
 sections : — 
 
 Conspiring (a) to do His Majesty Bodily Harm. — Code sec. 74(e). 
 
 (ft) To Levy War. — Code sec. 74 (^r). 
 Conspiring is an Overt Act. — Code sec. 75. ^ 
 
 Intention (a) to Depose the King. 
 (h) To Levy War.
 
 204fZ Conspiracy. [book i. 
 
 (c) To Induce Invasion, Manifested by Conspiring with 
 any Person, is a Treasonable Offence, Punishable by Im- 
 prisonment for Life. — Code sec. 78. 
 
 Conspiracy to Intimidate a Legislature. — Code sec. 79. 
 
 Conspiracy to bring about a change in the government by bribing 
 members of the Legislature to vote against the government is an 
 indictable offence as a conunon law misdemeanour. The fact that the 
 Legislature has power by statute to punish as for a contempt does 
 not oust the jurisdiction of the Courts where the offence is of a crim- 
 inal character; the same act may be in one aspect a contempt of the 
 Legislature and in another aspect an indictable offence. R. v. Bunt- 
 ing, 7 Ont. R. 524. 
 
 Seditious Conspiracy, Definition of. — Code sees. 132, 134. 
 
 Conspiracy to bring False Accusation. — Code sec. 178. 
 
 To Induce a Woman to Commit Adultery. — Code sec. 218. 
 
 To Murder. — Code sec. 266. 
 
 To Commit Indictable Offence. — Code sec. 573. 
 
 Conspiracy to Defraud. — See Code sec. 444. 
 
 A conspiracy to defraud is indictable, although the conspirators 
 have been unsuccessful in carrying out the fraud. R. v. Frawley, 1 
 Can. Cr. Cas. 253. 
 
 A conspiracy to defraud is indictable, although the object was 
 to commit civil wrong, and although if carried out the act agreed 
 upon would not constitute a crime. R. v. Defries, 1 Can. Cr. Cas. 207. 
 
 The doctrines of commercial agency do not apply to prevent the 
 operation of the criminal law. So where one Clark, a policyholder of 
 a fire insurance company, conspired with Howse, their local agent, 
 to defraud the company, and handed to Howse for transmission to the 
 company an unfounded proof of claim for pretended losses for fire, 
 and obtained the money through Howse from the company, it was 
 held that the knowledge of Howse of the falsity of the pretence 
 could not be imputed as the knowledge of the company so as to affect 
 the criminality of Clark. R. v. Clark, 2 B.C.R. 191. 
 
 L^pon a charge of conspiracy to defraud the Canadian Pacific 
 Railway by bribing clerks in the company's employ, to illegally and 
 fraudulently disclose information of the secret .audits of trains to be 
 made, and to furnish such information to the conductors to enable 
 them to be prepared for the audits when made, and at other times 
 to be free to retain fares and to allow passengers to ride free or at 
 a reduced fare, the Court properly rejected evidence of conductors 
 to the effect that if they knew the date of a proposed secret audit, 
 they would communicate it to the conductor whose train was to be 
 audited for a purpose other than that of defrauding the company. 
 R. V. Carlin (No. 2), 6 Can. Cr. Cas. 507.
 
 CHAP. VI.] Inciting and Attempting. 204c 
 
 An indictment for conspiracy to defraud may properly charge 
 that the conspiracy was with persons unkno^^^l, if neither the Cro\Mi 
 nor the private prosecutor had definite information of the identity 
 of the alleged co-conspirators. Where at the trial of such an indict- 
 ment the name of one of the alleged co-conspirators is for the first 
 time disclosed in the testimony of a Cro\^Ta witness, that information 
 may then be added to the statement of particulars of the indictment. 
 R. V. Johnston, 6 Can. Cr. Cas. 232. 
 
 In an indictment charging a conspiracy to defraud it is not 
 necessary to set out overt acts done in pursuance of the illegal agree- 
 ment or conspiracy, nor is it necessary to name the person defrauded 
 or intended to be defrauded. Before the acts of alleged conspiracy 
 can be given in evidence there ought to be some preliminary proof 
 to shew an acting together, but it is not necessary that a conspiracy 
 should first be proved. R. v. Hutchinson, 8 Can. Cr. Cas. 486, 11 
 B.C.R. 24. 
 
 The offence of conspiracy to defraud under Code sec. 444 does 
 not include a conspiracy to defeat a candidate's chances of election 
 by the employment of unlawful devices. A charge of conspiracy the 
 particulars of which severally allege that the accused conspired to 
 defraud a candidate at an election to the Saskatchewan Legislature, 
 the electors of the division and the public, by illegally obtaining the 
 return of the opposing candidate, does not disclose an offence under 
 sec. 573 of the Code, for the acts alleged as the object of the con- 
 spiracy do not constitute an indictable offence either by statute or at 
 common law. R. v. Sinclair, 12 Can. Cr. Cas. 20. 
 
 Extradition. — Conspiracy to defraud is in itself not an extraditable 
 offence between Canada and the United States, but extradition will lie 
 as for a separate crime in respect of an overt act of a conspiracy 
 which constitutes one of the crimes mentioned in the extradition ar- 
 rangement. And the extraditable offence of larceny or participation 
 in larceny is charged sufficiently in an information laid on institut- 
 ing extradition proceedings therefor, if, following a charge of con- 
 spiracy to defraud between the accused and another person and an 
 embezzlement and theft by such other person in pursuance thereof, 
 the information alleges that the accused "did participate in the said 
 offence of embezzlement and theft." United States v. Gaynor; Re 
 Gaynor and Greene (No. 3), 9 Can. Cr. Cas. 205 (P.C). 
 
 Conspiracy in Restraint of Trade. — Code sees. 496, 497, 498, 581. 
 
 Trade C7mo«.— The Trade Unions Act, R.S.C., 1906, ch. 125, 
 defines the expression "trade union" to mean (unless the context 
 otherwise requires) such combination whether temporary or per- 
 manent for regulating the relations between workmen and masters? 
 or for imposing restrictive conditions on the conduct of any trade 
 or business as would, but for that statute, have been deemed to be
 
 204/ Trade Conspiracies. [book i. 
 
 an unlawful combination by rea.son of some one or more of its pur- 
 poses being in restraint of trade. R.S.C. 1906, ch. 125, sec. 2; and 
 see Code sec. 6. 
 
 Undue Limitation and Unreasonable Enliancement. — The preven- 
 tion of every enhancement of prices or every lessening of competi- 
 tion in the purchase, barter or sale of commodities was not intended 
 to be included in sub-sec. (&), of sec. 498, for where enhancing, pre- 
 venting or lessening is specifically referred to it is qualified by the 
 word "unreasonably" or "unduly." Sub-sec. {h) cannot well have 
 been intended to embrace every combination to prevent or restrain 
 particular kinds of systems of trading or particular kinds of bar- 
 gains. At most, it includes only combinations for the direct purpose 
 of preventing or materially reducing trade or commerce in a general 
 sense with reference to a commodity or certain commodities, or for 
 purposes designed or likely to produce that effect. Gibbins v. Met- 
 calfe (1905), 15 Man. R. 583. 
 
 Sub-section {h) of sec. 498, originated with the Code Amendment 
 of 1900. It applies not only to regularly organized trade unions, 
 as that term is defined by the Trade Union Act, R.S.C. ch. 125, but 
 to any voluntary organization of labourers. Senate Debates, 1900, 
 page 1044. As to trade unions there is a provision in R.S.C. ch. 125, as 
 follows: (Sec. 2) : "The purposes of any trade union shall not by 
 reason merely that they are in restraint of trade, be deemed to be un- 
 lawful so as to render any member of such trade union lial)le to crim- 
 inal prosecution for conspiracy or otherwise, or so as to render void 
 or voidable any agreement or trust." 
 
 1. The definition of a trade combination or conspiracy in Code 
 sec. 496 applies to sub-sec. {h) of sec. 498, not to sub-sees, (a), (c) and 
 {d) thereof which in themselves define the classes of offence to which 
 they relate. 
 
 2. A conviction on indictment for conspiring with certain per- 
 sons named and others unknown "or with some or one of them" is 
 not invalid for uncertainty, the names of the persons being in the 
 nature of particulars only and not material to the constitution of the 
 offence. 
 
 3. Where a defendant is arraigned and tried alone upon a charge 
 of conspiracy he may be convicted and sentenced without first pro- 
 ceeding with the trial of the co-conspirators. 
 
 4. On an appeal both on the facts and the law under Code sec. 
 1012 in a trade combine case tried without a jury, the Court of 
 Appeal is to decide whether the judgment below should have been for 
 the accused or whether there was evidence on which the judgment 
 against him could be reasonably supported. R. v. Clarke (No. 2), 14 
 Can. Cr. Cas. 57.
 
 CHAP. VI.] Incitiuf/ and Attcmptiiuj. 204r/ 
 
 A lock-out agreement made hy an employers' association follow- 
 ing a demand from the employees' trade union for an increase in 
 wages, is not a contravention of sec. 498 of the Code, as to trade 
 combinations, although the contracting parties thereby agree to dis- 
 charge from their employ all members of the employees' union, and 
 not to re-employ them on a higher scale of wages than the rate pre- 
 vailing at the date of the agreement. 
 
 2. On proof of damage to the signatories of the agreement through 
 breach of the conditions, a civil action lies upon the promissory note 
 given by the defaulting subscriber to trustees for the association to 
 ensure the carrying out of such agreement. Lefebvre v. Knott, 13 
 Can. Cr. Cas. 223. 
 
 The offence of conspiring to unduly prevent or lessen competition 
 in the sale or supply of an article of commerce under Cr. Code sec. 
 498(d) may exist without regard to the question whether the effect 
 of the combine has been to raise or lower prices. 
 
 Such a charge as regards the lumber trade is supported by evidence 
 that a trade association for whose actions the defendant was respon- 
 sible assumed to fix a regular price of lumber in the various locali- 
 ties in which their members traded and to prevent persons from 
 engaging in the lumber trade in those localities except with the con- 
 sent .and approval of the association through its officers and subject 
 to its control both as to the minimum prices to be charged the public 
 and as to the places in which new lumber yards should be started. 
 The King v. Clarke (No. 1), 14 Can. Cr. Cas. 46. 
 
 Indictment for- Conspiracy. — Code sees. 859, 860, 863. 
 
 An indictment for conspiracy to defraud is valid without setting 
 out any overt acts and the name of the person injured or intended 
 to be injured need not be stated therein. R. v. Hutchinson (1904), 
 8 Can. Cr. Cas. 486 (B.C.). 
 
 In a case of conspiracy to do that which is not a crime or to do a 
 wrong which is not well known as being the subject of a criminal con- 
 spiracy, the facts should be set out in the indictment that it may ap- 
 pear whether or not the conspiracy charged is an indictable offence. 
 An indictibent for conspiracy to cure another of a sickness endanger- 
 ing life, "by unlawful and improper means" and thereby .causing 
 his death is bad and should be quashed because it does not specify 
 the unlawful and improper means nor indicate the specific crime or 
 wrong intended to be relied upon. R. v. Goodfellow (1906). 10 Can. 
 Cr. Cas. 424, 11 O.L.R. 359. 
 
 Particulars furnished under sec. 859 of the Code have not the effect 
 of amending or extending the scope of the original indictment or 
 charge, and the inclusion of a separate and distinct offence as a par- 
 ticular under a charge of conspiracy will not authorize a conviction
 
 204^ Overt Acts of Conspiracy. [book i. 
 
 which would otherwise not be within the scope of the indictment. R. 
 V. Sinclair (1906), 12 Can. Cr. Cas. 20 (Sask.). 
 
 Any overt act of conspiracy is to be viewed as a renewal or con- 
 tinuation of the original agreement made by all of the conspirators, 
 and if done in another jurisdiction than that in which the original 
 concerted purpose was formed, jurisdiction will then attach to auth- 
 orize a trial of the charge in such other jurisdiction. R. v. Connolly, 
 1 Can. Cr. Gas. 468. 
 
 It is not necessary to prove that the defendants actually met 
 together and concerted the proceeding; it is sufficient if the jury 
 are satisfied from the defendants' conduct, either together or severally, 
 that they were acting in concert. R. v. Fellowes, 19 U.C.Q.B. 48, 58. 
 Farquhar v. Robertson, 13 Ont. P.R. 156. 
 
 The jury may group the detached acts of the parties severally, 
 and view them as indicating a concerted purpose on the part of all 
 as proof of the alleged conspiracy. R. v. Connolly, 1 Can. Cr. Cas. 
 468. ' 
 
 When the existence of the common design on the part of the defen- 
 dants has been proved, then evidence is properly receivable as against 
 all of what was said or done by either in furtherance in the common 
 design. Ihid. 
 
 Limitation of Prosecution. — Code sec. 1141, which limits certain 
 proceedings for penalties and forfeitures to two years after the of- 
 fence, does not apply to bar a prosecution where the offence was a 
 continuing one, the association remaining in active operation under 
 the presidency of the defendant up to the commencement of the prose- 
 cution. The King v. Elliott, 9 Can. Cr. Cas. 505, 9 O.L.R. 648. 
 
 Inciting to Commit Crime. — Counselling a woman in Canada to 
 submit in a foreign country tp an operation to procure her mis- 
 carriage the submission to which in Canada would be an indictable 
 offence is not, in itself, indictable in Canada, if the operation is per- 
 formed in a foreign country. R. v. Walkem, 14 Can. Cr. Cas. 122.
 
 ( 205 ) 
 
 CHAPTEK THE SEVENTH. 
 
 OF PUNISHMENTS. 
 
 Sect. I. — Death. 
 
 When the first edition of this work was published, high treason, piracy, 
 and a very large number of felonies were punishable by death (a). In 
 fact, at common law, and by the legislation prior to 1820, the usual 
 sentence of the law on a conviction for felony was death by hanging. 
 To this rule there were only two exceptions at common law, mayhem, 
 and larceny of money or chattels of a value not exceeding 12d. — an excep- 
 tion dating back to Saxon times (6). The number of offences for which 
 capital punishment can now be awarded has, by piecemeal legislation 
 between 1808 and 1861 (c), been reduced to four — high treason (d), felonies 
 against the Dockyards Protection Act, 1772 (12 Geo. III. c. 24), piracy 
 accompanied by violence (7 Will. IV. & 1 Vict. c. 88), s. 2, and wilful 
 murder (24 & 25 Vict. c. 100, s. 2). 
 
 By the Children Act, 1908 (8 Edw. VII. c. 67), s. 103, ' sentence of 
 death shall not be pronounced on or recorded against a child (e) or young 
 j)erson (f), but in lieu thereof the Court shall sentence the child or young 
 person to be detained during His Majesty's pleasure, and if so sentenced 
 he shall, notwithstanding anything in the other provisions of this Act, 
 be detained in such place and under such conditions as the Secretary 
 of State may direct, and whilst so detamed shall be deemed to be in legal 
 custody ' (g). 
 
 The severity of the old law was mitigated by the privileges of benefit of 
 clergy (A). During the nineteenth century, the policy of the legislature was 
 
 {a) The nvimber is said to have been press mahce aforethought, and to make the 
 
 about 180 in 1819 ; Walpole, Hist. Eng. i. kilUng by a mother of a child under one 
 
 191, ii. 58 ; Steph. Hist. Or. L. i. 470. month no longer murder, and by an amend- 
 
 (6) ' The King has also ordained that no ment to the Children Act, 1908, moved by 
 
 one should be slain for less property than the Lord Chancellor but rejected, it was 
 
 xii. pence worth, unless he should flee or proposed to empower the Court to substi- 
 
 defend himself.' Judicia civitalis Lun- tute penal servitude or other punishment 
 
 donice, temp. Athelstan ; Ancient Laws, &c., in the case of conviction of a mother for 
 
 of England, ff. 97, 103. murdering her infant under one j-ear of age. 
 
 (c) Given in some detail in Steph. Hist. (h) Benefit of clergy was the claim of 
 Cr. L. vol. i. pp. 472 — 475. See Report of persons in holy orders to exemption from 
 Royal Commission on Capital Punishment, the jurisdiction of lay tribunals. The 
 Pari. Pap. 1866. claim was by degrees extended to all per- 
 
 (d) Outside the scope of this work. See sons who could read, and ultimately to all 
 Arch. Cr. PI. (23rd ed.), tit. ' Treason.' persons (6 Anne, c. 9). The test of 
 
 (e) i.e. a person of seven and under four- capacity to read was by requiring the 
 teen. 8 Edw. VII. c. 67, s. 131. claimant to read the ' neck verse ' (Ps. 
 
 (/) i.e. a person of fourteen and under li. 1). The claim could be made only on a 
 
 si.\teen. 8 Edw. VII., c. 07, s. 131. first conviction unless a certificate of ordina- 
 
 (fj) By another Bill introduced in 1908 tion was produced (28 Hen. VIII. c. 1 ; 
 
 it was proposed to Hmit the death sentence 1 Edw. VI. c. 12). The claim, if estab- 
 
 to murder in the first degree, i.e. with ex- lished, exempted from capital punishment
 
 206 Of Punishment. [book i. 
 
 continuous in reducing the number of crimes for which the sentence of 
 death could be imposed ; and with the alleviation of the extreme severity 
 of the law, benefit of clergy was abolished (as anomalous and as an ana- 
 chronism) by sect. 6 of the Criminal Law Act, 1827 (7 & 8 Geo. IV. c. 28), 
 and by sect. 7 of the same Act it is provided that ' no person convicted of 
 felony shall suffer death unless it be for some felony which was excluded 
 from the benefit of clergy before or on the first day of the present session 
 of Parliament (November 14, 1826), or which hath been or shall be made 
 punishable with death by some statute passed after that day ' {i). 
 
 By a series of Acts passed in 1837, the punishment of death was 
 abolished as to a number of other felonies. The Forgery Act, 1837 
 (7 Will. IV. & 1 Vict. c. 84) (/), s. 1 substitutes transportation {k) for life 
 as the maximum punishment for forgeries within a series of enactments 
 relating to that offence (/). The Piracy Act, 1837 (7 Will. IV. & 1 Vict. 
 c. 88), s. 3 makes the like provisions as to all offences m the nature of 
 piracy {m) except piracy with violence mentioned {ante, p. 205). 7 Will. IV. 
 & 1 Vict. c. 91, s. 1, does the like as to felonious riot, and inciting to 
 mutiny and unlawful oaths, and offences under sect. 9 of the Slave Trade 
 Act, 1824 (5 Geo. IV. c. 113). The penalty of death retained by other 
 Acts of the year, 1837, as to administering poison (c. 85, s. 2), and burglary 
 with violence (c. 86, s. 2), and robbery with wounding (c. 87, s. 2), and 
 setting fire to dwelling-houses, any person being therein, or to ships, and 
 hanging out false signals (c. 89, ss. 2, 4, 5), was abolished as to these 
 offences in 1861 (??). 
 
 Recording Sentence of Death. — The Judgment of Death Act, 1823 
 (4 Geo. IV. c. 48), after reciting that ' it is expedient that in all cases 
 of felony not within the benefit of clergy, except murder, the court before 
 which the offender or offenders shall be convicted shall be authorised to abstain 
 from pronouncing judgment of death, whenever such court shall be of opinion 
 that under the particular circumstances of any case, the offender or offetiders 
 is or are a fit and proper subject or fit and proper subjects to be recommended 
 
 on a first conviction. Benefit of clergy was (k) Now penal servitude, see post, p. 210. 
 
 abolished in 1827 (7 & 8 Geo. IV. c. 28, (?) 11 Geo. IV. & 1 Will. IV. c. 66 ; 2 & 
 
 s. 6), as to commons and clergy, and as to 3 Will. IV. c. 59, s. 19 ; 2 & 3 Will. IV. 
 
 peers in 1841 (4 & 5 Vict. c. 22). Before c. 123 ; 2 & 3 Will. IV. c. 125, s. 64 ; 5 & 6 
 
 that date benefit of clergy had as to many Will IV. c. 45, s. 12 ; 5 & 6 Will. IV. c. 51, 
 
 felonies been taken away by statute. See s. 5. All the recited Acts were repealed in 
 
 1 Pollock & Maitland, Hist. Eng. Law, 1837 (7 Will. IV. and 1 Vict. c. 84), or 
 
 424—440. 2 Pike Hist, Cr. 452. 1 Steph. 1861 (24 & 25 Vict. c. 95). 
 
 Hist. Cr. L. 460. (rn) Tnder 28 Hen. VIII. c. 15 ; 11 WiU. 
 
 (i) Like provision is made as to Ireland III. c. 7 ; 4 Geo. IV. c. 11 ; 8 Geo. I. c. 24 ; 
 
 by 9 Geo. IV. c. 54, s. 13. 18 Geo. II. c. 30. See ' Piracy,' post, p. 255. 
 
 ij) This Act was repealed in 1874 (37 & (?0 24 & 25 Vict. c. 95. By 1839 only 
 
 38 Vict. c. 39) as to the punishment of fourteen felonies were capitally punishable, 
 
 offences formerly punishable under the 4th Rep. Crim. Law Commnrs. App. X. 
 
 Acts 11 Geo. IV. & 1 Will. IV. c. 66 ; 5 & 6 The number was further reduced in 1861 
 
 Will IV. c. 45, or 3 & 4 Will. IV. c. 51, to those stated ante, p. 205. 
 
 and (except as to Scotland) as relates to (o) This Act was passed on July 8, 1823. 
 
 the punishment of offences formerly pun- The preamble has been repealed by the 
 
 ishable under 2 & 3 Will IV. c. 123,'^or 3 & Statute Law Revision Act (No. 2, 1890). 
 
 4 Will. IV. c. 44. S. 2 was repealed in It is said that this Act was passed to 
 
 1891 (54 & 55 Vict c. 67), s. 3 in 1893 avoid the necessitv of presenting to 
 
 (S. L. R. No. 2), and s. 4 in 1890 (53 & 54 King George IV. ""the report of the 
 
 Vict. c. 51). These repeals do not revive Recorder of London at the conclusion 
 
 the former law ; vide ante, -p. 5. of each session of the Old Bailey,
 
 CHAP. VII.] Death. 207 
 
 shall be convicted of any felony, except murder, and shall by law be 
 excluded the benefit of clergy (/j) in respect thereof, and the court before 
 which such offender shall be convicted shall be of opinion that, under 
 the particular circumstances of the case, such offender is a fit and proper 
 subject to be recommended for the royal mercy, it shall and maybe law- 
 ful for such court, if it shall think fit so to do, to direct the proper officer 
 then being present in court to require and ask, whereupon such officer 
 shall require and ask, if such offender hath or knoweth anything to say, 
 why judgment of death should not be recorded against such offender ; 
 and in case such offender shall not allege any matter or thing sufficient 
 in law to arrest or bar such judgment, the court shall and may and is 
 hereby authorised to abstain from pronouncing judgment of death upon 
 such offender, and, instead of pronouncing such judgment, to order the 
 same to be entered of record ; and thereupon such proper officer as afore- 
 said shall and may and is hereby authorised to enter judgment of death 
 on record against such offender, in the usual and accustomed form, and 
 in such and the same manner as is now used, and as if judgment of death 
 had actually been pronounced in open court against such offender by 
 the court before which such offender shall have been convicted.' 
 
 By sect. 2. 'A record of every such judgment, so entered as aforesaid, 
 shall have the like effect to all intents and purposes, and be followed 
 by all the same consequences, as if such judgment had actually been 
 pronounced in open court, and the offender had been reprieved by the 
 court' {ff). The Act was applied to the Central Criminal Court in 
 1837 {q). 
 
 The exception of murder from the Act of 1823 was removed in 1836 (r). 
 But by sect. 2 of the Offences against the Person Act, 1861 (24 &25 Vict, 
 c. 100), 'upon every conviction for murder the court shall pronounce 
 sentence of death' {rr). 
 
 The mode of executing a sentence of death for murder is prescribed 
 by sects. 2, 3 of the Offences against the Person Act, 1861, and by the 
 Capital Punishment Amendment Act, 1868 (31 & 32 Vict. c. 24), and rules 
 made thereunder (s). 
 
 The Act of 1868 applies only to murder (sect. 2), and there are no 
 statutory provisions as to executing a sentence of death for other 
 capital felonies. 
 
 Denman, the Recorder, having been counsel after convictions for murder in the same 
 
 for Queen Caroline on her trial. The report manner, and the judge shall have the same 
 
 was abolished in 1837 (7 Will. IV. & 1 Vict. power in all respects as after convictions 
 
 c. 77, s. 1). Denman was Common Ser- for other capital offences.' In R. v. Hogg 
 
 jeant only in 1829, but a difficulty did then (2 M. & Rob. 380), Uenman, C.,T., held that 
 
 arise about his attending the King in the under this section sentence of death might 
 
 place of the Recorder. See Greville, be recorded on a conviction for murder. 
 
 Memoirs, vol. i. pp. 156, 246, 250. G & 7 Will. IV. c. 30, s. 2 was repealed in 
 
 (p) Ante, p. 205, note {h). 1861 (24 & 25 Vict. c. 95). 
 
 (pp) Vide post, p. 253. The Act applies {rr) Vide ante, p. 205. 
 
 to England and Ireland, but not to Scot- (s) See Rules of 5 June, 1902, St. R. & 0. 
 
 land (s. 3). 1902, No. 444. The treatment of prisoners 
 
 [q) By 7 W^ill. IV. and 1 Vict. c. 77, under sentence of death is regulated by the 
 
 s. 3 ; repealed as to murder in 1861 (24 & Local Prison Rules, 1899 (St. R. &, 0. 1899, 
 
 25 Vict. c. 95). No. 322), rr. 93-95, and where they are 
 
 (r) By 6 & 7 Will. IV. c. 30, s. 2 (E & I) appeahng against their conviction by the 
 
 ' sentence of death may be pronounced Prison Rules, 1908. Vide post, Bk. xii. c. iv.
 
 208 Of Punishments. [book i. 
 
 Sect. II. — Exile, Banishment, and Expulsion. 
 
 At common law sentence of banishment or exile could not be imposed 
 on a British subject by any Court {t). The nearest approach to it was 
 abjuration of the realm {u) by persons who had taken sanctuary. 
 
 By the Roman Catholic Emancipation Act, 1829 (10 Geo. IV. c. 7), 
 s. 34, power is given to sentence to banishment from the United Kingdom 
 for the term of their natural life persons who within the United Kingdom 
 become Jesuits or brothers or members of any other male religious order, 
 community, or society of the Church of Rome, and by sects. 35, 36, 
 provisions are made for enforcing the sentence and for punishing by 
 transportation for life persons found at large in the United Kingdom 
 after the end of three months from the sentence of banishment. These 
 provisions, though unrepealed, have never been put into force (v). 
 
 By sect. 15 of the Penal Servitude Act, 1853 (16 & 17 Vict. c. 99), it is 
 declared that transportation shall include banishment beyond the seas, 
 and by that Act the power to impose sentences of transportation was 
 limited to terms of fourteen years or upwards. By the Penal Servitude 
 Act, 1857 {iv), transportation as the sentence of a court was abolished. 
 
 At the present time (1909), the banishment of a British subject is 
 effected only by means of terms imposed in granting a conditional pardon : 
 and the course of legislation in the United States and British possessions 
 has made it inexpedient to include such terms in pardons. 
 
 Expulsion of Aliens. — The right to exclude or expel aliens is by the 
 law of nations vested in the supreme power of every state, which, as a 
 necessary consequence has power to make and enforce laws for those 
 purposes [x). 
 
 In the case of aliens, the Aliens Act, 1905 (5 Edw. VII. c. 13), enacts : 
 Sect, 1. ' The Secretary of State may, if he thinks fit, make an order 
 (in this Act referred to as an expulsion order) requiring an alien to 
 leave the United Kingdom within a time fixed by the order, and 
 thereafter to remain out of the United Kingdom — 
 (a) if it is certified to him by any court (including a court of 
 summary jurisdiction) that the alien has been convicted by 
 that court of any felony, or misdemeanor, or other offence 
 for which the court has power to impose imprisonment with- 
 out the option of a fine, or of an offence under paragraj)h 
 twenty-two or twenty-three of section three hundred and 
 eighty-one of the Burgh PoHce (Scotland) Act, 1892 (55 & 56 
 Vict. c. 55), or of an offence as a prostitute under section 
 seventy-two of the Towns Improvement (Ireland) Act, 1854 
 (17 & 18 Vict. c. 103),or paragraph eleven of section fifty-four 
 
 (t) 2 Hawk. c. 33, s. 137. Countess of As to Victoria, Musgrove v. Chun Teeong 
 
 Portland v. Prodgers [1683], 2 Vern. 104. Toy [1891], A.C. 72. As to Mauritius, Be 
 
 ill) Abolished in 1623 (21 Jac. I. c. 28). Adam, 1 Moore, P. C. 460. As to the 
 
 It was connected with sanctuary, and Commonwealth of Australia, see Robtelmes 
 
 dropped on its abolition. v. Brenan [1906], 4 Australia C. L. R. 395. 
 
 (v) R. V. Kennedy [1902], 86 L. T. 753. As to India, see Alter Caufman v. Bombay 
 
 (w) Post, p. 210. Govt. [1894], Ind. L. R. 18 Bombay, 636. 
 
 (x) Att.-Gen. for Canada v. Cain [1906], And see Law Quarterly Eevieic, vol. iv. 1890, 
 
 A.C. 542, 546. As to Canada, see that case. p. 27.
 
 CHAP. VII.] Transportation and Penal Servitude. 209 
 
 of the Metropolitan Police Act, 1839, and that the court 
 recommend that an expulsion order should be made in his 
 case, either in addition to or in lieu of his sentence ; and 
 (6) if it is certified to him by a court of summary jurisdiction 
 after proceedings taken for the purpose within twelve months 
 after the alien has last entered the United Kingdom, in 
 accordance with rules of court made under section twenty- 
 nine of the Summary Jurisdiction Act, 1879 (42 & 43 Vict, 
 c. 49), that the alien — 
 
 (i) has, within three months from the time at which proceed- 
 
 ings for the certificate are commenced, been in receipt of 
 
 any such parochial relief as disqualifies a person for the 
 
 parliamentary franchise, or been found wandering without 
 
 ostensible means of subsistence, or been living under 
 
 insanitary conditions due to over-crowding ; or 
 
 (ii) has entered the United Kingdom after the passing of 
 
 this Act, and has been sentenced (y) in a foreign country 
 
 with which there is an extradition treaty for a crime 
 
 not being an offence of a political character, which 
 
 is, as respects that country, an extradition crime 
 
 within the meaning of the Extradition Act, 1870(2). 
 
 (2) If any alien in whose case an expulsion order has been made is at 
 
 any time found within the United Kingdom in contravention of 
 
 the order, he shall be guilty of an offence under this Act ' (a). 
 
 Sect. 4. — (1) ' Where an expulsion order is made in the case of any 
 
 alien, the Secretary of State may, if he thinks fit, pay the 
 
 whole or any part of the expenses of or incidental to the 
 
 departure from the United Kingdom, and maintenance until 
 
 departure, of the alien and his dependants (if any) . . .'(&). 
 
 Sect. III. — Transportation and Penal Servitude. 
 
 The punishment of transportation, first devised as a statutory 
 punishment tetnp. Elizabeth (c), was also used by way of conditional pardon 
 without statutory authority in respect of many crimes (d). In the 
 eighteenth century it became a statutory punishment for many felonies (e), 
 
 (y) It is not stated whether this includes of expulsion, or to reconvey the alien and 
 
 a conviction par contumdce followed by a his dependents to the port of embarkation, 
 sentence passed in absentia. (c) 39 Eliz. c. 4 (rep.), which enacted that 
 
 (z) 33 & 34 Vict. c. 52, s. 3 (1). Ex parte rogues, vagabonds, &c., might, by the jus- 
 
 Castioni [1891], 1 Q.B. 149. Ex parte tices in sessions, be banished out of the 
 
 Meunier [1894], 2 Q.B. 415. Re Arton realm, and conveyed at the charges of the 
 
 [1896], 1 Q.B. 108. county to such parts beyond the seas as 
 
 (a) And liable to be dealt with as a rogue should be assigned by the privy council, 
 and a vagabond under s. 4 of the Vagrancy or otherwise adjudged perpetually to the 
 Act, 1824 (5 Geo. IV. c. 83). See 5 Edw. galleys of this realm ; and any rogue so 
 VII. c. 15, 8. 7 (1). Provision is made banished, and returning again into the realm, 
 by Prison Ptules of 1906 (St. R. & O. 1906, was to be guilty of felony. See 6 Evans 
 No. 160) for measuring and photographing Coll. Stat. Pt. V. cl. xxv. (G) pp. 852, 853, 
 aliens imprisoned and ordered to be and as to the history of tran.sportation, 
 expeUed. 6 Law Quarterly Review, 388. 
 
 (b) In cases specified in subs. 2 of this (d) See the transportation rules, Kel. (J.) 
 section the master of the ship by which the 4, and 18 Car. II., c. 3, s. 2 (rep.). 
 
 alien arrived is hable to recoup the expenses (e) 4 Geo. I. c. 11 (rep.). 
 
 VOL. I. P
 
 210 Of Punishments. [book i. 
 
 and some misdemeanors, e.g., perjury (/). The earlier legislation was 
 repealed and consolidated with amendments in the Transportation Act, 
 1824 (5 Geo. IV., c. 84). Owing to difficulties which arose as to inducing 
 the Australian Colonies {(j) to accept transported convicts and in finding 
 other places for transportation, certain prisons in England were sub- 
 stituted, in 1847, for the penal settlements in the colonies (10 & 11 Vict. 
 c. 67), and in 1853 sentences of transportation for less than fourteen 
 years were abolished (16 & 17 Vict. c. 99, s. 1). Penal servitude was 
 substituted for terms of transportation under fourteen years (sect. 2), 
 and the Courts were given a discretion to substitute penal servitude 
 under the Act for transportation for terms of fourteen years or over, 
 (sect. 3). The legislation applicable to persons under sentence of trans- 
 portation was so far as consistent with the Act of 1853, applied to 
 sentences of penal servitude (sect. 7). 
 
 In 1857 (20 & 21 Vict. c. 3), transportation under the sentence of a 
 Court was abolished [h), and j^enal servitude definitely substituted. 
 Certain portions of the Act of 1824 are specifically retained and applied 
 to persons sentenced to penal servitude {i). 
 
 By the Penal Servitude Act, 1853 (16 & 17 Vict. c. 99), penal servitude 
 was introduced in lieu of transjiortation in certain cases and under certain 
 regulations (y), without affecting the power to impose alternative 
 punishments (s. 14). 
 
 The alterations do not affect the prerogative of mercy, but the 
 Crown may grant pardons conditional on serving a term of penal servitude 
 (sects. 5, 13). The substitution of penal servitude for transportation does 
 not affect the power of Courts to impose other punishments additional to, 
 or in substitution for transportation (sect. 14). By the Children Act, 
 1908 (8 Edw. VII. c. 67), s. 102, a child of seven and under fourteen, 
 and a young person of fourteen and under sixteen, may not be sentenced 
 to penal servitude. 
 
 By sect. 6 of the Act of 1853, ' every person who under this Act 
 shall be sentenced or ordered to be kept in penal servitude may, 
 during the term of the sentence or order, be confined in any such prison 
 or place of confinement in any part of the United Kingdom, or in any 
 river, port, or harbour of the United Kingdom, in which persons under 
 sentence or order of transportation, may now by law be confined, or in 
 any other prison in the United Kingdom, or in any part of His Majesty's 
 dominions beyond the seas, or in any port or harbour thereof, as 
 one of His Majesty's principal secretaries of state may from time to 
 time direct ; and such person may during such term be kept to hard 
 labour, and otherwise dealt with in all respects as j)ersons sentenced to 
 transportation may now by law be dealt with while so confined ' {k). 
 By sect. 2 of the Penal Servitude Act, 1857 (20 & 21 Vict. c. 3), which 
 
 (/) 2 Geo. II. c. 25, s. 2, post, p. 479. (/) Ss. 1-4 of this Act were superseded 
 
 ig) See Morton, British Colonies (1835), and repealed by the Act of 1857 (20 & 21 
 
 vol. iv. p. 440 ; Rusden, Hist. Australia Vict. c. 3). For s. 5 relating; to con- 
 
 (1883), ii. 534 : 6 St. Tr. (N. S.) 698?;. ditional pardons, vide post, p. 252. 
 
 (h) Power to send a convict out of the (k) S. 7 applies to the Act of 1853 all 
 
 realm to servo a term of penal servitude Acts and provisions in Acts relating to 
 
 still remains. 20 & 21 Vict. c. 3, s. 3. transportations so far as consistent with 
 
 (t) See post, p. 575, as to being at large the exj^ress provisions of the Acts of 1853. 
 
 during a sentence of ' jDenal servitude.' S. 8 applies the Act to Ireland.
 
 CHAP. VII.] imprisonment. 211 
 
 is to be read as one Act with the Act of 1853 (1), ' after the commencement 
 of this Act (June 26, 1857), no person shall be sentenced to transportation ; 
 and any person who, if this Act and the said Act [of 1853] had not been 
 passed, might have been sentenced to transportation, shall be liable to 
 be sentenced to be kept in penal servitude for a term of the same duration 
 as the term of transportation to which such person would have been 
 liable if the said Act and this Act had not been passed ; and in every case 
 where at the discretion of the Court one of any two or more terms of 
 transportation might have been awarded, the Court shall have the like 
 discretion to award one of any two or more of the terms of penal servitude 
 which are hereby authorised to be awarded instead of such terms of 
 transportation ' . . . {m). 
 
 By sect. 6, ' Where in any enactment now in force the expression ' any 
 crime punishable with transportation,' or ' any crime punishable by 
 law with transportation,' or any expression of the like import, is used, 
 the enactment shall be construed and take eiTect as applicable also 
 to any crime punishable with penal servitude.' 
 
 By the Penal Servitude Act, 1891 (54 &-55 Vict. c. 69), s. 1: '(1) 
 Where under any enactment in force when this section comes into opera- 
 tion (August 5, 1891) a court has power to award a sentence of penal 
 servitude, the sentence may, at the discretion of the court, be for any 
 period not less than three years, and not exceeding either five years, 
 or any greater period authorised by the enactment ' (n). 
 
 ' (3) Sect. 2 of the Penal Servitude Act, 1864 (27 & 28 Vict. c. 47) 
 is hereby repealed with respect to any sentence awarded after the date at 
 which this section comes into operation ' (o). 
 
 Under most of the sections of the Criminal Law Consolidation Acts 
 of 1861 the minimum term of penal servitude was three years. 
 
 The mode in which sentences of penal servitude are to be carried out 
 is regulated by prison rules, in which regard must be had to the sex, 
 age, health, industry, and conduct of the convicts (p). 
 
 Sect. IV. — Imprisonment. 
 
 Without Hard Labour. — Imprisonment without hard labour is 
 recognised by the conunon law as one of the lawful modes of punishing 
 
 (/) 1(> & 17 Vict. c. 09. Sec 20 & 21 of 1861 a minimum term of penal servitude 
 
 Vict. c. 8, s. 7. was prescribed for only one offence (24 & 25 
 
 (m) Tiie rest of this section was repealed Viet. c. 100, s. (il), wliich niiniinuin lias been 
 in 1892 (S. L. R.), as to all His Majesty's reduced to tiiree years by tlie Act of 1891. 
 dominions. Ss. 3, 4 of tlie Act of 1857 (o) The repealed section made the mini- 
 apply the Transportation Acts to persons mum term of penal servitude .seven years 
 under sentence of penal sei'vitude imposed in the case of conviction on indictment of 
 in England or Ireland ride post, })p. 573 a crime or offence punisliable Ijy penal 
 el seq. servitude after a previous conviction of 
 
 (n) See R. v. Peters 1 Cr. App. R. 141 as felony. For decisions tliereon see R. v. 
 to the effect of this Act and Statute Law Deane, 2 Q.B.D. 305. R. v. Willis. 41 L. J. 
 revision lepeais on tlie maximum sentence M. C. 104. R. r. Summers, L. R. 1 C. C. R. 
 of ))eiial servitude. For subsec. 2 see post, 182. S. 2 had already been repealed in 
 p. 212. Atone time the opinion prevailed 1879 (42 & 43 Vict. c. 55, s. 1) as to the 
 that for certain offences fixed terms of minimum term of penal servitude on a con- 
 transportation or imprisonment should be victionof an offence punishable by penal ser- 
 imposed. This policy was overridden in vitude after a previous conviction of felony. 
 1840 (9 & 10 Vict. e. 24, rep. 1892, S. L. R.) {p) 61 & 62 Vict. c. 41,s. 4 : Convict Prison 
 as to certain eases of felony. In the Acts Rules, 1899 (St. R. & O., 1899, No. 320). 
 
 P 2
 
 212 Of Punishments. [book i. 
 
 misdemeanors. Successive terms of imprisonment may be imposed in 
 respect of several convictions at the same time for similar misdemeanors (5-) . 
 
 There are now two forms of imprisonment — with and without hard 
 labour {qq). A child of seven and under fourteen may not be sentenced 
 to imprisonment (8 Edw. VII. c. 67, s. 102 (1) ) and a young person (of 
 fourteen and under sixteen) may not be sentenced to imprisonment for 
 an offence or committed to prison in default of payment of a fine, 
 damages, or costs, unless the Court certifies that he is too unruly or too 
 depraved for detention as a youthful offender (sect. 102 (3) ). 
 
 By the Penal Servitude Act, 1891 (54 & 55 Vict. c. 69), s. 1 (2), " Where 
 under any Act now (August 5, 1891) in force, or under any future Act, a 
 court is empowered or required to award a sentence of penal servitude, the 
 court may, in its discretion, unless such future Act otherwise requires, 
 award imprisonment for any term not exceeding two years, with or 
 without hard labour ' (r). This enactment applies to all felonies not 
 punishable by death (rr), and to certain misdemeanors, e.cj., perjury and 
 obtaining by false pretences, for which j)enal servitude may be imposed. 
 (Vide post. Book VII. Chapter I., Book X. Chapter XXVII.) 
 
 Hard Labour. — A sentence to imprisonment with hard labour {s) is 
 never obligatory upon any Court, and cannot lawfully be imposed except 
 under statutory authority. The more general statutory provisions on the 
 subject are that above stated, and the two enactments now to be noticed (t). 
 
 By the Hard Labour Act, 1822 (3 Geo. IV. c. 114), after reciting 53 
 Geo. III. c. 162, it is enacted, that ' whenever any person shall be con- 
 victed of any of the offences hereafter specified and set forth, that is to 
 say . . . any attempt to commit felony ; any riot ; . . . keeping a common 
 gaming-house, a common bawdy-house, or a common ill-governed and 
 disorderly house ; wilful and corrupt perjury, or of subornation of perjury ; 
 ... in each and every of the above cases, and whenever any person shall be 
 convicted of any or either of the aforesaid offences, it shall and may be 
 lawful for the court before which any such offender shall be convicted, 
 or which by law is authorised to pass sentence upon any such offender, 
 to award and order (if such court shall think fit) sentence of imprisonment 
 with hard labour for any term not exceeding the term for which such 
 court may now imprison for such offences, either in addition to or in lieu 
 of any other punishment which may be inflicted on any such offenders 
 by any law in force before the joassing of this Act ; and every such 
 offender shall thereupon suffer such sentence, in such place, and for such 
 time as aforesaid, as such court shall think fit to direct ' (u). 
 
 (q) Castro v. R., G App. Cas. 229, post, Piison Rules made under s. 4 of the Prison 
 
 p- 248. (qq) Vide post, pp. 213, 214. Act, 1898 (61 & 62 Vict. c. 41), and varies 
 
 (r) This enactment superseded all statu- according to the age and sex of the prisoner, 
 
 tory provisions allowing imprisonment as In the case of males between sixteen and 
 
 an alternative to transportation or penal twenty-four, special rules have been made, 
 
 servitude, and most of such provisions have 1902, June 5 ; 1906, July 13. 
 
 now been repealed by Statute Law Re- {t) For the special provisions of particu- 
 
 vision Acts of 1892 and 1893. In particular, lar statutes authorising imprisonment with 
 
 7 & 8 Geo. IV. c. 28, s. 9, and 7 Will. IV. & hard labour see the title relating to the 
 
 1 Vict. c. 84, s. 3, printed in the 6th ed. of offence, 
 
 this work, vol. i. pp. 65, 82, are so repealed. {u) The omitted portions of this enact- 
 
 (rr) Vide post, p. 246. ment have been superseded and repealed 
 
 {«) The mode in which a sentence of hard by other legislation and the Criminal Law 
 
 labour is to be carried out is determined by Consolidation Acts of 1861.
 
 CHAP. VII.] Imprisonment. 213 
 
 By the Criminal Procedure Act, 1851 (14 & 15 Vict. c. 100), s. 29, 
 ' whenever any person shall be convicted of any one of the offences follow- 
 ing, as an indictable misdemeanor ; that is to say, any cheat or fraud 
 punishable at common law ; any conspiracy to cheat or defraud, or to 
 extort money or goods, or falsely to accuse of any crime, or to obstruct, 
 prevent, pervert, or defeat the course of public justice ; any escape or 
 rescue from lawful custody on a criminal charge ; any public and indecent 
 exposure of the person . . . (v); any public selling, or exposing for public 
 sale or to public view of any obscene book, print, picture, or other indecent 
 exhibition ; it shall be lawful for the court to sentence the offender to 
 be imprisoned for any term now warranted by law, and also to be kept 
 to hard labour during the whole or any part of such term of imprisonment.' 
 By the Accessories and Abettors Act, 1861 (24 & 25 Vict, c, 94), s. 4 (w), 
 ' Every accessory after the fact to any felony, except where it is otherwise 
 specially enacted (x), whether the same be a felony at common law or 
 by virtue of any Act passed or to be passed, shall be liable, at the discretion 
 of the court, to be imprisoned in the common gaol or house of correc- 
 tion (y), for any term not exceeding two years, with or without hard 
 labour ' . . . (2). 
 
 By the Prison Act, 1877 (40 & 41 Vict. c. 21), s. 40, ' The Prison 
 Commissioners shall see that any prisoner under sentence, inflicted upon 
 conviction of sedition or seditious libel, shall be treated as a misdemeanant 
 of the first division within the meaning of sect. 67 of the Prison Act, 1865 
 (28 & 29 Vict. c. 126), notwithstanding any statute, provision, or rule, 
 to the contrary.' By sect. 41 . ' Any person who shall be imprisoned under 
 any rule, order, or attachment for contempt of any court shall be in like 
 manner treated as a misdemeanant of the first division, within the 
 meaning of the said section of the said Act ' (zz). 
 
 By the Prison Act, 1898 (61 & 62 Vict, c.^41), s. 0, (1) ' Prisoners 
 convicted of offences, either on indictment or otherwise, and not sentenced 
 to penal servitude or hard labour, shall be divided into three divisions.' 
 
 (2) ' Where a person is convicted by any court of an offence and is 
 sentenced to imprisonment without hard labour, the court may, if it 
 thinks fit, having regard to the nature of the offence and the antecedents 
 of the offender, direct that he be treated as an offender of the first division 
 or as an offender of the second division. If no direction is given by the 
 court, the offender shall, subject to the provisions of this section, be 
 treated as an offender of the third division ' (a). 
 
 (4) ' Any person imprisoned for default of entering into a recognisance, 
 or finding sureties for keeping the peace or for being of good behaviour, 
 
 ((•) The words here omitted were re- Vict. c. 96, s. 98 ; c. 97, 8. 50 ; c. 98, s. 49 ; 
 
 pealed in 1861 (24 & 25 Vict. c. 95, s. 1). c. 99, s. 35 ; c. 100, s. 67. 
 
 (iv) Ante, p. 126. {zz) See Osborne v. Mihnan, 18 Q.B.D. 
 
 (x) e.g. accessories after the fact to 471. 
 
 murder (24 & 25 Vict. c. 100, s. 67), and (a) Subsec. 3 relates to imprisonment 
 
 receivers of stolen goods (24 & 25 Vict. without hard labour for default in paying 
 
 c. 96, ss. 91, 98). a debt, including a civil debt recoverable 
 
 (y) Now in a local prison under the summarily, or in lieu of distress for money 
 
 Prison Acts, 1865 to 1898. adjudged to be paid by a Court of summary 
 
 {z) Similar provisions are made in 24 & 25 jurisdiction.
 
 214 Of Punishments. [book i. 
 
 shall be treated under the same rules as an offender of the second division, 
 unless he is a convicted prisoner, or unless the court direct that he be 
 treated as an offender of the first division.' 
 
 (5) ' References in sects. 40, 41, of the Prison Act, 1877 (6), to a misde- 
 meanant of the first division within the meaning of sect. 67 of the Prison 
 Act. 1865 (c), shall be construed as references to an offender of the first 
 division within the meaning of this section.' 
 
 Criminal Courts have not, in the opinion of the Secretary of State {d), 
 sufficiently kept in mind the power given to them to classify persons 
 sentenced to imprisonment without hard labour given by the enactment 
 above stated, nor the terms of the Prison Eules applicable to the three 
 divisions created by the enactment. It would seem that cases for 
 directing the offender to be put in the first division are not of common 
 occurrence, and that the reasons for placing an offender in the second 
 division are not so much the legal character of the offence (except in 
 cases where the imprisonment is ordered in default of paying a fine), 
 but the character and antecedents of the prisoner and the circumstances 
 under which the offence was committed, e.g., where the prisoner does 
 not belong to the criminal class and has not been generally of criminal 
 habits, and there is evidence of good character over a considerable 
 period, and it is clear that exceptional temptation or special provocation 
 has led to a merely temporary deviation from the patli of honesty or to 
 an act of violence not in consonance with the natural disj^osition of the 
 prisoner (e). The state of the prisoner's health appears to be no 
 sufficient reason for placing him in the second division, because under 
 the prison administration prisoners of whatever class are excused from 
 discipline to which their state of health unfits them. 
 
 The mode in which sentences of imprisonment, with or without hard 
 labour, are to be carried out in prisons is regulated by prison rules, in 
 which regard is had to the sex, age, health, industry and conduct of the 
 prisoners (/), and the rules provide for enabling a prisoner sentenced to 
 imprisonment, whether by one sentence or a cumulative sentence, for a 
 period prescribed by the rules {fj), to earn by special industry and good 
 conduct a remission of a portion of his imprisonment, and on his discharge 
 (in virtue of such remission) his sentence shall be deemed to have 
 expired (7i). 
 
 In any sentence of imprisonment passed on or since January 1, 1899, 
 month means calendar month unless a contrary intention is expressed 
 by the Court; and a prisoner whose term of imprisonment expires on 
 Sunday, Christmas Day, or Good Friday, is to be discharged on the next 
 preceding clay (r). 
 
 Solitary Confinement. — Under many statutes passed between 1827 
 and 1862, power was given to sentence a prisoner to solitary confinement. 
 
 (6) Ante, p. 43. (e) Home Office Circular, April, 1899. 
 
 (c) S. 67 is repealed by 61 & 62 Vict. c. 41, (/ ) 61 & 62 Vict. c. 41, s. 4. Local PrLson 
 
 s. 15 (2), as from May 1, 1899, the date when Rules, (St. R. & 0. 1899, No. 322), r. 34. 
 
 the first Prison Rules made under 61 & (g) Rules dated Aug. 12, 1907, St. R. & 
 
 62 Vict. c. 41, s. 2 came into force. Prison 0., 1907, No. 617. 
 
 Rules, 1899 (St. R. & 0. 1899, No. 322). {h) 61 & 62 Vict. c. 41, s. 8. Local 
 
 {d) See Home Office Circulars to Justices Prison Rules, 1899, \. 36. 
 
 of April, 1899, and Dec. 31, 1906. (i) 61 & 62 Vict. c. 41, s. 12.
 
 CHAP. VII.] Whipping. 215 
 
 Most, if not all, these enactments were repealed in 1893 (/), having 
 fallen out of use in consequence of the provisions of the Prison Acts 
 and Eules {k), under which solitary confinement is a matter of prison 
 regulation and not of judicial sentence. 
 
 Sect. V. — Whipping. 
 
 Whipping in public or in private was recognised by the common law 
 as an appropriate mode of punishing misdemeanants of either sex (/), 
 and in a few cases was made a statutory punishment for felony or 
 misdemeanor (II). 
 
 Females. — The whipping of females is absolutely forbidden by 1 Geo. 
 IV. c. 57, s. 1, and imprisonment with hard labour for not less than one 
 month nor more than six months is substituted for the punishment of 
 whipping in cases in which, prior to July 15, 1820, the punishment of 
 whipping had formed the whole or part of the judgment or sentence on a 
 female offender (sect. 2). 
 
 Adult Males. — At the present time the whipping of adult males is 
 authorised (i) by the Knackers Act, 1786 (26 Geo. III. c. 71), ss. 8, 9 ; 
 (ii) by the Vagrancy Act, 1824 (5 Geo. IV. c. 83), in the case of men sent to 
 quarter sessions to be dealt with as incorrigible rogues (m) ; (iii) by the 
 Garrotters Act, 1863 (26 & 27 Vict. c. 44), in the case of offences within 
 sect. 43 of the Larceny Act, 1861, and sect. 21 of the Offences against the 
 Person Act, 1861 ; (iv) in the case of males under sentence of penal 
 servitude, or convicted of felony, or sentenced to hard labour, who are 
 guilty of mutiny or incitement to mutiny, or of gross personal violence to 
 an officer or servant of the prison in which they are (w). 
 
 Youthful Males. — In the case of taking a reward for helping to the 
 discovery of stolen property, whipping can be inflicted on a male offender 
 who is under the age of eighteen (24 & 25 Vict. c. 96, s. 101). In many 
 other cases (o) this punishment can be inflicted on male offenders under 
 the age of sixteen, e./j., by sect. 4 of the Criminal Law Amendment Act, 1885 
 (48 & 49 Vict. c. 69), in case of offences against girls under tliirteen. This 
 section expressly incorporates the provisions of 25 & 26 Vict. c. 18. It 
 would, therefore, seem that it is the intention of the legislature, where 
 a sentence of whipping is imposed on a boy over fourteen and under 
 sixteen years of age, that the instrument to be used should be a birch rod, 
 and the number of strokes should not be more than twenty-five. 
 
 (j) 5(3 & .57 Vict. c. U (S. L. R.). This («) Prison Act, 1898 (C51 & G2 Vict, 
 
 statute repealed in particular? & 8 Geo. IV. c. 41, s. 5). This section provides for an 
 
 c. 28, s. 9 ; 7 Will. IV. & Vict. c. 90, s. 2 ; inquiry by the board of visitors or visiting 
 
 7 Will. IV. & 1 Vict. c. 91, s. 2 ; 24 & 25 committee of the prison, or other officer to 
 
 Vict. c. 9(), s. 1 19 ; c. 97, s. 75 ; c. 98, s. 40 ; be appointed by the Home iSecretary, and 
 
 and c. 100, s. 70. for submission to him for confirmation of 
 
 {k) 8eo Local Prison Rules, 1899, r. 77. any order made for whipping. See Convict 
 
 (/) Vide Pollock and Maitland, Hist. Prison Rules, 1899, rr. 8.3, 84, 85: Local 
 
 Eng. Law, ii. 517, 542. Prison Rules, 1899, rr. 89, 90, 91. In 
 
 (//) 2 Hawk. c. 48, s. 14. military and naval prisons corporal punish- 
 
 (m) See s. 10. The power appears (o nient is abolished, 
 
 extend to offences created by subsequent (o) Chiefly relating to offences against 
 
 Vagrancy Acts, including that of 1898 ((il property. See the enactments under the 
 
 & 62 Vict. c. 39), as to men living on particular titles, 
 the earnings of prostitution.
 
 216 Of Punishments. [book i. 
 
 Regulations as to Whipping. — Each of tlie Criminal Law Consolidation 
 Acts of 1861 (24 & 25 Vict. c. 96, s. 119; c. 97, s. 75; c. 100, s. 70), 
 contains the following clause ;— 
 
 ' Whenever whipping may be awarded for any mdictable offence 
 under this Act, the Court may sentence the ofiender to be once privately 
 whipped ; and the number of strokes, and the instrument with which they 
 shall he inflicted, shall he specified by the Court in the sentence.^ 
 
 These enactments do not prescribe the instrument or limit the 
 number of strokes. 
 
 By the Whipping Act, 1862 (25 & 26 Vict. c. 18), s. 1, where whipping 
 is ordered by a Court of Summary Jurisdiction (in England or Ireland) 
 the order sentence or conviction must specify the number of strokes to 
 be given and the instrument to be used ; and in the case of an ofiender 
 under fourteen years of age, the instrument is to be a birch rod, and the 
 number of strokes is not to exceed twelve. By sect. 2, ' No offender 
 shall be whipped more than once for the same offence.' 
 
 The Garrotters Act, 1863 (26 & 27 Vict. c. 44), is as follows :— 
 
 ' Whereas by sect. 43 of the Larceny Act, 1861 (24 & 25 Vict. c. 96), 
 it is provided that " whosoever shall, being armed with any ofiensive 
 weapon or instrument, rob or assault with intent to rob any person, or 
 shall together with one or more other person or persons rob or assault 
 with intent to rob any person, or shall rob any person, and at the time 
 of or immediately before or immediately after such robbery shall wound, 
 beat, strike, or vise any other personal violence to any person ; " and 
 by sect, 21 of the Offences against the Person Act, 1861 (24 & 25 
 Vict. c. 100), that " whosoever shall by any means attempt to choke, 
 suffocate, or strangle any person, or by any means calculated to choke, 
 suffocate, or strangle, attempt to render any person insensible, un- 
 conscious, or incapable of resistance, with intent in any of such cases 
 thereby to enable himself or any other person to commit, or with intent 
 in any of such cases to assist any other person in committing, any indict- 
 able offence, shall be guilty of felony, and being convicted thereof, shall 
 be liable, at the discretion of the Court, to be kept in penal servitude for 
 life, or for any term not less than three years, or to be imprisoned for any 
 term not exceeding two years, with or without hard labour, and with or 
 without solitary confinement " ; and whereas the punishment awarded 
 by the said section is insufficient to deter from crimes of violence : ' 
 
 BE IT ENACTED aS folloWS : 
 
 1. ' Where any person is convicted of a crime under either of the said 
 sections, the Court before whom he is convicted may, m addition to the 
 punishment awarded by the said sections or any part thereof, direct 
 that the offender, if a male, be once, twice, or thrice privately whipped, 
 subject to the following provisions : 
 
 (1) That in the case of an offender whose age does not exceed sixteen 
 
 years the number of strokes at each such whipping do not exceed 
 twenty-five, and the instrument used shall be a birch rod : 
 
 (2) That in the case of any other male offender the number of strokes 
 
 do not exceed fifty at each such whipping : 
 
 (3) That in each case the Court in its sentence shall specify the number 
 
 of strokes to be inflicted and the instrument to be used :
 
 CHAP. VII.] Fine. 217 
 
 Provided that in no case shall such whipping take place after the expira- 
 tion of six months from the passing of the sentence ; provided also, that 
 every such whipping to be inflicted on any person sentenced to penal 
 servitude shall be inflicted on him before he shall be removed to 
 a convict prison with a view to his undergoing his sentence of penal 
 servitude {oo).'' 
 
 The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), s. 10 
 as amended by s. 128 (1) of the Children Act, 1908 (8 Edw. VII. 
 c. 67), hmits the whipping to six strokes of a birch rod in the case of a 
 male child between seven and fourteen. Under this Act the whipping 
 is private, and is inflicted by a police constable in the presence of a police 
 inspector or other officer above the rank of a constable, and, if desired, of 
 the parent or guardian of the child. The Children Act, 1908, does not 
 add to or take away from the list of offences for which youthful offenders 
 may be whipped. (See sect, 107.) 
 
 Sect. VI. — Fine. 
 
 On conviction of any misdemeanor the Court may impose a fuie in 
 addition to or in substitution for any other lawful punishment, unless a 
 statute relating to the offence otherwise provides. The amount of the 
 fine (sometimes in the earlier statutes called a ransom) is in the discretion 
 of the Court {f), unless a limit is fixed by statute {q). 
 
 Each of the Consolidation Acts of 1861, (24 & 25 Vict. c. 96, s. 117 ; 
 c. 97, s. 73 ; c. 98, s. 51 ; c. 99, s. 38, and c. 100, s. 71) contains a provision 
 that ' Wherever any person shall be convicted of any indictable mis- 
 demeanor punishable (r) under this Act, the C*ourt may, if it shall think 
 fit, in addition to or in lieu of any of the punishments by this Act 
 authorised, fine the offender.' . . . 
 
 A fine cannot at common law be imposed on conviction of felony. 
 By sect. 5 of the Offences Against the Person Act, 1861 (24 & 25 Vict. 
 c. 100), the Court may sentence a person convicted of manslaughter ' to 
 pay such fine as the Court shall award, in addition to or without any 
 such other discretionary punishment as aforesaid {rr).^ 
 
 The fine imposed is levied as a Crown debt of record (s), under the 
 Levy of Fines Acts, 1822 and 1823 (t), or enforced by imprisonment 
 (without hard labour) until it is paid. The Courts have no power to 
 remit or mitigate a fine when once duly recorded, and applications for 
 remission are made to the Treasury (u). It used to be said tliat a fine 
 
 {oo) An appeal lies against a sentence of offences at common law for which the Acts 
 
 whipping passed on an incorrigible rogue, prescribe statutory punishments, 
 
 or on conviction or indictment, vide R. v. (rr) /.e., in lieu of imprisonment, r/rff'aH<e, 
 
 Anthony, 1 Cr. App. R. 22, and vast, vol. ii. p. 212. 
 
 p. 2011. ' (s) R. V. Woolf, 2 B. & Aid. GOO ; 21 R. 
 
 (/)) 1 Chit. Cr. L. 710. Subject to the R. 412. 
 
 provision of the Bill of Rights, 1 Will. & M. {t) .3 Geo. IV. c. 46 ; 4 Geo. IV. c. 37, as 
 
 iSess. 2, c. 2, ' That excessive bail ought not amended with reference to Quarter Sessions 
 
 to be required nor excessive fines imposed.' by 12 & 13 Vict. c. 45, 8. 17, and 16 & 17 
 
 Cf. Magna Charta, 25 Edw. I. c. 14. Vict. c. 30, s. 2. 
 
 (q) The particular statutes fixing such {u) In the case of imprisonment for non- 
 limits are given under the title relating to payment of fines imposed by a Court of 
 the particular offence. summary jurisdiction, the term of imprison- 
 
 (r) Many offences within the Acts are mcnt is reducible by part payment of the
 
 218 Of Punishments. [book i. 
 
 could not in general be imposed on a married woman, as she had nothing 
 to pay with (v). But since the passing of the Married Women's Property 
 Act, 1882 (45 & 46 Vict. c. 75), this theory has little or no force. 
 
 By the Children Act, 1908, s. 99, (1) ' Where a child or young person 
 is charged before any Court with any offence for the commission of which 
 a fine, damages, or costs may be imposed, and the Court is of opinion 
 that the case would be best met by the imposition of a fine, damages, or 
 costs, whether with or without any other punishment, the Court may in 
 any case, and shall, if the offender is a child, order that the fine, damages, 
 or costs awarded be paid by the parent or guardian (x) of the child or 
 young person, instead of by the child or young person, unless the Court 
 is satisfied that the parent or guardian cannot be found or that he has not 
 conduced to the commission of the offence by neglecting to exercise due 
 care of the child or young person. 
 
 (2) Where a child or young person is charged with any ofEence, the Court 
 may order his parent or guardian ' to ' give security for his good behaviour. 
 
 (3) Where a Court of Summary Jurisdiction thinks that a charge 
 against a child or young person is proved, the Court may make an order 
 on the parent or guardian under this section for the payment of damages 
 or costs or requiring him to give security for good behaviour without 
 proceeding to the conviction of the child or young person. 
 
 (4) An order under this section may be made against a parent or 
 guardian who, having been required to attend, has failed to do so, but, 
 save as aforesaid, no such order shall be made without giving the parent 
 or guardian an opportunity of being heard. 
 
 (5) Any sums imposed and ordered to be paid by a parent or guardian 
 under this section, or on forfeiture of any such security as aforesaid, may 
 be recovered from him by distress or imprisonment in like manner as if 
 tlie order had been made on the conviction of the parent or guardian 
 of the ofEence with which the child or young person was charged. 
 
 (6) A parent or guardian may appeal against an order under this section 
 (a) if made by a Court of Summary Jurisdiction to a Court of Quarter 
 
 Sessions ; and 
 (h) if made by a Court of Assize or a Court of Quarter Sessions to the 
 Court of Criminal Appeal in accordance with the Criminal Appeal 
 Act, 1907 (xx), as if the parent or guardian against whom the 
 order was made had been convicted on indictment, and the order 
 were a sentence passed on his conviction.' 
 
 Sect. VII, — Recognisances and Sureties to keep the Peace 
 OR FOR Good Behaviour. 
 
 In the case of a misdemeanor, the Courts have, at common law, in 
 addition to any other lawful punishment imposed, the power to require 
 the offender on conviction to enter into recognisances and to find sureties, 
 
 fine by the ratio borne by the sum paid to P. C. c. 25, s. 3 ; R. v. Thomas, cas. temp. 
 
 the term of imprisonment imposed (61 & Hardw. 278. 
 
 62 Vict. 0. 41, s. 9). (x) Tlie attendance of the parent, &c., 
 
 (v) See R. v. Loveden, 8 T. R. 615, may be required under s. 98. 
 
 618 (d). As to earlier practice see 2 Hawk. {xx) Post. vol. ii. p. 2009.
 
 CHAP. VII.] Probation of Offenders. 219 
 
 both or either, to keep the peace and be of good behaviour (?/). This 
 power applies even to married women (2). Each of the Consolidation 
 Acts of 1861 (24 & 25 Vict. c. 96, s. 117 ; c. 97, s. 73 ; c. 98, s. 51 ; c. 99, 
 s. 38 ; and c. 100, s. 71), contains the following clause :— 
 
 ' Whenever any person shall be convicted of any indictable mis- 
 demeanor punishable under this Act, the Court may, if it shall think 
 fit, in addition to, or in lieu of any of the punishments by this Act author- 
 ised, . . . require him to enter into his own recognisances, and to find 
 sureties, both or either, for keeping the peace and being of good behaviour, 
 and in case of any felony punishable under this Act {a), the Court may, 
 if it shall think fit, require the offender to enter into his own recognisances, 
 and to find sureties, both or either, for keeping the peace in addition to 
 any punishment by this Act authorised : Provided that no person shall 
 be imprisoned under this clause for not finding sureties for any period 
 exceeding one year ' (as to such imprisonment vide 61 & 62 Vict. c. 41, 
 s. 6 (4), ante, p. 213). 
 
 Sect. VIII. — Probation op Offenders. 
 A. Release of Convicts on Licence. 
 
 Provision is made by the Penal Servitude Acts for release, on licence 
 or ticket of leave, of persons sentenced to penal servitude (6). 
 
 By the Penal Servitude Act, 1853 (16 & 17 Vict. c. 99), s. 9, ' It 
 shall be lawful for His Majesty, by an order in writing under the hand 
 and seal of one of His Majesty's principal secretaries of state, to grant 
 to any convict now under sentence of transportation, or who may here- 
 after be sentenced to transportation, or to any punishment substituted 
 for transportation by this Act, a licence to be at large (c) "in the United 
 Kingdom and the Channel Islands, or in such part thereof respectively 
 as in such licence shall be expressed, during such portion of his or her 
 term of transportation or imprisonment, and upon such conditions in 
 all respects as to His Majesty shall seem fit; and it shall be lawful for 
 His Majesty to revoke or alter such licence by a like order at His Majesty's 
 pleasure.' 
 
 Sect. 10. ' So long as such licence shall continue in force and unre- 
 voked, such convict shall not be liable to be imprisoned or transported 
 
 {y) R. V. Dunn, 12 Q.B. 1026. R. v. enter into a recognisance to the same extent 
 
 Hart, 30St. Tr. 1131: and see Wise r.Dunn- as a/ewme sole. 
 
 ing [1902], 1 K.B. 107. As to the differences («) Tlie Offences Against the Person Act 
 
 between recognisances for good beliaviour 1801 (24 & 25 Vict. c. 100), here adds 
 
 and recognisances to keep the peace, see ' otlierwisc than with death ' (s. 71). 
 
 Dalton, c. 123 ; 7 Mod. 29 ; 1 Hawk. 483, (6) These provisions take the place of 
 
 480 ; Burn's Justice (30th ed.), vol. v. 703. provisions in the Transportation Acts for 
 
 [z) R. ?'. Thomas, cas. K.B. temp. assigning convicts as servants or otherwise 
 
 Hardw. 278. It used to be held that a letting out their services. The practice 
 
 married woman coukl not be bound by continues in .some of the United States 
 
 recognisance. Lee v. Lady Baltinglas, under the name of peonage: r/depos/, p. 277, 
 
 Styles, 475. Bcnnet v. Watson, 3 M. & S. 1. note («). 
 
 Elsy V. Mawdit, Styles, 220. The reason (c) Usually styled a ticket of leave. 
 
 alleged was that the recognisance of a Such tickets were given in Australia to 
 
 married woman could not be estreated. transported convicts. See Martin, British 
 
 1 Chit. Cr. L. 100. But a woman married Colonics (1835), vol. iv. p. 444 
 since Dec. 31, 1882 appears to be able to
 
 220 Of Punishments. [book i. 
 
 by reason of liis or lier sentence, but shall be allowed to go and remain 
 at large according to the term of such licence.' 
 
 Sect. 11. If it shall please His Majesty to revoke any such licence, a 
 secretary of state by warrant under his hand, may signify to any one of the 
 police magistrates of the metropolis that such licence has been revoked, 
 and may require such magistrate to issue his warrant for the apprehension 
 of the convict, and such magistrate shall issue his warrant accordingly, 
 and such warrant shall and may be executed by the^ constable to whom 
 the same shall be delivered for that purpose in any part of the United 
 Kingdom, or in Jersey, Guernsey, Alderney, or Sark, and the convict 
 when apprehended shall be brought before the magistrate who issued the 
 warrant, or some other magistrate of the same Court ; and he shall 
 thereupon make out his warrant for the recommitment of the convict 
 [to the prison from which he was released] {d), and such convict shall 
 be so recommitted accordingly and shall thereupon be remitted to his 
 or her original sentence, and shall undergo the residue thereof as if no 
 such licence had been granted. 
 
 By the Penal Servitude Act, 1864 (27 & 28 Vict. c. 47), s. 4, ' a licence 
 granted under the said Penal Servitude Acts ' (of 1853 & 1857) ' may be 
 in the form set forth in Schedule (A.) to this Act annexed, and may be 
 written, printed, or lithographed. If any holder of a licence granted in 
 the form set forth in the said Schedule (A.) is convicted, either by the 
 verdict of a jury or upon his own confession, of any offence for which he 
 is indicted, his licence shall be forthwith forfeited by virtue of sucli con- 
 viction (e). . . . 
 
 Sect. 8. Where any holder of any licence granted in the form set 
 forth in the said Schedule (A.) is convicted of an offence, punishable sum- 
 marily under this or any other Act, the justices, sheriff, sheriff-substitute, 
 or other magistrate convicting the prisoner, shall, without delay, forward 
 by post a certificate in the form given in Schedule (B.) to this Act annexed, 
 if in England or Scotland to one of his Majesty's principal secretaries of 
 state, or if in Ireland to the Lord Lieutenant ; and thereupon, the licence 
 of the said holder may be revoked in manner provided by the said Penal 
 Servitude Acts.' 
 
 Sect. 9. ' Where any licence granted in the form set forth in the 
 said Schedule (A.) is forfeited by a conviction [on indictment of any 
 offence] (/), or is revoked in pursuance of a summary conviction under 
 this Act or any other Act of Parliament, the person whose licence is 
 forfeited or revoked shall, after undergoing any other punishment to 
 
 (d) The words in brackets were expressly failure to produce the licence or for certain 
 repealed in 1875 (38 & 39 Vict. c. 66), having specified breaches of the conditions of the 
 been already virtually repealed by the licence. 
 
 Penal Servitude Act, 1857 (20 & 21 Vict. (/) The Court of trial has no option 
 
 c. 3), under s. 5 whereof ' such convict may under this section. R. v. King [1897], 1 Q.B. 
 
 be recommitted by the magistrate issuing 214. And it cannot order the subsequent 
 
 his warrant in that behalf either to the sentence to be served concurrently with the 
 
 prison from which he was released by virtue remmiet of the old uncompleted sentence, 
 
 of his licence or to any other prison ua which H.v. Hamilton [1908], ICr. App. R.,87, H.v. 
 
 convicts under sentence of penal servitude Wilson, C. C. A., 24 June, 1909: or after the 
 
 may be lawfully confined.' remanet, R. v. Smith, C. C. A., 24 June, 
 
 (e) Rest of section rep. in 1875 (S. L. R.). 1909. As to cases within s. 9 see further 
 S, 5 imposes penalties on hcence holders for 54 & 55 Vict. c. 69, s. 3, post, p. 226.
 
 CHAR VII.] Probation of Offenders. 221 
 
 which he may be sentenced for the offence in consequence of which his 
 licence is forfeited or revoked, further undergo a term of penal servitude 
 equal to the portion of his term of penal servitude that remained un- 
 expired at the time of his licence being granted, and shall, for the purpose 
 of his undergoing such last mentioned punishment, be removed from 
 the prison of any county, borough, or place in which he may be confined, 
 to any prison in which convicts under sentence of penal servitude may 
 lawfuly be confined, by warrant under the hand and seal of any justice 
 of the peace of the said county, borough, or place, and shall be liable to 
 be there dealt with in all respects as if such term of penal servitude had 
 formed part of his original sentence ' {g). 
 
 Sect. 10 empowers His Majesty or the Lord Lieutenant of Ireland 
 to grant licences in any other form than that set forth in Schedule (A.) 
 and containing different conditions ; and such licences shall be revoc- 
 able at pleasure by the authority by which they were granted ; but a 
 breach of their conditions is not to subject any holder of a licence to 
 summary conviction (A). 
 
 By the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), s. 3, 
 ' any constable in any police district may, if authorised so to do in writing 
 by the chief officer of police of that district, without warrant take into 
 custody any convict who is the holder of a licence granted under the 
 Penal Servitude Acts, if it appears to such constable that such convict 
 is getting his livelihood by dishonest means, and may bring him before 
 a court of summary jurisdiction for adjudication {i). If it appears from 
 the facts proved before such court that there are reasonable grounds for 
 believing that the convict so brought before it is getting his livelihood 
 by dishonest means, such convict shall be deemed to be guilty of an offence 
 against this Act, and his licence shall be forfeited.' 
 
 By sect. 4, ' where in any licence granted under the Penal Servitude 
 Acts, any conditions different from or in addition to those contained in 
 Schedule A. of the Penal Servitude Act, 1864 (y) are inserted, the holder 
 of such licence, if he breaks any such conditions by an act that is not of 
 itself punishable, either upon indictment or upon summary conviction, 
 shall be deemed guilty of an offence against this Act, and shall be liable to 
 imprisonment for any period not exceeding three months, with or without 
 hard labour. A copy of any conditions annexed to any licence granted 
 under the Penal Servitude Acts, other than the conditions contained 
 in Schedule A. of the Penal Servitude Act, 1864, shall be laid before both 
 Houses of Parliament within twenty-one days after the making thereof, 
 if Parliament be then sitting, or if not, then within fourteen days after 
 the commencement of the next session of Parliament.' 
 
 By sect. 5, ' every holder of a licence granted under the Penal Servitude 
 Acts who is at large in Clreat Britain or Ireland shall notify the place of 
 
 ((/) The words in brackets were substi- applied also to a licence in any other form 
 
 tuted for the words ' of any indictable authorised by the section. 54 & 55 Vict, 
 
 offence,' in 1891 (54 & 55 Vict. c. 69, s. 3 (3)) c. (59, s. 5, fost. p. 226. 
 and the form in Schedule A was amended (?) For further provisions see 54 & 65 
 
 by substituting ' on indictment of some Vict. c. 69, s. 2 (1), imst, p. 225. 
 offence ' for ' of some indictable offence.' (j) As amended in 1891, 54 & 55 Vict. 
 
 [h) The provisions of tiiis section as to c. 69, s. 3, 'post, p. 226. 
 licences in the form in Schedule A. are
 
 222 
 
 Of Punishments. 
 
 [BOOK 1. 
 
 his residence to the chief officer of police of the district in which his 
 residence is situated, and shall, whenever he changes such residence within 
 the same police district, notify such change to the chief officer of police 
 of that district \cind whenever he is about to leave a 'police district he shall 
 notify such his intention to the chief officer of police of that district, stating 
 the 'place to which he is going, and, as far as is practicable, his address at 
 that place, and whenever he arrives in any police district he shall forthwith 
 notify his place of residence to the chief officer of police of such last-mentioned 
 district] (k) ; moreover, every male holder of such a licence as aforesaid 
 shall, once in each month, report himself at such time as may be pre- 
 scribed by the chief officer of police of the district in which such holder 
 may be, either to such chief officer himself, or to such other person as that 
 officer may direct, and such report may, according as such chief officer 
 directs, be required to be made personally or by letter (Z). 
 
 [// any person to whom this section applies fails to comply with any of 
 the requisitions of this section, he shall in any such case, be guilty of an 
 offence against this Act (II), unless he proves to the satisfaction of the Court 
 before tvhom he is tried, either that being on a journey he tarried no longer 
 in the place, in respect of which he is cltarged ivith failing to notify his place 
 of residence, than was reasonahly necessary, or that otherwise he did his best 
 to act in conformity with the law ; and on conviction of such offence, it shall 
 be lawful for the Court in its discretion either to forfeit his licence or to sentence 
 him to imprisonment, with or without hard labour, for a term not exceeding 
 one year (m) ]. 
 
 Sect. 6, (sub-sects. 1-5) provides for keeping registers of all persons 
 convicted of crime in the United Kingdom, and for making periodical 
 
 (k) The words in brackets were substi- 
 tuted by 54 & 55 Vict. c. 69, s. 4, for the 
 original words of the section. 
 
 [1) By the Prevention of Crime Act, 
 1879 (42 & 43 Vict. c. 55), s. 2, ' Any holder 
 of a licence required, under s. 5, and any 
 person subject to the supervision of the 
 police required, under s. 8 of the Prevention 
 of Crimes Act, 1871 (34 & 35 Vict. c. 112), 
 to notify his residence or any change of his 
 residence to a chief officer of police, shall 
 comply with such requirement by person- 
 ally presenting himself and declaring his 
 place of residence to the constable or person 
 who at the time when such notification is 
 made is in charge of the police station or 
 office of which notice has been given to such 
 holder or person, as the place for receiving 
 his notification, or if no such notice has 
 been given, in charge of the chief office of 
 such chief officer of police.' 
 
 ' The power of the chief ofiicer of a police 
 district to direct that the reports required 
 by ss. 5 & 8 of the Prevention of Crimes Act 
 1871, to be made by holders of licences and 
 persons subject to the supervision of the 
 police, shall be made to some other person, 
 shall extend to authorise him to direct such 
 reports to be made to the constable or 
 person in charge of any particular poUce 
 station or office without naming the in- 
 
 dividual person. Any appointment, direc- 
 tion, or authority purporting to be signed 
 by the chief officer of police, and to have 
 been made or given for the purposes of this 
 Act or of ss. 5 & 8 of the Prevention of 
 Crimes Act, 1871, or one of them, shall be 
 evidence until the contrary is proved, that 
 the appointment, dii-ection, or authority 
 thereby made or given by the chief officer 
 of police ; and evidence that it ajipears 
 from the records kept by authority of the 
 chief officer of police that a person required 
 as above mentioned to notify his residence 
 or change of residence, or to make a report, 
 has failed to comjily with such requirement, 
 shall be 'prima facie evidence that the per- 
 son has not complied with such require- 
 ment ; but if the person charged alleges 
 that he made such notification or report to 
 any jiarticular person or at any particular 
 time, the Court shall require the attendance 
 of such persons as may be necessary to 
 prove the truth or falsehood of such allega- 
 tion.' 
 
 {II) iS. 17 states how offences against 
 the Act may be prosecuted before a Court of 
 summary jurisdiction. 
 
 (m) The words in brackets were substi- 
 tuted by 54 & 55 Vict. c. 69, s. 4, for the 
 original words of the section in the Act of 
 1871.
 
 CHAP. VII.] Probation of Offenders. 223 
 
 returns of the persons convicted of crime, who came into the custody of 
 the gaoler or governor of any jJi'ison {mm). 
 
 By sect. 8 of the Penal Servitude Act, 1891 (54 & 55 Vict. c. 69) power 
 is given to make regulations as to the measuring and photographing ' of 
 all prisoners who may, for the time being, be confined in any prison ' {n). 
 The regulations are made in England by the Home Secretary, or in 
 Scotland by the Secretary for Scotland, and in Ireland by the Lord 
 Lieutenant (o). The regulations must be laid before Parliament as 
 soon as practicable after they are made (p). 
 
 Special Offences by Persons twice convicted of Crime. — By the Preven- 
 tion of Crimes Act, 1871 (34 & 35 Vict. c. 112), s. l{pp) : Where any person 
 is convicted on indictment of a crime {q), and a previous conviction of a 
 crime is proved against him, he shall, at any time within seven years 
 immediately after the expiration of the sentence passed on him for the 
 last of such crimes be guilty of an offence against this Act, and be liable 
 to imprisonment, with or without hard labour, for a term not exceeding 
 one year, under the following circumstances, or any of them : — 
 
 First. If, on his being charged by a constable with getting his live- 
 lihood by dishonest means, and being brought before a Court of Summary 
 Jurisdiction, it appears to such Court that there are reasonable grounds 
 for believing that the person so charged is getting his livelihood by dis- 
 honest means : or 
 
 Secondly. If, on behig charged with any offence punishable on indict- 
 ment or summary conviction, and on being required by a Court of Sum- 
 mary Jurisdiction to give his name and address, he refuses to do so, or 
 gives a false name or a false address : or, 
 
 Thirdly. If he is found in any place, whether public or private, 
 under such circumstances as to satisfy the Court before whom he is brought 
 that he was about to commit or to aid in the commission of any offence 
 punishable on indictment or summary conviction, or was waiting for an 
 opportunity to commit or aid in the commission of any offence punish- 
 able on indictment or summary conviction : or 
 
 FourtJdy. If he is found in or ujjon any dwelling-house, or any build- 
 ing, 5^ard, or premises, being j^arcel of or attached to such dwelling-house, 
 or in or upon any shop, warehouse, counting-house, or other place of 
 business, or in any garden, orchard, pleasure ground, or nursery ground, 
 or in any building or erection in any garden, orchard, pleasure ground, 
 or nursery ground, without being able to account to the satisfaction of 
 
 {mm) Sec also 3!) & 40 Vict. c. 2;5, s. 2. as dealt with photographing was repealed. 
 
 (/() III the Act of 1871 the power was (o) 34 & 35 Viet. c. 112, s. U (G). 54 & 55 
 
 limited to photographing, and to all Vict. c. 09, s. 9. 
 
 prisoners convicted of crime as defined in (p) The regulations of 1877 & 189(5 now 
 s. 20 of that Act, jtost, p. 224, note (s). in force are printed in Statutory Rules & 
 By the Prevention of Crimes Amendment Orders Revised (ed. 1904), tit. ' Prisons, 
 Act, 1870 (39 & 40 Vict. c. 23), s. 2, England, Scotland, and Ireland.' Regula- 
 powcr was given to prescribe the classes tions as to measuring and photographing 
 of convicted prisoners to which alone the aliens impiisoned and ordered to be ex- 
 rules as to registry and photographing pelled were made in February, 1900 (St. 
 should be applied. The changes made by R. & ().. l!)Oc, No. 100). 
 the Act of 1891 authorise measurement as (/;;j) Extended by 54 & 55 Vict, c., s. 0. 
 well as photography, and cover all piisoners post, p. 220. 
 
 whether convicted or not, and in 1893 {q) See the interpretation clause, s. 20, 
 
 (S. L. R.), so much of s. G of the Act of 1871 post, p. 224, note (.«).
 
 224 Of Punishments. [book i. 
 
 the Court before whom he is brought for his being found on such 
 premises. 
 
 Any person charged with being guilty of any offence against this 
 Act mentioned in this section may be taken into custody as follows ; 
 (that is to say,) 
 
 In the case of any such offence against this Act as is first in this section 
 mentioned, by any constable without warrant, if such constable is author- 
 ised so to do by the chief officer of police of his district ; 
 
 In the case of any such offence against this Act as is thirdly in this 
 section mentioned, by any constable without warrant, although such 
 constable is not specially authorised to take him into custody ; 
 
 Also, where any person is charged with being guilty of an offence 
 against this Act fourthly in this section mentioned, he may, without 
 warrant, be apprehended by any constable, or by the owner or occupier of 
 the property on which he is found, or by the servants of the owner or 
 occupier, or by any other person authorised by the owner or occupier, and 
 may be detained until he can be delivered into the custody of a constable.' 
 
 B. Police Supervision. 
 
 Police Supervision. — By sect. 8 (r), 'where any person is convicted 
 on indictment of a crime (s), and a previous conviction of a crime is proved 
 against him, the Court having cognisance of- such indictment may, in 
 addition to any other punishment which it may award to him, direct 
 that he is to be subject to the supervision of the police for a period of 
 seven years, or of such less period as the Court may direct, commencing 
 immediately after the expiration of the sentence passed on him for the 
 last of such crimes. Every person subject to the supervision of the police 
 who is at large in Great Britain or Ireland shall notify the place of his 
 residence to the chief officer of police of the district which in his residence 
 is situated, and shall whenever he changes such residence within the same 
 police district notify such change to the chief officer of police of that 
 district, and whenever he is about to leave a police district he shall notify 
 such his intention to the chief of[icer of police of that district stating the place 
 to which he is going, and also if required and so far as practicable his address 
 at that place, and ivhenever he arrives in any police district he shall 
 notify his place of residence to the chief officer of police of such last- 
 mentioned district {t) ; moreover, every person subject to the super- 
 vision of the police, if a male, shall once in each month report himself at 
 such time as may be prescribed by the chief officer of police of the district 
 in which such holder may be, either to such chief officer himself or to 
 such other person as that officer may direct, and such report may, 
 
 (r) Orders made under this section render crown, any theft winch, in respect of any 
 
 the supervisee subject to the provisions of aggi'avation, or of the amount in value of 
 
 42 & 43 Vict., c. 55, s. 2, ante, p. 222, note (Z). the money, goods or thing stolen, may be 
 
 (s) By s. 20, the expression ' crime ' punished with penal servitude, any forgerj', 
 
 means, in England and Ireland, any felony, and any uttering of any forged writing, 
 
 or the offence of uttering false or counter- falsehood, fraud and wilful imposition, 
 
 feit gold or silver coin, or the offence of uttering base coin, or the possession of such 
 
 obtaining goods or money by false pre- coin with intent to utter the same, 
 
 tences, or the offence of conspiracy to (t) Words in italics substituted for former 
 
 defraud, or any misdemeanor under the s. 58 words by 54 & 55 Vict., c. G9, s. 4(1); as 
 
 of the Larceny Act, 1861 (24 & 25 Vict., c. to notification see 42 & 43 Vict, c. 55, s. 2, 
 
 96) : and in Scotland, any of the pleas of the ante, p. 222, note (/).
 
 CHAP. VII.] Police Supervision. 225 
 
 according as such chief officer directs, be made personally or by 
 letter' (m). 
 
 The requirements of sect, 8 may be remitted by a secretary of state, 
 either generally or in the case of an individual supervisee (v). 
 
 Sect. 8 further provides that ' [If any person to whom this section 
 applies fails to comply with any of the requisitions of this section, he 
 shall, in any such case, be guilty of an offence against this Act, unless 
 he proves to the satisfaction of the Court before whom he is tried, 
 either that being on a journey he tarried no longer in the place, in 
 respect of which he is charged with failing to notify his place of resi- 
 dence, than was reasonably necessary, or that otherwise he did his best 
 to act in conformity with the law ; and on conviction of such offence it 
 shall be lawful for the Court in its discretion either to forfeit his licence, 
 or to sentence him to imprisonment with or without hard labour for a 
 term not exceeding one year] ' {w). 
 
 The accused may elect to be tried on indictment (42 & 43 Vict. c. 49, 
 s. 17) {x). If he does the provisions of sect. 9 of the Act of 1871 (y) as to 
 the indictment do not apply (z). 
 
 Sect. 15 provides for the amendment of sect. 4 of the Vagrancy 
 Act, 1824, 5 Geo. IV. c. 83, by substituting for the words ' highway or 
 place adjacent ' the words ' or any highway or any place adjacent to a 
 street or highway ' ; and provides also that, ' in proving the intent to 
 commit a felony it shall not be necessary to shew that the person 
 suspected was guilty of any particular act or acts tending to shew his 
 purpose or intent, and he may be convicted if from the circumstances of 
 the case and from his known character as proved to the justice of the 
 peace or Court before whom or which he is brought, it ajjpears to such 
 justice or Court that his intent was to commit a felony . . .' 
 
 By the Penal Servitude Act, 1891 (54 & 55 Vict. c. 69), s. 2— (1) 
 ' Any constable may take into custody without warrant any holder 
 of a licence under the Penal Servitude Acts, or any person under the 
 supervision of the police in pursuance of the Prevention of Crimes Act, 
 1871, whom he reasonably suspects of having committed any offence, 
 and may take him before a Court of Summary Jurisdiction to be dealt 
 with according to law. 
 
 (2) Any convict maybe convicted before a Court of Summary Juris- 
 diction of an offence against sect. 3 of the Prevention of Crimes Act, 
 1871 {ante, p. 221), although he was brought before the Court on some 
 other charge, or not in manner provided by that section.' 
 
 Sect. 3. — (1) ' Where an offender is, under sect. 9 (a) of the Penal Servi- 
 tude Act, 1864^ undergoing, or liable to undergo, a term of penal servitude 
 in consequence of the forfeiture or revocation of a licence granted in 
 pursuance of the Penal Servitude Acts, His Majesty may grant a licence 
 
 {?() Persons failing to comply with the (w) Words in brackets substituted by 5-4 
 
 section render the supervisee liable to sum- & 55 Vict. c. 69, s. 4, for the original terms 
 
 mary conviction (subject to his election to of s. 8. 
 
 be tired on indictment (42 & 43 Vict. c. 49, (x) Ante, p. 17. 
 
 s. 17), to imprisonment with or without (y) Post, Bk. xii. c. ii. 
 
 hard labour for not over one year. 54 & (z) R. v. Pcnfold [1902], 1 K.B. 547. 
 
 55 Vict. c. 69. s. 4 (1). (a) Ante, p. 220. 
 
 (v) 54 & 55 Vict. c. 69, s. 4 (2). 
 
 VOL. I. Q
 
 226 Of Punishments. [book i. 
 
 to the offender in like manner as if the forfeiture or revocation of the 
 former licence were a sentence of penal servitude which the offender is 
 liable to undergo. 
 
 (2) Where a person is sentenced on any conviction to a term of penal 
 servitude, and by virtue of the same conviction his licence is forfeited, 
 the term for which he is sentenced, together with the term which he is 
 required further to undergo under the said section, shall, for all purposes 
 of the Penal Servitude Acts relating to licences, be deemed to be one 
 term of penal servitude, and those Acts shall apply as if, on conviction 
 of the offence, the offender had been sentenced to the combined term ' (aa). 
 
 By sect. 4 (1) sects. 5 and 8 of the Prevention of Crimes Act, 1871 (6), 
 and sect. 2 of the Prevention of Crimes Act, 1879 (c) (which recites and 
 refers to those sections), are modified as shewn above, pp. 222, 224, 225. 
 
 By sub-sect. (2) ' His Majesty may, by order under the hand of a Secre- 
 tary of State, remit any of the requirements of sects. 5 and 8 of the 
 Prevention of Crimes Act, 1871, either generally or in the case of any 
 holder of a licence or person subject to the supervision of the police.' 
 
 By sect. 5 ' The provisions of the Penal Servitude Act, 1864 ((i), apply- 
 ing to a licence in the form set forth in Schedule A. to that Act, shall 
 apply also to a licence in any other form for the time being authorised 
 by sect. 10 of that Act.' 
 
 By sect. 6 ' A person who has been convicted on indictment of a crime 
 within the meaning of the Prevention of Crimes Act, 1871 (dd), and against 
 whom a previous conviction of such a crime is proved, shall, 
 
 (a) if the second sentence is to a term of imprisonment, then at any 
 time within seven years after the expiration of the sentence ; and 
 
 (6) if the second sentence is to a term of penal servitude, then whilst 
 at large on licence under that sentence, and also at any time within seven 
 years after the expiration of the sentence, be guilty of an offence against 
 the Prevention of Crimes Act, 1871, under the circumstances stated in 
 sect. 7 of that Act {ante, p. 223), or any of them, and may be taken into 
 custody in manner provided by that section.' 
 
 By sect. 7 ' Sect. 4 of the Vagrancy Act, 1824 (5 Geo. IV. c. 83), as 
 amended by sect. 15 of the Prevention of Crimes Act, 1871 (e), shall be 
 read and construed as if the provisions applying to suspected persons and 
 reputed thieves frequenting (/ ) the places and with the intent therein 
 described, applied also to every suspected person or reputed thief 
 loitering about or in any of the said places and with the said intent.' 
 
 Youthful Offenders. — ^Youthful offenders sent to certified industrial 
 or reformatory schools, or subject to detention pursuant to the directions of 
 the Secretary of State, may be released on licence under the Children Act, 
 1908 ( ff). The licence is revocable on breach of the conditions on which 
 it was granted. 
 
 {aa) As to sub-s. 3 of s. 3, vide ante, the offence must be committed and the 
 
 p. 221, note [g). mode of proving intent to commit felony. 
 
 (6) Ante, pp. 221, 224. (f) See Clark v. R., 14 Q.B.D. 92. 
 
 (c) Ante, p. 222, note (Z). (ff) 8 Edw. VII. c. 67, s. 67 {post, 
 
 (d) i.e. s. 10, ante, p. 221. p. 235), (industrial schools and reforma- 
 {dd) S. 20, ante, p. 224, note (s). tories), s. 105 (places of detention under 
 
 (e) Ante, p. 225. As to the place where the direction of the Secretary of State).
 
 CHAP. VII.] Probation of Offenders. 227 
 
 Habitual Criminals. — For the provisions as to conditional release of 
 habitual criminals, vide post, pp. 243 et seq. 
 
 C. The Probation of Offenders Act, 1907. 
 
 At common law the Courts have power, except in capital cases, 
 instead of inflicting immediate punishment, to release an offender on 
 his entering into a recognizance, with or without sureties, to come up for 
 judgment when called on, and in the meantime to keep the peace or 
 be of good behaviour (y). Statutory provision was made in 1887 (h) 
 for the release on probation of certain classes of offenders. Completer 
 provision is made by the Probation of Offenders Act, 1907 (7 Edw. VII, 
 c. 17) (^), which came into operation on January 1, 1908 (ii). 
 
 Conditional Release. — Sect. 1. — (1) ' Where any person is charged before 
 a Court of Summary Jurisdiction with an offence punishable by such 
 Court, and the Court thinks that the charge is proved, but is of opinion 
 that, having regard to the character, antecedents, age, health, or mental 
 condition of the ferson charged, or to the trivial nature of the offence, or 
 to the extenuating circumstances under which the offence was committed, it 
 is inexpedient to inflict any punishment or any other than a nominal 
 punishment, or that it is expedient to release the offender on probation, 
 the Court may, without proceeding to conviction, make an order either — ■ 
 (i) dismissing the information or charge ; or 
 
 (ii) discharging the offender conditionally on his entering into a recog- 
 nizance, with or without sureties, to be of good behaviour and 
 to appear for conviction and sentence when called on at any 
 time during such period, not exceeding three years, as may be 
 specified in the order (j). 
 
 (2) Where any person has been convicted on indictment of any offence 
 punishable with imprisonment {h), and the Court is of opinion that, 
 having regard to the character, antecedents, age, health, or mental 
 condition of the person charged, or to the trivial nature of the offence, 
 or to the extenuating circumstances under which the offence was com- 
 mitted, it is inexpedient to inflict any punishment or any other than a 
 nominal punishment, or that it is expedient to release the offender on 
 probation, the Court may, in lieu of imposing a sentence of imprisonment, 
 make an order discharging the offender conditionally on his entering 
 into a recognizance, with or without sureties, to be of good behaviour 
 and to appear for sentence when called on at any time during such period, 
 not exceeding three years, as may be specified in the order (kk). 
 
 (3) The Court may, in addition to any such order, order the offender 
 
 ((/) Vide ante, p. 218. are new. 
 
 (h) 50 & 51 Vict. c. 25. {k} This does not ajipcar to be limited to 
 
 (») This Act repeals the Act of 1887, cases in which imprisonment only or a less 
 
 s. 16 of the Summary Jurisdiction Act, punishment may be awarded, but seems to 
 
 1879 (42 & 43 Vict. c. 49), and s. 12 of the extend to cases in which penal servitude 
 
 Youthful Offenders Act, 1901 (1 Edw. VII. may be imposed as an alternative to im- 
 
 c. 20). prisonmcnt. 
 
 (ii) S. 10 (3). (kk) This subsection docs not, except as 
 
 (j) This subsection is based on 42 & 43 to release on probation, add anything to 
 
 Vict. c. 49, s. 16, but the provisions italicised the common-law powers of the Court. 
 
 q2
 
 228 Of Punishments. [book i. 
 
 to pay such damages for injury or compensation for loss (not exceeding 
 in the case of a Court of Summary Jurisdiction £10, or, if a higher limit 
 is fixed by any enactment relating to the offence, that higher limit) and 
 to pay such costs of the proceedings as the Court thinks reasonable' . . . {I). 
 Probation Orders and Conditions of Recognizances. — Sect. 2. — (1) A 
 recognizance ordered to be entered into under this Act shall, if the Court 
 so order, contain a condition that the offender be under the supervision 
 of such person as may be named in the order [U) during the period specified 
 in the order, and such other conditions for securing such supervision as 
 may be specified in the order, and an order requiring the insertion of 
 such conditions as aforesaid in the recognizance is in this Act referred 
 to as a probation order. 
 
 (2) A recognizance under this Act may contain such additional 
 conditions as the Court may, having regard to the particular circum- 
 stances of the case, order to be inserted therein with respect to all or any 
 of the following matters : — 
 
 (a) for prohibiting the offender from associating with thieves and 
 
 other undesirable persons, or from frequenting undesirable 
 places ; 
 
 (b) as to abstention from intoxicating liquor, where the offence 
 
 was drunkenness or an offence committed under the influence 
 of drink (m) ; 
 
 (c) generally for securing that the offender should lead an honest 
 
 and industrious life. 
 
 (3) The Court by which a probation order is made shall furnish to 
 the offender a notice in writing stating in simple terms the conditions 
 he is required to observe. 
 
 Probation Officers. — Sect. 3.-^(l) There may be appointed as probation 
 officer or officers for a petty sessional division such person or persons of 
 either sex as the authority having power to appoint a clerk to the justices 
 of that division may determine, and a probation officer when acting 
 under a probation order shall be subject to the control of petty sessional 
 Courts for the division for which he is so appointed. 
 
 (2) There shall be appointed, where circumstances permit, special 
 probation officers, to be called children's probation officers, who shall, in 
 the absence of any reasons to the contrary, be named in a probation order 
 made in the case of an offender under the age of sixteen. 
 
 (3) The person named in any probation order shall — 
 
 (a) where the Court making the order is a Court of Summary Juris- 
 
 diction, be selected from amongst the probation officers for the 
 petty sessional division in or for which the Court acts ; or 
 
 (b) where the Court making the order is a Court of Assize or a Court of 
 
 Quarter Sessions, be selected from amongst the probation officers 
 for the petty sessional division from which the person charged 
 was committed for trial : 
 Provided that the person so named may, if the Court considers it 
 
 (1) The rest of this section is repealed by (11) Cf. 8 Edw. VII. c. 67, s. 60. 
 
 the Children Act, 1908 (8 Edw. VII. c. 67), (m) See R. v. Davies [1909], 1 K.B. 892 ; 
 
 and replaced by ss. 99, 107 of that Act. 25 T. L. R. 279.
 
 CHAP, vil.l Pfobatioyi of Offenders. 229 
 
 expedient on account of the place of residence of the offender, or for any 
 other special reason, be a probation officer for some other petty sessional 
 division, and may, if the Court considers that the special circumstances 
 of the case render it desirable, be a person who has not been appointed to 
 be probation officer for any petty sessional division. 
 
 (4) A probation officer appointed for a petty sessional division may 
 be paid such salary as the authority having the control of the fund out of 
 which the salary of the clerk to the justices of that petty sessional division 
 is paid may determine, and if not so paid by salary may receive such 
 remuneration for acting under a probation order as the Court making the 
 order thinks fit, not exceeding such remuneration as may be allowed by 
 the regulations of such authority as aforesaid, and may in either case he 
 paid such out-of-pocJcet expenses as may be allowed under such regulations as 
 aforesaid, and the salary or remuneration and expenses shall be paid by 
 that authority out of the said funds. 
 
 (5) A person named in a probation order not beiruj a probation officer 
 for a petty sessional division may be paid such remuneration and out-of- 
 pocket expenses out of such fund as the Court making the probation order 
 may direct, not exceeding such as may be allowed under the re^jidations of 
 the authority having control of the fund out of tvhich the remuneration is 
 directed to be paid. 
 
 (6) The person named in a probation order may at any time be re- 
 lieved of his duties, and in any such case or in case of the death of the person 
 so named, another person may be substituted by the Court before which the 
 offender is bound by his recognizance to appear for conviction or sentence, or, 
 if he be a probation officer j/br a petty sessional divison, by a Court to whose 
 control that officer is subject. 
 
 (7) In the application of this Act to the City of London and the 
 metropolitan police court district, the city and each division of that 
 district shall be deemed to be a petty sessional division. 
 
 Sect, 4. It shall be the duty of a probation officer, subject to the directions 
 of the Court — 
 
 {a) to visit or receive reports from the person under supervision at such 
 reasonable intervals as may be specified in the probation order or, 
 subject thereto, as the probation officer may think fit ; 
 
 (b) to see that he observes the conditions of his recognizance ; 
 
 (<•■) to report to the Court as to his behaviour ; 
 
 (d) to advise, assist, and befriend him, and, when necessary, to endeavour 
 to find him suitable employment. 
 
 Varying or Discharging Recognizances. — Sect. 5. The Court before which 
 any person is bound by his recognizance under this Act to appear for con- 
 viction or sentence may, upon the application of the probation officer, and 
 after notice to the offender, vary the conditions of the recognizance and may, 
 on being satisfied that the conduct of that person has been such as to make it 
 unnecessary that he should remain longer under supervision, discharge the 
 recognizance. 
 
 Provision in Case of Breach of Condition. — Sect. 6. — (1) If the Court 
 before which an offender is bound by his recognizance under this Act to appear 
 for conviction or sentence, or any Court of Summary Jurisdiction, is satisfied
 
 230 Of Punishments. [BOOK i. 
 
 by information on oath that the offender has failed to observe any of the 
 conditionsof liis recognizance, it may issue a warrant for his apprehension, or 
 may, if it thinks fit, instead of issuing a warrant in the first instance, issue a 
 summons to the ofiender and his sureties (if any) requiring him or them to 
 attend at such Court and at such time as may be specified in the summons. 
 
 (2) The offender, when apprehended, shall, if not brought forthwith be- 
 fore the Court before which he is bound by his recognizance to appear for 
 conviction or sentence, be brought before a Court of Summary Jurisdiction. 
 
 (3) The Court before which an offender on apprehension is brought, 
 or before which he appears in pursuance of such summons as aforesaid, 
 may, if it is not the Court before which he is bound by his recognizance to 
 appear for conviction or sentence, remand him to custody or on bail until 
 he can be brought before the last-mentioned Court. 
 
 (4) An offender so remanded to custody may be committed during 
 remand to any prison to which the Court having power to convict or 
 sentence him has power to commit prisoners {mm). . . . 
 
 (5) A Court before which a person is bound by his recognizance to appear 
 for conviction and sentence, on beimj satisfied that he has failed to observe 
 any condition of his recognizance, may forthwith, without further proof of his 
 guilt, convict and sentence him for the original offence or, if the case was one 
 in which the Court in the first instance might, under sect, fifteen of the 
 Industrial Schools Act, 1866 (w), have ordered the offender to be sent to a 
 certified industrial school, and the offender is still apparently under the age 
 of twelve years, malx such an order. 
 
 Power to make Rules. — Sect. 7. The Secretary of State may make rides (o) 
 for carrying this Act into effect, and in particular for prescribing such 
 matters incidental to the appointment, resignation, and removal of proba- 
 tion officers, and the performance of their diities, and the reports to be 
 made by them, as may appear necessary (j)). 
 
 Sect. IX. — Punishment of Persons under Sixteen. 
 
 The Children Act, 1908 (7 Edw. VII. c. 67), has made considerable 
 
 changes in the law as to punishment of jjersons under sixteen, and repeals and 
 
 re-enacts with amendments the Industrial and Reformatory Schools Acts (q). 
 
 By sect. 131, ' for the purposes of this Act, unless the context 
 
 otherwise requires — 
 
 The expression " child " means a person under the age of fourteen 
 
 years (r) ; 
 The expression '"young person " means a person who is fourteen years 
 of age or upwards and under the age of sixteen years ; 
 
 (mm) The rest of this section is repealed by necessary to apply the Act to Scotland and 
 
 the Children Act, 1908 (8 Edw. VII. c. G7), Ireland. S. 10 deals with repeals, &c. 
 
 and replaced by s. 107 (k) of that Act, post, {q) 29 & 30 Vict. cc. 117, 118 ; 35 & 36 
 
 p. 232. Vict. c. 21 ; 43 & 44 Vict. c. 15 ; 54 & 55 
 
 (n) 29 & 30 Vict. c. 118, now incorporated Vict. c. 23 ; 5G & 57 Vict. c. 48 ; 57 & 58 
 
 in the Children Act, 1908 : 8 Edw. VII. Vict. c. 33 ; 62 & 03 Vict. c. 12. 
 
 c. 67, Pt. iv. (r) Under the Summary Jurisdiction 
 
 (o) Rules were made Nov. 27, 1907, as to Act, 1879 (42 & 43 Vict. c. 49), s. 49, child 
 
 the appointment and duties of probation meant a person under twelve, and young 
 
 officers and as to reports by them (St. R. person a person of twelve and under six- 
 
 & O. 1907, No. 945). teen. This definition is altered by s. 
 
 (p) Ss. 8, 9 make the modifications 128 of the Children Act, 1908. 
 
 I
 
 CHAP. VII.] Punishment of Persons under Sixteen. 231 
 
 The expression "guardian" in relation to a child, young person, or 
 youthful offender, includes any person who, in the opinion of 
 the Court having cognizance of any case in relation to the 
 child, young person, or youthful offender, or in which the child, 
 young person, or youthful offender is concerned, has for the time 
 being the charge of or control over the child, young person, or 
 youthful offender ; 
 
 The expression "legal guardian," in relation to an infant, child, young 
 person, or youthful offender, means a person appointed, according 
 to law, to be his guardian by deed or will, or by order of a Court of 
 competent jurisdiction.' 
 
 Youthful offender means an offender under the age of sixteen. 
 
 By sect. 102 — (1) ' A cliild (rr) shall not be sentenced to imprison- 
 ment or penal servitude for any offence, or committed to prison in 
 default of payment of a fine, damages, or costs. 
 
 (2) A young person {s) shall not be sentenced to penal servitude for 
 any offence. 
 
 (3) A young person shall not be sentenced to imprisonment for an 
 offence, or committed to prison in default of payment of a fine, damages, 
 or costs, unless the Court certifies that the young person is of so unruly 
 a character that he cannot be detained in a place of detention provided 
 under this Part of this Act {t), or that he is of so depraved a character 
 that he is not a fit person to be so detained' {u). 
 
 For sect. 103, abolishing capital punishment of children or young 
 persons, vide ante, p. 205. 
 
 By sect. 104, ' Where a child or young person is convicted on indict- 
 ment of an attempt to murder, or of manslaughter, or of wounding with 
 intent to do grievous bodily harm, and the Court is of opinion that no 
 punishment which, under the provisions of this Act, it is authorised to 
 inflict is sufficient, the Court may sentence the offender to be detained 
 for such period as may be specified in the sentence ; and where such a 
 sentence is passed, the child or young person shall during that period, 
 notwithstanding anything in the other provisions of this Act, be liable 
 to be detained in such place and on such conditions as the Secretary of 
 State may direct, and whilst so detained shall be deemed to be in legal 
 custody' {v). 
 
 By sect. 106, ' Where a child or young person is convicted of an 
 offence punishable, in the case of an adult, with penal servitude or 
 imprisonment, or would, if he were an adult, be liable to be imprisoned 
 in default of payment of any fine, damages, or costs, and the Court 
 considers that none of the other methods in which the case may legally 
 be dealt with is suitable, the Court may, in lieu of sentencing him to 
 imprisonment or committing him to prison, order that he be committed 
 to custody in a place of detention provided under this Part of this Act {w), 
 
 (rr) Defined s. 131. tion under ss. 103. 104. 
 
 {s) ibid. ()/•) Provided by the police authority 
 
 (0 See ss. lot), lOS. under s. 108. By s. 109 the order o"r 
 
 (m) Defined by s. 44. judj^nient committing the oflfender is a 
 
 {v) S. 105 empowers the Secretary of sufKcient authority for his detention. 
 State to release on licence children in deten-
 
 232 Of Punishments. . [BooK 1. 
 
 and named in the order for such term as may be specified in the order, not 
 exceeding the term for which he might, but for this Part of this Act, be 
 sentenced to imprisonment or committed to prison, nor in any case 
 exceeding one month.' 
 
 By sect. 107, ' Where a child or young person charged with any 
 offence is tried by any Court, and the Court is satisfied of his guilt, the 
 Court shall take into consideration the manner in which under the pro- 
 visions of this or any other Act enabling the Court to deal with the case, 
 the case should be dealt with, namely, whether — 
 
 (a) by dismissing the charge ; or 
 
 (b) by discharging the offender on his entering into a recognisance ; or 
 
 (c) by so discharging the offender and placing him under the super- 
 
 vision of a probation officer {vide s. 60) ; or 
 {(l) by committing the offender to the care of a relative or other fit 
 
 person ; or 
 (e) by sending the offender to an industrial school {vide s. 58) ; or 
 (/) by sending the offender to a reformatory school {vide s. 57) ; or 
 {g) by ordering the offender to be whipped (x) ; or 
 (h) by ordering the offender to pay a fine (?/), damages, or costs ; or 
 {i) by ordering the parent or guardian of the offender to pay a fine, 
 
 damages, or costs {tiide s. 99 (1)) ; or 
 {j) by ordering the parent or guardian of the offender to give security 
 
 for his good behaviour {vide s. 99 (2)) ; or 
 {k) by committing the offender to custody in a place of detention pro- 
 vided under this part of this Act {vide ss. 103, 104, 108) ; or 
 {I) where the offender is a young person, by sentencing him to 
 imprisonment {vide s. 102 (3)) ; or 
 (m) by dealing with the case in any other manner in which it may be 
 legally dealt with : 
 Provided that nothing in this section shall be construed as authorising 
 the Court to deal with any case in any manner in which it could not 
 deal with the case apait from this section' (2). 
 
 Industrial Schools. — By sect. 58 (a), (2) ' Where a child apparently under 
 the age of twelve years is charged before a Court of Assize or Quarter 
 Sessions or a Petty Sessional Court, with an offence punishable in the case 
 of an adult by penal servitude or a less punishment, the Court if satisfied 
 on inquiry that it is expedient so to deal with the child, may order him 
 to be sent to a certified industrial school' (6). 
 
 (7) Where under this section a Court is empowered to order a child 
 to be sent to a certified industrial school the Court, in lieu of ordering 
 
 (a;) Atite, p. 215. (h) Framed on 29 & 30 Vict. c. 118, s. 15 ; 
 
 (y) Ante, p. 217. 1 Edw. VII. c. 15, s. 5. Cliildren not 
 
 (z) The proviso means that the legal apparently of the age of twelve or thirteen 
 
 authority for the mode of dealing with the not previously convicted who are charged 
 
 case selected must be found in another before Courts of summary jurisdiction with 
 
 section of the Act or in some other statute such offences may be sent to an industrial 
 
 or the common law. school subject to a power by the Secretary 
 
 (a) 8s. 44-56 deal with the definition, of State to transfer them to a reformatory, 
 
 certification, and insiicction of reformatory s. 58, subs. 3. Industrial school is defined 
 
 and industrial schools. by s. 44 of the Act of 1908. 
 
 J
 
 CHAP. VII.] Punishment of Persons under Sixteen. 233 
 
 him to be so sent, may in accordance with the provisions of Part II. of 
 this Act (c), make an order for the committal of the child to the care of a 
 relative or other fit person named by the Court, and the provisions of 
 that Part shall, so far as applicable, apply as if the order were an order 
 under that Part. 
 
 By sect. 60, ' Where under the provisions of this part of this Act an 
 order is made for the committal of a child or young person to the care 
 of a relative or other fit person named by the Court, the Court may in 
 addition to such order make an order under the Probation of Offenders 
 Act, 1907 {ante, p. 227), that the child or young person be placed under 
 the supervision of a probation officer : 
 
 Provided that the recognizance into which the child, if not charged 
 with an offence, or the young person is required to enter, shall bind him 
 to appear and submit to the further order of the Court.' 
 
 A child ordered to be detained under this or following sections con- 
 tinues to be subject to the order during the whole period of detention, 
 even though he attains the age of fourteen before it has expired {d). 
 
 Reformatories. — By sect. 57, (1) ' Where a youthful offender, who in 
 the opinion of the Court before which he is charged is twelve years of age 
 or upwards but less than sixteen years of age, is convicted, whether on 
 indictment or by a Petty Sessional Court, of an offence punishable, in the 
 case of an adult, with penal servitude or imprisonment, the Court may, 
 in addition to or in lieu of sentencing him according to law to any other 
 punishment, order that he be sent to a certified reformatory school : 
 
 Provided that where the offender is ordered to be sent to a certified 
 reformatory school he shall not in addition be sentenced to imprisonment. 
 (2) Where such an order has been made in respect of a youthful 
 offender of the age of fourteen years or upwards, and no certified reform- 
 atory school can be found the managers of which are willing to receive 
 him, the Secretary of State may order the offender to be brought before 
 the Court which made the order or any Court having the like juris- 
 diction, and that Court may in lieu of the detention order make such 
 order or pass such sentence of imprisonment as the Court may determine, 
 so however that the order or sentence shall be such as might have been 
 originally made or passed in respect of the offence.' 
 
 Power to send Offenders conditionally pardoned to Reformatory 
 Schools.— By sect. 84, ' Where a youthful offender has been sentenced to 
 imprisonment or penal servitude, and has been pardoned by His Majesty 
 on condition of his placing himself under the care of some charitable institu- 
 tion for the reception and reformation of youthful offenders, the Secretary 
 of State may direct him, if under the age of sixteen years, to be sent to a 
 certified reformatory school, the managers of which consent to receive 
 him, for a period of not less than three and not more than five years, 
 but not in any case extending beyond the time when he will in the opinion 
 of the Secretary of State attain the age of nineteen years ; and thereupon 
 the offender shall be subject to all the provisions of this Part of this Act, 
 
 (c) Relating to cnu'lty, &c., post, pp. 912 (rf) See s. 44 (1), (lelinition of cliild. 
 
 et scq.
 
 234 Of Punishments, [book i. 
 
 as if he had been originally sentenced to detention in a certified reform- 
 atory school' (e). 
 
 By sect. 61, 'An order of a Court ordering a youthful offender or 
 child to be sent to and detained in a certified school (in this Act referred 
 to as a detention order), may, if the Court think fit, be made to take 
 effect either immediately or at any later date specified therein, regard 
 being had to the age or health of the youthful offender or child.' 
 
 By sect. 62, (1) ' The school to which a youthful offender or child is 
 to be sent under a detention order shall be such school as may be specified 
 in the order, being some certified school (whether situate within the 
 jurisdiction of the Court making the order or not) the managers of which 
 are willing to receive the youthful offender or child : 
 
 Provided that if it is found impossible to specify the school in the 
 detention order, the school shall, subject to the provisions of this Act 
 with respect to the determination of the place of residence of a youthful 
 offender or child, be such as a justice having jurisdiction in the place 
 where the Court which made the order sat may by endorsement on the 
 detention order direct' ( /"). 
 
 By sect. 63, If— 
 
 (a) a detention order is made but is not to take effect immediately ; or, 
 (6) at the time specified for the order to take effect the youthful 
 
 offender or child is unfit to be sent to a certified school ; or, 
 (c) the school to which the youthful offender or child is to be sent 
 cannot be ascertained until inquiry has been made, 
 the Court may make an order committing him either to custody in any 
 place to which he might be committed on remand under Part V. of this 
 Act {g), or to the custody of a relative or other fit person to whose care he 
 might be committed under Part II. of this Act (/<), and he shall be kept in 
 that custody accordingly until he is sent to a certified school in pursuance 
 of the detention order. 
 
 By sect. 64, (1) ' The person by whom any youthful offender or child 
 ordered to be sent to a certified school is detained shall at the appointed 
 time deliver him into the custody of the constable or other person respon- 
 sible for his conveyance to school, who shall deliver him to the superinten- 
 dent or other person in charge of the school in which he is to be detained, 
 together with the order or other document in pursuance of which the 
 offender or child was detained and is sent to the school. 
 
 (2) The detention order in pursuance of which the youthful offender 
 or child is sent to a certified school shall be a sufficient authority for his 
 conveyance to and detention in the school or any other school to which 
 he is transferred under this Part of this Act' (i). 
 
 By sect. 65, ' The detention order shall specify the time for which the 
 youthful offender or child is to be detained in the school, being — 
 
 {a) in the case of a youthful offender sent to a reformatory school, 
 not less than three and not more than five years, but not in any case 
 
 (e) Framed from 29 & 30 Vict. c. 117, the police authority under ss. 108, 109. 
 
 8. 32. (h) Vide s. 20, post, p. 915 et seq., ' 111- 
 
 ( f ) Subsect. 2 provides for cases of treatment of Chiltlren.' 
 
 children who are physically or mentally {i) Framed from 29 & 30 Vict. c. 117, 
 
 defective. s. 15 ; 29 & 30 Vict. c. 118, s. 22 ; 56 & 57 
 
 (cj) i.e. a place of detention provided by Vict. c. 48, s. 2.
 
 CHAP, vli.] Punishment of Persons under Sixteen. 235 
 
 extending beyond the time wlien the youthful offender will, in the opinion 
 of the Court, attain the age of nineteen years ; and 
 
 (6) in the case of a child sent to an industrial school, such time as 
 to the Court may seem proper for the teaching and training of the child, 
 but not in any case extending beyond the time when the child will, in 
 the opinion of the Court, attain the age of- sixteen years ' {j). 
 
 By sect. 66, (1) The Court or justice, in determining the certified 
 school to which a youthful offender or child is to be sent, shall endeavour 
 to ascertain the religious persuasion to which the offender or child belongs, 
 and the detention order shall, where practicable, specify the religious 
 persuasion to which the offender or child appears to belong, and a school 
 conducted in accordance with that persuasion shall, where practicable, 
 be selected [h). 
 
 (3) Where an order has been made for sending a youthful offender 
 or child to a certified school which is not conducted in accordance with 
 the religious persuasion to which the offender belongs, the parent, legal 
 guardian, nearest adult relative, or person entitled to the custody of the 
 offender or child may apply — 
 
 (rt) If the detention order was made by a Petty Sessional Court, 
 to a Petty Sessional Court acting in and for the place in and 
 for which the Court which made the order acted ; and 
 (6) in any other case, to the Secretary of State, 
 to remove or send the offender or child to a certified school conducted 
 in accordance with the offender's or child's religious persuasion, and 
 the Court or Secretary of State shall, on proof of the offender's or child's 
 religious persuasion, comply with the request of the applicant : 
 Provided that — ■ 
 
 (i) the application must be made before the offender or child has 
 been sent to a certified school, or within thirty days after his 
 arrival at the school ; and 
 (ii) the applicant must show to the satisfaction of the Court or 
 Secretary of State that the managers of the school named by 
 him are willing to receive the offender or child [1) : 
 (iii) nothing in this section shall be construed as preventing any 
 such person as aforesaid from making an api)hcation to the 
 Secretary of State after the expiration of the said period of 
 thirty days to exercise the powers of transfer conferred on 
 him by the other provisions of this Act. 
 Sect. 67 empowers the managers to release children or youthful 
 offenders on licence (with the consent of the Secretary of State), and 
 provides as to the conditions of the licence, and for forfeiture or breach 
 of conditions {m). * 
 
 By sect. 68— (1) ' Every youthful offender sent to a certified reforma- 
 tory school shall, on the expiration of the period of his detention, if 
 
 0) Framed from 29 & 30 Vict. c. 118, (?) rramodfrom29&30Vict.c. 117, sa. 14, 
 
 s. 18; 5G&57 Vict. c. 48, s. ]. 10 ; c. 118, ss. 18, 20, 25. 
 
 (k) Subscct. 2 provides for visits to the (m) Framed from 29 & 30 Vict. c. 117, 
 
 youthful oflfcmlcr by a minister of the s. 18; c. 118, s. 17; 39 & 40 Vict. c. 79, 
 
 persuasion. s. 14.
 
 Of Punishments. [BOOK 1. 
 
 that period expires before he attains the age of nineteen years, remain vip 
 to the age of nineteen under the supervision of the managers of the school. 
 
 (2) Every child sent to an industrial school shall, from the expira- 
 tion of the period of his detention, remain up to the age of eighteen under 
 the supervision of the managers of the school (n). 
 
 (3) The managers may grant to any person under their supervision 
 a licence in the manner provided by this Part of this Act, and may 
 revoke any such licence, and recall any such person to the school; and any 
 person so recalled may be detained in the school for a period not exceeding 
 three months, and may at any time be again placed out on licence : 
 Provided that — 
 
 (a) a person shall not be so recalled unless the managers are of opinion 
 that the recall is necessary for his protection ; and 
 
 (6) the managers shall send to the chief inspector of reformatory 
 and industrial schools an immediate notification of the recall 
 of any person, and shall state the reasons for his recall ; and 
 
 (c) they shall again place the person out as soon as possible, and at 
 latest within three months after the recall, and shall forthwith 
 notify the chief inspector that the person has been placed out. 
 
 (4) A licence granted to a youthful offender or child before the expira- 
 tion of his period of detention shall, if he is liable to be under supervision 
 in accordance with this section, continue in force after the expiration of that 
 period, and maybe revoked in manner provided by this Part of this Act. 
 
 (5) The Secretary of State may at any time order that a person under 
 supervision under this section shall cease to be under such supervision (o). 
 
 By sect. 69, (1) The Secretary of State may at any time order a 
 youthful offender or a child to be discharged from a certified school, 
 either absolutely or on such conditions as the Secretary of State approves, 
 and may, where the order of discharge is conditional, revoke the order 
 on the breach of any of the conditions on which it was granted, and 
 thereupon the youthful offender or child shall return to school, and if he 
 fails to do so he and any person who knowingly harbours or conceals 
 him or prevents him from returning to school shall be liable to the same 
 penalty as if the youthful offender or child had escaped from the school. 
 (2) The Secretary of State may order — 
 
 (a) a youthful offender or child to be transferred from one certified 
 reformatory school to another, or from one certified industrial 
 school to another ; 
 (6) a youthful offender under the age of fourteen years detained in 
 a certified reformatory school to be transferred to a certified 
 industrial school ; 
 (c) a child over the age of twelve years detained in a certified indus- 
 trial school, who is found to be exercising an evil influence over 
 the other children in the school, to be transferred to a certified 
 reformatory school ; 
 
 (n) This does not apply to children sent 3, 4. By subs. 6 parents may not exercise 
 
 to industrial schools to enforce an attend- their parental rights so as to interfere with 
 
 ance order (proviso to subs. 2). the supervision of the managers. 
 
 (o) Framed on 57 & 58 Vict. c. 33, ss. 1,
 
 CHAP. VII.] Detention in Borstal Institutions. 237 
 
 so however that the whole period of the detention of the offender or child 
 shall not be increased by the transfer. 
 
 (3) Where a youthful offender or child is detained in a certified school 
 in one part of the United Kingdom, the central authority for that part 
 of the United Kingdom may, subject to the j^ro visions of this section, 
 direct the youthful offender or child to be transferred to a certified school 
 in another part of the United Kingdom if the central authority for that 
 other part consents. 
 
 For the purpose of this provision central authority means the Secretary 
 of State, the Secretary for Scotland, or the Chief Secretary, as the case 
 may be ' (p). 
 
 By sect. 70, ' If any youthful offender or child detained in or placed 
 out on licence from a certified school, or a person when under the super- 
 vision of the managers of such a school, conducts himself well, the 
 managers of the school may, with his own consent, apprentice him to, 
 or dispose of him in, any trade, calling, or service, including service in 
 the Navy or Army, or by emigration, notwithstanding that his period of 
 detention or supervision has not expired; and such apprenticing or 
 disposition shall be as valid as if the managers were his parents : 
 
 Provided that where he is to be disposed of by emigration, and in any 
 case unless he has been detained for twelve months, the consent of the 
 Secretary of State shall also be required for the exercise of any power 
 under this section' {q). 
 
 Sect. X. — Detention in Borstal Institutions of Offenders 
 BETWEEN Sixteen and Twenty-three. 
 
 By the Prevention of Crime Act, 1908 (8 Edw. VII. c. 59), s. 1— 
 (1) ' Where a person is convicted on indictment of an offence for which 
 he is liable to be sentenced to penal servitude or imprisonment, and it 
 appears to the Court — 
 
 (a) that the person is not less than sixteen nor more than twenty-one 
 
 years of age ; and 
 (6) that, by reason of his criminal habits or tendencies, or association 
 with persons of bad character, it is expedient that he should be 
 subject to detention for such term and under such instruction 
 and discipline as appears most conducive to his reformation 
 and the repression of crime, 
 it shall be lawful for the Court, in lieu of passing a sentence of penal 
 servitude or imprisonment, to pass a sentence of detention under penal 
 discipline in a Borstal Institution (r) for a term of not less than one year 
 nor more than three years : 
 
 Provided that before passing such a sentence, the Court shall consider 
 any report or representations which may be made to it by or on behalf 
 of the Prison Commissioners as to the suitability of the case for treatment 
 in a Borstal Institution, and shall be satisfied that the character, 
 state of health, and mental condition of the offender, and the other 
 
 (p) Framed on 29 & 30 Vict. c. 117, s. 19; c. 118, s. 28 ; 56 & 57 Vict. c. 48, 
 8. 17 ; c. 118, ss. 42, 43. s. 1. 
 
 {q) Framed on 29 & 30 Vict. c. 117, (r) Defined s. 4, po.s^ p. 238.
 
 238 Of Punishments. [book i. 
 
 circumstances of the case, are such that the offender is likely to profit 
 by such instruction and discipline as aforesaid. 
 
 (2) The Secretary of State may by order direct that this section shall 
 extend to persons apparently under such age not exceeding the age of 
 twenty-three {t>) as may be specified in the order, and upon such an order 
 being made this section shall, whilst the order is in force, have effect as 
 if the specified age were substituted for " twenty-one " : 
 
 Provided that such an order shall not be made until a draft thereof 
 has lain before each House of Parliament for not less than thirty days 
 during the session of Parliament, and if either House, before the expira- 
 tion of that period, presents an address to His Majesty against the draft 
 or any part thereof, no further proceedings shall be taken thereon, but 
 without prejudice to the making of any new draft order/ 
 
 Substitution of Borstal Institution for Reformatory. — Sect. 2. ' Where 
 a youthful offender sentenced to detention in a reformatory school (t) 
 is convicted under any Act before a Court of Summary Jurisdiction of 
 the offence of committing a breach of the rules of the school, or of inciting 
 to such a breach, or of escaping from sucli a school, and the Court might 
 under that Act sentence the offender to imprisonment, the Court may, 
 in lieu of sentencing him to imprisonment, sentence liim to detention in 
 a Borstal Institution for a term not less than one year nor more than 
 three years, and in such case the sentence shall supersede the sentence of 
 detention in a reformatory school.' 
 
 Transfer from Prison to Borstal Institution. — Sect. 3. ' The Secretary 
 of State may, if satisfied that a person undergoing penal servitude or 
 imprisoned in consequence of a sentence passed either before or after the 
 passing of this Act, being within the limits of age within which persons 
 may be detained in a Borstal Institution, might with advantage be 
 detained in a Borstal Institution, authorise the Prison Commissioners to 
 transfer him from prison to a Borstal Institution, there to serve the whole or 
 any part of the unexpired residue of his sentence, and wliilst detained in, 
 or placed out on licence from, such an institution, this Part of this Act shall 
 apply to him as if he had been originally sentenced to detention in a 
 Borstal Institution.' 
 
 Sect. 4. — (1) ' For the purposes of this Part of this Act the Secretary 
 of State may establish Borstal Institutions (ii), that is to say, places in 
 which young offenders whilst detained may be given such industrial 
 training and other instruction, and be subjected to such disciplinary 
 and moral influences as will conduce to their reformation and the preven- 
 tion of crime, and for that purpose may, with the approval of the Treasury, 
 authorise the Prison Commissioners either to acquire any land or to erect or 
 acquire any building or to appropriate the whole or any part of any land or 
 building vested in them or under their control, and any expenses incurred 
 under this section shall be paid out of moneys provided by Parliament. 
 
 (2) The Secretary of State may make regulations for the rule and 
 
 (s) Recommended by the Prison Com- coin Prisons under special rules of July, 
 
 missioners (Pari. Pap. 1908, c. 3738, p. 26). 1906 (St. R. & 0. 1906, No. 525), and in 
 
 (t) Vide ante, p. 233. certain other prisons. See Prison Com- 
 
 (m) Up to 1908 offenders were dealt with missioners' Report (Pari. Pap. 1908, c. 3738, 
 
 on the Borstal system in Borstal and Lin- pp. 14-26).
 
 CHAP. VII.] Detention in Borstal Institutions. 239 
 
 management of any Borstal Institution, and the constitution of a visiting 
 committee thereof, and for the classification, treatment, and employment 
 and control of persons sent to it in pursuance of this Part of this Act, 
 and for their temporary detention until arrangements can be made for 
 sending them to the institution, and, subjfect to any adaptations, alter- 
 ations, and exceptions made by such regulations, the Prison Acts, 1865 
 to 1898 (including the penal j^rovisions thereof), and the rules thereunder, 
 shall apply in the case of every such institution as if it were a prison.' 
 
 Sect. 5. — (1) 'Subject to regulations by the Secretary of State, the 
 Prison Commissioners may at any time after the expiration of six months, 
 or, in the case of a female, three months, from the commencement of 
 the term of detention, if satisfied that there is a reasonable probability 
 that the offender will abstain from crime and lead a useful and industrious 
 life, by licence permit him to be discharged from the Borstal Institution 
 on condition that he be placed under the supervision or authority of any 
 society or person named in the licence who may be willing to take charge 
 of the case. 
 
 (2) A licence under this section shall be in force until the term for 
 which the offender was sentenced to detention has expired, unless sooner 
 revoked or forfeited. 
 
 (3) Subject to regulations by the Secretary of State, a licence under 
 this section may be revoked at any time by the Prison Commissioners, 
 and where a licence has been revoked the person to whom the licence 
 related shall return to the Borstal Institution, and if he fails to do so 
 may be apprehended without warrant and taken to the institution. 
 
 (4) If a person absent from a Borstal Institution under such a licence 
 escapes from the supervision of the society or person in whose charge 
 he is placed, or commits any breach of the conditions contained in the 
 licence, he shall be considered thereby to have forfeited the licence. 
 
 (5) A Court of Summary Jurisdiction for the place where the Borstal 
 Institution from which a person has been placed out on licence is situate 
 or where such a person is found may, on information on oath that the 
 licence has been forfeited under this section, issue a warrant for his 
 apprehension, and he shall, on appreliension, be brought before a Court 
 of Summary Jurisdiction, which, if satisfied that the licence has been 
 forfeited, may order him to be remitted to the Borstal Institution, and 
 may commit him to any prison within the jurisdiction of the Court until 
 he can conveniently be removed to the institution. 
 
 (6) The time during which a person is absent from a Borstal Institu- 
 tion under such a licence shall be treated as part of the time of his deten- 
 tion in the institution : Provided that where that person has failed to 
 return to the institution on the licence being forfeited or revoked, the time 
 which elapses after his failure so to return shall be excluded in computing 
 the time during which he is to be detained m the institution. 
 
 (7) A licence under this section shall be in such form and shall contain 
 such conditions as may be prescribed by regulations made by the Secretary 
 of State.' 
 
 Supervision after Expiration of Term of Sentence.— Sect. 6. — (1) ' Every 
 person sentenced to detention in a Borstal Institution shall, on the
 
 240 Of Punishments. [book i. 
 
 expiration of the term of his sentence, remain for a further period of 
 six months under the supervision of the Prison Commissioners. 
 
 (2) The Prison Commissioners may grant to any person under their 
 supervision a licence in accordance with the last foregoing section, and 
 may revoke any such licence and recall the person to a Borstal Institution, 
 and any person so recalled may be detained in a Borstal Institution for 
 a period not exceeding three months, and may at any time be again 
 placed out on licence : 
 
 Provided that a person shall not be so recalled unless the Prison 
 Commissioners are of opinion that the recall is necessary for his protection, 
 and they shall again place him out on licence as soon as possible and at 
 latest within three months after the recall, and that a person so recalled 
 shall not in any case be detained after the expiration of the said period 
 of six months' supervision. 
 
 (3) A licence granted to a person before the expiration of his sentence 
 of detention in a Borstal Institution shall, on his becoming liable to be 
 under supervision in accordance with this section, continue in force 
 after the expiration of that term, and may be revoked in manner provided 
 by the last foregoing section, 
 
 (4) The Secretary of State may at any time order that a person under 
 supervision under this section shall cease to be under such supervision.' 
 
 Transfer from Borstal Institution to Prison. — Sect. 7. 'Where a person 
 detained in a Borstal Institution is reported to the Secretary of State by 
 the visiting committee of such institution to be incorrigible, or to be 
 exercising a bad influence on the other inmates of the institution, the 
 Secretary of State may commute the unexpired residue of the term of 
 detention to such term of imprisonment, with or without hard labour, 
 as the Secretary of State may determine, but in no case exceeding such 
 unexpired residue.' 
 
 Sect. 8. ' Where a society has undertaken the duty of assisting or 
 supervising persons discharged from a Borstal Institution, either abso- 
 lutely or on licence, there may be paid to the society out of money j^rovided 
 by Parliament towards the expenses of the society incurred in connection 
 with the persons so discharged such sums on such conditions as the 
 Secretary of State, with the approval of the Treasury, may recommend.' 
 
 Transfer from one Part of British Islands to Another. — Sect. 9. ' Where 
 a person has been sentenced to detention in a Borstal Institution in one 
 part of the United Kingdom, the Secretary of State, the Secretary for 
 Scotland, or the Lord Lieutenant of Ireland, as the case may be, may, 
 as authority under this Act for that part of the United Kingdom, direct 
 that person to be removed to and detained in a Borstal Institution in 
 another part of the United Kingdom, with the consent of the authority 
 under this Act for that other part.' 
 
 Sect. XL — Preventive Detention of Habitual Criminals. 
 
 By the Prevention of Crime Act, 1908 (8 Edw. VII. c. 59), which came 
 into force on August 1, 1909 {vide s. 10 (2) ). 
 
 Sect. 10, — (1) ' Where a person is convicted on indictment of a crime,
 
 CHAP. Vli.] Preventive Detention of Habitual Criminals. 241 
 
 committed after the passing of this Act, and subsequently the offender 
 admits that he is or is found by the jury to be a habitual criminal {v), 
 and the Court passes a sentence of penal servitude, the Court, if of 
 opinion that by reason of his criminal habits and mode of life it is 
 expedient for the protection of the public that the offender should be 
 kept in detention for a lengthened period of years, may pass a further 
 sentence ordering that on the determination of the sentence of penal 
 servitude he be detained for such period not exceeding ten nor less than 
 five years, as the Court may determine, and such detention is herein- 
 after referred to as preventive detention, and a person on whom 
 such a sentence is passed shall, whilst undergoing both the sentence of 
 penal servitude and the sentence of preventive detention, be deemed 
 for the purposes of the Forfeiture Act, 1870 {vv), and for all other 
 purposes, to be a person convicted of felony. 
 
 (2) A person shall not be found to be a habitual criminal unless the 
 jury finds on evidence — 
 
 (a) that since attaining the age of sixteen years he has at least three 
 times previously to the conviction of the crime charged in the said 
 indictment, been convicted of a crime, whether any such previous 
 conviction was before or after the passing of this Act, and he is 
 leading persistently {w) a dishonest or criminal life ; or 
 
 (6) that he has on such a previous conviction been found to be a 
 habitual criminal and sentenced to preventive detention. 
 
 (3) In any indictment under this section it shall be sufficient, after 
 charging the crime, to state that the offender is a habitual criminal. 
 
 (4) In the proceedings on the indictment the offender shall in the first 
 instance be arraigned on so much only of the indictment as charges the 
 crime, and if on arraignment he pleads guilty or is found guilty by the jury, 
 the jury shall, unless he pleads guilty to being a habitual criminal, be 
 charged to inquire whether he is a habitual criminal, and in that case it 
 shall not be necessary to swear the jury again : 
 
 Provided that a charge of being a habitual criminal shall not be 
 inserted in an indictment — 
 
 («) without the consent of the Director of Public Prosecutions {ww) ; and 
 
 {b) unless not less than seven days' notice has been given to the proper 
 
 officer of the Court by which the offender is to be tried, and to 
 
 the offender, that it is intended to insert such a charge, 
 
 and the notice to the offender shall specify the previous convictions, and 
 
 the other grounds upon which it is intended to found the charge. 
 
 (5) Without prejudice to any right of the accused to tender evidence 
 as to his character and repute, evidence of character and repute may, if 
 the Court thinks fit, be admitted as evidence on the question whether the 
 accused is or is not leading persistently a dishonest or criminal life. 
 
 (v) Cf. the provisions as to habitual divisions. The latter includes a ' recidi- 
 
 drunkards, post, p. 244. Habitual of- vistc ' class. Convict Prison Rules, 1905 
 
 fenders confined in local prisons have been (St. R. & 0. lOOf), No. 75), ss. 1-lG. 
 
 separated from other offenders since 1899. (vv) 33 & 34 Vict. c. 23, vide post, p. 250. 
 
 See Local Prison Rules, 1899 (St. R. & O. (w) See R. v. Raybould, 2 Cr. App. R. 184. 
 
 1899, No. 322). In convict prisons persons (u-iv) As to this ofiQce, vide post, Bk. xii. 
 
 undergoing penal servitude have been c. i. 
 classified into ordinary and long sentence 
 
 VOL. I. B
 
 242 Of Punishments. t^ooK I. 
 
 (6) For the purposes of this section the expression " crime " has the 
 same meaning as in the Prevention of Crimes Act, 1871, (34 & 35 Vict, 
 c. 112), and the definition of " crime" in that Act, set out in the schedule 
 to this Act {y), shall apply accordingly/ 
 
 Sect. 11. ' A person sentenced to preventive detention may, notwith- 
 standing anything in the Criminal Appeal Act, 1907 (2), appeal against 
 the sentence without the leave of the Court of Criminal Appeal.' 
 
 Power in Certain Cases to commute Penal Servitude to Pre- 
 ventive Detention. — Sect. 12. 'Where a person has been sentenced, 
 whether before or after the passing of this Act, to penal servitude 
 for a term of five years or upwards [zz], and he appears to the Secretary 
 of State to have been a habitual criminal within the meaning of this 
 Act, the Secretary of State may, if he thinks fit, at any time after three 
 years of the term of penal servitude have expired, commute the whole or 
 any part of the residue of the sentence to a sentence of preventive deten- 
 tion, so, however, that the total term of the sentence when so commuted 
 shall not exceed the term of penal servitude originally awarded.' 
 
 Effect and Execution of Sentence. — Sect. 13. — ' (1) The sentence of 
 preventive detention shall take effect immediately on the determina- 
 tion of the sentence of penal servitude, whether that sentence is deter- 
 mined by effluxion of time or by order of the Secretary of State at 
 such earlier date as the Secretary of State, having regard to the circum- 
 stances of the case, and in particular to the time at which the convict, if 
 sentenced to penal servitude alone, would ordinarily have been licensed 
 to be at large, may direct. 
 
 (2) Persons undergoing preventive detention shall be confined in any 
 prison or part of a prison which the Secretary of State may set apart for 
 the purpose, and shall (save as otherwise provided by this Act) be subject 
 to the law for the time being in force with respect to penal servitude as if 
 they were undergoing penal servitude : 
 
 Provided that the rules applicable to convicts and convict prisons 
 shall apply to persons undergoing preventive detention, and to the prisons 
 or parts of prisons in which they are detained, subject to such modifica- 
 tions in the direction of a less rigorous treatment as the Secretary of State 
 may prescribe by prison rules within the meaning of the Prison Act, 
 1898 (a). 
 
 (3) Persons undergoing preventive detention shall be subjected to 
 such disciphnary and reformative influences, and shall be employed on 
 such work as may be best fitted to make them able and willing to earn 
 an honest livelihood on discharge. 
 
 (4) The Secretary of State shall appoint for every such prison or part 
 of a prison so set apart a board of visitors, of whom not less than two 
 shall be justices of the peace, with such powers and duties as he may 
 prescribe — by such prison rules as aforesaid.' 
 
 [y) Viz., ' The expression " crime " misdemeanor under the fifty-eighth see- 
 means, in England and Ireland, any felony tion of the Larceny Act, 1861 (34 & 35 Vict, 
 or the offence of uttering false or counter- c. 112).' 
 
 feit coin, or of possessing counterfeit gold (z) See the Act, fost, Bk. xii. c. iv. 
 
 or silver coin, or the offence of obtaining (zz) See R. v. Warner, 2 Cr. App. R. 177 ; 
 
 goods or money by false pretences, or the 2.5 T. L. R. 142. 
 offence of conspiracy to defraud, or any {a) 61 & 62 Vict. c. 41.
 
 CHAP. VII.] Preventive Detention of Habitual Criminals. 24^ 
 
 Discharge on Licence. — Sect. 14. — ' (1) The Secretary of >State shall, 
 once at least in every three years during which a person is detained in 
 custody under a sentence of preventive detention, take into considera- 
 tion the condition, history, and circumstances of that person with a view 
 to determining whether he shall be placed out on licence, and, if so, on 
 what conditions. 
 
 (2) The Secretary of State may at any time discharge on licence a 
 person undergoing preventive detention if satisfied that there is a reason- 
 able probability that he will abstain from crime and lead a useful and 
 industrious life or that he is no longer capable of engaging in crime, or 
 that for any other reason it is desirable to release him from confinement 
 in prison. 
 
 (3) A person so discharged on licence may be discharged on probation, 
 and on condition that he be placed under the supervision or authority of 
 any society or person named in the licence who may be willing to take 
 charge of the case, or on such other conditions as may be specified in the 
 licence. 
 
 (4) The Directors of Convict Prisons shall report periodically to the 
 Secretary of State on the conduct and industry of persons undergoing 
 preventive detention, and their prospects and probable behaviour on 
 release, and for this purpose shall be assisted by a committee at each 
 prison in which such persons are detained, consisting of such members of 
 the board of visitors and such other persons of either sex as the Secretary 
 of State may from time to time appoint. 
 
 (5) Every such committee shall hold meetings, at such intervals of 
 not more than six months as may be prescribed, for the purpose of 
 personally interviewing persons undergoing preventive detention in the 
 prison and preparing reports embodying such information respecting 
 them as may be necessary for the assistance of the Directors, and may at 
 any other times hold such other meetings, and make such special reports 
 respecting particular cases, as they may think necessary. 
 
 (6) A licence under this section may be in such form and may contain 
 such conditions as may be prescribed by the Secretary of State. 
 
 (7) The provisions relating to licences to be at large granted to 
 persons undergoing penal servitude shall not aj)ply to persons under- 
 going preventive detention.' 
 
 Sect. 15. — ' (1) The society or person under whose supervision or 
 authority a person is so placed shall periodically, in accordance with 
 regulations made by the Secretary of State, report to the Secretary of 
 State on the conduct and circumstances of that person. 
 
 (2) A licence under this part of this Act may be revoked at any time 
 by the Secretary of State, and where a licence has been revoked, the 
 person to whom the licence related shall return to the prison, and, if he 
 fails to do so, may be apprehended without warrant and taken to prison. 
 
 (3) If a person absent from prison under such a licence escapes from 
 the supervision of the society or person in whose charge he is placed, or 
 commits any breach of the conditions contained in the licence, he shall be 
 considered thereby to have forfeited the licence, and shall be taken back 
 to prison. 
 
 r2
 
 244 Of Punishments. [book i. 
 
 (4) A Court of Summary Jurisdiction for the place where the prison 
 from which a person has been discharged on licence is situate, or 
 where such a person is found, may, on information on oath that the 
 licence has been forfeited under this section, issue a warrant for 
 his apprehension, and he shall, on apprehension, be brought before 
 a Court of Summary Jurisdiction, which, if satisfied that the licence 
 has been forfeited, shall order him to be remitted to preventive deten- 
 tion, and may commit him to any prison within the jurisdiction of the 
 Court until he can conveniently be removed to a prison or part of a prison 
 set apart for the purpose of the confinement of persons undergoing 
 preventive detention. 
 
 (5) The time during which a person is absent from prison under 
 such a licence shall be treated as part of the term of preventive 
 detention. 
 
 Provided that, where such person has failed to return on the 
 licence being forfeited or revoked, the time which elapses after his 
 failure so to return shall be excluded in computing the unexpired 
 residue of the term of preventive detention.' 
 
 Absolute Discharge. — Sect. 16. ' Without prejudice to any other 
 powers of discharge, the Secretary of State may at any time discharge 
 absolutely any person discharged conditionally on licence under this 
 Part of this Act, and shall so discharge him at the expiration of five years 
 from the time when he was first discharged on licence if satisfied that he 
 has been observing the conditions of his licence and abstaining from 
 crime' (6). 
 
 Sect. XII. — Detention of Habitual Drunkards. 
 
 The following enactments provide for special treatment of offenders 
 who are habitual drunkards. 
 
 ' Habitual drunkard means a person who, not being amenable to any 
 jurisdiction in lunacy, is notwithstanding, by reason of habitual intem- 
 perate drinking of intoxicating liquor, at times dangerous to himself or 
 herself or to others, or incapable of managing himself or herself and his or 
 her affairs ' (c). 
 
 By the Inebriates Act, 1898 (61 & 62 Vict. c. 60), sect. 1, (1) Where a 
 person is convicted {d) on an indictment of an offence punishable with 
 imprisonment or penal servitude, if the Court is satisfied from the 
 evidence (e) that the offence was committed under the influence of 
 drink, or that drunkenness was a contributory cause of the offence (/), 
 and the offender admits that he is, or is found by the jury to be, 
 an habitual drunkard, the Court may, in addition to or in substitution 
 
 {h) Ss. 16, 17 adapt the Act to Scotland Ir. Rep. 577. 
 
 and Ireland. S. 18 (2) fixes the com- (e) Quaere, including the depositions. So 
 
 mencement of the Act, Aug. 1, 1909. held in R. v. Mehan, uhi sup. Palles, C.B., 
 
 (c) 42 & 43 Vict. c. 19, s. 3, incorporated dissented. The question seems to be for 
 by 61 & 62 Vict. c. 60, s. 30. See Eaton v. the Court, not for the jury. 
 
 Best [1909J, 1 K.B. 632 ; 73 J. P. 113. (/)As to criminal responsibility of 
 
 (d) Convicted has been held to include a drunken persons, vide ante, p. 87. 
 plea of guilty. R. v. Mehan [1905], 2
 
 CHAP. VII.] Detention of Habitual Drunkards. 245 
 
 for any other sentence, order that he be detained for a term not 
 exceeding three years in any state inebriate reformatory, or in any 
 certified inebriate reformatory the managers of which are willing to 
 receive him. 
 
 (2) In any indictment under this section it shall be sufficient, 
 after charging the offence, to state that the offender is an habitual 
 drunkard. In the proceedings on the indictment the offender shall, 
 in the first instance, be arraigned on so much only of the indictment 
 as charges the said offence, and if on arraignment he pleads guilty or 
 is found guilty by the jury, the jury shall, unless the offender admits 
 that he is an habitual drunkard, be charged to inquire whether he is an 
 habitual drunkard, and in that case it shall not be necessary to swear 
 the jury again. 
 
 Provided that, unless evidence that the offender is an habitual drunk- 
 ard has been given before he is committed for trial, not less than seven 
 days' notice shall be given to the proper officer of the Court by which the 
 offender is to be tried, and to the offender, that it is intended to charge 
 habitual drunkenness in the indictment. 
 
 Special powers as to habitual drunkards convicted of cruelty to 
 children are given by the Children Act, 1908 (8 Edw. VII. c. 67, s. 26, 
 'post, Book IX., Chapter VIII.). 
 
 By sect. 2, ' (1) Any person who commits any of the offences mentioned 
 in the first schedule to this Act, and who within the twelve months 
 preceding the date of the commission of the offence has been convicted 
 summarily at least three times of any offences so mentioned, and who is 
 an habitual drunkard, shall be liable on conviction on indictment, or if 
 he consents to be dealt with summarily {(j), on summary conviction, to 
 be detained for a term not exceeding three years in any certified inebriate 
 reformatory the managers of which are willing to receive him {cjg). 
 
 (2) The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), shall 
 apply to proceedings under this section as if the offence charged were 
 specified in the second column of the first schedule to the Act ' (/<). 
 
 If the accused elects to be tried on indictment under sub-sect. 2, the 
 Court of trial cannot impose any punishment for the offence of which 
 he is then convicted, but can only deal with him as an habitual drunkard. 
 
 By the Inebriates Act, 1899 (62 k 63 Vict. c. 35), s. 1, the costs of a 
 prosecution or indictment under the above section are payable out of the 
 local rate {vide post, Book XII., Chapter V.). 
 
 Sects. 3-12 of the Act of 1898 provide for the establishment and 
 regulation of state inebriate reformatories (?'), and for certification and 
 regulation of inebriate reformatories maintained by county or borough 
 councils or private enterprise (/). 
 
 (7) Under 42 & 43 Vict. c. 49, s. 12, tho of indictable oflfences by adults by their 
 
 consent is a condition precedent to the consent. 
 
 right to try summarily. Commissioner of (i) Prison Commissioners' Report (Pari. 
 
 Police V. Donovan [1903], 1 K.B. 895 ; Pap., 1908. c. 37.38). p. .'iS, with reference to 
 
 19 Cox, 435. the State inebriate reformatories at Ayles- 
 
 {gg) But not also to imprisonment. R. i». bury and Warwick. 
 Briggs [1909], 1 K.B. 381. {j) See Report on working of Inebriates 
 
 (h) Which relates to the summary trial Acts (Pari. Pap. 1908, cc. 4438, 4439).
 
 246 
 
 Of Punishmefits. 
 
 [BOOK I. 
 
 First Schedule. 
 
 Being found drunk in a highway or other - 
 public place, whether a building or not, or on 
 licensed premises. 
 
 Being guilty while drunk of riotous or dis- 
 orderly behaviour in a highway or other public 
 place, whether a building or not. 
 
 Being drunk while in charge, on any highway 
 or other public place, of any carriage, horse, 
 cattle, or steam-engine. 
 
 Being drunk while in possession of any loaded 
 firearms. 
 
 Refusing or failing when drunk to quit 
 licensed premises when requested. 
 
 Refusing or failing when drunk to quit any 
 premises or place licensed under the Refresh- 
 ment Houses Act, 1860, when requested. 
 
 Being found drunk in any street or public 
 thoroughfare within the metropolitan police 
 district, and being guilty while drunk of any 
 riotous or indecent behaviour. 
 
 Being drunk in any street and being guilty 
 of riotous or indecent behaviour therein. 
 
 Being intoxicated while driving a hackney 
 carriage. 
 
 Being drunk during employment as a driver 
 of a hackney carriage, or as a driver or con- 
 ductor of a stage carriage in the metropolitan 
 police district. 
 
 Being drunk and persisting, after being 
 refused admission on that account, in attempt- 
 ing to enter a passenger steamer. 
 
 Being drunk on board a passenger steamer, 
 and refusing to leave such steamer when 
 requested (k). 
 
 I Licensing Act, 1872 
 ^- (35 & 36 Vict. c. 94), 
 
 s. 12. 
 
 Licensing Act, 1872 
 (35 & 36 Vict. c. 94), 
 s. 18. 
 
 Refreshment Houses 
 Act, 1860 (23 & 24 Vict, 
 c. 2), s. 41. 
 
 Metropolitan Police 
 Act, 1839 (2 & 3 Vict, 
 c. 47), 8. 58. 
 
 Town Police Clauses 
 Act, 1847 (10 & 11 Vict, 
 c. 89), s. 29. 
 
 Town Police Clauses 
 Act, 1847 (10 & 11 
 Vict. c. 89), s. 61. 
 
 London Hackney 
 Carriages Act, 1843 (6 
 & 7 Vict. c. 86), s. 28. 
 
 Merchant Shipping 
 ^Act, 1894 (57 & 58 
 I Vict. c. 60), s. 287 {k). 
 
 J 
 
 All similar offences in local Acts (l). 
 
 (k) By the Licensing Act, 1902 (2 Edw. 
 VII. 0. 78, s. 2 (3)), there is added to the 
 schedule^the offence of being drunk in a 
 highway or public place or on licensed 
 premises while in charge of a child appar- 
 ently under the age of seven. 
 
 (/) The schedule also includes the fol- 
 lowing enactments relating to Scotland or 
 Ireland: 55 & 56 Vict. c. 55, ss. 380, 
 
 381 (S) ; 6 & 7 Will. IV. c. 38, s. 12 (I) ; 
 5 & 6 Vict." c. 24, s. 15 (Dublin) ; 23 & 24 
 Vict. c. 107, s. 42 (I.). Two scheduled 
 enactments relating to Scotland, 25 & 26 
 Vict. 35, ss. 19-23, were repealed in 1903 
 and replaced by 3 Edw. VII. c. 25, s. 70 
 (1), (2), which is to be read as incorporated 
 in the above schedule (subs. 3).
 
 CHAP. VII.] General Rules, 247 
 
 Sect, XIII.— General Kules as to Other Punishments. 
 
 Persons under sixteen may not be sentenced to death or to penal 
 servitude for any offence. As to the substituted penalties, vide ante, 
 pp. 205, 231. 
 
 Felonies.— By the Criminal Law Act, 1827 (7 & 8 Geo. IV. c. 28), s. 8, 
 ' Every person convicted of any felony, not punishable with death (m), shall 
 be punished in the manner j^rescribed by the statute or statutes specially 
 relating to such felony (n) ; and every person convicted of any felony, for 
 which no punishment hath been or hereafter may be specially provided, 
 shall be deemed to be punishable under this Act, and shall be liable, at 
 the discretion of the Court, to be transported beyond the seas for the 
 term of seven years or to be imprisoned for any term not exceeding two 
 years : (ww) 
 
 By sect. 11 (o), ' If any person shall be convicted of any felony not 
 punishable with death, committed after a previous conviction of felony (p), 
 such person shall on such subsequent conviction be liable ... to be 
 transported beyond the seas (q) for life, or for any term not less than 
 seven years . . .'(?"). 
 
 These provisions do not apply to persons under sixteen {vide ante, 
 p. 231). 
 
 By the Larceny Act, 1861 (24 & 25 Vict. c. 96), s. 7 (s), ' Whosoever 
 shall commit the offence of simple larceny after a previous conviction 
 for felony, whether such conviction shall have taken place upon an itidict- 
 metit, or binder the provisions of the Act 18 (& 19 Vict. c. 126 (t), shall be 
 liable, at the discretion of the Court, to be kept in penal servitude for any 
 term not exceeding ten years . . . (u), or to be imprisoned . . . and, 
 if a male under the age of sixteen years, with or without whi^^ping ' (v). 
 
 Larceny after Conviction of an Indictable Misdemeanor. — Sect. 8, 
 ' Whosoever shall commit the offence of simple larceny, or any offence 
 hereby made punishable like simple larceny (w) after having been 
 
 (m) See ante, p. 206. tion of felony was rctluccd to a term of 
 
 (n) For the special statutes, sec the penal servitude for not less than four nor 
 
 titles relatmg to particular felonies. more than ten years. This enactment was 
 
 (nn) As to minimum term of penal scrvi- repealed in 1861 (24 & 25 Vict. c. 9.5, s. I), 
 
 tude and as to hard labour, vide ante, and replaced by that set out in the text. 
 l)p. 211, 212. (I) By 18 & 19 Vict. c. 126, justices of 
 
 (n) A like provision is made as to Ireland the peace might convict persons guilty of 
 
 by 9 (ieo. IV. c. 31, s. 21. larceny, &c., summarily, and this clause 
 
 (/>) Superseded as to ' larceny ' by the renders persons so convicted, who after- 
 enactments specified infra, and as to wards are guilty of larceny, liable to the 
 certain coinage offences by 24 & 25 Vict. same punishment as if they had been pre- 
 c. 99, ss. 12, 21. viously convicted upon an indictment for 
 
 {q) Now penal servitude, w'rfenjite, p. 21 1. felony. It is superseded by the Summary 
 
 [r) Now not less than three years, or Jurisdiction Act of 1879 (42 & 4.3 Vict. c. 49). 
 imprisonment with or without hard labour {u) As to other punishments, see 54 & 
 
 for not more than two years. 54 & 55 Vict. 55 Vict. c. 69, s. 1, ante, pp. 211, 212, and 
 
 c. 69, s. I [ante, pp. 211, 212). The rest as to police supervision, sec ante, p. 224. 
 of the section was repealed, as to whii^- (i») The omitted portions were repealed in 
 
 ping in 1888 (S. L. R.), and as to minimum 1893 (S. L. R. No. 2). As to whipping, see 
 
 term of imprisonment in 1893 (S. L. R. ante, p. 215. 
 No. 2). {iv) That is by ss. 31, 32, 33, and 36. 
 
 {s) By s. 12 of the Penal Servitude Act, S. 8 does not apply to a conviction under 
 
 1853 (16 & 17 Vict. c. 99), the punishment s. 88 for false pretences. R. v. Horn, 15 
 
 in case of larceny after a previous convic- Cox, 205.
 
 248 Of Punishments. [book i. 
 
 previously convicted of any indictable misdemeanor punishable under 
 this Act, shall be liable, at the discretion of the Court, to be kept in penal 
 servitude for any term not exceeding seven years ... or to be imprisoned 
 . . . and, if a male under the age of sixteen years, with or without 
 whipping' (x). 
 
 Larceny after Two Summary Convictions. — Sect. 9. ' Whosoever 
 shall commit the offence of simple larceny, or any offence hereby made 
 punishable like simple larceny, after having been twice summarily 
 convicted of any of the offences punishable upon summary conviction, 
 under the provisions contained in . . . the Act of the session held 
 in the tenth and eleventh years of Queen Victoria, chapter eighty- 
 two, ... or in this Act or the Malicious Damage Act, 1861 (24 & 25 
 Vict. c. 97) (whether each of the convictions shall have been in 
 respect of an offence of the same description or not, and whether such 
 convictions or either of them shall have been or shall be before or 
 after the passing of this Act), shall be guilty of felony, and being con- 
 victed thereof shall be liable, at the discretion of the Court, to be kept 
 in penal servitude for any term not exceeding seven years ... or to be 
 imprisoned . . . and, if a male under the age of sixteen years, with or 
 without whipping ' (y). 
 
 Punishment of Principals in Second Degree, and Accessories. — The 
 Accessories and Abettors Act, 1861 (24 & 25 Vict. c. 94, ss. 4, 8), and each 
 of the Criminal Law Consolidation Acts of 1861 (24 & 25 Vict. c. 96, s. 98 ; 
 c. 97, s. 56 ; c. 98, s. 49 ; c. 99, s. 35 ; and c. 100, s. 67), enact that ' In 
 the case of every felony punishable under this Act, every principal in 
 the second degree, and every accessory before the fact, shall be punish- 
 able in the same manner as the principal in the first degree is by this Act 
 punishable (z), . . . and whosoever shall counsel, aid, or abet the com- 
 mission of any indictable misdemeanor punishable under this Act shall 
 be liable to be proceeded against, indicted, and punished as a principal 
 offender ' (a). 
 
 Cumulative Sentences. — By the Criminal Law Act, 1827 (7 & 8 
 Geo. IV. c. 28), s. 10, 'Wherever sentence shall be passed for felony on 
 a person already imprisoned under sentence for another crime, it shall 
 be lawful for the Court to award imprisonment for the subsequent offence, 
 to commence at the expiration of the imprisonment to which such person 
 shall have been previously sentenced ; and where such person shall be 
 
 (x) This section was new in 1861. See c. 92. It is not clear why the reference to 
 
 R. V. Garland, 11 Cox, 222. The omitted 10 & 11 Vict. c. 82 remains, as that Act 
 
 portions were repealed in 1893 (S. L. R. was repealed in 1879 (42 & 43 Vict. c. 49, 
 
 No. 2), vide ante, pp. 211, 212. s. 55), not why 14 & 15 Vict. c. 92 was 
 
 (y) Taken from 12 & 13 Vict. c. 11, s. 3, struck out, as s. 6 is not repealed. As to 
 
 and extended so as to include persons twice minimum term of penal servitude, see 
 
 summarily convicted under 14 & 15 Vict. p. 211. As to hard labour, see ante, p. 212. 
 
 c. 92, ss. 3, 4, 5, & 6 (I), or the Malicious As to whipping, see aiite, p. 215. 
 
 Damage Act, 1861, or the Larceny Act, (z) As to accessories after the fact, 
 
 1861. The omitted portions of s. 9 were vide ante, p. 126. 
 
 repealed in 1893 (S. L. R. No. 2). They (a) This clause is omitted in the Coinage 
 included references to a number of statutes Offences Act, 1861, but the omission is sup- 
 now repealed, viz., 7 & 8 Geo. IV. cc. 29, plied by s. 8 of the Accessories, &c., Act, 
 30 ; 9 Geo. IV. cc. 55, 56 ; 11 & 12 Vict. 1861, aiite, p. 138. 
 c. 59 ; and to ss. 3, 4, 5, and 6 of 14 & 15 Vict.
 
 CHAP. VII.] General Rules. 249 
 
 already under sentence, either of imprisonment or of transportation (6), 
 the Court, if empowered to pass sentence of transportation (6), may award 
 such sentence for the subsequent offence, to commence at the expiration 
 of the imprisonment or transportation (6) to which such person shall 
 have been previously sentenced, although the aggregate term of 
 imprisonment or transportation (6) respectively may exceed the term 
 for which either of those punishments could be otherwise awarded.' The 
 rule above laid down as to felony applies at common law to misdemeanor (c). 
 So that, where a person is convicted of several offences at the same 
 time, of the same kind, he may be sentenced to several terms of penal 
 servitude or imprisonment one after the conclusion of the other [d). 
 Where an indictment for perjury contained two counts charging perjury 
 on two different occasions but with the same object, it was held that they 
 were distinct offences which might, however, be included in one indict- 
 ment ; that a general verdict of guilty was good, and that the full punish- 
 ment of seven years' penal servitude might be inflicted for each offence, 
 the second term to begin at the termination of the first {e). 
 
 As to the effect of conviction of a person out on ticket of leave, see 
 27 & 28 Vict. c. 47, s. 9, as amended by 54 & 55 Vict. c. 69, s. 3, vide ante, 
 p. 220. 
 
 Misdemeanors. — As a general rule all offences less than felony, 
 which exist at common law, and have not been regulated by any par- 
 ticular statute, are punishable within the discretion of the Court (/). 
 Fine, and imprisonment, without hard labour [ante, p. 212), are the 
 remaining common-law punishments in cases of misdemeanor. On 
 the abolition of the punishment of the pillory {g), it was provided by 
 56 Geo. III. c. 128, s. 2, that the Courts might pass such sentence of 
 fine or imprisonment, or of both, in heu of a sentence of pillory, as to 
 the Court should seem proper. Whipping also was ordinarily awarded 
 in former times, but it is not now adjudged except under statutory 
 authority. The offender may, at common law, in addition to fine 
 and imprisonment, be required to find sureties to keep the peace or be 
 of good behaviour {h). 
 
 The common-law punishments may be imposed where a statute 
 declares an offence to be a misdemeanor but prescribes no specific 
 punishment, and in cases where disobedience to the command or prohibi- 
 tion of a statute is held by the Courts to be a misdemeanor (^). 
 
 (6) Now penal servitude. See 20 & 21 own. Since the changes in her status and 
 
 Vict. c. 3, s. 6, ante, p. 211. capacity effected by the Married Women's 
 
 (c) R. V. Wilkes, 19 St. Tr. 1132. R. v. Property Acts, the reasons for this theory 
 
 Cutbush, L. R. 2 Q.B. 379. R. r. Robin- have practically, if not absolutely, dis- 
 
 son, 1 Mood. 413. Castro v. R., (i App. Cas. appeared. 
 
 229. Concurrent sentences of penal servi- {<j) Infra. 
 
 tude and imprisonment arc thought undc- (h) R. v. Dunn, 12 Q.B. 1020. R. v. 
 
 sirable. R. r. Jones, 1 Cr. App. R. 196. R. Hart, .30 St. Tr. 1131. This rule was 
 
 V. Martin, 1 Cr. App. R. 209. applied even in the case of a married 
 
 {d) R. V. Williams, 1 Leach, 529, 536. woman (R. v. Thomas, ubi sup.), although 
 
 See Gregory v. R., 15 Q.B. 974 ; 19 L. J. it was considered that she could not herself 
 
 Q.B. 366. enter into a recognisance. Lee v. Lady 
 
 (e) Castro v. R., 6 App. Cas. 229. Baltinsrlas, Styh^s, 475. Bennetv. Watson, 
 
 (/) 1 Chit. Cr. L. 710. R. v. Thomas, 3 M. & S. 1. Elsy r. Mawdit, Styles, 226. 
 
 cas. K.B. temp. Hardw. 278. It used to Anon., Styles, 321. See 1 Chit. Cr. L. 100. 
 
 be held that a married woman could not (i) Vide ante, c. ii, pp. 11 et seq. 
 be fined, as she had no personalty of her
 
 250 Of PunisJmients. [book i. 
 
 Sect. XIV. — Obsolete Punishments. 
 
 Pillory. — On conviction of misdemeanor it was not unusual to sentence 
 the offender to the pillory (j). The punishment was recognised by the 
 common law, and in some cases imposed by statute (k) ; but was partially 
 abolished by the Pillory Abolition Act, 1816 (56 Geo. 3, c. 138) (1), and 
 wholly abolished in 1837 (m). By sect. 2 of the Act of 1816, ' in all cases 
 where the punishment of the pillory has hitherto {i.e. before July 2, 1816) 
 formed the whole or a part of the judgment to be pronounced, it shall and 
 may be lawful for the Court before whom such offence is tried to pass such 
 sentence of fine or imprisonment, or of both, in lieu of the sentence of 
 pillory as to the said Court shall seem most proper ; provided that nothing 
 herein contained shall extend, or be construed to extend, in any manner to 
 change, alter, or affect any punishment which may now be by law inflicted 
 in respect of any offence except only the punishment of pillory.' 
 
 Stocks. — At common law it is said that every township was bound to 
 provide stocks in which the constable might confine offenders for security 
 but not by way of punishment. By statutes most if not all now repealed 
 setting in the stocks was authorised by way of punishment after con- 
 viction (n). 
 
 Ducking Stool. — The punishment of the ducking stool for scolds has 
 not been formally abolished (o). 
 
 Sect. XV, — Civil Effects of Conviction. 
 Treason and Felony : Forfeitures for Felony, &c. 
 
 The Forfeiture Act, 1870 (33 & 34 Vict. c. 23), recites that it is expedient 
 to abolish the forfeiture of lands and goods for treason and felony, and 
 to otherwise amend the law relating thereto. By sect. 1, ' From and after 
 the passing of this Act, no confession, verdict, inquest, conviction, or 
 judgment of, or for any treason or felony, or felo de se, shall cause any 
 attainder or corruption of blood, or any forfeiture, or escheat, provided 
 that nothing in this Act shall affect the law of forfeiture consequent upon 
 outlawry ' (j)). 
 
 Sect. 2. ' Provided nevertheless, that if any person hereafter convicted 
 of treason or felony, for which he shall be sentenced to death, or penal 
 servitude, or any term of imprisonment, with hard labour, or exceeding 
 twelve months, shall at the time of such conviction hold any military 
 or naval office, or any civil office under the Crown, or other public 
 employment, or any ecclesiastical benefice, or any place, office, or 
 emolument in any university, college, or other corporation, or be entitled 
 to any pension, or superannuation allowance, payable by the public, 
 
 ij) See 3 Co. Inst. 219. 1 Pike Hist. Cr. (m) By 7 Will. IV. and 1 Vict. c. 23 (rep.). 
 
 vol. i. 213, 237-8 ; vol. ii. 285, 378. For (?i) 2 Hawk. P. C. c. 73. See Andrews, 
 
 the form of the pillory and the mode of Old Time Punishments (1890), pp. 1.20-137, 
 
 executing the sentence, see Andrews, Old where evidence is given of the use of the 
 
 Time Punishments (1890), 64-103. stocks in Anglo-Saxon times. 
 
 (k) See 5 Eliz. c. 9, s. 1 (' Perjury '), (o) Vide'/post, Bk. xi. c. ii. 
 
 post, p. 526. (p) As to procedure on outlawry, see 
 
 (/) Eaton was pilloried for blasphemy in Crown Office Rules, 1906, rr. 88-110; 
 
 1812. Vide 31 St. Tr. 958. Short & Mellor Or. Pr. (2nd ed.) 270, 525.
 
 CHAP. VII.] Civil Effects of Coitviction. 251 
 
 or out of any public fund, such office, benefice, employment, or place, 
 shall forthwith become vacant, and such pension or superannuation 
 allowance or emolument shall forthwith determine and cease to be payable, 
 unless such person shall receive a free pardon from His Majesty within 
 two months after such conviction, or before the filling up of such office, 
 benefice, employment, or place, if given at a later period ; and such 
 person shall become, and (until he shall have suffered the punishment 
 to which he had been sentenced, or such other punishment as by competent 
 authority may be substituted for the same, or shall receive a free pardon 
 from His Majesty) shall continue thenceforth incapable of holding any 
 military or naval office, or any civil office under the Crown, or other 
 public employment, or any ecclesiastical benefice, or of being elected, 
 or sitting, or voting as a member of either House of Parliament, or of 
 exercising any right of suffrage or other parliamentary or municipal 
 franchise whatever within England, Wales, or Ireland ' {q). 
 
 By the Children Act, 1908 (8 Edw. VII. c. 67), s. 101, ' The con- 
 viction of a child or young person shall not be regarded as a conviction of 
 felony for the purposes of any disqualification attaching to felony ' {qq). 
 
 Conviction of treason or felony, or outlawry, or criminal process, or 
 conviction of infamous crime, unless pardoned, disqualifies the offender 
 from serving as a juror (r). 
 
 By sect. 4 of the Act of 1870, ' it shall be lawful for any such Court as 
 aforesaid, if it shall think fit upon the application of any person aggrieved, 
 and immediately after the conviction of any person for felony, to award 
 any sum of money, not exceeding one hundred pounds, by way of satis- 
 faction or compensation for any loss of property suffered by the applicant 
 through or by means of the said felony, and the amount awarded for 
 such satisfaction or compensation shall be deemed a judgment debt 
 due to the person entitled to receive the same from the person so con- 
 victed, and the order for payment of such amount may be enforced 
 in such and the same manner as in the case of any costs ordered by the 
 Court to be paid under the last preceding section of this Act ' {s). 
 
 By sect. 5, 'The word "forfeiture," in the construction of this Act, 
 shall not include any fine or penalty imposed on any convict by virtue 
 of his sentence' {t). 
 
 By sect. 32, ' Provided always that nothing in this Act shall be 
 deemed to alter or in any wise affect the law relating to felony in 
 England, Wales, or Ireland, except as herein is expressly stated.' 
 
 By the Wine and Beerhouse, &c.. Act, 1870 (33 & 34 Vict. c. 29), s. 14, 
 ' Every person convicted of felony shall for ever be disqualified from selling 
 spirits by retail, and no licence to sell spirits by retail shall be granted to 
 
 {q) Aa to ordering a person convicted of to penal servitude for treason or felony, 
 
 treason or felony to pay the costs of [the while they arc^ in prison undergoing their 
 
 prosecution, see post, Bk xii. c. v. ' Costs.' sentence. The sections cease to apply 
 
 (qq) A re-enactment of 1 Edw. VII. c. 20, if they die or become bankrupt, or receive 
 
 8. 1. a pardon (s. 7), and do not apply to 
 
 (r) 33 & 34 Vict. c. 70, ss. 7, 10 (E) ; 34 property acquired while at large on licence 
 
 & 35 Vict. c. 65, s. 7 (I) ; 39 & 40 Vict. (s. 30). As to these sections, sec Carr v. 
 
 c. 78, s. 21 (I). Anderson [1903]. 1 Ch. 90; 2 Ch. 279; 
 
 (s) Sec R. V. Lovctt, 11 Cox, 602. and Gaskell & Walters" Contract [1906], 
 
 (<) Ss. 6-30 regulate the administration, 2 Ch. 1 ; and see 8 Edw. VII. c. 15, post, 
 
 &c., of the property of convicts sentenced Bk. xii. c. v.
 
 252 Of Punishments. [book i. 
 
 any person who shall have been so convicted as aforesaid ; and if any 
 person shall, after having been so convicted as aforesaid, take out or 
 have any licence to sell spirits by retail, the same shall be void to all 
 intents and purposes ; and every person Avho, after being so convicted as 
 aforesaid, shall sell any spirits by retail in any manner whatever, shall 
 incur the penalty for doing so without a licence ' [u). 
 
 In the case of convictions of felony not falling within sects. 2, 6-27 of 
 the Act of 1870, and in the case of conviction for misdemeanor, the civil 
 rights of the offender in respect of his property are not affected. But 
 conviction and imprisonment for crime disqualify the offender from 
 holding certain offices, e.g., district councillor or guardian of the poor (v). 
 
 Sect, XVI. — Pardon or Remission or Mitigation of Punishment. 
 
 In passing a sentence on conviction, the Court should take into 
 consideration all offences of a similar nature already committed by the 
 prisoner, and of which he admits the commission, but for which he has 
 not been actually tried {vv). 
 
 When a sentence involving punishment has been passed and duly 
 recorded, the Court of trial has no power to remit it. On appeal to the 
 Court of Criminal Appeal the punishment may be reduced or increased 
 by the appellate Court {w). 
 
 The power to pardon the offence, or commute or remit or reduce the 
 punishment or fine for a criminal offence, is part of the prerogative of the 
 Crown {x), which cannot be delegated to a subject as to matters in England 
 and Wales (27 Hen. VIII. c. 24, s. 1), and is distinct from the provisions 
 made under the statutes and rules relating to convict prisons and local 
 prisons which authorise the absolute or conditional release of offenders 
 before the expiration of any term of penal servitude or imprisonment 
 lawfully adjudged. 
 
 A. Pardon. 
 
 By virtue of the prerogative of mercy the Crown may grant a free 
 pardon for an offence, which restores the offender to the status which he 
 held before conviction {y). 
 
 A free pardon may be granted either before or after trial. Where a 
 pardon is granted at any one's suggestion, the fact of the suggestion and 
 the name of the person making it should be in the pardon (27 Edw. III. 
 st, 1, c. 2) ; and pardons for treason, murder, or rape are not to be 
 granted unless the offence is specified in the pardon (13 Rich. II. st. 2, 
 c. 1 ; 16 Rich. II. c. 6. See 1 C. & P. 456, note to R. v. Beacall). 
 
 At common law pardons must be under the Great Seal (2). 
 
 («) See Hay t'. Tower Justioee, 24 Q.B.D. s. 11; nor it would seem in the case of 
 
 561. attachment or committal in the case of 
 
 (v) For statutes, see Chronological Index civil contempts of Court. Criminal con- 
 to Statutes, tit. ' Disqualification.' tempts of Court may be pardoned or the 
 
 {vv) R. V. Syres, 73 J. P. 13. R. v. sentence remitted. Re Bahama Islands 
 
 Taylor, 2 Cr. App. R. 158. [1893], A.C. 138. For other limitations 
 
 (w) 7 Edw. VII. c. 23, ss. 4 (3), 19, on the power to pardon, see 2 Hawk. c. 37. 
 
 •post, Bk. xii. c. iv. (y) Hay ?;. Tower Justices, 24 Q.B.D. 561. 
 
 (ar) The power to remit does not extend Leyman v. Latimer, 3 Ex. D. 15, 352. And 
 
 to the penalties of praemunire under the see 33 & 34 Vict. c. 23, s. 2, ante, p. 250. 
 
 Habeas Corpus Act, 1679 (31 Car. II. c. 2), (z) R. v. Boyes, 30 L. J. Q.B. 301.
 
 CHAP, vii.] Pardon or Remission of Punishment. 253 
 
 Conditional Pardon. — The Crown may grant a pardon on conditions. 
 
 A conditional pardon for treason may be granted and the condition 
 enforced even if the convict do not assent to it (a). 
 
 A pardon granted on a void condition is void (6). 
 
 By the Criminal Law Act, 1827 (7 & 8 Geo. IV. c. 28), s. 13 (c), ' Where 
 the King's Majesty shall be pleased to extend his royal mercy to any 
 offender convicted of any felony punishable with death or otherwise, and 
 by warrant under his royal sign manual {cc), countersigned by one of his 
 principal secretaries of state, shall grant to such offender either a free 
 or a conditional pardon, the discharge of such offender out of custody in 
 the case of a free pardon, and the performance of the condition in the case 
 of a conditional pardon, shall have the effect of a pardon under the Great 
 Seal for such offender, as to the felony for which such pardon shall be so 
 granted : provided always, that no free pardon, nor any such discharge 
 in consequence thereof, nor any conditional pardon, nor the performance 
 of the condition thereof, in any of the cases aforesaid, shall prevent or 
 mitigate the punishment to which the offender might otherwise be lawfully 
 sentenced on a subsequent conviction for any felony committed after the 
 granting of any such pardon.' 
 
 By the Penal Servitude Act, 1853 (16 & 17 Vict. c. 99), s. 5, ' When- 
 ever His Majesty, or the lord lieutenant or other chief governor or gover- 
 nors of Ireland for the time being, shall be pleased to extend mercy to any 
 offender convicted of any offence for which he may be liable to the 
 punishment of death, upon condition of his being kept to penal servitude 
 for any term of years, or for life, such intention of mercy shall have the 
 same effect and may be signified in the same manner, and all courts, 
 justices, and others shall give effect thereto and to the condition of the 
 pardon in like manner, as in the cases where His Majesty, or the lord 
 lieutenant or other chief governor or governors of Ireland for the time, is 
 or are now pleased to extend mercy upon condition of transportation 
 beyond seas, the order for the execution of such punishment as His 
 Majesty, or the lord lieutenant or other chief governor or governors of 
 Ireland for the time being, may have made the condition of her, his, or 
 their mercy being substituted for the order for transportation' {d). 
 
 The Civil Rights of Convicts Act, 1828 (9 Geo. IV. c. 32), s. 3, after 
 reciting that it is expedient to prevent all doubts respecting the civil 
 rights of persons convicted of felonies, not capital, who have undergone 
 the punishment to which they were adjudged, enacts that : ' Where any 
 offender hath been or shall be convicted of any felony not punishable 
 with death, and hath endured or shall endure the punishment to which 
 such offender hath been or shall be adjudged for the same, the punishment 
 so endured hath and shall have the like effect and consequences as a 
 pardon under the Great Seal as to the felony whereof the offender was so 
 
 (a) 8ce 12 & 13 Vict. c. 27 (I). Act as authority to discharge a prisoner. 
 
 (b) Canadian Prisoners' case [1839], Sec 1 Leach, 74. 
 
 3 St. Tr. (N. S.) 1034. (d) Similar provisions as to pardon con- 
 
 (c) As to Ireland, sec 9 Geo. TV. c. 54, ditional on transportation are made by 
 s. 3. As to pardon conditional on im- 5 Geo. IV. c. 84, s. 3 (not repealed, but of 
 prisonment, see 11 Geo. IV. & 1 Will. IV. no present importance). That section 
 c. 39, s. 7, extends to Scotland. As to Ireland, see 
 
 (cc) Sign manuals were used before this 12 & 13 Vict. c. 27.
 
 254 Of Punishments. [book i. 
 
 convicted : provided always, that nothing herein contained, nor the 
 enduring of such punishment, shall prevent or mitigate any punishment 
 to which the offender might otherwise be lawfully sentenced on a 
 subsequent conviction for any other felony/ 
 
 B. Respite and Reprieve. 
 
 By respite in criminal cases is usually meant postponement of judg- 
 ment or sentence till a later date (e), e.g., where a case is stated for the 
 consideration of the Court of Criminal Appeal, or an appeal is pending 
 under the Criminal Appeal Act, 1907(/"). Where judgment has been 
 respited for a capital offence, it may be given by subsequent justices 
 of gaol delivery for the same county (g). 
 
 By ' reprieve ' is meant suspension of the execution of a sentence of 
 death (h) : (a) ex mandato regis, in exercise of the royal prerogative of 
 mercy ; (6) at the discretion of the Court, ex arhitrio judicis (except on 
 conviction of murder), to enable the offender to apj)ly for pardon or 
 commutation of sentence [i) ; (c) ex necessitate legis, where some fact is 
 disclosed entitling the offender to delay execution of sentence, e.^., where 
 a woman convicted of murder is found to be pregnant (j), or where the 
 offender becomes insane between judgment and execution (k). 
 
 Under the Criminal Appeal Act, 1907, the execution of a judgment, 
 subject to any special order, is suspended from the time of giving 
 notice of appeal, and where an appeal is brought by leave or of right, 
 until the appeal is determined {I). 
 
 e) Keen v. R., 10 Q.B. 928. & 1 Vict. c. 77, ss. 3, 4, ante, p. 207 ; and 
 
 (/ ) See post, Bk. xii. c. iv. 24 & 25 Vict. c. 100, s. 2. 
 
 (g) 1 Edw. VI. c. 7, s. 5. (j) 3 Co. Inst. 17 ; 1 Chit. Cr. L. 759. 
 
 (h) 2 Hawk. o. 51, s. 8 ; 1 Chit. Cr. L. (k) 3 Co. Inst. 4 ; 1 Chit. Cr. L. 761. 
 
 758. (I) 7 Edw. VII. c. 23, ss. 7 (2), 14, 21, post, 
 
 (i) See 4 Geo. IV. c. 48, and 7 Will. IV. Bk. xii. c. iv.
 
 ( 254a ) 
 
 CANADIAN NOTES. 
 
 OF PUNISHMENTS. 
 
 Sec. 1. — Death. 
 
 The offences to which the penalty of death is attached are as 
 follows: — (a) Treason, sec. 74(2) ; (&) Levying War in Canada, sec. 
 77; (c) Piracy accompanied by violence to person, sec. 137; (cZ) Mur- 
 der, sec. 263; (e) Rape, sec. 299. 
 
 Execution of a pregnant woman may be arrested. Code sec. 1008. 
 
 In all cases where an offender is sentenced to death, the sentence or 
 judgment to be pronounced against him shall be that he be hanged by 
 the neck until he be dead. Code sec. 1062. 
 
 Report of the sentence of death must forthwith be made to the 
 Secretary of State. Code sec. 1063. 
 
 If delay after sentence be necessary, a Judge of the Court in which 
 the conviction took place may reprieve the offender. Code sec. 1063 (2) . 
 
 After judgment the offender shall be separately confined. Code 
 sec. 1064. 
 
 Only certain persons may be present at an execution. Code sees. 
 1066, 1067. 
 
 Judgment of death shall be carried into effect within the walls of 
 the prison in which the offender is confined. Code sec. 1065. 
 
 A certificate of death shall be given by the medical officer. The 
 sheriff, gaoler, and other persons present if required shall sign a 
 declaration. Code sec. 1068. 
 
 Deputies may act for the sheriff, gaoler, or medical officer. Code 
 sec. 1069. 
 
 An inquest shall be held within twenty-four hours. Code sec. 1070. 
 
 The body shall be buried within the walls of the prison. Code 
 sec. 1071. 
 
 Irregularities do not make an execution illegal. Code sec. 1073. 
 
 The certificate must be sent to the Secretary of State, and printed 
 copies exhibited at or near the principal entrance to the prison. Code 
 sec. 1072. 
 
 Execution under Sentence of High Court. — In Cashell's case 
 (1903), 40 C.L.J. 54 (N.W.T.), an order was made by Sifton, C.J., 
 postponing the execution for a week, the prisoner having broken jail 
 and escaped.
 
 2546 Imprisonment. [book l 
 
 In an unreported Ontario case (Reg. v. Young (1876)) the pri- 
 soners were, on March 27, 1876, found guilty of murder and were 
 sentenced to be hanged on June 21 following. They effected their 
 escape, and continued at large until midsummer, and were then re- 
 taken. 
 
 Counsel for the Crown moved before the full Court on August 27, 
 for writs of habeas corpus and certiorari to bring up the prisoners from 
 the jail at Cayuga, and the indictment against them, for the purpose 
 of applying for a new sentence of death ; which, on return made to the 
 writs, was passed upon them. 40 C.L.J. 131. 
 
 The sentence may be commuted. Code sec. 1078. 
 
 Sec. 4. — Impruo nm e n t. 
 
 The Dominion Parliament has the constitutional power to establish 
 prisons for the incarceration of offenders against Dominion laws. Re 
 Goodspeed (1903), 7 Can. Cr. Cas. 240 (N.B.) 
 
 The Courts of a province in which is situate a penitentiary common 
 to that and another province, should not enquire on habeas corpus into 
 the validity of an indictment upon which the prisoner was tried in 
 the other province and sentenced to imprisonment in such penitentiary. 
 R. V. Wright (1905), 10 Can. Cr. Cas. 461 (N.B.). 
 
 If the certificate of sentence to imprisonment in a penitentiary is 
 irregular for omission of the date of sentence leave may be given on a 
 habeas corpus motion to return an amended certificate correcting the 
 omission. R. v. Wright, 10 Can. Cr. Cas. 461. 
 
 The certified copy of sentence is sufficient warrant for the imprison- 
 ment of a convict in the penitentiary and it is not necessary that it 
 should contain every essential averment of a formal conviction. Where 
 the venue is mentioned in the margin of a commitment, in the case of 
 an offence which does not require local description, it is not necessary 
 that the warrant should describe the place where the offence was com- 
 mitted.' A warrant of commitment (or certified copy of sentence) 
 following a conviction on indictment, need not state the time from 
 which the term of imprisonment shall begin to run, as both under the 
 Penitentiaries Act and the Prisons Act, terms of imprisonment com- 
 mence on and from the day of the passing of the sentence. Ex parte 
 Smitheman (1904), 35 Can. S.C.R. 189, 490, 9 Can. Cr. Cas. 10, 17. 
 
 Where no punishment is specially provided, a person convicted of 
 ■ an indictable offence, is liable to imprisonment for five years. Code 
 sec. 1052. 
 
 Everyone summarily convicted of an offence for which no punish- 
 ment is specially provided is liable to a penalty not exceeding fifty 
 dollars, or to imprisonment not exceeding ten months, with or mthout 
 hard labour, or to both. Code sec. 1052(2). 
 
 I
 
 CHAP. VII.] Punishments. 254c- 
 
 Second Offence. — Everyone convicted of an indictable offence, not 
 punishable with death, committed after previous offence, is liable to 
 imprisonment for ten years, unless some statute directs some other 
 punishment. Code sec. 1058. 
 
 But a person who, after a previous conviction for any indictable 
 offence, is convicted of an offence under Part VII. of the Code for 
 which a punishment on a first conviction is less than fourteen years' 
 imprisonment is liable to fourteen years' imprisonment. Code sec. 465. 
 
 Where a statute of Canada imposes a fine and also imprisonment, 
 the punishment'is in the discretion of the Court, which is not bound to 
 inflict both, but may inflict either one or the other of the two kinds of 
 punishment by virtue of section 1028. R. v. Robidoux (1898), 2 Can. 
 Cr. Cas. 19 (Que.) 
 
 S(coud Offence — Certificate of Previous Conviction, etc. — Under 
 the Ontario Liquor License Act, R.S.O. 1897, ch. 245, sec. 101, the 
 question of the identity of the accused, charged with a second offence, 
 with the person previously convicted is one for the magistrate to 
 determine upon the evidence before him apart from his personal recol- 
 lection, but a certificate of the previous conviction in the same locality 
 of a person of the same name is some evidence of identity. 
 
 A certificate under the Liquor License Act of a prior conviction 
 thereunder is not affected by Code sec. 982, under which evidence of 
 identity apart from and in addition to a certificate of the prior con- 
 viction is required on the trial for an indictable offence if a prior con- 
 viction of the accused is to be proved. 
 
 Per Britton, J. — Qua?re, whether Code sec. 982 has any application 
 other than to the trial of indictable offences. The King v." Leach et al., 
 14 Can. Cr. Cas. 375. 
 
 Maximum Term Shortened. — Everyone who is liable to imprison- 
 ment for life, or for any term of years, or other term, may be sen- 
 tenced to imprisonment for any shorter term ; provided that no one 
 shall be sentenced to any shorter term of imprisonment than the mini- 
 mum term, if any, prescribed for the offence of which he is convicted. 
 Code sec. 1054. 
 
 For Terms Less than Two Years. — Sentence for imprisonment for 
 less than two years, unless some other place is named, shall be in the 
 common gaol or place of confinement, not a penitentiary, in the place 
 in which the sentence is pronounced. A person sentenced at the same 
 sittings to penitentiai'y and gaol, or sentenced for less than two years 
 while in a penitentiary, may l)e sentenced to serve in a penitentiary. 
 In ]\ranitoba offenders sentenced to terms of less than two years may l)e. 
 imprisoned in any gaol in the province. Code sec. 1056. 
 
 A prisoner convicted at the one time of two offences and sentenced 
 on eacli to three months' imprisonment without specification as to the 
 terms l)eing concurrent or otherwise, is not entitled to a discharge on a
 
 2o4:d Whipping. [book i. 
 
 habeas corpus after three months' imprisonment. There is no pre- 
 sumption that sentences passed at the one time are to be concurrent. 
 Ex parte Bishop (1895), 1 Can. Cr. Cas. 118 (N.B.). 
 
 With or Without Hard Labour. — An offender convicted 
 
 (a) of an indictable offence, 
 
 (6) before a Judge of a Superior Court in Saskatchewan or 
 Alberta ; or 
 
 (c) before a stipendiary magistrate in the North-West Terri- 
 tory; or 
 
 {d) before a Judge of the Territorial Court in the Yukon 
 Territory, 
 may be sentenced to undergo hard labour while imprisoned, in the 
 discretion of the Court or person passing sentence. In other cases 
 hard labour may be imposed by the sentence if it be part of the punish- 
 ment prescribed by law for the offence. Code sec. 1057. 
 
 "Where the sentence imposed upon a summary trial by consent 
 before a city stipendiary magistrate for common assault, was, in the 
 first instance, three months' imprisonment without mention of hard 
 labour, and the minute of adjudication did not include hard labour, 
 a formal conviction, including hard labour, and a commitment thereon 
 in similar terms, are invalid and the accused will be discharged on 
 habeas corpus. Ex parte Carmichael (1903), 8 Can. Cr. Cas. 19 (N.S.). 
 If a statute merely directs imprisonment as the punishment of an 
 offence, no Court of justice can, in the absence of any general discre- 
 tionary power to that effect, award hard labour in addition. It is an 
 additional substantive punishment. Hard labour is in fact a statutable 
 addition to imprisonment, generally to be found enacted in the Act 
 creating the offence, sometimes in statutes giving it as a discretionary 
 power to a Court on awarding imprisonment. R. v. Frawley (1881), 
 46 U.C.Q.B. 153; R. v. Allbright, 9 P.R. (Ont.) 25. 
 
 Imprisonment in Defaidt, ivith Hard Labour. — Section 739(2) of 
 Revised Criminal Code authorizes the imposition of hard labour upon 
 an imprisonment in default of distress, only where imprisonment with 
 hard labour in the first instance might have been imposed in addition 
 to a fine with imprisonment in default of distress or payment. The 
 King V. Riley, 14 Can. Cr. Cas. 346. 
 
 Sec. 5. — Whipping. 
 
 The punishment of whipping may be imposed upon persons con- 
 victed of the following offences: — 
 
 (a) Assaidt upon the King. — Code sec. 80. 
 
 (6) Burglary When Armed. — Code sec. 457. 
 
 (c) Carnal K^iowledge of a Girl under Fourteen Years of Age. — 
 Code sec. 301. 
 
 {d) Attempt to Have Carnal Knowledge of a Girl under Fourteen 
 Years of Age. — Code sec. 302.
 
 CHAP. VII.] Fines. 254e 
 
 (e) Attempts to Choke, Strangle, or Drug ivith Intent to Commit 
 or Assist in Committing an Indictable Offence. — Code sec. 276. 
 
 (/) Indecent Assaults upon Females. — Code see. 292. 
 
 (g) Assaults upon Persons with Intent to Com,mit Sodomy or In- 
 decent Assaidts on Male Persons hy Other Male Persons. — Code 
 sec. 293. 
 
 {x) Doing, Attempting or Procuri^ig Acts of Gross Indecency hy 
 a Male Person with Another Male Person. — Code sec. 206. 
 
 Provisions for the Carrying into Effect of the Punishment of Whip- 
 ping. — The instrument is a cat-o '-nine-tails unless the sentence pre- 
 scribes some other instrument. Whipping may be three times inflicted. 
 It shall not take place within ten days of discharge. Code sec. 1060. 
 
 Females. — Whipping shall not be inflicted on any female. Code 
 sec. 1061. 
 
 Sec. 6. — Fines. 
 
 The amount of a fine is in the discretion of the Court, within the 
 limits fixed by statute. Code sec. 1029. 
 
 On conviction of an indictable offence punishable by imprisonment 
 for five years or less, a fine may be imposed in addition to or in lieu 
 of any punishment otherwise authorized ; and the sentence may direct 
 imprisonment till the fine is paid, or for not more than five years. 
 Code sec. 1035(1). 
 
 On conviction for an indictable offence punishable with imprison- 
 ment for more than five years, a fine may be imposed in addition to, but 
 not in lieu of, any punishment otherwise ordered. In the latter case 
 also imprisonment in default of payment of the fine may be directed by 
 the sentence. Code sec. 1035(2), It should be noticed that the 
 exercise of the power given by this section of the Code is not expressed 
 to be subject to the provisions of any other statute. 
 
 Penalties and forfeitures, when no other mode is prescribed, are 
 recoverable, with costs, by civil action at the suit of His Majesty or 
 of a private party suing for His Majesty and for himself. Where no 
 other provision is made, one moiety belongs to His Majesty, and the 
 other to the party suing. Code sec. 1038. Actions for penalties must 
 be brought within two years, except it be other\\dse provided. Code 
 sec. 1141. 
 
 One moiety goes to the person who sues in respect of the following 
 offences : — 
 
 (a) Uttering Uncurrent Coin. — Sec. 567. 
 
 (&) Possession of Copper Coin Unlawfully Imported or Manufac- 
 tured.— Sec. 624. 
 
 (c) Unlawfully Mamifacturing or Importing Copper Coin. — Sec. 
 625. 
 
 {d) Attempted Illegal Importation of Copper Coin. — Sec. 626,
 
 254/ Punishments. [book i. 
 
 (e) Persuading to Desert the Army or Navy, or Concealing a 
 Deserter. — Sec. 82, 
 
 (/) Resisting Search Warrant for Deserter. — Sees. 83 and 657. 
 
 (g) Receiving Stolen Goods from Soldiers. — Sec. 438. 
 
 {h) Receiving Necessaries from Seamen. — Sec. 439. 
 
 (i) Cruelty to Animals. — Sec. 542. 
 
 (j) Keeping Cock pit. -^^ec. 543. 
 
 The Governor in Council may at any time remit any fine or for- 
 feiture. Code sec. 1084. 
 
 The remission may be on terms as to the payment of costs or other- 
 wise ; provided that where proceedings have been instituted by private 
 persons costs already incurred shall not be remitted. Code sec. 1085. 
 
 Sec. 7. — Recognizances and Sureties. 
 
 A person convicted summarily of an indictable offence, or by any 
 Court for any offence not punishable with death, may be required in 
 addition to any other sentence to enter into his own recognizances or 
 to give security to keep the peace and be of good behaviour, for a term 
 not exceeding two years, and to imprisonment for not more than one 
 year, pending the entry into recognizances or giving security. Code 
 sec. 1058. 
 
 It is noteworthy that recognizances or sureties are alternative under 
 section 1058, and that there is power to impose either in addition to, 
 but not in lieu of, any other punishment, contrary in both respects to 
 the provisions enacted in each of the Consolidation Acts of 1861 
 (British), referred to in page 219 hereof. 
 
 A person charged before a justice w4th an offence punishable on 
 summary conviction (under Part XV. of the Code), or with making 
 threats, may, in addition to, or in lieu of, any other sentence, be 
 ordered to enter into recognizances, or to give security to keep the 
 peace, and be of good behaviour for a period not exceeding twelve 
 months, and in default to imprisonment for not more than twelve 
 months. Code sec. 748. 
 
 In this section also the power to order recognizances or security is 
 alternative only. 
 
 Part XXI. of the Code treats of "Render by Sureties and Recog- 
 nizances. ' ' 
 
 An application in Nova Scotia under Code sec. 1110 to discharge 
 from custody a surety arrested in estreat proceedings should be made 
 to the Judge presiding in criminal sittings and not to the Court 
 en banc. Re Pippy, 14 Can. Cr. Cas. 305. 
 
 Sec. 8. — Probation of Offenders. 
 
 The Ticket of Leave Act, R.S.C. (1906), ch. 150, enacts that the 
 Governor-General may grant to any convict in a penitentiary, gaol, or
 
 CHAP. VII.] Probation of Offenders. 254$r 
 
 other public or reformatory prison a license to be at large in Canada, 
 or in a specified part thereof, and may revoke such license. Sec. 2. 
 
 The conviction and sentence remain in force despite such license, 
 but the convict is not liable to imprisonment by reason of his sentence 
 while the license remains in force. Sec. 3. 
 
 If a holder of a license is convicted of an indictable offence his 
 license is forfeited forthwith. See. 5. 
 
 If a holder of a license is convicted of any offence punishable on 
 summary conviction the license may be revoked. Sec. 6. 
 
 The license issued under the authority of 62-63 Vict. ch. 49, and by 
 which a convict while undergoing a term of imprisonment in peni- 
 tentiary is conditionally allowed at large, may be revoked by the 
 G-overnor-General either with or without cause assigned. 
 
 The revocation by the Crown, without cause assigned, of such 
 license works no interruption in the running of the sentence which 
 shall terminate at the same time as if such license had never been 
 granted. R. v. Johnson, 4 Can. Cr. Cas. 178. 
 
 If a license be revoked or forfeited the holder may be apprehended 
 ( sec. 7(1)) and recommitted to the place from which he was released 
 by his license (sec. 7(3)), unless this be in another province, and he 
 may be imprisoned where apprehended. Sec. 7(3). 
 
 In the event of a license being revoked or forfeited, the term to 
 which the offender was originally sentenced must be served out in the 
 kind of institution to which he was originally sentenced. Sec. 8. 
 
 A licensee must notify the proper officials of the place in which he 
 resides of his place of residence, and whenever he is about to leave that 
 place. Sec. 9. 
 
 Every male holder of a license must once in each month report him- 
 self to the Chief of Police or sheriff of the city, town, county or district 
 in which such holder may be, and such report may be required to be 
 made personally or by letter. Sec. 9(2). 
 
 Any person who cannot satisfy the Court that his delay in failing 
 to notify his place of residence or to report was unavoidable, is guilty 
 of an offence, and liable on summary conviction to forfeit his license, or 
 to imprisonment with or without hard labour for a term not exceeding 
 one year. Sec. 10. 
 
 Any holder failing whenever required to produce his license, or who 
 breaks any of the other conditions of his license by any act which is not 
 of itself punishable either upon indictment or summary conviction, is 
 guilty of an offence, and liable upon summary conviction to imprison- 
 ment for three months with or without hard labour. Sec. 11. 
 
 Any peace officer may take into custody without Avarrant any con- 
 vict who is the holder of such license — 
 
 (a) Whom he reasonably suspects of having committed any offence, 
 or
 
 254/i Punishments. [book i. 
 
 (h) If it appears to such peace officer that such convict is getting 
 his livelihood by dishonest means, and may take him before a justice to 
 be dealt with according to law. 
 
 2. If it appears from the facts proved before the justice that there 
 are reasonable grounds for believing that the convict so brought before 
 him is getting his livelihood by dishonest means, such convict shall be 
 guilty of an offence against this Act, and his license shall be forfeited. 
 
 3. Any convict so brought before a justice of the peace may be con- 
 victed of getting his livelihood by dishonest means, although he has 
 been brought before the justice on some other charge, or not in the 
 manner provided for in this section. Sec. 12. 
 
 Conditional Release (Suspended Sentence). — Sentence may be sus- 
 pended in the discretion of the Court in any case in which an offender 
 suffers a first conviction for an offence punishable with not more than 
 two years ' imprisonment ; with the consent of counsel for the Crown 
 in the prosecution, sentence may also be suspended after conviction 
 for offences punishable with imprisonment for more than two years. 
 Code sec. 1081. 
 
 The Court shall be satisfied that the offender has a fixed place of 
 abode or regular occupation. Code sec. 1082. The offender may be 
 apprehended, brought before the Court or a justice, committed and 
 tried for his conduct subsequent to release. Code sec. 1083, 
 
 Where a release on suspended sentence was in respect of a convic- 
 tion for keeping a disorderly house, the fact that the accused had again 
 been brought before the same magistrate on a similar charge which, 
 however, was not substantiated, does not give the magistrate jurisdic- 
 tion to impose the sentence which had been suspended in respect of the 
 first charge. And, semble, a proceeding under sec. 1083 to bring up for 
 sentence an accused person who had been released on suspended sen- 
 tence, can only be taken at the instance of the Crown. R. v. Siteman 
 (1902), 6 Can. Cr. Cas. 224. 
 
 Where the jury convicted the defendant and the verdict was re- 
 corded and the offender was, by order of the Court, released on bail to 
 appear for judgment, it is only upon motion by the Crown that the 
 recognizance of the defendant and his bail can be estreated in Ontario 
 or that judgment can be moved against the offender. R. v. Young 
 (1901), 4 Can. Cr. Cas. 580 (Ont). 
 
 A contract by the accused to indemnify a surety against liability 
 under his recognizance is illegal ; but where a deposit of money is made 
 by the accused with the surety by way of indemnity, the accused can- 
 not recover it back. Herman v. Jeuchner, 15 Q.B.D. 561. 
 
 Where after a summary trial the accused is convicted but is 
 released on suspended sentence and a recognizance is taken binding the 
 accused to keep the peace and be of good behaviour, the magistrate has
 
 CHAP. VII.] Suspended Sentence. 254j 
 
 no jurisdiction to impose sentence ^vithout an information under oath 
 charging a breach of the recognizance (Code sec. 1083). R. v. Siteman 
 (1902), 6 Can. Cr. Cas. 224 (N.S.). 
 
 Two Years' Imprisonment. — In R. v. McLennan (No. 1) (1905), 
 10 Can. Cr. Cas. 1, it appears to have been considered that an offence 
 "punishable with not more than two years' imprisonment" under the 
 first sub-section meant an offence so punishable before the Court or 
 magistrate actually trying the charge. It is submitted that the section 
 refers to the maximum penalty which the law imposes for the offence, 
 although the magistrate exercising a power of summary trial may on 
 account of the special jurisdiction conferred on him be restricted to 
 a sentence less than two years, and that where such maximum exceeds 
 two years the concurrence of the Crown counsel is necessary under sub- 
 sec. (2). See note 10 Can. Cr. Cas. 10-13. 
 
 ''Court." — The "Court" in sec. 1081 means, unless the context 
 otherwise requires, any superior Court of criminal jurisdiction, any 
 Judge or Court exercising the "speedy trials" jurisdiction and any 
 magistrate exercising the "summary trials" jurisdiction. Code sec. 
 1026. 
 
 Juveniles. — There is also the power under the "juvenile offenders" 
 clauses (Code sees. 800-821), to dismiss the accused if the justices upon 
 the hearing of a case against a juvenile offender under sixteen years of 
 age, consider it inexpedient to inflict any punishment. Code sec. 813, 
 
 Costs. — Where the person convicted upon a summary trial is re- 
 leased upon suspended sentence and is directed to pay the informant 's 
 costs, such costs are payable forthwith unless otherwise ordered. The 
 power under this section to award such costs to be paid "within such 
 period and by such instalments as the Court directs ' ' does not make it 
 necessary to divide the costs into instalments. R. v. McLellan (No. 1) 
 (1905),10Can. Cr. Cas. 1. 
 
 Previous Conviction. — The proper time for taking evidence of a 
 previous conviction to exclude a magistrate's jurisdiction to release on 
 suspended sentence is after the finding of guilty on the present charge 
 and not during the hearing of the charge. If the Crown does not 
 adduce evidence of a previous conviction, the magistrate may, on his 
 own initiative, call for the records under his own control and custody 
 and hold an enquiry upon the question whether the defendant had been 
 previously convicted before him and on the questions of identitj'', age 
 and antecedents of the defendant for the purpose of considering the 
 appropriate punishment or a release on suspended sentence where the 
 latter is permissible. Semble, if the magistrate recollects that the 
 person convicted before him was previously convicted before him he 
 should proceed with such an enquiry, although the Crown counsel was 
 content to allow the accused to go on suspended sentence. The King v. 
 Bonnevie, 10 Can. Cr. Cas. 376.
 
 254/ Punishments. [book i. 
 
 Sec. 9. — Punishment of Juvenile Offenders. 
 
 The Prisons and Reformatories Act, R.S.C. (1906) ch. 148, provides 
 for the separation, before trial, while in custody, of young persons 
 apparently under sixteen years from older persons in custody, and 
 from all persons undergoing imprisonment. 
 
 By section 29 it is provided that offenders whose age does not exceed 
 sixteen years, who are convicted summarily or otherwise, of an offence 
 punishable by imprisonment for not more than five years, may be 
 sentenced to imprisonment in any reformatory prison in the province 
 in which the conviction takes place, provided that the sentence may in 
 no case be less than two or more than five years. The prisoners in 
 reformatories (whether sentenced to hard labour or otherwise) are 
 liable to perform labour. 
 
 Ontario. — Part 2 of the last named Act applies to the Province of 
 Ontario only. It is provided that any boy apparently under sixteen 
 convicted of an offence punishable by imprisonment for a period of 
 three months or longer (but not exceeding five years), may be sen- 
 tenced to imprisonment in a certified industrial school, for a fixed term, 
 and also to be kept there for an indefinite term, provided that the 
 whole period of detention shall not exceed five years. Sec. 49. 
 
 It is further provided that if a boy apparently under sixteen years 
 has been sentenced and committed to the common gaol for a period not 
 less than fourteen days, a Judge of a superior or county Court may 
 sentence such boy to be sent forthwith or at the expiration of his term 
 in gaol to a certified industrial school for an indefinite term, not 
 exceeding five years from the commencement of his imprisonment in 
 the common gaol. Sec. 50. 
 
 Boys of thirteen years of age or under may be transferred from a 
 reformatory or common gaol to a certified industrial school, by warrant 
 of the Governor-General (with the consent of the Provincial Secre- 
 tary). This applies whether the boy has been tried summarily or 
 otherwise. Sec. 51. 
 
 Any boy of thirteen or under convicted either summarily or other- 
 wise of an offence punishable by imprisonment may be sentenced to 
 imprisonment in an industrial school for not more than five years, nor 
 less than two years, provided that he cannot be detained beyond the 
 age of seventeen years. Sec. 52. 
 
 Every boy sentenced or transferred to a certified industrial school 
 shall be detained there until the end of his fixed term (unless sooner 
 discharged by lawful authority), and (subject to the laws and regula- 
 tions) for a period not to exceed five years from the commencement of 
 his imprisonment. See. 53. 
 
 Any girl who at the time of her trial appears to the Court to be 
 under the age of fourteen years, and who is convicted of any offence 
 
 1
 
 CHAP. VII.] Juvenile Offenders. 254fc 
 
 for which a sentence of imprisonment for a term of one month or 
 longer, but less than five years, may be imposed upon an adult con- 
 victed of the like offence, may be sentenced to the Industrial Refuge 
 for Girls of Ontario, for such fixed term as the Court thinks fit, not 
 being greater than the term of imprisonment which could be imposed 
 upon an adult for the like offence, and may be further sentenced to an 
 indefinite fixed term, provided that the whole term of confinement in 
 the Industrial Refuge shall not exceed five years from the commence- 
 ment of her imprisonment. Sec. 62. 
 
 Any girl apparently under the age of fourteen years who is con- 
 victed of an oft'ence punishable by law on summary conviction, and 
 sentenced and committed to any common gaol, for a term not less than 
 fourteen days, may be sentenced by a Judge of a superior or county 
 Court to be sent forthwith or at the end of her term in such gaol to the 
 Industrial Refuge for Girls of Ontario, to be detained for an indefinite 
 period, not exceeding in the whole five years from the commencement 
 of her imprisonment in the common gaol. Sec. 63. 
 
 A boy in the industrial school, or a girl in the Industrial Refuge 
 for Girls, may be bound an apprentice to an approved person, for a 
 term not to extend beyond five years from the commencement of his or 
 her imprisonment; and thereupon may be discharged on probation. 
 Sec. 65. 
 
 Any child apparently under the age of fourteen years, convicted 
 summarily or otherwise of an offence, may be committed to any home 
 for destitute or neglected children or to the charge of any approved 
 children's aid society. Sec. 67. 
 
 AVhen information or complaint is made against a boy under the 
 age of twelve years, or girl under the age of thirteen years, for an 
 offence punishable on summary conviction or otherwise, the Court or 
 justice shall notify the executive officer of the children's aid society, 
 and may notify parents or friends. Sec. 68. After consultation 
 with the officer and hearing the complaint, the Court or justice may, 
 by order, 
 
 (a) Authorize the said officer to take the child, and, under the pro- 
 visions of the law of Ontario, bind the child out to some suitable person 
 until the child has attained the age of twenty-one years, or any less 
 age ; or 
 
 (fo) Place the child out in some approved foster-home; or 
 
 (c) Impose a fine not exceeding ten dollars; or 
 
 (d) Suspend sentence for a definite or for an indefinite period; or 
 (c) If the child has been found guilty of the offence charged, or is 
 
 shewn to be wilfully w^ayward and unmanageable, commit the child' 
 to a certified industrial school, or to the Ontario Reformatory for 
 Boy€, or to the Refuge for Girls, as the case may be, and in such cases^
 
 254:1 Punishments. [book i. 
 
 the report of the said officer shall be attached to the warrant of com- 
 mitment. Sec. 68. 
 
 Except in the case of children cared for in a shelter or temporary 
 home under an Act for the Prevention of Cruelty to and the better 
 Protection of Children, 56 Vict. ch. 45 (Ontario), in a municipality 
 having but one children's aid society, no Protestant may be committed 
 to the care of a Roman Catholic society or placed in a Roman Catholic 
 family, nor any Roman Catholic children be committed to the care of 
 a Protestant society, or placed in a Protestant family, under sees. 67, 
 68 and 69. Sec. 70. 
 
 Qiiehec. — Part III. of the Prisons and Reformatories Act, R.S.C. 
 (1906) ch, 148, applies only to the Province of Quebec. Sec. 78. 
 
 Every person apparently under the age of sixteen years, convicted 
 before any Court of criminal jurisdiction, or any Judge of sessions of 
 the peace, recorder, district or police magistrate, of any offence for 
 which he would be liable to imprisonment, may be sentenced to be 
 detained in a certified reformatory school for a term not less than two, 
 nor more than five years, or to be first imprisoned in a common gaol 
 for not more than three months, and thereafter to be sent to a certified 
 reformatory school to be detained for not less than two, and not more 
 than five years. See. 79, 
 
 . An offender detained in a reformatory under summary conviction 
 may be discharged by the Lieutenant-Governor. Sec. 80. 
 
 Persons apparently under the age of sixteen years arrested on a 
 charge of having committed any offence not capital, shall not, while 
 awaiting trial, be detained in the common gaol, but in a certified 
 reformatory school if there be any within three miles of such gaol, and 
 if there be more than one such school within such distance, the person 
 detained shall be placed in that school conducted most nearly in 
 accordance with the religious belief to which his parents belong, or in 
 which he has been educated. Sec. 81, 
 
 Every offender detained in a certified reformatory school who 
 wilfully neglects and refuses to conform to the rules thereof shall be 
 imprisoned with hard labour for a term not exceeding three months, 
 on summary conviction before a justice of the peace, and at- the 
 end of such term of imprisonment, he shall be brought back to the 
 reformatory school to be detained for the portion of the term to which 
 he was originally sentenced which remained unexpired at the time 
 he was sent to the prison. Sec. 82. 
 
 (Note. — The four last preceding sections seem to apply to both 
 males and females, though they occur in Part III. of the statute under 
 the sub-title ''Reformatory Schools for Boys.") 
 
 Nova Scotia. — Part IV. of the aforesaid Act applies only to the 
 Province of Nova Scotia. Sec. 89.
 
 CHAP. VII.] Juvenile Offenders. 254m 
 
 A Protestant boy apparently under the age of sixteen years con- 
 victed of an offence punishable by imprisonment may be sentenced to 
 the Halifax Industrial School, for a term not more than five or less 
 than one year. Sec. 90 (amended in 1908). Such boy must be 
 instructed in reading, writing and arithmetic, and in one of the trades 
 or occupations ttught in the school. Sec. 92. 
 
 A Roman Catholic boy apparently under the age of sixteen years 
 convicted of an offence punishable by imprisonment may be sentenced 
 to the St. Patrick's Home at Halifax, for a term not exceeding five or 
 less than one year. Sec. 93 (amended in 1908). Such boy must be 
 instructed in reading, writing and arithmetic, and in one of the trades 
 or occupations taught in the home. Sec. 96. 
 
 A boy sentenced to be detained in the home may be licensed to be at 
 large in the province, or in such part thereof as the license may 
 specify. Sec. 97. 
 
 A boy upon contravention of any of the conditions of his license 
 may be remitted to the home to serve the remainder of his original 
 sentence, with such additional term, not exceeding one year, as may 
 seem proper. Sec. 97(4). 
 
 Any Roman Catholic girl apparently under the age of eighteen 
 years convicted of an offence punishable by imprisonment may be 
 sentenced to the Good Shepherd Industrial Refuge, for a term not 
 exceeding five or less than two years (sec. 105), with the written con- 
 sent of the Superintendent of the Refuge, and after provision has been 
 made by the municipality within which the conviction has taken place 
 for the support of the girl so sentenced (sec. 106), and each girl sen- 
 tenced and detained must be instructed in reading, writing and 
 arithmetic, and in one of the trades or occupations taught in the 
 Refuge. Sec. 107. 
 
 Girls so sentenced may be apprenticed to approved Roman Catholic 
 persons for a term not exceeding five years from the commencement of 
 the girl's imprisonment, and upon such apprenticeship taking place 
 the girl shall be discharged from the Refuge on probation. Sec. 108. 
 
 A girl sentenced to l)e detained in a Refuge may l)e licensed to be 
 at large in the province or in any specified part thereof, and upon con- 
 travention of the conditions of the license maj'' be remitted to the 
 Refuge to serve the remainder of her original sentence, with such addi- 
 tional term as may seem proper, not exceeding one year. Sec. 112. 
 
 New Brunsu'iclx. — Part V. of the above mentioned Act applies only 
 to the Province of New Brunswick. 
 
 Boys apparently under the age of sixteen years may be sentenced 
 to the Industrial Home for Boys for fixed and for indefinite terms, 
 the whole period not to exceed five years. Sec. 116. There are pro- 
 visions for the transfer of boys under sixteen from the common
 
 254?i Pmiishments. [book i. 
 
 jails to the home (sec. 117), and from Dorchester Penitentiary (sec. 
 125) ; for the apprenticeship of boys (sec. 121) ; for their discharge 
 absolutely or on probation (sec. 123), and for their recommittal. 
 Sec. 124. 
 
 Imprisonment of Females. 
 
 There is no general statutory provision for the imprisonment of 
 females, except for the separation from male prisoners in peniten- 
 tiaries, but special and varying provisions are made concerning them 
 in respect of certain provinces by the Prisons and Reformatories Act, 
 R.S.C. (1906) ch. 148. 
 
 In Ontario a female, convicted of an offence punishable by impri- 
 sonment in the common gaol for two months or more, may be sentenced 
 to the Andrew Mercer Reformatory for Females (sec. 55), or if con- 
 fined to the common gaol, may be transferred to the Reformatory, 
 Sec. 56. A female convicted of being a loose, idle or disorderly, or 
 vagrant person, under sec. 239 of the Code, or under Part XVI. of 
 the Code (Summary Trial for Indictable Offences), may be sentenced 
 to the Reformatory, for any term less than two years, without a fine 
 if the term be more than six months, in substitution for the punish- 
 ments otherwise provided. Sec. 57. Females sentenced to imprison- 
 ment in common gaols, or confined therein, by a police magistrate of a 
 city, may be committed or transferred to a House of Refuge for 
 Females (sec. 71), and may be transferred to a House of Refuge. 
 Sec. 72. 
 
 In Nova Scotia, every Roman Catholic female above the age of 
 sixteen years, convicted of an offence punishable by imprisonment in 
 a city prison or common gaol for two months or more, may be sentenced 
 to extended or substituted imprisonment in the Good Shepherd Re- 
 formatory at Halifax, if under the age of twenty-one years until she 
 become twenty-one, or for not less than two, or more than four years ; 
 if twenty-one years or upward, for not less than one, or more than 
 two years. Sec. 98. A female aged more than sixteen, confined in a 
 city prison or common gaol may be transferred to the Reformatory. 
 Sec. 99. A female Roman Catholic, convicted of being a loose, idle 
 or disorderly person, or vagrant, or summarily for an indictable 
 offence, under Part XVI. of the Code, may be sentenced to the Re- 
 formatory for a term less than two years, in substitution for the pun- 
 ishments otherwise provided for. Sec. 100. Persons in the Reforma- 
 tory may be transferred to a city prison or common gaol. Sec. 103. 
 
 In New Brunswick, every Roman Catholic girl, convicted of certain 
 specified offences, may be sentenced to the Good Shepherd Reforma- 
 tory for a term less than two years. Sees. 127, 128. 
 
 Trial of Juvenile Offenders. — The trial of persons apparently 
 under the age of sixteen years must take place without publicity, and 
 separate from the trials of other accused persons. Code see. 644.
 
 CHAP. VII.] Females. 254o 
 
 The trial of offenders whose age does not, apparently, exceed six- 
 teen years, for indictable offences, is provided for by Part XVII. of the 
 Code, sees. 800-821. This part does not apply in British Columbia or 
 Prince Edward Island to any offence punishable by imprisonment for 
 two years and upwards. Code sec. 801. 
 
 A person whose age does not, in the opinion of the justice before 
 whom he is brought, exceed sixteen years of age, shall upon conviction 
 before two justices of theft, or an offence punishable as theft, be com- 
 mitted to imprisonment in the common gaol or other place of confine- 
 ment, with or without hard labour, for a term not exceeding three 
 months, or shall pay a fine not exceeding twenty dollars, as the jus- 
 tices may adjudge. Code sec. 802. 
 
 The jurisdiction to try, and to sentence a juvenile for any offence 
 within sec, 802, is given irrespective of the value of the thing stolen. 
 Under this Part of the Code, however, which relates wholly to juvenile 
 offenders, he has the right to elect to be tried by a jury, and, in that 
 event, he could not be tried summarily. 
 
 The power of determining the age or apparent age of the accused is 
 given exclusively to the justice ; and a conviction will not be held bad 
 for the omission to state that the accused is under the age of sixteen 
 years. R. v. Quinn (1900), 36 Can. Law Jour. 644 (N.S.). 
 
 If the charge be of an offence over which, if the offence charged be 
 true in fact, the magistrate has jurisdiction, the magistrate's juris- 
 diction cannot be made to depend upon the truth or falsehood of the 
 facts, or upon the evidence being sufficient or insufficient to establish 
 the corpus delicti brought under investigation. Cave v. Mountain, 1 
 M. & G. 257. And on a habeas corpus to which a proper commitment 
 in execution is returned, the Court never enters into the question 
 whether the magistrate has drawn the right conclusion from the evi- 
 dence, when there was evidence. R. v. Munro (1864), 24 U.C.Q.B. 44. 
 
 Part XVII. of the Code does not enable two or more justices in 
 Ontario to sentence to imprisonment in a reformatory in that pro- 
 vince. Code sec. 803. Nor does Part XVI. prevent the summary con- 
 viction of offenders liable under other Parts of the Code. Code 
 see. 804. 
 
 Juvenile Courts. — An Act respecting Juvenile Delinquents, 7 & 8 
 Edw. VII. ch. 40, was assented to 20th July, 1908. It goes into force 
 in any province, city, town or other part of a province on proclamation 
 in the Canada Gazette (sec. 36). It provides for the trial of persons 
 under sixteen years of age by Juvenile Courts specially authorized. 
 "Where such a Court exists it has exclusive jurisdiction in delinquency, 
 except where, in the case of children apparently over fourteen years, 
 the Juvenile Court orders that the accused shall be tried by indictment 
 (sees. 4 and 7). Trials are summary. Sec. 5.
 
 254p Punisliments. [book i. 
 
 Sec. 13. — Punishments. 
 
 General Rules as to Punishments. — No person shall be deemed 
 g-uilty or liable to punishment until duly convicted. Code sec. 1027. 
 
 Everyone who is convicted of any offence not punishable with 
 death, shall be punished in the manner, if any, prescribed by the 
 statute especially relating to such offence. Code sec. 1051. 
 
 Felonies and Misdemeanours. — The distinction between felony and 
 misdemeanour is abolished, and proceedings in respect of all indictable 
 offences, except so far as they are herein varied, shall be conducted in 
 the same manner. Code sec. 14. 
 
 Larceny after Previous Conviction. — See the following Code sec- 
 tion : Stealing dogs, etc., sec. 370 ; stealing trees, etc., sec. 374 ; stealing 
 plants, etc., sec. 375(2), sec. 376(2); stealing fence, etc., sec. 377; 
 stealing things not otherwise provided for, sec. 386(2). 
 
 Larceny after Two Previous Convictions. — See the following Code 
 sections: Stealing trees, etc., sec. 374; stealing plants, etc., sec. 375(2), 
 sec. 376(2) ; stealing fences, etc., sec, 377 ; stealing things not otherwise 
 provided for, sec. 386(2). 
 
 Punishment of Principal in the Second Degree and Accessories. — 
 Principals in the second degree and accessories before the fact are 
 parties to the offence; there is now no distinction. Code sec. 71. 
 
 For punishment of accessories after the fact, see murder, sec. 267 ; 
 indictable offences punishable by imprisonment for life or more 
 than fourteen years, sec. 574 ; other cases, sec. 575. 
 
 Degrees of Punishment. — An offender liable to different degrees or 
 kinds of punishment may be punished as the Court before which he 
 is convicted may decide. Code sec. 1028. 
 
 Fine or Penalty. — When a fine or penalty may be imposed, the 
 amount thereof, subject to any specially defined limitations, shall be 
 in the discretion of the Court passing sentence. Code sec. 1029. 
 
 Cumulative Punishme^it. — "When an offender is convicted of more 
 offences than one. before the same Court or person at the same sitting, 
 or when any offender, under sentence or undergoing punishment for 
 one offence is convicted of any other offence, the Court or person 
 passing sentence may, on the last conviction, direct that the sentences 
 passed upon the offender for his several offences shall take effect one 
 after another. Code sec. 1055. 
 
 A prisoner convicted at the one time of two offences and sentenced 
 on each to three months' imprisonment without specification as to the 
 terms being concurrent or otherwise, is not entitled to a discharge on 
 a habeas corpus after three months' imprisonment. There is no 
 presumption that sentences passed at the one time are to be concur- 
 rent. Ex parte Bishop, 1 Can. Cr. Cas. 118 (N.B.).
 
 CHAP. VII.] Offences Under More Than One Act. 254g 
 
 When Offence Puniskahle under More than One Act or Law. 
 — "Where an act or omission constitutes an offence, punishable on sum- 
 mary conviction or on indictment, under two or more Acts, or both 
 under an Act and at common law, the offender shall, unless the con- 
 trary intention appears, be liable to be prosecuted and punished under 
 either or any of such Acts, or at common law, but shall not be liable 
 to be punished twice for the same offence. Code sec. 15. 
 
 AVhen a statute makes that unla^^^l!ul which was lawful before, and 
 appoints a specific remedy, that remedy may be pursued and no other ; 
 and where an offence is not so at common law, but made an offence by 
 Act of Parhament, an indictment will lie where there is a substantive 
 prohibitory clause in such Act of Parliament, though there be after- 
 wards a particular provision and a particular remedy. "When a new 
 offence is created by an Act of Parliament, and a penalty is annexed to 
 it by a separate and substantive clause, it is not necessary for the pro- 
 secutor to sue for the penalty, but he may proceed on the prior clause, 
 on the ground of its being an indictable offence. R. v. Mason (1867), 
 17 U.C.C.P. 534. 
 
 In order to be a bar the issue in the second proceeding must be 
 identical with that in the first one, although the facts may vary, and 
 although the charges formulated may not be the same. R. v. King 
 (1897), 1 Q.B. 214; see notes in 2 Can. Cr. Cas. 497. 
 
 Parliament never intended to repeal the common law, except in so 
 far as the Code either expressly or by implication repeals it. So that 
 if the facts stated in the indictment constitute an indictable offence 
 at common law, and that offence is not dealt with in the Code, then 
 unquestionably an indictment will lie at common law ; even if the 
 offence has been dealt with in the Code, but merely by way of state- 
 ment of what is law, then both are in force. Union Colliery Co. v. 
 The Queen, 4 Can, Cr. Cas. 400 (Can.), per Sedgewick, J. 
 
 The Criminal Code of 1892 was intended to make complete and 
 exhaustive provision as to the subjects with which it deals, in so far 
 at all events as its provisions relate to procedure. It is explicitly called 
 a Code by the first section of the chapter in which it is embodied and its 
 utility as a Code will be greatly impaired if it cannot be so considered. 
 R. v. Snelgrove (1906), 12 Can. Cr. Cas. 189. See also the Vagliano 
 Case, [1891] 1 A.C., at p. 144. 
 
 "Where a person has been acquitted by a Court of competent juris- 
 diction the acquittal is a bar to all further proceedings to punish him 
 for the same matter, although a plea of autrefois acquit may not be 
 allowed because of the different nature of the charges. The acquittal 
 on the first charge became res judicata as between the Crown and the 
 accused, and it was not open to the Crown to proceed on the second 
 charge in which a conviction could only be had by the second jury
 
 254r Punishments. .[book i. 
 
 overruling the contrary verdict of the first jury, R. v. Quinn, 10 Can, 
 Cr, Cas, 412, 11 0,L,R, 242, 
 
 Sec. 14. — Obsolete Punishments. 
 
 Outlawry in Criminal Cases. — Code sec, 1030. 
 Solitary Confinement and the Pillory. — Code sec, 1031. 
 
 Sec. 15, — Civil Effects of Conviction. 
 
 Forfeiture of any chattels which have moved to or caused the death 
 of any human being, in respect of such death (Code sec, 1032), and 
 attainder or corruption of blood, or any forfeiture or escheat (Code 
 see, 1033) have been abolished. 
 
 Sec. 16, — Pardo7i or Remission of Punishment. 
 
 The Crown may extend the royal mercy to any person sentenced 
 to imprisonment by virtue of any statute, although such person is 
 imprisoned for non-payment of money to some other person than the 
 Crown, Code sec, 1076, 
 
 The Crown may commute the sentence of death passed upon any 
 person convicted of a capital offence to imprisonment in the peniten- 
 tiary for life, or for any term of years not less than two years, or to 
 imprisonment in any gaol or other place of confinement for any period 
 less than two years, with or without hard labour. Code sec, 1077. 
 
 No free pardon, nor any discharge in consequence thereof, nor any 
 conditional pardon, nor the performance of the condition thereof, in 
 any of the cases aforesaid, shall prevent or mitigate the punishment to 
 which the offender might otherwise be lawfully sentenced on a subse- 
 quent conviction for any offence other than that for which the pardon 
 was granted. Code sec, 1076(3), 
 
 When an offender has been convicted of an offence not punishable 
 with death, and has endured the punishment adjudged, or has been 
 convicted of an offence punishable ^^nth death and the sentence of 
 death has been commuted, and the offender has endured the punish- 
 ment to which his sentence was commuted, the punishment so endured 
 shall, as to the offence whereof the offender was so convicted, have the 
 like effect and consequences as a pardon under the great seal. Code 
 sec, 1078, 
 
 When any person convicted of any offence has paid the sum ad- 
 judged to be paid, together with costs, if any, under such conviction, 
 or has received a remission thereof from the Crown, or has suffered the 
 imprisonment awarded for non-payment thereof, or the imprisonment 
 awarded in the first instance, or has been discharged from his con- 
 viction by the justice in any case in which such justice may discharge
 
 CHAP. VII.] Pardons. 254s 
 
 such person, he shall be released from all further or other criminal 
 proceedings for the same cause. Code sec. 1079. 
 
 His Majesty's royal prerogative of mercy is not limited by the 
 statutory provisions. Code sec. 1080. 
 
 No civil remedy for any act or omission shall be suspended or 
 affected by reason that such act or omission amounts to a criminal 
 offence. Code sec. 13. 
 
 This section (formerly section 534 of the Criminal Code, 1892), has 
 been held in Quebec not to be "criminal law" legislation, but legisla- 
 tion dealing with civil rights and therefore ultra vires of the Federal 
 Parliament. Paquet v. Lavoie (1898), 6 Can. Cr. Cas. 314, 7 Que, 
 Q.B. 277. 
 
 To an action, before the Code, for assault and battery defendant 
 pleaded that before action brought the plaintiff laid an information 
 before a magistrate charging defendant with feloniously, etc., wound- 
 ing the plaintiff with intent to do him grievous bodily harm, thereby 
 charging defendant with felony; that defendant was brought before 
 the magistrate and committed for trial which had not yet taken place ; 
 that the subject of both the civil and criminal prosecutions was the 
 same, and that plaintiff's civil right of action was suspended until the 
 criminal charge was disposed of. Held, on demurrer, that the plea 
 was good ; and an order was made staying the civil action in the mean- 
 time. Taylor v. McCulloch (1885), 8 Ont. R. 309. , 
 
 The former rule, excepting in the Province of Quebec, was that on 
 grounds of public policy if it appeared on the trial of a civil action 
 that the facts amounted to felony, the Judge was bound to stop the 
 civil proceedings and nonsuit the plaintiff in order that public justice 
 might first be vindicated by a criminal prosecution. Walsh v. Nattress, 
 19 U.C.C.P. 453 ; Livingstone v. Massey, 23 U.C.Q.B. 156 ; "Williams v. 
 Robinson, 20 U.C.C.P. 255 ; Pease v. McAloon, 1 Kerr (N.B.) 111. The 
 civil remedy was held to be suspended until the defendant charged 
 with the felony should be either acquitted or convicted thereof. Brown 
 V. Dalby, 7 U.C.Q.B. 162. 
 
 The act of pardoning is one of pure clemency and is not the exercise 
 of a judicial power ; it is purely and essentially the exercise of a royal 
 prerogative which is exercised by the Sovereign himself or in his 
 dominions beyond the seas by his representative under a special dele- 
 gation of power. This delegation, in the case of the Governor-General, 
 is contained in the royal instruction, but if the King saw fit a delega- 
 tion of this power could be given to Siiiy Lieutenant-Governor for 
 matters under the legislative jurisdiction of his province. Todd's Par- 
 liamentary Government in British Colonies, page 254. 
 
 The prerogative of mercy is simply the exercise of a discretion on 
 the part of the Sovereign to dispense ^Aath or to modify the punish- 
 ments which the criminal or penal law require to be inflicted.
 
 254/: Punishments. [book i. 
 
 It is exercised by commutation or by a free or conditional pardon. 
 Ex parte Armitage, 5 Can. Cr. Cas. 345. 
 
 Letters patent containing permanent instructions for the exercise 
 of the duties and powers of the Governor- General of Canada were 
 issued on the 5th October, 1878, These letters patent specially 
 authorize and empower the Governor-General for the time being, in 
 the name and on behalf of the Sovereign, to grant to any offender con- 
 victed of any crime in any Court, or before any Judge, justice or 
 magistrate within the Dominion a pardon should he see occasion, or a 
 respite of the execution of the sentence of any such offender, for such 
 period as he may see fit, and to remit any fines, penalties or forfei- 
 tures which may become due or payable to the Crown, provided that 
 the Governor- General should not pardon or reprieve any such offender 
 mthout first receiving in capital cases the advice of the Privy Council 
 and in other cases the advice of one at least of his ministers. The 
 royal mercy may be extended to a person who is imprisoned for the 
 non-payment of a penalty which belongs to a person other than the 
 Crown. This rule was established by sec. 125 of the statute 32-33 Vict, 
 ch. 29, the provision is reproduced in sec. 1076 of the Code. Ex parte 
 Armitage, 5 Can. Cr. Cas. 345. 
 
 The power of commuting and remitting sentences for offences 
 against the laws of the Province of Ontario, or offences over which 
 the legislative authority of the province extends, which by the terms of 
 the Act 51 Vict. ch. 5 (Ont.) is included in the powers which were 
 vested in or exercisable by the Governors or Lieutenant-Governors 
 of the several provinces before Confederation, and which are now 
 by that act vested in and exercisable by the Lieutenant-Governor of 
 this province, does not affect offences against criminal laws which are 
 the subject of Dominion legislation, but refers only to offences within 
 the jurisdiction of the Provincial Legislature, and in that sense the 
 Ontario statute is intra vires the provincial legislation. Attorney- 
 General for Canada v. Attorney-General for Ontario, 19 Ont. App. 
 31, 23 S.C.R. 458. See note 5 Can. Cr. Cas. 354. 
 
 Fines imposed under the Montreal City Charter belong to the 
 Crown as represented by the Governor of the Province of Quebec and 
 of the City of Montreal, and the city has no power to remit the same. 
 Semble, the pardoning power is an exercise of the royal prerogative 
 and unless a statute expressly limits such prerogative the same is to be 
 exercised by the Sovereign or his representative (in Canada by the 
 Governor- General) acting under a special delegation of power from 
 the Sovereign, and the remission of a penalty under a provincial 
 statute for default in payment whereof the accused is undergoing 
 imprisonment is an exercise of the pardoning power. R. v. Armitage, 
 5 Can. Cr. Cas. 345.
 
 CHAP. VII.] Pardons. 254u 
 
 In the matter of pardons of convicts in the penitentiaries, gaols, 
 prisons and reformatories, the application for clemency should be pre- 
 pared in the form of a petition addressed to His Excellency the 
 Governor-General, stating the age and name of the prisoner or con- 
 vict, the name of the Judge or magistrate who tried or sentenced 
 him, crime committed and date of sentence, term of imprisonment, 
 where incarcerated, and reasons for seeking the clemency of the 
 Crown. 
 
 This petition should be forwarded to the Secretary of State at 
 Ottawa or to the Departments of Justice and signed by one or more 
 persons, with any documentary evidence or letter regarding the pre- 
 vious character of the prisoner. The papers are subsequently laid 
 with the advice of the Minister of Justice before His Excellency the 
 Governor-General, whose pleasure is communicated by the Secretary 
 of State to the parties interested and to the warden of the penitentiary 
 or keeper of the gaol, as the case may be. 
 
 In case of death sentence the Judge, after sentencing the prisoner, 
 forwards, under sec. 1063 of the Code, a copy of the evidence, and his 
 report to the Secretary of the State. Any application for the commu- 
 tation of the sentence should be addressed to His Excellency the 
 Governor- General in Council through the Secretary of State, in the 
 form of a petition setting forth reasons for such application. This 
 application is referred to the Minister of Justice and is submitted by 
 him, with his recommendation to the Governor-General in Council, 
 whose pleasure is communicated to the interested parties by the Secre- 
 tary of State.
 
 ( 255 ) 
 
 BOOK THE SECOND. 
 
 OF OFFENCES RELATING TO THE LAW OF NATIONS. 
 
 CHAPTER THE FIRST. 
 
 OP PIRACY. 
 
 Sect. I.— Of Piracy Jure Gentium. 
 
 It is necessary to distinguish between piracy jure gentium (or as it is 
 sometimes styled, piracy at common law) {a) and the forms of piracy 
 created by municipal legislation (6). 'Piracy jure gentium^ is only 
 a sea term for robbery, piracy being a robbery within the jurisdiction of 
 the Admiralty (c). ... If the mariners of any ship shall violently 
 dispossess the master, and shall afterwards carry away the ship or any of 
 
 [h) The enactments still unrepealed re- 
 lating to piracy are : 1536, 28 Hen. VIII. 
 c. 15 {post, p. 257) ; 1670-1, 22 & 23 Car. II. 
 c. 11 {post, p. 259) ; 1698, 11 Will. III. e. 7 
 {post, p. 259); 1717, 4 Geo. L c. 11, s. 7 
 {post, p. 260) ; 1720, 8 Geo. I. c. 24 {post, 
 p. 260) ; 1744, 18 Geo. II. c. 30 {post, p. 263) ; 
 1772, 12 Geo. III. c. 20 (virt. rep. as to 
 England and Ireland by Acts of 1827 and 
 1828) ; 1824, 5 Geo. IV. c. 113, .s. 9 {post, 
 p. 271) ;■ 1827, 7 & 8 Geo. IV. c. 28, ss. 1, 
 2, 3 (E) ;' 1828, 9 Geo. IV. c. 54, s.s. 7, 8 (I) ; 
 1837, 7 Will. IV. & 1 Vict. c. 88, ss. 2-4 ; 
 1842, 5 & 6 Vict. e. 28, s. 16 (I) ; 1849, 12 
 & 13 Vict. c. 96 {post, p. 269); 1850, 13 
 & 14 Vict. c. 26 {post, p. 264) ; 1860. 
 23 & 24 Vict. cc. 88, 122 {post, p. 269) ; 1878, 
 41 & 42 Vict. c. 73, s. 6 {post, p. 2<)8) ; 1890, 
 53 & 54 Vict. c. 27, s. 2 {post, p. 269). 
 
 (c) i.e. committing on tlie sea acts of 
 robbery and depredation which if com- 
 
 (a) In the 6th edition of this work (Vol. i. 
 p. 260 n), it was said that ' a fallacy seems to 
 run through some of our books in saying 
 that piracy was not felony at common law. 
 This arose from such expressions as that it 
 was a crime of which the common law did 
 not take notice or cognisance, i.e. which 
 was not triable by jury, the common-law 
 mode of trial. See 2 Hale, 18, 372. 1 
 Hale, 355. Lord Coke says it was felony, 
 Co. Litt. 391a. 3 Co. Inst. 112. 13 Co. 
 Rep. 51. In 40 Ass. PI. 25, p. 245, a case of 
 piracy is mentioned where a Norman cap- 
 tain was attainted of felony and hanged. 
 See this case stated 3 Co. Inst. 2], and 
 1 Hale, 100.' C. S. G. This opinion was 
 stated by the late Sir R. S. Wright to be 
 inaccurate (sec Pari. Pap. 1878, H. L. 178, 
 Report on Piracy Statutes). Piracy is 
 distinguished from felony in 7 & 8 Geo. IV. 
 0. 28, ss. 1, 2, 3. 
 
 American Note. 
 
 In the United States the law relating to 
 Piracy is contained in Acts of Congress. 
 U. S. Statt. Rev. ss. 5368-5375. Robbery 
 on the high seas is piracy both by the laws 
 of nations and by the Acts of Congress. 
 U. S. V. Furlong, 5 Wheat. 164. As to 
 mutiny on boanl ship, see U. S. v. Sharp. 
 1 Peters, C. C. 122 ; U. S. v. Bladen, ibid. 
 213 ; U. S. V. Gardiner. 5 Ma.son, 402 ; 
 U. S. V. Kelly, 4 Wash. C. C. 528. As to 
 running away with a ship, see U. S. v. 
 Haskell, 4 Wash. C. ('. 402. Robbery on 
 the high seas directed against all mankind 
 
 is piracy jure gentium. U. S. v. .Smith, 
 5 Wheat. (U. S.), 153, Kil ; but under the 
 statutes relating to this offence, persons 
 (Southern States rebels) were held guilty of 
 piracy who planned and carried out attacks 
 on American vessels only. See the case of 
 the Savannah Pirates. U. S. v. Baker, 5 
 Blatchf. (U. S.), 6. U. S. Statt. Rev. s. 
 5372 ; and U. S. v. Palmer, 3 Wheat. (U. S.) 
 610 ; Klintock's case, 5 Wheat. (U. S.), 144, 
 184; the ' Malek Adhel,' 2 How. (U. S.), 
 219: the 'Ambro.se Light ' [1885], 25 Fed. 
 Rep. 408.
 
 256 Of Offences Relating to the Law of Nations, [book ii. 
 
 the goods with a felonious intention in any place where the Lord Admiral 
 hath jurisdiction, this is robbery and piracy '((^). It is equally piracy 
 jure gentium if the passengers do such acts as would make the mariners 
 pirates (e). 
 
 An act is not cognisable as piracy jure gentium if done as an act of 
 war {animo belligerendi), and under the authority of a prince or state : 
 but depredating on the high seas without such authority is piracy, even 
 if the motive is not plunder, if the act was done wilfully and without legal 
 authority or lawful excuse. The American view developed during the 
 Civil War appears to deprive a community in rebellion of the right to 
 commit belligerent acts upon the sea against the state from which it has 
 rebelled, unless the rebellious state has received recognition of belligerent 
 rights from some sovereign power ( /). The accepted distinction between 
 belligerency and piracy is the recognition of the existence of a regularly 
 organised de facto government. Such recognition is regarded as an 
 executive, and not as a judicial question (g). 
 
 In Republic of Bolivia v. Mutual Indemnity Marine Insurance Co. (h), 
 Pickford, J., accepted as the popular or business meaning of piracy the 
 definition of the late Mr. Hall (i) : ' Though the absence of competent 
 authority is the test of piracy, its essence consists in the pursuit of 
 private, as contrasted with public, ends. Primarily the pirate is a man 
 who satisfies his personal greed or his personal vengeance by robbery or 
 murder in places beyond the jurisdiction of a State. The man who 
 acts with a public object may do like acts to a certain extent, but his 
 moral attitude is different, and the acts themselves will be kept within 
 well-marked bounds. He is not only not the enemy of the human race, 
 but he is the enemy solely of a particular State.' The learned judge 
 continued : ' Several, but not all, of the definitions cited in the note on 
 p. 260 of the same work bear out that idea. There is another passage 
 in Hall, at p. 262, which throws some light upon the matter. Speaking 
 of depredations committed at sea upon the public or private vessels of a 
 state, or descents upon its territory from the sea by persons not acting 
 under the authority of any politically organised community, notwith- 
 standing that the objects of such persons may be professedly political, 
 Hall said that such acts were piratical within the meaning of the term 
 in international law, but he went on to say this :—" Sometimes they are 
 
 mitted on land would have amounted to {/) See the 'Ambrose Light' [1885], 25 
 
 felony. 1 Hawk. c. 37, s. 4. 2 East, P. C. Fed. Rep. 408, where the authorities and 
 
 776. Mason's Case, 4 Bl. Com. 72. Others juristic opinions are collected and discussed, 
 
 regard it as the same offence as robbery on In that case a brigantine commissioned by 
 
 land. Archb. Vict. Acts, 72. 2 Hale, 369. rebels as a Colombian vessel of war was 
 
 1 Hale, 354. Coke, 3 Inst. 113, calls a pirate seized by a United States warship and 
 
 a 'robber on the sea.' Piracy is a mari- brought in for condemnation as prize under 
 
 time offence, and cannot be committed on the law of nations as piratical. There was 
 
 a river, however large, far within the not at the time any recognition of belli- 
 
 boundaries of a State. Republic of Boli- gerency or of an existing state of war in 
 
 via V. Oriental Indemnity Insurance Co., Colombia. Held that the seizure was 
 
 infra. technically authorised by the law of nations. 
 
 (d) R. V. Dawson, 13 St. Tr. 454, approved (7) Ibid. p. 431. 
 
 Att.-Gen. of Hong Kong v. Kwok a-Sing, (?i) [1909] 1 K.B. 785, 791, accepted 
 
 L. R. 5 P.C. 169, 199. Cf. U. S. v. Tully, by the C.A., ibid. p. 796. 
 
 1 Gall. (U. S.). 247, Story, J. (»') Int. Law (5th ed.), 259. 
 
 (c) L. R. 5 P.C. 200.
 
 CHAP. I.] Piracy Jure Gentium. 257 
 
 wholly political in their objects and are directed solely against a particular 
 state, with careful avoidance of depredation or attack upon the persons 
 or property of the subjects of other states. In such cases, though the 
 acts done are piratical with reference to the state attacked, they are for 
 practical purposes not piratical with reference to other states, because 
 they neither interfere with nor menace the safety of those states, nor 
 the general good order of the seas. It will be seen presently that the 
 difference between piracy of this kind and piracy in its coarser forms has 
 a bearing upon usage with respect to the exercise of jurisdiction." ' 
 
 The question involved in the case was whether the seizure of a steamer 
 under the Brazilian flag carrying provisions to a Bolivian garrison on a 
 tributary of the Amazon, was piracy within the meaning of an insurance 
 policy. The seizure was made by rebels in an outlying Bolivian district, 
 who claimed to have organised themselves into the Free Republic of Acre, 
 a government not recognised by any foreign power {j). 
 
 To constitute piracy jure gentium, it is not necessary that there should 
 be any throwing off of the allegiance of the state to which the vessel 
 belongs : but it is sufficient if there is a taking of the ship within the 
 jurisdiction of the admiral from the possession or control of those who 
 are lawfully entitled to it, and a carrying away of the ship or of any of 
 its goods, tackle, apparel, or furniture, under circumstances which would 
 have amounted to robbery if the acts had been done on land {k). It 
 is immaterial whether the piratical acts are done by mariners or 
 passengers (/), or persons coming from the shore (>«). 
 
 In time of peace, any act of depredation on a ship is prima facie an 
 act of piracy, but in time of war between two countries, the presumption 
 is that depredation by the citizens of one country upon a ship of the other 
 is an act of legitimate warfare, and it is immaterial whether the act was 
 done by soldiers or volunteers, and whether it was commanded by the 
 State of which they were citizens, or when done ratified by it. The 
 animus hdlir/erendi excludes the animus furandi which is an essential 
 element in robbery (n). 
 
 Piracy jure r/entiuin is justiciable in the Courts of every country (o). 
 in England until 1536, it was rarely, if ever, tried according to the course 
 of the common law by judge and jury, but was dealt with by the admiral 
 or under his jurisdiction, according to the course of the civil law (;;). 
 The Offences at Sea Act, 153G (28 Hen. VIII, c. 15), after reciting ' where 
 traitors, pirates, thieves, robbers, murthercrs, and confederatours upon 
 the sea many times escape unpunished because the trial of their offences 
 hath heretofore been ordered judged and determined before the admiral or 
 hislyeutenantorcommissary,after the course of the civil laws, . . . enacts 
 
 (/) As to piratical acts by organised giicsc waters by convicts from the shore, 
 rebels, sec Magellan Pirates [1853], 1 Eccl. (//) Jie Tivnan, o B. & S. 045. This case 
 
 & A'im. (iSpinks), 81 ; 13 & 14 Vict. c. 2(5, was an attempt to obtain extradition for 
 
 post, p. 2(54. piracy within the jurisdiction of the United 
 
 (k) R. V. Nya Abu [188(5], 4 Kyshc States in respect of a seizure by citizens of 
 
 (Straits Settlements), 1(59. the Confederate States of a vessel (flying 
 
 (/) Att.-Gen. for Hong Kong v. Kvvok the Federal Hag) in the port of Matamoras 
 
 a-Sing, L. R. fi P.C. 170, 200. U. S. v. in Texas. 
 Tully [1812], 1 Gall. (U. S.) 247. Story, J. (o) Kwok a-Sing's case, ubi sup. 
 
 (m) U. S. V. Ross [1813], 1 GaU. (U. S.), (p) See Select Admiralty Picas, Selden 
 
 G24, Story. J., seizure of a vessel in Portu- Soc. Publ. Vol. 6. 
 
 VOL. I. S
 
 258 Of Offences Relating to tlie Law of Nations, [book ii. 
 
 that 'all treasons, felonies, robberies, murders, and confederacies, hereafter 
 to be committed in or upon the sea, or in any other haven, river, creek, 
 or place where the admiral or admirals have, or pretend to have, power, 
 authority, or jurisdiction {q), shall be enquired, heard, determined, and 
 judged, in such shires and places in the realm as shall be limited by the 
 King's commission or commissions, to be directed for the same in like 
 form and condition as if any such offence or offences had been done in or 
 upon the land : and such commissions shall be had under the King's Great 
 Seal directed to the admiral or admirals and his or their lieutenant deputy 
 or deputies, and to tliree or four such other substantial persons as shall be 
 named or appointed by the Lord Chancellor of England, for the time 
 being, from time to time, and as often as need shall require, to hear and 
 determine such offences after the common course of the laws of this 
 land, used for treasons felonies robberies murders and confederacies of 
 the same done and committed upon the land within this realm ' (r). 
 
 This statute, though it provides for the trial of piracy according to the 
 course of the common law, and for capital punishment, does not change 
 the nature of the offence (s), nor in terms make it felony (t). It does not 
 extend to offences made piracy by statute, unless the Act so provides (u). 
 
 In 1693, the Lords of the Council resolved to try Golding and others (v) 
 for piracy, in respect of the depredations by privateers acting under 
 commissions from James II. The King's advocate (Oldish) gave his 
 opinion that they were not pirates, and was called before the Council 
 to support that opinion, which he based on the views — (a) That James II., 
 though he had lost his crown, had not lost his right ; {b) that in the face 
 of commissions de facto granted by James II. there could be no piracy. 
 Oldish was removed from office, and the alleged pirates were tried and 
 convicted by his successor, and some, if not all, were executed (w). 
 
 In 1696, several mariners on board a ship lying near Coruna seized 
 the captain, he not agreeing with them ; and having put him on shore, 
 carried away the ship, and afterwards committed several piracies. This 
 force upon the captain, and the carrying away the ship, which was 
 explained by the use of it afterwards, was adjudged piracy (x). But in 
 1722, where the master of a vessel loaded goods on board at Kotterdam 
 
 (q) As to Admiralty jurisdiction, see was held by great authority upon attainder 
 
 ante, p. .31. before commissioners, under the statute of 
 
 (r) S. 2 deals with indictment, trial Hen. VIII. 
 
 and punishment. S. 3 took away benefit of («) R. & R. 5, note (a), 
 
 clergy and sanctuary. >S. 5 deals with (v) R. v. Golding, 12 St. Tr. 1269. 
 
 commissions for trial within the Cinque (w) In R. v. Kidd [1701], 14 St. Tr. 147, 
 
 Ports. S. 4 is a proviso legahsmg under a trial for piracy, Captain Kidd had a 
 
 conditions the taking of provisions or commission to take ships and goods of the 
 
 ship's stores in case of necessity if paid for French and to destroy phates. But posses- 
 
 in cash or by sufficient bill obligatory. sion of the commission was held no excuse 
 
 (s) See Dole v. New England Mutual for a piratical attack on the Mocha fleet in 
 
 Marine Ins. Co. [1864], 2 Clifford (U. S.), the Indian Ocean, vessels saiUng under 
 
 394, 416, Chfford, J. English, Dutch and Arab colours (I.e., p. 
 
 [t) It was accordingly held that a pardon 215). For a trial under Scots Law for 
 
 for all felonies did not extend to pirates. piracy, see Green's case [1705], 14 St. Tr. 
 
 1 Hawk. c. 37, e. 13. 3 Co. Inst. 112. 1199. This case was one of the contribu- 
 
 Co. Lit. 391. Moore (KB.) 746. In 2 tory causes to the making of the Treaty of 
 
 East, P. C. 796, it is said that the offence Union with Scotland. 
 
 did not extend to corruption of blood, at (x) R. v. May [1696], MS. Tracy, 77 ; 
 
 least where the conviction is before the Ad- 2 East, P.O. 796. 
 miralty jurisdiction ; though the contrary 
 
 I
 
 CHAP. I.] Piracy by Municipal Law. 259 
 
 consigned to Malaga, which he caused to be insured, and after he had 
 run the goods on shore in England the ship was burned, when he protested 
 both the ship and cargo as burned, with intent to defraud the owner and 
 insurers ; the judges of the common law, who assisted the judges of the 
 Admiralty, directed an acquittal upon an indictment for piracy and steal- 
 ing the goods ; because being only a breach of trust and no felony, it 
 could not be piracy to convert the goods in a fraudulent manner until 
 the special trust was determined (y). 
 
 Sect. II. — Piracy by Municipal Law. 
 
 Duty to resist Pirates.— By an Act of 1670 (22 & 23 Car. II. c. 11) 
 penalties are imposed on the master of a ship, who, without fighting, 
 yields up to Turkish vessels, or pirates, or sea rovers, goods or merchandise 
 laden on board English ships of 200 tons or upwards, and mounted with 
 sixteen or more guns (sect. 1), or English ships of less tonnage or guns (sect. 3) . 
 There is a provision in favour of the master if forced to yield up his ship by 
 the disobedience of the crew, testified by their laying violent hands on him 
 (sect. 7). Mariners or inferior officers in such laden vessels who decline or 
 refuse to fight or defend their ships are to forfeit their wages and goods 
 in the ship, and to suffer imprisonment for not more than six months with 
 hard labour (sect. 6). The Act also contains provisions for compensating 
 officers or seamen wounded in defence of such ship (sect. 9), and for prize- 
 money if the attacking vessel is taken (sect. 10) {z). 
 
 An Act of 1698 (11 Will. III. c. 7) enacts (sect. 7) {a) that ' if any of His 
 Majesty's natural-born subjects, or denizens of this kingdom shall commit 
 any piracy or robbery or any act of hostility against other His Majesty's 
 subjects upon the sea under colour of any commission from any foreign 
 prince or state, or pretence of authority from any person whatsoever 
 such offender and offenders shall be deemed adjudged and taken to be 
 pirates, felons, and robbers ; and they and every one of them being duly 
 convicted thereof, according to that Act, or the Offences at Sea Act, 1536, 
 shall suffer such pains ... as pirates, &c., upon the seas ought to suffer ' (h). 
 This Act seems to have been consequent on the case of R. v. Vaughan (c). 
 
 By sect. 8 (d), ' If any commander or master of any ship, or any seaman 
 or mariner, shall, in any place where the admiral hath jurisdiction, betray 
 his trust, and turn pirate, enemy, or rebel, and piratically and feloniously 
 run away with his or their ship or ships, or any barge, boat, ordnance, 
 ammunition, goods, or merchandises ; or yield them up voluntarily to 
 any pirate ; or shall bring any seducing messages from any pirate, enemy, 
 or rebel ; or consult, combine, or confederate with, or attempt or 
 endeavour to corrupt any commander, master, officer, or mariner, to yield 
 
 (y) Mason's case [1722], 8 Mod. 74; 2 (c) [IG9G] 13 St. Tr. 485, a trial for 
 
 East, P.C. 796. treason on the hish seas (sec 28 Hen. VIII. 
 
 (2) This Act was aimed at the sea-rovers c. 15, ante, p. 257), under a commission from 
 
 issuing from the ports of Algiers and the King of France, set out /.r., p. 53G, which 
 
 Morocco. Their depredations were checked excused V. from piracy but not from 
 
 by the British occupation of Gibraltar. treason {I.e., p. 503). Under the Act of 
 
 This Act is unrepealed. 1698, two witnesses are not needed as in 
 
 (n) S. 8 in the common printed editions. most treasons. 
 
 (b) For present punishment see post, (d) S. 9 in the common piinted editions, 
 p. 266. 
 
 S 2
 
 260 Of Offences Relating to the Law of Natioyis. [book ii. 
 
 up or run away with any ship, goods, or merchandises, or turn pirate, or 
 go over to pirates ; or if any person shall lay violent hands on his com- 
 mander, whereby to hinder him from fighting in defence of his ship, and 
 goods committed to his trust (e), or that {sic) shall confine his master, 
 or make or endeavour to make a revolt in the ship, shall be adjudged, 
 deemed, and taken to be a pirate, felon, and robber, and being convicted 
 thereof according to the direction of this Act, shall suffer ... as pirates, 
 felons, and robbers upon the seas ought to suffer ' (,/"). 
 
 In an indictment for confining a captain of a ship, ' constructive ' 
 confinement will satisfy the requirements of the statute, and this will 
 be supported by evidence that, although no force was used, the captain 
 was restrained by the presence and gestures of the prisoners, and deprived 
 of his lawful command, and compelled to remain in certain parts of the 
 vessel [g). 
 
 Making or endeavouring to make a revolt, with a view to procure a 
 redress of what the prisoners thought grievances, and without any intent 
 to run away with the ship, or to commit any act of piracy, was held to be 
 an offence within sect. 8 [h). 
 
 Where one count charged the prisoners with making, and another 
 with endeavouring to make a revolt in a ship, it appeared that great 
 complaints had been made by the sailors in the course of the voyage 
 about the provisions and the great heat of the cabin where the men had 
 to sleej), which on account of the fire for cooking, &c., being close to it, 
 was unsupportable in the warm latitudes. The prisoner M. refused to go 
 on duty. The captain in consequence ordered the crew to put M. in irons, 
 but instead of obeying him they walked away forward. The prisoner 
 S. had the same morning refused to go to his duty, and he and one G. 
 went towards the captain, who was endeavouring, with the assistance of 
 his officers, to put M. in irons. Violent language was used by both, 
 and threats uttered against the captain, and G. rushed to a boat where 
 Avhale spears were kept, with the evident intention of seizing one of them, 
 and releasing M. by force. The caj)tain shot G. in the act of laying hold 
 of a spear. Abinger, C.B., said : ' By revolt I understand something 
 like rebellion or resistance to lawful authority, and if the crew of a ship 
 combine together to resist the captain, especially if the object be to deprive 
 him of his authority altogether, it will in my opinion amount to making 
 a revolt. I think upon the construction of this Act of Parliament that 
 the resistance of one person to the authority of the captain would not be 
 a revolt. Revolt means something more than the disobedience of one 
 man. I think it would be straining the evidence rather too far to say that 
 the conduct of these men amounted to a revolt ; and the charge of making 
 a revolt, if my construction of the Act be correct, will fall to the ground. 
 The question of whether the ship was properly fitted up and found is 
 not material ; for it has been decided that, although there be real griev- 
 ances to redress, yet it is not an answer to a charge of attempting to 
 
 (e) This last provision is similar to one (f) For present punishment see fost, 
 
 in 22 & 23 Car. II., c. 11, s. 9, repealed p. 266. 
 
 by 9 Geo. IV. c. 31, s. 1, so far as relates (r/) R. r. Jones, 11 Cox, 393. 
 
 to any mariner laying violent hands on his [h) R. v. Hastings [1825], 1 Mood. 82. 
 commander.
 
 CHAP, i.i Piracy hij Municipal Law. 261 
 
 make a revolt. If G. and the prisoners were united in some common 
 design to prevent the captain from putting M. in irons, which on the 
 evidence he had a sufficient justification in doing, and calling upon others 
 of the crew to assist them in resisting the captain's authority, then I 
 think that it was an attempt to excite a revolt ' (/). 
 
 On an indictment upon 11 Will. III. c. 7, s. 8, it appeared that the 
 prisoners were two of the mates and the others mariners of a merchant 
 ship. The captain ordered a sailor to go and grease the masts, which the 
 captain thought necessary to be done. The sailor j)eremptorily refused, 
 and the captain on that ordered all hands up : he desired the mates to have 
 the masts greased, which the men refused to do, and said that it was 
 the duty of the boys, and that whilst there were boys on board they would 
 not. The captain jjositively insisted, and the men as positively refused. 
 He then ordered the beef for the men's dinners to be taken below, on 
 which there was a peremptory refusal to let him have it. The captain 
 went down and armed himself with a cutlass, came again on deck, and 
 speaking to the steward said, ' Take that beef below, and the first man 
 who interferes, I will cut him down.' The steward obeyed ; the beef 
 was taken down and the captain put away his cutlass, and, after staying 
 on deck some time, went down, and believing he had done sufficient to 
 assert his authority, he sent the beef back, and allowed the crew to have 
 their dinners. After this the steward requested the captain to come on 
 deck, as the men wanted to speak to him. He went on deck, was made 
 prisoner, and confined in his cabin, the vessel put about, and brought to 
 Plymouth by the mate and crew, and there the crew made a complaint 
 against the captain. Williams, J., told the jury that in considering the 
 meaning of the terms used in the statute he must tell them that confeder- 
 ating together and making a revolt constituted the offence charged, 
 unless they were satisfied that there was some justifiable cause. The 
 great question for their consideration was, whether or not there was any 
 justification for this unquestionable confinement of the captain. Did, 
 therefore, his conduct afford any justification for that step ? He was 
 bound to tell them that, according to the authorities, a seaman was not 
 justified in making a revolt in a ship, or in imprisoning his caj^tain, by 
 reason of that captain having been unjust or unreasonable; it was not 
 to be allowed that seamen should take the law into their own hands, 
 because the captain had issued an unjust order, or had conducted himself 
 in a harassing or embarrassing manner. If the rule of law was that when- 
 ever the seamen considered the captain's conduct unreasonable and rash, 
 they could take charge of the sliij), there would be an end to all maritime 
 discipline. It was necessary, for the due maintenance of discipline, that 
 mutiny and revolt, if not justifiable, should be punished as a crime in the 
 merchant service as well as in the royal navy. In his opinion, in point 
 of law, it was justifiable in one view only, namely, if the conduct of the 
 captain had been such as to afford reasonable ground for concluding that, 
 unless the men had imprisoned him, the crew, or some one or more of them, 
 would have been in danger of their lives, or of suffering some grievous 
 bodily harm from his conduct. If they thought that was made out, and 
 
 {«•) R. V. M'Gregor, 1 C. & K. 42!).
 
 262 Of Offences Relating to the Law of Nations. [book ii. 
 
 that the conduct of the captain was such that the lives of the crew were 
 in danger unless he were imprisoned, then there was a justification. But 
 if they should not come to the conclusion that there was reasonable 
 ground for this belief, then, in point of law, they ought to find the prisoners 
 guilty 0"). _ 
 
 On an indictment under the same section, for making a revolt in a 
 British merchant ship, it appeared that the prisoners formed part of the 
 crew of a steamer trading between London and Holland ; their register 
 tickets were deposited with the captain, but no agreement in writing 
 had been entered into with them previously to their sailing on the voyage 
 during which the revolt was made, and the recorder held that the prisoners 
 were not mariners, or seamen ; because 7 & 8 Vict. c. 112, s. 2 (k), made any 
 contract other than the agreement thereby required illegal, and therefore 
 the relation of commander and mariner did not exist (l). Offences of 
 the kind dealt with in the two cases last cited can now be treated as offences 
 against discipline, under sect. 225 of the Merchant Shipping Act, 1894 
 (57 & 58 Vict. c. 60). 
 
 The Piracy Act, 1717 (4 Geo. I. c. 11), declares (sect. 7) ' that all 
 persons who have committed or shall commit offences within the Act 
 of 1698, may be tried and judged under the Offences at Sea Act, 1536,' and 
 deprived them of the benefit of clergy {m). 
 
 The Piracy Act, 1721 (8 Geo. I. c. 24), enacts (sect. 1) that 'if any 
 commander or master of any ship or vessel, or any other person or persons, 
 shall . . . anywise trade with any pirate by truck, barter, exchange, or 
 in any other manner, or shall furnish any pirate, felon, or robber upon 
 the seas, with any ammunition, provision, or stores of any kind ; or shall 
 fit out any ship or vessel knowingly, and with a design to trade with, 
 or supply, or correspond w^ith any pirate, felon, or robber upon the seas ; or 
 if any person or persons shall any ways consult, combine, confederate, or 
 correspond with any pirate, felon, or robber, on the seas, knowing him 
 to be guilty of any such piracy, felony, or robbery, every such offender 
 and offenders shall be deemed and adjudged guilty of piracy, felony, 
 and robbery (w) . . . and he and they shall and may be inquired of, 
 tried, heard, and adjudged of, and for all or any the matters aforesaid,' 
 according to the Offences at Sea Act, 1536, and the Act of 1698, ' and he 
 and they being convicted of all or any the matters aforesaid, shall suffer 
 such pains ... as pirates, felons, and robbers upon the sea ought to 
 suffer.' The same section further enacts that ' in case any person or 
 persons belonging to any ship or vessel whatsoever, upon meeting any 
 merchant ship or vessel on the high seas, or in any port, haven, or creek 
 
 (j) R. V. Rose, 2 Cox, 329. An reported, British merchanl ships are now regulated 
 this direction is open to the objection that by ss. 113-125 of the Merchant Shipping- 
 it did not inform the jury that the captain Act, 1894 (57 & 58 Vict. o. 60), and by the 
 might lawfully use any force that was Colonial Navigation Acts of Australia, New 
 reasonably necessary to retain the com- Zealand, Canada, &c. 
 mand of the vessel and stop the revolt, and (/) R. v. Smith, 3 Cox, 443. 
 that the crew would not be justified in im- (m) As to acts done by slave traders 
 prisoning him for using such force for that which are punishable as piracy, see 5 Geo. 
 purpose ; but, no doubt, the learned judge IV. c. 113, s. 9, post, p. 271. 
 did so direct the jury. (n) As to present punishments, see post, 
 
 {k) Repealed in 1854 (17 & 18 Vict. p. 2tiG. 
 c. 120). Agreements with tlie crews of
 
 CHAP. 1.) Piracy hy Municifal Law. 263 
 
 whatsoever, shall forcibly board or enter into such ship or vessel, and 
 though they do not seize or carry off such ship or vessel, shall throw over- 
 board or destroy any part of the goods or merchandises belonging to such 
 ship or vessel ; the person or persons guilty thereof, shall in all respects 
 be deemed and punished as pirates aforesaid ' (nn). 
 
 The Act of 1721 extends to all the King's dominions in Asia, Africa, and 
 America (sect. 10) (o). 
 
 The Piracy Act, 1744 (18 Geo. II. c. 30), recites that doubts had arisen 
 whether subjects entering into the service of the King's enemies on board 
 privateers and other ships, having commissions from France and Spain, 
 and having by such adherence been guilty of high treason, could be deemed 
 guilty of felony within the intent of the Act of 1698, and be triable by the 
 Court of Admiralty by virtue of the said Act; and then enacts (sect. 1) that 
 ' all persons, being natural-born subjects or denizens of His Majesty, 
 who during the present or any future wars, shaU 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 have been 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, or jurisdiction, 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 robbery, are by the 
 said Act (of 1698) {p) directed to be tried ; and such persons being upon 
 such trial convicted thereof, shall suffer such pains ' (g) . . . ' as any 
 other pirates, felons, and robbers ought, by virtue of the said recited 
 Act (of 1698), or any other Act, to suffer ' (r). 
 
 This enactment does not in terms say that the offenders shall be 
 deemed pirates, &c., as in the Act of 1698 {ante, p. 259). 
 
 On an indictment framed upon this enactment the question was 
 raised whether adhering to the King^s enemies in hostilely cruising in 
 their ships could be tried as 'piracy under the usual commission granted 
 under the Act of 1536 {ante, p. 257). The question was reserved for con- 
 sideration of the judges ; and it was agreed by eight judges who were 
 present {s), that the prisoner had been well tried under the commission : 
 
 (nn) As to present punishments, see post, was repealed in 18G4 (27 & 28 Vict. c. 23, 
 
 p. 2G6. s. 1). 
 
 (o) By s. 2 every vessel fitted out to trade, (p) Supra, p. 259. 
 
 &c., with pirates, and also the goods shall (q) For present punishments, see post, 
 
 be forfeited, half to the Crown and half to p. 206. 
 
 the informer. In (he second edition, 32 (r) S. 2 contains a proviso that persons 
 
 Ceo. III. c. 25, s. 12, was here inserted, but tried and convicted or acquitted under 
 
 as that Act was only to continue in force the Act shall not be liable to be indicted 
 
 during the then war with France, it seems again in Great Britain or elsewhere for the 
 
 to have expired. 8ee 2 East, P. C. 801 same fact or high treason. By s. 3 the Act 
 
 n. (rt), and Crabl)'s Index to the Statutes. is not to prevent offenders not tried under 
 
 C. S. G. 22 Geo. III. c. 25, which pro- its provisions from being tried within the 
 
 hibitcd the ransoming any ship belonging realm for high treason under the Offences 
 
 to any subject of His Majesty, of goods on at Sea Act, laSO, ante, p. 257. 
 board the same, which should be captured (s) Loughborough, C.B., Skynner, J. 
 
 by the subjects of any state at war with his Gould, J., Willes. .1., Ashhurst, J., Eyre, B., 
 
 Majesty, or by any persons committing Pcrryn, B., and Heath, J., who met Nov. 11, 
 
 hostilities against His Maji>sty'K subjects, 1782*.
 
 264 Of Offences Relating to the Law of Nations, [book li. 
 
 for that taking the Acts of 1698 and 1744 together, and the doubt 
 raised in the latter, and also its enactment that in the instances therein 
 mentioned, and also in case of any other adhering to the King's enemies, 
 the parties might be tried as pirates by the Court of Admiralty according 
 to that statute, it was substantially declaring that they should be deemed 
 pirates ; and that it was a just construction in their favour to allow them 
 to be tried as such by a jury (t). 
 
 By the Piracy Act, 1850 (13 & 14 Vict. c. 26), s. 2, ' Whenever any of 
 His Majesty's ships or vessels of war, or hired armed vessels or their boats, 
 or any of the officers or crews thereof shall attach or be engaged with any 
 persons alleged to be pirates, afloat or ashore, it shall be lawful for the 
 High Court of Admiralty in England, and for all Courts of Admiralty 
 in any dominions of His Majesty beyond the seas ... to take cognisance 
 and to determine whether the person, or any of them so attached or 
 engaged were pirates, and to adjudge what was the total number of 
 pirates so engaged or attached, specifying the number of pirates captured 
 and what were the vessels or boats engaged ' {u). 
 
 Sect. III. — Accessories and Punishment. 
 Accessories to Piracij. 
 
 Accessories. — Until 1700, accessories to piracy were triable only by the 
 civil law if their offence was committed on the sea, and one who within 
 the body of a county, knowing, received and abetted a pirate was not 
 triable by the common law, the original offence being solely cognisable 
 by another jurisdiction (v). This rule flowed from the theory that piracy 
 not being a common-law felony, the common-law rule as to accessories 
 did not apply, and from the common-law rules as to jurisdiction («'). 
 This anomaly has been removed by legislation. 
 
 By sect. 9 {x) of the Act of 1698 (11 Will. III. c. 7), every person and 
 persons whatsoever, who shall (after September 29, 1700) either on the land 
 or upon the seas, knowingly or wittingly set forth any pirate ; or aid and 
 assist, or maintain, procure, command, counsel, or advise, any person or per- 
 sons whatsoever, to do or commit any piracies or robberies upon the seas ; 
 and such person and persons shall thereupon do or commit any such piracy 
 or robbery, then all and every such person or persons whatsoever, so as 
 
 (<) Evans's case, M8. Gould, J., 2 East, escape out of prison ; and, on a return to a 
 P. C. 798, 799. 18 Geo. II. c. 30, s. 3, pro- habeas corpus, the prisoner was remanded, 
 vides that the Act shall not prevent any though it appeared that the fact was coin- 
 offender who shall not be tried according mitted by him within the body of a county, 
 thereto from being tried for high treason The Court of King's Bench holding, that 
 within this realm under 28 Hen. VIII. c. 15. because Scadding's offence depended on the 
 
 (u) See the Magellan Pirates [1853], 1 piracy committed by the principal, of which 
 
 Eccl. & Adm. (Spinks) 81. Ss. 3, 5 deal the temporal judges had no cognisance, and 
 
 with condemnation of vessels, &c., seized, was, as it were, an accessorial offence to the 
 
 and returns to the Admiralty of adjudica- first piracy which was determinable by the 
 
 tions with a view of assigning fitting rewards admiral, it was sufficient ground for re- 
 
 for capture. manding liim. Yelv. 134. 2 East, P. C. 
 
 {v) Admiralty case, 13 Co. Rep. 53. And 810. 
 
 a little before this case the law appears to (w) See Mr. R. S. Wright's Report on 
 
 have been so considered in the case of one Piracy Acts, Pari. Pap. [1878] H. L. No. 
 
 Scadding, who was committed by the 178, p. 18. 
 
 Court of Admiralty for aiding a piiate to (x) S. 8 in the common printed editions.
 
 CHAP. I.] Punishment of Piracy. 265 
 
 aforesaid setting forth any pirate, or aiding, assisting, maintaining, pro- 
 curing, commanding, counselling, or advising, the same either on the land 
 or upon the sea, shall be and are hereby declared, and shall be deemed 
 and adjudged to be accessory to such piracy and robbery, done and 
 committed. Sect. 10 (y) enacts, 'and further, that after any piracy or 
 robbery is or shall be committed by any pirate or robber whatsoever, 
 every person and persons, who, knowing that such pirate or robber has 
 done or committed such piracy and robbery, shall, on the land or upon 
 the sea, receive, entertain, or conceal any such pirate or robber, or receive 
 or take into his custody any ship, vessel, goods, or chattels, which have 
 been by any such pirate or robber piratically and feloniously taken ; 
 shall be, and are hereby likewise declared, deemed, and adjudged to be 
 accessory to such piracy and robbery (2) : and . . . that all such 
 accessories to such piracies and robberies shall be inquired of, tried, 
 heard, determined, and adjudged, after the common course of the laws 
 of this land, according to the Offences at Sea Act, 1536, as the prin- 
 cipals of such piracies and robberies may and ought to be, and no other- 
 wise : and being thereupon attainted, shall suffer such pains . . . and 
 in like manner, as such principals ought to suffer, according to the 
 OfTences at Sea Act, 1536, which is thereby declared to be and shall 
 continue in full force . . .' (a). 
 
 The Piracy Act, 1721 (8 Geo. I. c. 24), after reciting that ' whereas 
 there are some defects in the laws for bringing persons who are accessories 
 to piracy and robbery upon the seas to condign punishment, if the principal 
 who committed such piracy or robbery is not or cannot be apprehended 
 and brought to justice,' enacts (sect. 3) that ' all persons whatsoever, who 
 by the Act of 1698 are declared to be accessory or accessories to any piracy 
 or robbery therein mentioned, are hereby declared to be principal pirates, 
 felons, and robbers, and shall and may be inquired of, heard, deter- 
 mined, and adjudged, in the same manner as persons guilty of piracy and 
 robbery may and ought to be inquired of, tried, heard, determined, and 
 adjudged according to that statute ; and being thereupon attainted 
 and convicted, shall suffer such pains . . . and in like (/)) manner 
 as pirates and robbers ought by the said Act to suffer.' 
 
 Punishment. 
 
 The Offences at Sea Act, 1799 (39 Geo. III. c. 37), after reciting the 
 Act of 1536, enacts (sect. 1) that ' all and every offence and offences com- 
 mitted (after May 10, 1799) upon the high seas out of the body of any 
 county of this realm, shall be and they are hereby declared to be offences 
 of the same nature respectively, and to be liable to the same punishments 
 as if they had been committed upon the shore, and shall be inquired of,' 
 &c., ' in the same manner as treasons,' Sec, ' under the Offences at Sea 
 Act, 1536 ' (bb). 
 
 (y) S. 9 in the common printed edition.s. p. 132, appears to cover the same ground 
 
 (z) As to the present punishment of as this enactment, except, perhaps, as to 
 
 accessories, see the Piracy Act, 18.37. s. 4, piracy jure (jentium. 
 
 post, p. 206, and the Accessories and {b) As to present punishments, see post. 
 
 Abettors Act, 18()1, ante, p. 130. p. 2(50. 
 
 (a) S. 7 of the Accessories and Abettors {bb) Ante, p. 257. 
 
 Act, 1801 (24 & 25 Vict. c. 94), ante.
 
 266 Of Offences Relating to the Laiv of Nations. [booK il. 
 
 Under the Acts of 1536 (c), 1698 [d), 1717 (e), 1721 {/), and 1744 {g), 
 piracy was punishable by death, and forfeiture of lands, goods, and 
 chattels. Offenders within the Acts of 1536 and 1721 were deprived of 
 benefit of clergy [h). In 1820 benefit of clergy was allowed to persons 
 tried under the Act of 1536 for offences at sea in all cases in which benefit 
 of clergy would have been allowed as to the offences if committed on 
 land {i). By the Piracy Act, 1837 (7 Will. IV. & 1 Vict. c. 88), s. 1 (/), the 
 provisions of the above stated Acts as to the punishment of the crime of 
 piracy or of any offence in any of the said Acts declared to be piracy, or 
 of accessories thereto respectively, were repealed, and the punishment of 
 such offences (if tried in England) is now regulated by the following 
 sections of the Act of 1837, as modified by the Penal Servitude Acts of 1857 
 and 1891 (k). 
 
 Sect. 2 enacts, ' Whosoever, with intent to commit or at the time of or 
 immediately before or immediately after committing the crime of piracy 
 in respect of any ship or vessel, shall assault, with intent to murder, any 
 person being on board of or belonging to such ship or vessel, or shall stab, 
 cut, or wound any such person, or unlawfully do any act by which the 
 life of such person may be endangered, shall be guilty of felony, and being 
 convicted thereof shall suffer death as a felon ' [1). 
 
 By sect. 3, ' Whosoever shall be convicted of any offence which by 
 any of the Acts hereinbefore referred to {m) amounts to the crime of 
 piracy, and is thereby made punishable by death, shall be liable ... to 
 be transported (n) beyond the seas for the term of the natural life of such 
 offender. . . . (o) ' 
 
 By Sect. 4, ' In the case of every felony punishable under this Act 
 every principal in the second degree and every accessory before the fact 
 shall be punishable with death or otherwise in the same manner as the 
 principal in the first degree is by this Act punishable ; and every accessory 
 after the fact to any felony punishable under this Act shall, on conviction, 
 be liable to be imprisoned for any term not exceeding two years ' {p). 
 
 (c) 28 Hen. VIII. c. 15, s. 2, ante, p. 257. 21 Vict. c. 3, s. 2, ante, p. 211. 
 
 (d) 11 Will. III. c. 1, ss. 7, 8, 9, 10, 11. (o) Or for any term not less than three 
 
 (e) 4 Geo. I. c. 11, s. 1, tmte, p. 262. years, or to be imprisoned with or without 
 ( /■) 8 Geo. I. c. 24, s. 1, ante. p. 262. hard labour for not more than two years 
 {g) 18 Geo. II. c. 30, s. 1, ante, p. 263. (54 & 55 Vict. o. 69, s. 1, ante, pp. 211, 212). 
 (Il) 28 Hen. VIII. c. 15, s. 3 ; 8 Geo. I. (p) This .statute having repealed the 
 
 c. 24, s. 4 (rep. 1837). punishment of piracy ' at common law,' 
 
 [i) 60 Geo. III. & 1 Geo. IV. c. 90, s. 1. which was before punishable by 28 Hen. 
 
 (;■) Ss. 1, 4 of the Act of 1837 were VIII. c. 15, s. 3, with death without benefit 
 
 repealed as spent in 1874 (37 & 38 Vict. of clergy, a difficulty arises as to what is 
 
 c. 35). See Interpretation Act, 1889 (52 now the punishment for that offence. The 
 
 & 53 Vict. c. 63), s. 11, ante, p. 5. Offences at Sea Act, 1799 (39 Geo. III. c. 37), 
 
 (A-) Ante, pp. 209, 210. s. 1, ante, p. 265, by making all offences 
 
 {I) This sentence may be recorded (4 committed on sea of the same nature as if 
 
 Geo. IV. c. 48, s. 1, ante, p. 206). Where the they were committed on shore, seems to 
 
 indictment charges a stabbing, cutting, or have made piracy jure gentium a felony, 
 
 wounding, the jury may acquit of the which it was not at common law, or by 28 
 
 felony, and convict of the stabbing, cutting. Hen. VIII. c. 15. By 60 Geo. III. & 1 
 
 or wounding (14 & 15 Vict. c. 19, .s. 5). Geo. IV. c. 90, any person found guilty of 
 
 (m) i.e., 28Hen. VIII. c. 15 ; 11 W^ill. III. any capital crime or offence committed 
 
 c. 7 ; 4 Geo. I. c. 11 ; 8 Geo. I. c. 24 ; 18 upon the sea, which, if committed upon the 
 
 Geo. IT. c. 30. land would be clergyable, was entitled to 
 
 (n) Penal se^^^tude substituted by 20 & the benefit of clergy in like manner as if he
 
 CHAP, t.] Trial of Piracy. 267 
 
 By sect. 16 of the Capital Punishment (Ireland) Act, 1842 (5 & 6 Vict, 
 c. 28), persons convicted of any ofience which amounts to the crime of 
 piracy by any Act in force in Ireland are liable to penal servitude for life. 
 
 Sect. IV. — Jurisdiction and Procedure. 
 
 Piracy has been put into the same position as treason and felony with 
 respect to pleas of not guilty, refusal to plead {q), and peremptory challenge 
 of jurors in excess of the number which the law allows (r). 
 
 Of the Courts hy which the Offence of Piracy may be tried : 
 («) Trial in England. 
 
 The offence of piracy was formerly cognisable only by the Admiralty 
 Courts, which proceeded without a jury, after the course of the civil law 
 and with the rules of that law as to torture and proof. The inconveniences 
 found to attend this procedure led to the passing of the Offences at Sea 
 Act, 1536 (28 Hen. VIII. c. 15) {ante, p. 257). That statute enacted, 
 that this offence and certain other offences committed within the juris- 
 diction of the admiral should be tried under the King's Commission, by 
 commissioners nominated by the Lord Chancellor, the indictment being 
 first found by a grand jury of twelve men, and afterwards tried by another 
 jury as at common law, and that the course of proceeding should be 
 according to the law of the land. Amongst the commissioners there 
 were always some of the common-law judges (s). But the Act merely 
 altered the mode of trial in the Admiralty Court ; and its jurisdiction 
 continued to rest on the same foundations as it did before that Act. It 
 is regulated by the civil law, et per consuetudines marinas grounded on the 
 law of nations, which may possibly give to that Court a jurisdiction that 
 our common law has not (t). 
 
 By the Offences at Sea Act, 1844 (7 & 8 Vict. c. 2), s. 1, justices of 
 Assize, Oyer and Terminer, and Gaol Delivery are given all the powers, 
 which by any Act are given to the commissioners named in any commis- 
 sion of Oyer and Terminer, for the trying of offences committed on the 
 high seas or in other places within the jurisdiction of the Admiralty of 
 England (u). This Act has rendered it unnecessary to hold criminal 
 
 had committed such offence upon land. gentium (or at common law) is to be treated 
 
 By 7 & 8 Geo. IV. c. 28, s. 6, clergy was as a felony of the same kind, and liable to 
 
 abolished, and by s. 7 no person convicted the same punishment, as if the same act 
 
 of /eZony was to suffer death unless for some had been done upon land, and tliat the 
 
 felony excluded from clergy, on or before offender is triable either under a commission 
 
 the first day of that session of Parliament ; founded on 28 Hen. VIII. c. 15, or at the 
 
 and by s. 12, ' all offences prosecuted in the Central Criminal Court, or at the assizes.' 
 
 High Court of Admiralty shall, upon every C. S. G. 
 
 Hrst and subsequent conviction, be subject (q) 1 & S Geo. IV. c. 28, ss. 1, 2 (E) ; 
 
 to the same punishments, whether of death 9 Geo. IV. c. 54, ss. 7, 8 (I). 
 
 or otherwise, as if such offences had been (/) 7 & 8 Geo. IV. c. 28, s. 3 (E). 
 
 committed upon land.' See also the Crimi- (.«) 28 Hen. VIII. c. 15, s. 2. Generally 
 
 nal Law Consolidation Acts of 1861. By livo. 4 Bl. Com. 209. 
 
 4 & 5 Will. IV. c. 3(5, piracy ynai/ be tried at (<) R. v. Depardo, 1 Taunt. 29, 8ir James 
 
 the Central Criminal Court. ' On the Mansfield, C.J. 
 
 whole, it seems that each act of piracy jure (m) See R. v. Dudley, 14 Q.E.D. 273, 560.
 
 268 Of Offences Relating to the Law of Nations, [book it. 
 
 sessions of the Court of Admiralty, but does not affect the jurisdiction 
 of the Central Criminal Court {v), nor the power of the Crown to issue 
 special commissions under the Act of 1536. 
 
 It is expressly provided by sect. 6 of the Territorial Waters Jurisdiction 
 Act, 1878 (41 & 42 Vict. c. 73), which applies to the whole of the King's 
 dominions (see preamble), that that Act shall not prejudice nor affect the 
 trial in manner heretofore (August 16, 1878) in use of any act of piracy as 
 defined by the law of nations, or affect or prejudice any law relating 
 thereto : and where any act of piracy as defined by the law of nations 
 is also any such offence as is declared by this Act to be within the juris- 
 diction of the admiral, such offence may be tried in pursuance of this Act 
 or in pursuance of any other Act of Parliament, law, or custom relating 
 thereto. 
 
 (h) Trial in British Possessions Abroad. 
 
 As a general rule it is not within the province of a colonial legislature to 
 deal directly with the offence of piracy jure gentium, or directly to assume 
 jurisdiction over piratical acts done outside the territorial waters of the 
 colony. During the nineteenth century trials for piracy in England and 
 Ireland were very rare, but they were somewhat more frequent in 
 British possessions adjacent to regions where the slave trade was carried 
 on, or to Asiatic communities of piratical propensities. The extent to 
 which the English Acts already referred to apply to British possessions 
 varies according to the history and legislation of the particular possession, 
 i.e., with the extent to which the English law against piracy is the common 
 law of the possession, or has been incorporated by its legislation. It 
 would seem that the legislature of a British possession has no authority 
 to alter the definition of piracy jure gentium {w). 
 
 By the Act of 1698 (11 Will. III. c. 7), after reciting the difficulties 
 found in bringing to justice pirates in the East and West Indies, and the 
 growth of piracy in these parts it is enacted (sect. 1), that all piracies, 
 felonies, and robberies, committed on the high seas or within the juris- 
 diction of the admiral, might be tried and punished in any place at sea 
 or upon the land in any of the King's islands, plantations, colonies, forts, 
 or factories, to be appointed by the King's commission in the manner 
 therein directed and according to the civil law and the methods and rules 
 of the Admiralty {x). 
 
 By the Offences at Sea Act, 1806 (46 Geo. III. c. 54), it is provided 
 that piracy, &c., within the jurisdiction of the admiral should be tried 
 according to the common law of this realm used for offences committed upon 
 the land within the realm, and not otherwise, in any British possession 
 by the King's commission under the Great Seal of Great Britain. 
 
 By the Australian Courts Act, 1828 (9 Geo. IV. c. 83), the Supreme 
 
 Courts of New South Wales and Tasmania are given jurisdiction {inter 
 
 alia) over piracies (s. 4), which are to be dealt with as if the offence had 
 
 been committed and tried in England. 
 
 [v) 4 & 5 Will. IV. c. 3G, s. 22. Quelch [1704], 14 St. Tr. 1067, at Boston, 
 
 {w) See note of Sir S. Griffith to draft Mass. And see R. v. Bonnet [1718], 15 St. 
 
 Queensland Criminal Code, p. x. Tr. 1231, for a trial at Vice-Admiralty 
 
 {x) Ss. 1-6 were repealed in 1867 Sessions at Charlestown, North Carolina. 
 
 (S. L. R.). For a trial under them, see R. v.
 
 CHAP. I.] Trial of Piracy. 269 
 
 By the Admiralty Offences Colonial Act, 1849 (12 & 13 Vict. c. 96), ' If 
 any person within any colony {y) shall be charged with the commission of 
 any . . . piracy, felony, robbery ... or other offence, of what nature or 
 kind soever committed upon the sea, or in any haven, river, creek, or place 
 where the admiral or admirals have power, authority, or jurisdiction, 
 or if any person charged with the commission of any such offence upon 
 the sea, or in, &c., shall be brought for trial to any colony, then, and in 
 every case all magistrates, justices of the peace, public prosecutors, 
 juries, judges, courts, public officers, and other persons in such colony 
 shall have and exercise the same jurisdiction and authorities for inquirino' 
 of, trying, hearing, determining, and adjudging such offences, and they 
 are hereby respectively authorised, empowered, and required to institute 
 and carry on all such proceedings for bringing the person so charged 
 for trial as aforesaid, and for and auxiliary to and consequent upon the 
 trial of any such person for any such offence wherewith he may be charged 
 as aforesaid as hy the law of such colony would and ought to have been 
 had and exercised or instituted and carried on by them respectively if 
 such offence had been committed and such person had been charged 
 with having committed the same upon any waters situate within the 
 limits of any such colony and within the limits of the local jurisdiction 
 of the courts of criminal justice of that colony' (z). 
 
 The definition of colony in sect. 5 of this Act includes all British 
 possessions except British India and the British Islands : but was extended 
 in 1860 (23 & 24 Vict. c. 88, s. 1) so as to include British India, subject 
 to a right in favour of the accused in certain cases to be tried by the 
 High Courts of Bengal, Bombay, or Madras (sect. 2). 
 
 By sect. 2 of the Act of 1849 provision was made for the trial in the 
 colonies of offences involving homicide, where the death was on land 
 from an injury inflicted at sea, or at sea from an injury inflicted on land. 
 And by the Admiralty Offences Colonial Act, 1860 (23 & 24 Vict. c. 122), 
 Colonial legislatures were empowered to include in their own legislation 
 provisions similar to those last above stated, which were derived from 
 9 Geo. IV. c. 31, s. 8, and are now as to England and Ireland included in 
 sect. 68 of the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100). 
 
 The Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27), 
 does not give any jurisdiction to Colonial Admualty Courts to try 
 any person for an offence which, by the law of England, is punishable 
 on indictment, and in substance deals only with civil jurisdiction of these 
 Courts (sect. 2, subs. 3 (c)). 
 
 In a case tried at Penang in 1840 (a), the accused was tried with others 
 on the Admiralty side of the Court with piracy, i.e. forcible capture on 
 the high seas of a boat, the captain and crew whereof were put in bodily 
 fear and in danger of their lives. The pleas raised were ( 1 ) that the accused 
 was not a British subject nor a person amenable to the law of England 
 respecting piracy, (2) that the acts alleged to be piratical, were acts of 
 war (6). 
 
 (y) i.e. all ' British possessions ' outside Settlements) Reports. 1G9. 
 
 the ' Briti.sh Islands ' (see s. 5 and 23 & 24 (a) R. v. Tunkoo Mahomed Saad, 2 
 
 Vict. c. 88). Kyshc (Straits Settlements) Rep. 18. 
 
 (z) For instance of a trial under this Act, (6) See Swetenham's Malaya as to the 
 
 Bee R. V. Nya Abu [188G], 4 Kyshe (Straits history of Siam and Kcdah.
 
 ( 270a ) 
 
 CANADIAN NOTES. 
 
 OP PIRACY. 
 
 B]j Laic of Nations. — Code sec. 137. 
 
 Piratical Acts. — Code sec. 138. 
 
 Violence with Piratical Acts. — Code sec. 139. 
 
 Jurisdiction and Procedure. — Code sec. 591. 
 
 Warrant of Apprehension. — Code sec. 656. 
 
 A charge against a seaman on a British ship not a British subject, 
 for inciting a revolt upon the ship while on the high seas, may not 
 if taken only under Code sec. 138 be made without consent of the 
 Governor-General, under sec. 591, obtained prior to the laying of 
 the information. Mr. Justice Ritchie held further that if the proceed- 
 ings for the offence are taken under the Merchant Shipping Act, 
 1894 (Imp.), sec. 686, the consent of the Governor- General is not 
 required, and Code sec. 591 would not apply. But a different view 
 was taken by Mr. Justice Weatherbe who held that sec. 591 applies 
 to the procedure in Canadian Courts in respect of offences committed 
 within the Admiralty Jurisdiction whether the proceedings are taken 
 under the Criminal Code or the Imperial Merchant Shipping Act 
 or the Admiralty Offence Act, 1849. R. v. Heckman, 5 Can. Cr. Cas. 
 242. 
 
 A sea harbour enclosed within headlands such as the harbour 
 of Halifax is within the body of the adjacent county and criminal 
 offences committed in such harbour even upon foreign ships are not 
 within the Admiralty Jurisdiction except in the special cases provided 
 by statute. 
 
 A charge of theft by foreigners upon and from any foreign ship 
 while lying in a harbour forming part of the body of the county, 
 ma}^ be prosecuted within the county without obtaining the leave of 
 the Governor-General. R. v. Schwab, 12 Can. Cr. Cas. 540. 
 
 The Great Lakes at the boundary of the Province of Ontario are 
 within the jurisdiction of the Admiralty. R. v. Sharpe, 50 O.P.R. 135,
 
 ( 271 ) 
 
 CHAPTER THE SECOND. 
 
 OF DEALING IN SLAVES, ETC. 
 
 Sect I. — The Slave Trade Acts. 
 
 A list of enactments still in force relating to the slave trade is given in 
 note (a) below. Most of these Acts apply to the whole of the King's 
 dominions. 
 
 The Slave Trade Act, 1824 (5 Geo. IV. c. 113), also described as the 
 Slave Trade Consolidation Act (6), repealed all the prior Acts and enact- 
 ments relating to the slave trade, except so far as they had repealed 
 prior Acts or enactments, or had been acted upon, or were expressly con- 
 firmed by the Act. It enacts (sect. 2), that it shall not be lawful, except 
 in such special cases as are thereinafter mentioned (c), to deal in slaves, or 
 to remove, import, ship, trans-ship, &c., any persons as slaves, or to fit 
 out, emj)loy, &c., any vessels in order to accomplish such unlawful objects, 
 or to lend money, &c., or to become guarantee, &c., for agents in relation 
 to such objects, or in any other manner to engage directly or indirectly, 
 therein, as a partner, agent, or otherwise ; or to ship, &c., any money, 
 goods, or effects, to be employed in accomplishing any of these unlawful 
 objects ; or to command, or embark on board, or contract for commanding 
 or embarking on board, any vessel, &c., in any capacity, knowing that 
 such vessel, &c., is employed, or intended to be employed, in such un- 
 lawful objects ; or to insure or contract for insuring, any slaves or other 
 property, employed, or intended to be employed, in accomplishing any 
 of these unlawful objects. Pecuniary penalties and forfeitures are (by 
 sects. 3-8) imposed upon persons offending, by engaging in such unlawful 
 objects (d). 
 
 By sect. 9, ' If any subject or subjects of His Majesty, or any person 
 
 (a) 5 Geo. IV. c. 113, ss. 2-11, 12, 39, 40, pealed in 1833 by 3 & 4 Will. IV. c. 73, 
 
 and 47 ; 3 & 4 Will. IV. c. 73, s. 12 ; 7 which, after manumitting, as from Aug. 1, 
 
 Will. IV. & 1 Vict. c. 91, s. 1 ; G & 7 Vict. 1834, all slaves in the British Colonics, 
 
 0. 98, ss. 1, 4 ; 27 & 28 Vict. c. 24, ss. 12-18 ; plantations and possessions abroad, enacts, 
 
 36 & 37 Vict. c. 59, ss. 4, 5 (East Africa) ; ' The children thereafter to be born to any 
 
 36 & 37 Vict. c. 88 ; 39 & 40 Vict. c. 46 such person and the offspring of such chil- 
 
 (India) ; 42 & 43 Vict. c. 38, s. 3 (East dren shall in like manner be free from their 
 
 Africa); 53 & 54 Vict. c. 27, ss. 6, 13, 16, 18. birth ; and slavery shall be and is hereby 
 
 As to Pacific Islanders, see post, p. 283. As utterly and for ever abolished and declared 
 
 to trial of slave-trade offences in Consular unlawful throughout the British colonies. 
 
 Courts, see post, p. 282. plantations and possessions abroad ' (s. 12). 
 
 (6) Repealed by the Slave Trade Act, The rest of this Act was repealed in 1890 
 
 1873 (36 & 37 Vict. c. 88), s. 30, except ss. (8. L. R.). As to the eiTect of the repeal of 
 
 2-11, s. 12 down to ' taken to be in full the exceptions from the Act of 1824, see R. 
 
 force,' ss. 39, 40, and 47. v. Jemiings, post, p. 273. 
 
 (c) Certain cases were excepted from the (d) These sections do not directly create 
 
 Act of 1824. These exceptions were re- any criminal offence.
 
 272 Of Offences Relating to the Law of Nations, [book ii. 
 
 or persons residing or being within any of the dominions, forts, settle- 
 ments, factories, or territories now or hereafter belonging to His Majesty, 
 or being in His Majesty's occupation or possession, or under the govern- 
 ment of the united company of merchants of England trading to the East 
 Indies (e), shall ' (after January 1, 1825), ' upon the high seas, or in any 
 haven, river, creek, or place where the admiral has jurisdiction, know- 
 ingly and wilfully carry away, convey, or remove or aid, or assist in carry- 
 ing away, conveying, or removing, any person or persons as a slave or 
 slaves, or for the purpose of his, her, or their being imported or brought as 
 a slave or slaves, into any island, colony, country, territory, or place what- 
 soever, or for the purpose of his, her, or their being sold, transferred, used, 
 or dealt with as a slave or slaves ; or shall (after January 1, 1825 . . . (/), 
 upon the high seas, or within the jurisdiction aforesaid, knowingly 
 and wilfully ship, embark, receive, detain, or confine, or assist in shipping, 
 embarking, receiving, detaining, or confining, on board any ship, vessel, 
 or boat, any person or persons for the purpose of his, her, or their being 
 carried away, conveyed or removed, as a slave or slaves, or for the 
 purpose of his, her, or their being imported or brought as a slave or 
 slaves, into any island, colony, country, territory, or place whatsoever, 
 or for the purpose of his, her, or their being sold, transferred, used, or 
 dealt with as a slave or slaves, then and in every such case the person 
 or persons so offending shall be deemed and adjudged guilty of j)iracy (g), 
 felony, and robbery . . . ' (/i). 
 
 By sect. 10, ' If any persons shall deal or trade in, purchase, sell, 
 barter, or transfer, or contract for the dealing or trading in, purchase, 
 sale, barter, or transfer of slaves, or persons intended to be dealt 
 with as slaves, or shall . . . carry away or remove, or contract for 
 the carrying away or removing of slaves or other persons, as or in 
 order to their being dealt with as slaves, or shall import or bring or 
 contract for the importing or bringing, into any place whatsoever, slaves 
 or other persons, as or in order to their being dealt with as slaves, or 
 shall, . . . (/) ship, trans-ship, embark, receive, detain, or confine on 
 board, or contract for the shipping, trans-shipping, embarking, receiving, 
 detaining, or confining on board of any ship, vessel, or boat, slaves or 
 other persons, for the purpose of their being carried away or removed, as 
 or in order to their being dealt with as slaves ; or shall ship, trans-shij), 
 embark, receive, detain, or confine on board, or contract for the shipping, 
 
 (e) These territories are now under the made the penalty death without benefit of 
 
 Crown. Habitual dealmg in slaves is clergy, with loss of lands, &e. By 7 Will, 
 
 punishable under s. 371 of the Indian Penal IV. & 1 Vict. c. 91, s. 1, transportation for 
 
 Code ; isolated dealmgs under s. 370 ; and life was substituted for the death penalty, 
 
 kidnapping in order to subject to slavery The present punishment by the effect of the 
 
 under s. 367. Nee Mayne Ind. Cr. L. (ed. Penal Servitude Acts, 1857 and 1891, ante, 
 
 ]896)p. 647. Offences under these sections, pp. 211,212, is penal servitude for life or not 
 
 if committed by a subject of the Kiirg, or of less than three years, or imprisonment with 
 
 an allied force on the high seas, or in Asia or without hard labour for not less than 
 
 or Africa, are punishable in India under the two years. Forfeiture of lands, goods and 
 
 Slave Trade Act, 1876 (39 & 40 Vict. c. 46), chattels was abolished in 1870 (33 & 34 
 
 s. 1. Vict. c. 23), and the portions of 7 Will. IV. 
 
 (/) See note (c), p. 271. & 1 Vict. c. 91 superseded by the abovc- 
 
 (g) As to piracy, vide ante, p. 255. stated Acts as to punishment, were re- 
 
 ();) The words here omitted were re- pealed in 1890 and 1893 (S. L. Pv.). 
 pealed in 1888 (S. L. R.). The section (/) See note (c), p. 271.
 
 CHAP. II.] Dealing in Slaves. 27S 
 
 trans-shipping, embarking, receiving, detaining, or confining on board of 
 any ship, vessel, or boat, slaves or other persons, for the purpose of their 
 being imported or brought into any place whatsoever, as or in order to 
 their being dealt with as slaves ; or shall fit out, man, navigate, equip, 
 despatch, use, employ, let, or take to freight or on hire, or contract for 
 the fitting out, manning, navigating, equipping, despatching, using, 
 employing, letting, or taking to freight, or on hire, any ship, vessel, or 
 boat, in order to accomplish any of the objects, or the contracts in rela- 
 tion to the objects, which objects and contracts have hereinbefore been 
 declared unlawful ; or shall knowingly and wilfully (/) lend or advance, 
 or become security for the loan or advance, or contract for the lending or 
 advancing, or becoming security for the loan or advance, of money, goods, 
 or effects employed or to be employed, in accomplishing any of the 
 objects, or the contracts in relation to the objects, which objects and 
 contracts have hereinbefore been declared unlawful ; or shall knowingly 
 and wilfully become guarantee or security, or contract for the becoming 
 guarantee or security, for agents employed, or to be employed, in accom- 
 jilishing any of the objects, or the contracts in relation to the objects, 
 which objects and contracts have hereinbefore been declared unlawful, 
 or in any other manner to engage or to contract to engage, directly or 
 indirectly therein, as a partner, agent, or otherwise ; or shall knowingly 
 and wilfully ship, trans-ship, lade, receive, or put on board, or contract 
 for the shipping, trans-shipping, lading, receiving, or putting on board of 
 any ship, vessel, or boat, money, goods, or effects to be employed in 
 accomplishing any of the objects, or the contracts in relation to the 
 objects, which objects and contracts have hereinbefore been declared 
 unlawful ; or shall take the charge or command, or navigate, or enter 
 and embark on board, or contract for taking the charge or command, or 
 for the navigating or entering and embarking on board of any ship, 
 vessel, or boat, as captain, master, mate, surgeon, or super-cargo, knowing 
 that such ship, vessel, or boat is actually employed or is, in the same 
 voyage, or upon the same occasion, in respect of which they shall so take 
 the charge or command, or navigate, or enter and embark, or contract 
 so to do as aforesaid, intended to be employed in accomplishing any of 
 the objects, or the contracts in relation to the objects, which objects and 
 contracts have hereinbefore been declared unlawful ; or shall knowingly 
 and wilfully insure or contract for the insuring of any slaves, or any 
 property, or other subject-matter engaged or employed in accomplishing 
 any of the objects, or the contracts in relation to the objects, which objects 
 and contracts have hereinbefore been declared unlawful ; or shall wilfully 
 and fraudulently forge or counterfeit any certificate, certificate of valua- 
 tion, sentence or decree of condemnation or restitution, copy of sentence 
 or decree of condemnation or restitution, or any receipt (such receipts 
 being required by this Act), or any part of such certificate, certificate of 
 valuation, sentence or decree of condemnation or restitution, copy of 
 sentence or decree of condemnation or restitution, or receipt as aforesaid ; 
 or shall knowingly and wilfully utter or publish the same, knowing it to 
 
 (y) Counts in an indictiuent whicli mittcdly bad. R. tJ. Jcnning.s, 1 Cox, 1 15, 
 omitted these words were quashed as ad- Wightman and Cresswell, JJ. 
 
 VOL. I. T
 
 ^74 Of Offences Relating to the Law of Nations, [book U. 
 
 be forged or counterfeited, with intent to defraud His Majesty, or any 
 other person or persons whatsoever, or any body politic or corporate ; 
 then and in every such case the person or persons so offending, and 
 their procurers, counsellors, aiders, and abettors, shall be and are 
 hereby declared to be felons, and shall be transported {h) beyond seas 
 for a term not exceeding fourteen {I) years, or shall be confined and 
 kept to hard labour for a term not exceeding five years, nor less 
 than three (m) years, at the discretion of the Court before whom such 
 offender or offenders shall be tried and convicted/ 
 
 Seamen serving on Slavers. — Sect. 11. . . . 'If any person shall enter 
 and embark on board, or contract for the entering and embarking on 
 board of any ship, vessel, or boat, as petty officer, seaman, marine, or 
 servant, or in any other capacity not hereinbefore specifically mentioned, 
 knowing that such ship, vessel, or boat is actually employed, or is, in 
 the same voyage, or upon the same occasion, in respect of which they 
 shall so enter and embark on board, or contract so to do as aforesaid, 
 intended to be employed in accomplishing any of the objects, or the con- 
 tracts in relation to the objects, which objects and contracts have herein- 
 before been declared unlawful, then and in every such case the persons 
 so offending, and their procurers, counsellors, aiders, and abettors, shall 
 be and they are hereby declared to be, guilty of a misdemeanor only, and 
 shall be punished by imprisonment for a term not exceeding two years.' 
 
 Criminal Clauses not to affect Civil and Penal Clauses. — Sect. 12. 
 ' Provided always, that nothing in this Act contained, making piracies, 
 felonies, robberies, and misdemeanors of the several offences aforesaid, 
 shall be construed to repeal, annul, or alter the provisions and enactments 
 in this Act also contained, (viz., sects. 5-8, ante, p. 271) imposing forfeitures 
 and penalties, or either of them upon the same offences, or to repeal, 
 annul, or alter the remedies given for the recovery thereof ; but that 
 the said provisions and enactments, imposing forfeitures and penalties, 
 shall in all respects be deemed and taken to be in full force ' (w). 
 
 Informers exempted from Penalties. — Sect. 40. ' Provided always 
 if any person offending as a petty officer, seaman, marine, or servant, 
 against any of the provisions of this Act, shall, within two years after 
 the offence committed, give information on oath before any competent 
 magistrate against any owner or part-owner, or any captain, master, 
 mate, surgeon, or supercargo of any ship or vessel, who shall have com- 
 mitted any offence against this Act, and shall give evidence on oath against 
 such owner, etc., before any magistrate or Court before whom such 
 
 (i) Penal servitude substituted in 1857 penal servitude of three years, or imprison- 
 
 (20 & 21 Vict. c. 3, s. 2), ante, p. 211. luent with or without hard labour for not 
 
 [1) Nor less than three years (54 & 55 over two years. It is submitted that the 
 
 Vict. e. 69, s. 1, ante, p. 211). Act of 1891 does (if the Act of 1846 had 
 
 (m) The provisions as to imprisonment not already done it) supersede the power 
 
 are not specifically repealed. By 9 & 10 of imprisonment given in s. 9. 
 
 Vict. c. 26, s. 1 (rep. 1895), where Courts (w) The rest of the section is omitted as 
 
 were empowered or required to impose a repealed in 1873 (3(5 & 37 Vict. c. 88, s. 30). 
 
 sentence of transportation for over seven Ss. 13-38 were repealed in 1873 (36 & 37 
 
 years, they were authorised to substitute a Vict. c. 88, s. 30). >S. 39 avoids mort- 
 
 term of not less than seven years, or im- gages, &c., given for purposes rendered 
 
 prisonment with or without hard labour for unlawful by the Act, except against bona 
 
 not more than two years. 54 & 55 Vict. jide purcliasers or holders, without notice 
 
 c. 69, s. 1, authorises a minimum term of of negotiable instruments. 
 
 J
 
 CHAP. I].] Dealing in Slaves. 275 
 
 offender may be tried ; or if such person or persons so offending shall 
 give information to any of His Majesty's ambassadors, ministers, etc., or 
 other agents, so that any person or persons owning such ship or vessel, 
 or navigating or taking charge of the same, as captain, master, mate, 
 surgeon, or supercargo, may be apprehended; such person or j)3rsons 
 so giving information and evidence shall not be liable to any of the 
 pains or penalties under this Act incurred in respect of his offence, and 
 His Majesty's ambassadors, ministers, etc., or other agents are hereby 
 required to receive any such information as aforesaid and to transmit the 
 particulars thereof, without delay, to one of His Majesty's principal secre- 
 taries of state, and to transmit copies of the same to the commanders of 
 His Majesty's ships or vessels, then being in the said port or place ' (o). 
 In February, 1845, the ' Felicidade,' a Brazilian schooner, bound on 
 a voyage to Africa for the purpose of bringmg back a cargo of slaves, 
 arrived off the African coast, and was observed by Her Majesty's ship 
 
 * Wasp,' stationed off the slave coast for the prevention of the slave 
 trade, who, upon approaching the ' Felicidade,' manned two boats, and 
 gave the command of them to S., one of his officers, with orders to board 
 the ' Felicidade,' and if she appeared to be fitted up for the slave trade 
 to capture her. S., in obedience to these orders, went with the two boats 
 to the ' Felicidade.' At the time of her capture the ' Felicidade ' was fitted 
 up for the reception of a cargo of slaves, and was within sixteen miles 
 of the shore. The next day Captain Usher placed the ' Felicidade ' under 
 the command of S., and directed him to steer a particular course in 
 pursuit of a vessel capable of being seen from the ' Wasp,' although 
 then invisible from the ' Felicidade.' S. accordingly steered that course, 
 and the next morning he descried the ' Echo,' a Brazilian brigantine. 
 He chased and overtook the ' Echo ' the next night within ten miles of 
 the African coast, when and where she surrendered. S. had at that 
 time under his command Palmer, a midshipman, and sixteen British 
 seamen ; he ordered P. and eight of the seamen to take charge of the 
 ' Echo ' during the night. On Mr. Palmer going on board the ' Echo,' 
 he found in her a cargo of four hundred and thirty-four slaves. During 
 the chase and at the time of the surrender, S. wore his uniform, and at 
 the time of the surrender and capture told Serva, the captain of the 
 
 * Echo,' he was going to take them to Her Majesty's ship the ' Wasp,' for 
 being engaged in the slave trade. The ' Wasp ' had printed instructions 
 on board. S. had not any printed instructions on board the ' Felicidade,' 
 and did not shew any other authority than his uniform and the British 
 ensign. He had, however, boarded the ' Echo ' several times before, 
 and to Serva was well known as an officer in Her Majesty's navy. The 
 next morning after the capture S. placed P. and nine British seamen 
 under his command on board the ' Felicidade,' in order that he might take 
 charge of her and of Serva, M. (another of the crew of the ' Felicidade '), 
 and several others of the ' Echo's ' crew. Within an hour afterwards 
 
 (o) Ss. 41-46, 48-82 were repealed in for condeinnatioii or forfeiture of sla\ej 
 
 1873 (3() & 37 Vict. c. 88, s. 30). S. 47 illegally imported, for which there is no 
 
 fixes a limitation of five years for indict- time limit. Thi-i section appears not to 
 
 ments, information, &c., to recover penalties apply to offences within ss. !), 10, 11. 
 or forfeitures, except in case of proceedings 
 
 t2
 
 276 Of Offences delating to the Law of Nations, [book ii. 
 
 Serva, M., and some of the rest conspired together to kill all the English 
 on board the ' Felicidade,' and take her ; and in pursuance of that con- 
 spiracy rose upon P. and his men, and after a short conflict succeeded 
 in killing them, M. having in the course of that conflict stabbed and thrown 
 overboard P. On the trial of an indictment against Serva and others 
 engaged with him in the transaction for the murder of Mr. Palmer, at 
 Exeter Assizes, Piatt, B., held that the ' Felicidade ' was in the lawful 
 custody of Her Majesty's officers, that all on board that vessel were 
 within Her Majesty's Admiralty jurisdiction, and that if the prisoners 
 plotted together to slay all the English on board and run away with the 
 vessel, and in carrying their design into execution M. slew P., and the 
 others were aiding and assisting in the commission of that act, they should 
 be found guilty of murder ; and upon a case reserved it was contended 
 on the part of the prisoners that both the ' Felicidade ' and ' Echo ' were 
 wrongfully taken, and that the prisoners had a right to regam their 
 freedom by any means in their power, and consequently that no felony 
 had been committed. It was answered on the part of the prosecution, 
 that the ' Felicidade ' and ' Echo ' were lawfully taken under the Slave 
 Trade Act, 1824 (5 Geo. IV. c. 113), and 7 & 8 Geo. IV. c. 74 (p), and 
 the Portuguese and Brazilian treaties as to slave trading; and that the 
 prisoners were in lawful custody, and the ' Felicidade ' in the lawful 
 custody of the Queen's officers ; but it was held that there was a want 
 of jurisdiction in an English Court to try the murder committed on board 
 the ' Felicidade ' ; and if the lawful possession of that vessel by the 
 British Crown, through its officers, would be sufficient to give jurisdic- 
 tion, there was no evidence brought before the Court to shew that the 
 possession was lawful (q). 
 
 A count stated that the prisoner, within the jurisdiction of the Central 
 Criminal Court, did illegally and feloniously man, navigate, equip, despatch, 
 use and employ a certain ship called the ' Augusta,' in order to accom- 
 plish a certain object, which (by 5 Geo. IV. c. 113, s. 10) was declared 
 unlawful, viz., to deal and trade in slaves. The three following counts 
 only varied from the first in describing the object of the several acts 
 charged to have been done by the prisoner differently, as in the statute. 
 It was objected that each count was bad as charging distinct felonies, 
 the statute making it a felony to fit out, man, navigate, equip, despatch, 
 use or employ any sliip in order to accomplish any of the objects thereby 
 declared unlawful, and each count charging the prisoner with having done 
 all the acts before mentioned, each of which would have been of itself a 
 felony, if done with the object stated in the Act. But the Court held 
 that each count contained a charge of one felony only, the whole being 
 alleged to have been done to accomplish one and the same single object, 
 the essence of the felony consisting in using the means described in the 
 Act to accomplish that object. It was also contended, that these counts 
 were bad for not negativing the exceptions in the Act of circumstances, 
 which might render the transaction lawful ; but it was held that these 
 
 (p) Which gave municipal effect to a {q) R. v. Serva, 2 C. & K. 53 ; 1 Den. 104, 
 
 Slave Trade Convention with Brazil. The Ueniuan, C.J., and Piatt, B., diss. See also 
 
 Act wa.s repealed in 1873 (30 & 37 Vict. c. the Life of Alderson, B., p. 99. 
 88, s. 30).
 
 CHAP. II.] Dealimj in Slaves. 277 
 
 exceptions were virtually repealed by 3 & 4 Will. IV. c. 73, s. 12, and 
 that for tliis purpose sect. 10 of the Act of 1824 must be considered as 
 if they had never existed ; and as the offences in the indictment were 
 charged to have been committed in the reign of Queen Victoria, they 
 must necessarily have been after the passing of the repealing Act. It 
 was further objected, that the indictment did not allege that the prisoner 
 was a British subject, or that the offence was committed within Her 
 Majesty's dominions ; but it was held that, as the offence was stated 
 in each count to have been committed at London, within the jurisdic- 
 tion of the Central Criminal Court, and therefore prima facie at least 
 within the Central Criminal Court district (r), the indictment did in sub- 
 stance allege the offence to have been committed within Her Majesty's 
 dominions (s). 
 
 Upon an indictment under sect. 10 for feloniously fitting out a vessel 
 for the purpose of dealing in slaves, it was held that the provisions of the 
 Act were not confined to acts done by British subjects in furtherance of 
 the slave trade in England or the British colonies, but applied to acts 
 done by British subjects in furtherance of that trade in places not part 
 of the British dominions. And in order to convict a party who is charged 
 with having employed and loaded a vessel for the purpose of slave trading, 
 it is not necessary to shew that the vessel which carried out the goods 
 was intended to be used for bringing back slaves in return ; but it was 
 sufficient if there was a slave adventure, and the vessel was in any way 
 engaged in that adventure. (^). 
 
 Where a party residing in London was charged with having chartered 
 a vessel and loaded goods on board, for the purpose of slave trading, it 
 w^as held that slave trading papers found on board the vessel when she 
 w^as seized off the coast of Africa, but not traced in any way to the know- 
 ledge of the prisoner, were not admissible in evidence against him(w). 
 
 The Slave Trade Act, 1843 (6 & 7 Vict. c. 98), recites sect. 2 of the 
 Act of 1824 (v), and enacts (sect. 1) that ' all the provisions of the 
 Slave Trade Act, 1824, hereinbefore recited and of this present Act shall 
 from and after the coming into operation of this Act (August 24, 1823), 
 be deemed to extend and apply to British subjects ivlieresoever residing 
 or being, and whether iviihin the dominions of the British Crown or of any 
 foreign country ; and all the several matters and things proliibited by 
 the Slave Trade Act, 1824, or by this present Act when committed by 
 British subjects, whether within the dominions of the British Crown 
 or in any foreign country, . . . {w) shall be deemed and taken to 
 be offences committed against the said several Acts respectively, and 
 shall be dealt with and punished accordingly : provided nevertheless, 
 that nothing herein contained shall repeal or alter any of the provisions 
 of the said Act' (x). 
 
 (r) See 4 & 5 Will. IV. c. 36, s. 2, ante, {v) Vide ante, p. 271. 
 
 p. 267n. [w) The words omitted and ss. 5, G 
 
 (s) R. V. Jenning.s, 1 Cox, 11.5, Wight- were repealed in 1891 (S. L. R.). 
 
 man and Cresswell, JJ. [x) 8. 2, which aboli.shed servitude for 
 
 (0 R. V. Zulueta, I C. & K. 21.5, Manic deljt of persons called pawns or peons was 
 
 and Wightman, J J. But see Santos v. repealed in 1891 (S. L. R.). S. 3 was re- 
 
 Illidge, 28 L. J. C.P. 317, 321, fost, p. 278. pealed in 1873 (36 & 37 Vict. c. 88, s. 30). 
 
 (m) Ibid. As to peonage, see American legislation.
 
 278 Of Offences Relating to the Law of Nations, [book ii. 
 
 Sect. 4. ' In all cases of indictment or information laid or exhibited in 
 the Court of Queen's Bench (High Court of Justice King's Bench Division) 
 for misdemeanors or ofEences committed against the said Acts (of 1824 
 and 1833, ante, pp. 271 et seq.), or against the present Act in any places 
 out of the United Kingdom, and within any British colony, settlement, 
 plantation, or territory it shall and may be lawful for Her Majesty's said 
 Court, upon motion to be made on behalf of the prosecutor or defendant, 
 to award a writ or writs of mandamus, requiring the chief justice or 
 other chief judicial officer in such colony, settlement, plantation, or 
 territory, who are hereby authorised and required accordingly, to hold 
 a Court, with all convenient speed for the examination of witnesses and 
 receiving other proofs concerning the matters charged in such indictments 
 or informations respectively, and in the meantime to cause public notice 
 to be given of the holding of such Courts, and summonses to be issued 
 for the attendance of witnesses and of agents and counsel of the parties ; 
 and such examination as aforesaid shall be then and there ojDenly and 
 publicly taken in the said Court viva voce upon the respective oaths 
 of the persons examined, and be reduced to writing and be sent to Her 
 Majesty in Her Court of Queen's Bench, in manner set forth and pre- 
 scribed in the East India Company Act, 1772 (13 Geo. III. c. 63) ; and 
 such depositions being duly taken and returned according to the true 
 intent and meaning of this Act, shall be allowed and read, and shall be 
 deemed as good and competent evidence as if such witnesses had been 
 present and sworn and examined viva voce at any trial for such mis- 
 demeanors and ofEences as aforesaid in Her Majesty's said Court of Queen's 
 Bench, any law or usage to the contrary thereof notwithstanding ' (y). 
 
 There is nothing in the Acts of 1824 and 1833 to prohibit a contract 
 by a British subject for the sale of slaves lawfully held by him in a 
 foreign country, where the possession and the sale of slaves is legal. 
 Where, therefore the defendants, British subjects, resident and domiciled 
 in Great Britain, being possessed of certain slaves in the Brazils, where 
 the purchase and holding of slaves is lawful, contracted with the jjlain- 
 tifE, a Brazilian subject, domiciled in the Brazils, to sell them to him, 
 to be used and employed there, and some of the slaves had been pur- 
 chased by the defendants in the Brazils after the passing of the Act of 
 1824, but before the Act of 1843 (z), for the purpose of being employed, 
 and they were employed, in certain mines there, of which the defendants 
 were the proprietors ; and the rest of the slaves were their offspring, 
 and were in the possession of the defendants before the passing of the 
 latter Act ; it was held that the contract was valid (a). 
 
 The Slave Trade Act, 1873 (36 & 37 Vict. c. 88), consolidates the 
 laws for the sujDpression of the slave trade, and incorporates the unre- 
 pealed provisions of the Slave Trade Act, 1824 (already stated). 
 
 By sect. 2, ' In this Act the term " vessel " means any vessel used in 
 navigation. The term " British possession " means any plantation, 
 territory, settlement, or place situate within His Majesty's dominions, 
 
 iy) See post. Vol. ii. p. 2249, 'Evidence.' (2) See s. 1 of that Act, supra. 
 
 Ss. 5, 6 were repealed in 1891 (54 & 55 Vict. {a) Santos v. Illidge, 8 C. B. (N. S.) 861 
 
 C.67, S. L. R.), and s. 7 in 1874 (37 & 38 Vict. (Ex.) : 28 L. J. C.P. 313. 
 c. 9fi. S. L. R.).
 
 CHAP. II.] Dealing in Slaves. 279 
 
 and not forming j)art of the United Kingdom. The term " Governor " 
 includes the officer for the time being administering the government of 
 any colony, and where there is a local governor or lieutenant-governor 
 under a governor-general, means the local governor or lieutenant- 
 governor: The term "foreign state " includes any foreign nation, people, 
 tribe, sovereign, prince, chief, or headman : The term " vessel of a foreign 
 state " means a vessel which is justly entitled to claim the protection 
 of the flag of a foreign state, or which would be so entitled if she did 
 not lose such protection by being engaged in the slave trade : The term 
 " treaty " includes any convention, agreement, engagement, or arrange- 
 ment : The term " slave trade," when used in relation to any particular 
 treaty, does not include anything declared by such treaty not to be com- 
 prised in the term or in such treaty : The term " Vice-Admiralty Court " 
 does not include any Vice-Admiralty Court which for the time being 
 has under its commission a limited jurisdiction only in matters relating 
 to the slave trade : The term "British Slave Court" means the High 
 Court of Admiralty of England, every Vice- Admiralty Court in [His] 
 Majesty's dominions out of the United Kingdom, and every East African 
 Court for the time being within the meaning of the Slave Trade (East 
 African Courts) Act, 1873 (36 & 37 Vict. c. 59) : The term "Slave Court" 
 means every British Slave Court, every mixed commission or Court 
 established under any existing slave trade treaty, and the Court of any 
 foreign state having jurisdiction to try and condemn a vessel engaged in 
 the slave trade : The term " existing slave trade treaty " means a treaty 
 made by or on behalf of [His] Majesty or his royal predecessors with any 
 foreign state for the more effectual suppression of the slave trade and in 
 force at the passing of this Act/ 
 
 Sect. 3 provides for the seizure of ships suspected (6) of being engaged 
 in or fitted out for the slave trade, and for the seizure of vessels, slaves, 
 persons, goods, and effects which may be forfeited under the above pro- 
 visions. Sect. 4 and Schedule 1 provide for presumption that a vessel 
 is engaged in the slave trade from the presence of certain specified par- 
 ticulars in its equipment. But the presumption does not extend to vessels 
 of a foreign state, except so far as is consistent with the treaty made with 
 such state. Sects, 5-8 provide the tribunal which is to try the right of 
 seizure. Sects. 9 and 10 provide for the disposal of vessels and slaves 
 which have been seized. Sects. 11-16 relate to bounties (c). By sect. 17 
 persons authorised to make seizures are to have the benefit of the pro- 
 tection granted to persons acting under the Imperial Customs Acts. 
 By sect. 18 the pendency of proceedings under the Act in certain cases 
 is made a bar to other legal proceedings. Sect. 19-21 apply to pro- 
 ceedings in the High Court of Justice in England (Admiralty Division) 
 with respect to costs {d). 
 
 (h) As to reasonable suspicion see R. r. Admiralty Act, 1890, in the possession, and 
 
 C'asaca, 5 App. Cas. 48. as to Courts out of the King's dominion as 
 
 (r) 8ee also the Naval Prize Act, 1804 from the commencement of an order apply- 
 
 (27 & 28 Vict. c. 24), ss. 12-18. ing the Act of 1890 to the Court (53 & 54 
 
 {d) 8. 20 is repealed as to costs which can Vict. c. 27, s. 18). See Index to Statutory 
 
 be taxed in a British possession, as from Rules and Orders (ed. 1907), tit. ' Foreign 
 
 the commencement of the Colonial Courts of Jurisdiction.'
 
 280 Of Offences Relating to the Law of Nations, [book ii. 
 
 By sect. 22, ' Any person who wilfully gives false evidence in any pro- 
 ceeding taken in pursuance of this Act in any Slave Court shall be guilty 
 of an offence against this Act, and shall be liable to the like penalty as 
 if he had been guilty of perjury, or in a British possession, of the offence, 
 by whatever name called which if committed in England would be 
 perjury.' 
 
 By sect. 23 the registrar of a British Slave Court is to make returns 
 of cases adjudged in such Court (e). 
 
 By sect. 24, ' This Act shall be construed as one with the enactments 
 of the Slave Trade Act, 1824 (,/"), and any enactments amending the 
 same {g), so far as they are in force at the time of the passing of this Act, 
 and are not repealed by this Act ; and the expression " this Act," 
 when used in this Act, shall include those enactments.' 
 
 By sect. 25, ' All pecuniary forfeitures and penalties imposed by the 
 said enactments, with which this Act is to be construed as one, may 
 be sued for, prosecuted, and recovered in any Court of record or of Vice- 
 Admiralty in any part of His Majesty's dominions wherein the offence 
 was committed, or where the offender may be, in like manner as any 
 penalty or forfeiture incurred in the United Kingdom, under any Act 
 for the time being in force relating to His Majesty's customs, or (in the 
 case of the High Court of Admiralty, or of a Court of Vice- Admiralty), 
 in like manner as any vessel seized in pursuance of this Act. Such 
 pecuniary penalties and forfeitures shall, subject to the express pro- 
 visions of the said enactments, be paid and applied in like manner as the 
 net proceeds of a vessel seized otherwise than by the commander or 
 officer of one of His Majesty's ships, or of the cruiser of a foreign state.' 
 
 Trial of Offences against the Act. — By sect. 26, ' Any offence against 
 this Act, or the said enactments with which this Act is to be construed 
 as one, or otherwise in connection with the slave trade, shall for all 
 purposes of and incidental to the trial and punishment of a person guilty 
 of such offence, and all proceedings and matters preliminary and incidental 
 to and consequential on such trial and punishment, and for all purposes 
 of and incidental to the jurisdiction of any Court, constable, and officer 
 with reference to such offence, be deemed to have been committed, 
 either in the place in which the offence was committed or in the county 
 of Middlesex, or in any place in which the person guilty of the offence 
 may for the time being be, either in His Majesty's dominions, or in any 
 foreign port or place in which His Majesty has jurisdiction ; and the 
 offence may be described in any indictment or other document relating 
 thereto, as having being committed at the place where it was wholly 
 or partly committed, or as having been committed on the high seas, 
 or out of His Majesty's dominions, and the venue or local description 
 in the margin may be that of the place in which the trial is held. 
 
 ' AVhere any such offence is commenced at one place and completed 
 at another, the place at which such offence is to be deemed to have 
 been committed shall be either the place where the offence was commenced 
 or the place where the offence was completed. 
 
 (e) See 53 & 54 Vict. c. 27, s. 18. No (/) Ante, p. 271. 
 
 regulations have yet been made as to re- {g) i.e. the Acts of 1833 and 1843, svpra. 
 
 turns by such registrars,
 
 CHAr. ii.j Dealing in Slaves. 281 
 
 ' Where a person being in one place is accessory to or aids or abets 
 in any such oSence committed in another place, the place at which such 
 offence is to be deemed to have been committed shall be either the place 
 in which the oSence was actually committed or the place where the 
 offender was at the time of his being so accessory aiding or abetting. 
 
 'Where it appears to any Court, or the judge of any Court having 
 jurisdiction to try any such offence, that the removal of an offender 
 charged with such offence to some other place in His Majesty's dominions 
 for trial would be conducive to the interest of justice, such Court or 
 judge may, by warrant or instrument in the nature of a warrant, direct 
 such removal, and such offender may be removed and tried accordingly. 
 And sect. 268 of the Merchant Shipping Act, 1854 {h), shall apply to the 
 removal of an offender under this section in the same mannner as if the 
 term ''consular officer" (i), in that section included the Court or judge 
 making such warrant or instrument.' 
 
 By sect. 27, offences against the Act or the incorporated enactments, 
 or otherwise in connection with the slave trade, whether committed 
 on the high seas or on land, or partly on the high seas and partly on land 
 are to be deemed to be included as extradition crimes in the first schedule 
 of the Extradition Act, 1870 (33 & 34 Vict. c. 52), and that Act and 
 any Act amending it are to be construed accordingly. 
 
 By sect. 28 the Act is applied to all cases of vessels, slaves, goods, and 
 effects seized and adjudicated upon by any Slave Court, whether before 
 or after the passing of the Act (/). Sect. 29 extends the Act to future 
 treaties with any foreign state in relation to the slave trade if an Order 
 in Council be obtained for that purpose (k). 
 
 The Slave Trade (East African Courts) Act, 1873 (1) (36 & 37 Vict. c. 59), 
 
 {h) i.e. 17 & 18 Vict. c. 104, s. 268, re- General, Consul, Vice-Consul, Consular 
 
 pealed in 1894 and replaced by s. 689 of the Agent, or any person for the time being 
 
 Merchant Shipping Act, 1894 (57 & 58 Vict. authorised to discharge the duties of Consul 
 
 c. 60), which combines s. 268 with 45 & 46 General or Vice-Consul. 52 & 53 Vict. c. 63, 
 
 Vict. c. 55, s. 9. The effect of the repeal is s. 12 (20). 
 
 to substitute the new for the former enact- (;') A similar provision is made by 36 & 
 
 ment. See 52 & 53 Vict. c. 63, s. 38, ante, 37 Vict. c. 59, s. 7, and that enactment is by 
 
 p. 5. 42 & 43 Vict. c. 38, s. 3, extended to treaties 
 
 [i) i.e. ' British Consular officer ' (57 & with the Government of Egypt. 
 58 Vict. c. 60, s. 689), including Consul 
 
 (k) The Orders in Council in force are as follows : — 
 
 Date of Order in Council. Treaty to wliicb Act applied. 
 
 May 9, 1892 . . . Brussels General Act of July 2, 1890. 
 
 Sept. 9, 1884 . . . Abyssinia Treaty of June 3, 1884. 
 
 Dec. 30, 1878 . . . Egypt ., .. Aug. 4, 1877. 
 
 June 28, 1880 . . . Germany ., „ March 29, 1879. 
 
 April 3, 1886 > ^f i ^ ^^^- 21' 1885. 
 
 Nov. 28, 1889 S ' ' "^'^ " •' i Sept. 14, 1889. 
 
 Nov. 6, 1883 '. . . Johanna .. ,, Oct. 10, 1882. 
 
 Nov. 6, 1883 . . . Mohilla „ ., Oct. 24, 1882. 
 
 Aug. 18, 1882 . . . Persia „ „ March 2, 1882. 
 
 May 9, 1892 . . . Spain „ ., July 2, 1890. 
 
 Aug. 26, 1881 I T, , ( Jan. 25, 1880. 
 
 Aug. 23, 1883) • • -^"'■^®y " '• ( March 3, 1883. 
 
 (?) This Act applies retrospectively to tection of the flag of any foreign state : and 
 
 cases ah-eady adjudicated (s. 6). S. 3 gives in the case of a British vessel, whether it 
 
 jurisdiction where the vessel seized is British is brought in by a British ship or by the 
 
 or is seized under an existing treaty or is commander of a foreign state party to the 
 
 not shewn to be entitled to claim the pro- treaty (42 & 43 Vict- c. 38. s. 4).
 
 282 Of fences Relating to the Law of Nations, [book ii. 
 
 as amended by the Slave Trade (East African Courts) Act, 1879 (42 & 
 43 Vict. c. 38), regulates and extends the jurisdiction in matters con- 
 nected with the slave trade of the Vice- Admiralty Court at Aden, and of 
 His Majesty's consular officers within the dominions of the sovereigns 
 of Zanzibar (m), Muscat (n), and Madagascar (o), upon whom jurisdiction 
 had been, or should be, conferred by Order in C'ouncil in relation to 
 vessels captured on suspicion of being engaged in the slave trade or 
 otherwise in relation to that trade. The Acts apply to existing and 
 future treaties with the powers named or with Egypt {p), or any other 
 foreign nation, people, tribe, sovereign, prince, chief, or headman in 
 Arabia or East Africa, or the coasts of the Persian Gulf (sect. 7). 
 
 By the Slave Trade Act, 1876 (39 & 40 Vict. c. 46), s. 1, it is pro- 
 vided that a subject of the King, or of any Prince or State in India 
 in alliance with the King, may be dealt with and punished in any place 
 in British India where he is found for committing or abetting 
 offences against sects. 367, 370, 371 of the Indian Penal Code (Act XLV. 
 of 1860) {q), or any subsequent amendment of these sections (r), com- 
 mitted upon the high seas or in any part of Asia or Africa, specified 
 in the Order in Council. By sect. 3, High Courts in India are given, for 
 the purpose of obtaining evidence for the trial of such cases, the powers 
 given to the Court of Queen's Bench by sect. 4 of the Slave Trade Act, 
 1843 (s) as to British possessions where a witness may be, and as to 
 consular officers in the specified parts of Asia or Africa the powers 
 given by sect. 330 of the Indian Criminal Pi'ocedure Code, Act X. of 
 1872 (t). 
 
 By Order in Council of April 30, 1877 {n), the above Act was applied 
 to certain portions of Asia and Africa, viz., the territories of the Khan of 
 Khelat, and of the Sultan of Muscat in Mekran and Arabia, the coasts 
 of Beloochistan, and of the Bunder Abbas district, and the shores of 
 the Persian Gulf, the coast of Arabia from Ras Mussendom to Cape Bab 
 el Mandeb, the territories of certain specified tribes near Aden, the coast 
 of Africa from Has Sejarme to Delagoa Bay, the territories of the Sultan 
 of Zanzibar, and the sea and islands within 10 degrees of latitude or 
 longitude from such coasts and shores respectively (v). 
 
 By the Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27), s. 2, 
 subs. 3 (6), a Colonial Court of Admiralty has under the Slave Trade Act, 
 1873, and any enactment relating to the slave trade {w) the jurisdiction 
 
 (m) Now a British Protectorate. .See (t) Sui^erweded and replaced by s. 503 of 
 
 Zanzibar Orders in Council, 1906, May 11 the Indian Criminal Procedure Code of 
 
 and Dec. 21. Stat. R. & 0. 1906, pp. 193, 1898. 
 214. {u) Printed in St. R. & 0. Revised (ed. 
 
 (n) For the treaties see 6 Hertslet, 578, 7 1904), vol. xi. tit. ' Slave Trade,' 84. 
 do. 818. 9 do. 577, 18 do. 927 : and see (v) Ss. 4 & 6 of the Act of 1876 were 
 
 Muscat Order in Council, Nov. 4, 1867. St. repealed in 1890 (53 & 54 Vict. c. 37, s. 18), 
 
 R. & O. Revised (ed. 1904), vol. v, tit. and s. 4 re-enacted as s. 17 of that Act. 
 ' Foreign Jurisdiction.' (w) As to making rules as to practice, 
 
 (o) Now part of the dominions of the procedure, costs and returns, and appeals, 
 
 French Republic. in slave-trade matters in the East African 
 
 ip) 42 & 43 Vict. c. 38, s. 3. Courts see s. 13 (1), (3), and other Courts of 
 
 (q) Mayne, Ind. Cr. L. (ed. 1896). Admiralty or Vice-Admiralty, s. 13 (2). For 
 
 (r) If applied by Order in Council, .subject reference to the rules made see Index to 
 
 to a veto by Parliament, s. 2. Statutory Rules and Orders (ed. 1907), pp. 
 
 (s) Ante, p. 278. 100. 101,
 
 CHAP. 1 1. J Dealing in Slaves. 283 
 
 thereby conferred in a Vice-Admiralty Court, but by subs. 3 has not 
 jurisdiction under the Act of 1890 to try or punish a person for an ofEence 
 which, according to the law of England, is punishable on indictment. 
 The Act may be applied bv Order in Council to Courts under the Foreign 
 Jurisdiction Act, 1890 (53 & 54 Vict. c. 37) {x). 
 
 The criminal jurisdiction of Colonial Courts with reference to the 
 slave trade ofTences arising outside the land and sea limits of the 
 (*olony depends on the Acts of 1824 and 1873, sufra. 
 
 The Act of 1890. c. 27, s. 9, authorises the King by commission under 
 the Great Seal to establish Vice- Admiralty Courts {y) in any British posses- 
 sion. In British India and Colonies having a representative legislature, 
 the Courts thus created may not exercif-e jurisdiction, except for certain 
 purposes relating to prize, the royal navy, the slave trade, to the Pacific 
 Islanders Protection Acts, 1872 and 1875, the Foreign Enlistment Act, 
 1870, or to matters on which questions arise relating to treaties or 
 conventions with foreign countries, or to international law. 
 
 8ect. II. — The Pacific Islanders Protection Acts. 
 
 By sect. 9 of the Pacific Islanders Protection Act, 1872 (2.) (sometimes 
 described as the Kidnapj^ing Act), certain offences by British subjects 
 in the nature of kidnapping or enslaving ' natives of islands in the 
 Pacific Ocean, not being within the King's dominions nor within the 
 jurisdiction of any civilised power,' are declared felony. The Sujjreme 
 C*ourts of the Australian States (a) and the Dominion of New Zealand, 
 and Fiji (6) are empowered to try the offences and to inflict, at the 
 discretion of the Court, the highest punishment short of death, or any 
 less punishment for felony awarded by the law of the colony where the 
 trial takes place. Persons who aid, abet, counsel, or procure the commis- 
 sion of such offences may be tried and punished as principal offenders 
 (sect. 10). In indictments for such offences the offence may be described 
 as committed at the place where it was wholly or partly committed, or 
 may be averred generally as committed within the King's dominions, 
 and the venue or local description in the margin of the indictment may be 
 that of the place where the trial is held (sect. 11) (c). 
 
 The Act contained provisions (sects. 3-5) as to licences authorising the 
 carrying of native labourers, amended in 1875 (38 & 39 Vict. c. 51, s. 2), 
 which are now ineffective so far as concerns Australia, by the stoppage of 
 Polynesian immigration. 
 
 (x) e.(j. in Cyprus (189:}), China and Courts of New South AValcs and Tasmania 
 
 Coroa (1904), Ottoman Empire (190.5), under the Australian Courts Aet, 1828 
 
 Persian Coast and Islands (1901), Siam (9 Ceo. IV. c. 83). 
 
 (I90()), Zan'/i))ar (190(1), Western Pacific (6) Added by the Act of 1875 (38 ct 39 
 
 (1903). Vict. c. 51) s. 8. 
 
 (y) As to criminal jurisdiction of the (r) Ss. 12-15 deal with the obtaining of 
 
 Admiral or Vice-Admiral, I'/rfe «/(<e, pp. 31, evidence. Ss. 10, 17 give power to seize 
 
 2G7. susjiected British vessels. The vessels can 
 
 (z) 35 & 36 Vict. c. 19. See 2 Steph. be adjudicated upon by the Admiralty 
 
 Hist. Ci". L. 58, and Quick & Carran, Aus- Courts in England or Colonial Vice- 
 
 tralian Commonwealth Constitution, p. 037. Admiralty Courts (38 & 39 Vict. c. 51, 
 
 (a) By s. 22. This power does not ailect ss. 4, 5 ; 53 & 54 Vict. c. 27, s. 9). 
 the jurisdiction vested in the Supreme
 
 284 Of Offences Relating to the Lmv of Nations, [book ii. 
 
 The Pacific Islanders Protection Act, 1875 (38 & 39 Vict. c. 51), 
 authorises His Majesty to exercise jurisdiction over British subjects 
 in islands and places in the Pacific Ocean not within the King's dominions, 
 and by Order in Council to create a Court of justice with criminal juris- 
 diction over British subjects within such islands and places, with power 
 to take cognisance of all crimes and offences committed by British sub- 
 jects ' within any of the said islands and places, or in any haven, river, 
 creek, or place within the jurisdiction of the Admiralty ' (sect, 6) {d) . . . 
 and to vest such jurisdiction or any part thereof in a designated Court of 
 a British Colony, and provide for the transmission of such offenders to the 
 colony for trial and punishment, and for the admission in evidence of 
 depositions taken in such islands and places. 
 
 The Acts of 1872 and 1875 took effect in the Australasian Colonies on 
 proclamation by the Governors (35 & 36 Vict. c. 19, s. 21 (rep.) ; 38 & 39 
 Vict. c. 51, s. 10). 
 
 Under the above Acts and the British Settlements Act, 1887 (50 & 51 
 Vict. c. 54), and the Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 37), 
 an Order in Council was made, March 15, 1893, by sect. 13 whereof 
 jurisdiction as to all matters and questions arising under the Pacific 
 Islanders Protection Acts, 1872 and 1875, is subject to the provisions 
 of the Order vested in and exercisable by the Court of the High Com- 
 missioner for the Western Pacific (e), which consists of the High Com- 
 missioner, the Chief Justices and other judges of the Supreme Court of 
 Fiji, and the deputy commissioners (/"). The Order contains pro- 
 visions (g) as to procedure and jurisdiction, which include adaptations 
 of the Admiralty Offences Colonial Acts of 1849 and 1860 (A). 
 
 On an indictment tried in Queensland for an offence against sect. 9 of 
 the Act of 1872, the question arose whether the island of Malayta was 
 part of the dominions of the British Crown or within the jurisdiction of any 
 civilised power. The judge, on reference to the Pacific Order in Council 
 of 1893, decided that it was part of the law, and that it applied to Malayta 
 with other islands as not being within the jurisdiction or protectorate of 
 any civilised power (i). In the same case it was held that if the Crown 
 made a prima facie case of suspicion, the burden lay on the accused to 
 prove that the natives were taken from their islands with their own 
 consent. 
 
 [d) Admiralty jurisdiction might also be tectorates : Tonga or Friendly Islands, 
 conferred. But see 53 & 54 Vict. c. 27, ss. Union Group, Ellice and Gilbert Islands, 
 16, 18. and Southern Soloman's ; and (jointly with 
 
 (e) See the Pacific Orders in Council of France) the New Hebrides, mcluding Banks 
 1893, 1897. 1903, and 2nd Nov. 1907, Islands and Torres Islands. 
 
 and 26th Sep. 1908. St. R. & O. Revised (/) Arts. 8, 112. 
 
 fed. 1904), vol. v. tit. ' Foreign Juris- (g) Arts. 60-84. 
 
 diction.' St. R. & 0. Revised 1907, No. (h) Ante, p. 269. 
 
 864 : St. R. & 0. 1908 (No. 780). The (i) R. v. Vos [1895], 6 Queensland L. J. 
 
 orders embrace the following British pro- 215.
 
 ( 285 ) 
 
 CHAPTER THE THIRD. 
 
 OF SERVING FOREIGN STATES AND BREACHES OF NEUTRALITY. 
 
 A. Common Law and Earlier Statutes. 
 
 According to the old authorities the King is entitled to call on all the 
 lieges to defend the realm and to prevent their withdrawal from the 
 realm (a) ; and disobedience to the King's letter to a subject commanding 
 him to return from beyond the seas, or to the King's writ of ne exeat regno, 
 commanding a subject to stay at home, is a high misprision and con- 
 tempt (6). And it is also a high offence to refuse to assist the King for the 
 good of the state, either in councils, by advice, if called upon, or in war 
 by personal service for the defence of the realm against rebelhon or 
 invasion (c) ; and all persons under the degree of nobility who are fifteen 
 years of age and able to travel are liable to punishment for neglecting to 
 join the posse comitatus (d). 
 
 Entering into the service of a foreign state without the consent of 
 the King, or contracting with a foreign state any engagement which sub- 
 jects the party to an influence or control inconsistent with the allegiance 
 due to our own sovereign, is said to be a misdemeanor indictable at 
 common law (e), and where the foreign state is at war with Great 
 Britain is treason (/). Indeed it is considered as so high an offence 
 to prefer the interests of a foreign state to that of our own, that any 
 act is said to be criminal which may but incline a man to do so ; as to 
 receive a pension from a foreign prince without the leave of the King (g). 
 
 Early Statutes. 
 
 By an Act of 1605 (3 Jac. I. c. 4, s. 18) (h), it was made felony to go 
 out of the realm to serve foreign states without first taking the oath of 
 allegiance and entering into a bond against reconcihation with the Pope 
 or plots against the King. The oath prescribed by the Act of 1605 was 
 
 {a) Tlio King may coninmnd untler his Car. I. c. 28. See case of soldiers, 6 Co. 
 
 privy seal or privy signet, tliat one go not Rep. 27a. 
 
 out of the realm as appeareth by F. N. B. (d) Neglect to join the posse comitatus, 
 
 8.5. Lane's case [1587], 2 Co. Rep. 10, 17b. if required by the sheriffs or the justices, is 
 
 Earl of Devonshire's case, 11 Co. Rep. 92a. a misdemeanor. 2 Hen. V. stat. 1, c. 8. 
 
 (fe) 1 East, R C. 81 ; 4 Bl. Com. 122 ; And as to arrest of felons, see 50 & 51 Vict. 
 
 Beames, Ne Exeat. And if the subject c. 55, s. 8 (1). The posse comitatus is now 
 
 neglects to return from beyond the seas, summoned, if at all, only for the arrest of 
 
 when commanded, his land shall be seized felons or suppression of riots {post, p. 431. 
 till he does return, 1 Hawk. e. 22, s. 4. (e) 1 East, R. C. 81 ; 4 Bl. Com. 122. 
 
 (c) 1 Hawk. c. 22, s. 2. See Manual of (./) R. v. Lynch [1903], 1 K.B. 744. 
 
 Military Law, c. ix. The power did not (r/) 3 Co. Inst. 144 ; 1 Hawk. c. 22, s. 3 ; 
 
 extend to compel a man to leave tlie realm 4 Bl. Com. 121. 
 
 on military service. Imprisonment for (/() Repeaktl in 1846 (9 & lU Vict. c. 59). 
 
 this purpose was declared illegal by IG
 
 286 Of Offences Relating to the Law of Nations, [book ii. 
 
 modified in 1688 (1 Will. & M. st. 1, c. 8). Under the Act of 1605 it was 
 considered, that if a party went ont of the realm with intent to serve a 
 foreign state, although there was no service in fact ; or if a party did 
 actually so serve, though he did not go over for that purpose, but upon 
 some other occasion, it was within the statute (?'). 
 
 By Acts of 1736 (9 Geo. II. c. 30), and 1756 (29 Geo. II. c. 17), it was 
 made felony without benefit of clergy to enlist, or procure any person to 
 go abroad to enlist, as a soldier in the service of any foreign prince, state, 
 or potentate. These Acts were directed against the enlistment by foreign 
 powers of Catholics or Jacobites (?). 
 
 Of Breaches of Neutrality. 
 
 It appears not to have been an offence at common law for British 
 subjects to enter into the service of belligerent powers at peace with 
 Great Britain, unless the act involved a breach of duty to the King (/). 
 
 In the United States legislation was passed in 1794 and 1818 to 
 prevent aid by American citizens to foreign belligerents. 
 
 Act of 1819. — In 1819 was passed an Act (59 Geo. III. c. 69) framed on 
 the United States Act of 1818. The preamble recites that, ' The enlist- 
 ment or engagement of His Majesty's subjects to serve in war in foreign 
 service, without His Majesty's licence, and the fitting out or arming of 
 vessels by His Majesty's subjects, without His Majesty's licence, for 
 warlike operations in or against the dominions of any Foreign Prince, 
 State, potentate, or persons exercising or assuming to exercise the powers 
 of Government in or over any Foreign Country, Colony, Province, or part of 
 any Province (k), or against the ships, goods, or merchandise of any Foreign 
 Prince, potentate, or persons as aforesaid, or their subjects, may be pre- 
 judicial to and tend to endanger the peace and welfare of this Kingdom ' ; 
 and that ' the laws in force are not sufficiently effectual for preventing 
 the same.' 
 
 In R. V. Jones {I), on an indictment (under 59 Geo. III. c. 69), for engag- 
 ing and procuring at Liverpool men to enlist as sailors in the Confederate 
 service, it appeared that the men had been induced by the defendants 
 to sign articles at Liverpool to serve in the ' Japan ' on a voyage to China, 
 and they embarked on board her, and she sailed to the British Channel, 
 and anchored off Brest, and the next day a captain of the C'onfederate 
 navy enlisted the men in that service. Cockburn, C.J., held that the 
 question was, whether the defendants procured the sailors to embark at 
 Liverpool for the purpose of their being employed in the service of the 
 Confederate States. If they procured the sailors to embark on board 
 the ' Japan ' and sail to a foreign country, to be there enlisted in the 
 Confederate service, they were guilty, and it was sufficient if that was the 
 intention of the defendants, although the men themselves did not go 
 with that intention. 
 
 (<■) 3 Co. Inst. 80 ; 1 East, P. C. 82. C'f. from engaging in the revolt of the Spanish 
 
 the repealed Irish Acts, 11 (4eo. II. c. 7, 11* American colonies. The words in italics 
 
 Geo. II. c. 7. See 2 Stephen Hist. Cr. L. 2o7, were clearly intended to have this effect, 
 
 where the early statutes are collected. See 40 Pari. Deb. (1st series), 1084, 1091. 
 
 (j) Vide supra, p. 28.5. The 'Salvador' [1870], L. R. 3 P.C. 218, 
 
 (k) The first effect, if not the object, of 231. 
 
 this Act was to prevent British subjects (/) 4 F. & F. 25.
 
 CHAP. III.] Serving Foreign States. 287 
 
 In R. r. Kunlble (m), the indictment (under 59 Geo. III. c. 69) con- 
 tained counts for causing, &c., men to enlist in the Confederate service as 
 sailors, &c., and for counselling men here to enlist in that service abroad, 
 and for assisting the equipment of a vessel for that service. An old iron 
 steam gunboat dismantled of all her guns and warlike ecjuipments, and 
 stripped of her armour-plates, masts, spars, and sails, and with only her 
 engines and boilers in her, was sold by the Government to a firm, who 
 bought her with a view to her being engaged in the Confederate service. 
 Leave was obtained from the Admiralty to have the vessel docked and 
 repaired at Sheerness, and the defendant, who was one of the dockyard 
 officials, had rendered every assistance. There were no warhke equipments 
 done, but mere repairs or fittings as a mercantile vessel. The defendant 
 had held himself out as engaging men on board the vessel for a trial trip 
 previously to her going on a voyage to China, and had engaged men, or 
 sent them on board to be engaged, as stokers, firemen, or engineers ; but 
 none of the men had any other idea than that the vessel was destined for 
 (Jhina. The vessel went to Calais, and there the Confederate flag was 
 hoisted, and officers came on board and took the command of her as a 
 Confederate vessel, and the men were invited to enlist in the Confederate 
 service, but most of them declined. The defendant was on board whilst 
 the Confederate flag was flying, in comj^any with the officers, and when 
 he came back to Sheerness he continued to interest himself in sending 
 men over for the service of the vessel, though only in connection with 
 the locomotive ]30wer. The jury were directed— 1. That the main 
 question was, whether the defendant was a party to the engagement 
 of the men with a view to enlistment in the Confederate service. 2. That 
 the acts of the defendant after he must have been aware of the destination 
 of the vessel, though not the subject-matter of the indictment, might be 
 taken into consideration as throwing light upon the intention with which 
 he did the acts in the earlier part of the transaction, which were the 
 subject-matter of the indictment. 3. That the trifling repairs done to 
 the engines, &c., did not amount to an equipment. 4. That if the 
 defendant procured the men to enter into engagements nominally for a 
 trial trip, but with the ulterior purpose on his part of getting them into a 
 position in which they might be induced to enlist in the Confederate 
 service, the defendant was guilty, but if his object in engaging the men 
 was simply that the vessel should go out on a trial trip and come back, he 
 was not guilty. 5. That the term ' sailors ' in the statute included 
 persons engaged as stokers, firemen, and engineers, for the purpose of 
 navigating the vessel. 6. That there must be a hiring or enlistment in 
 the United Kingdom to bring the case within the statute. 7. That such 
 an offence must have been committed in England, or the oftence of 
 counselling its commission was not proved (w). 
 
 The building in pursuance of a contract, with intention to sell and 
 deliver to a belligerent power, the hull of a vessel suitable for war, but 
 unarmed and not equipped, or fitted out with anything which enables 
 her to cruise or commit hostilities, or do any warlike act whatever, was 
 not a violation of 59 Geo. III. c 69. The equipment forbidden by that 
 
 (/«) 4 F. & F. 175. (n) See R. v. Corbett,4 F. & F. 555.
 
 288 Of Offences Relating to the Law of Nations, [book ii. 
 
 Act was an equipment of siicli warlike character as enables a ship on 
 leaving a port of this kingdom to cruise or commit hostihties. (Per Pollock, 
 C.B., and Bramwell, B.) If the character of equipment is doubtful, 
 it may be explained by evidence of the intent of the parties. The Act 
 includes a case where the equipment is such that, although the ship when 
 it leaves a port in this kingdom is not in a condition at once to commit 
 hostilities, it is yet capable of being used for war, and the intent is clear 
 that it is to be used for war. (Per Channell, B.) Any act of equipping, 
 furnishing, or fitting out done to the hull or vessel, of whatever nature or 
 character that act may be if done with the prohibited intent, is withm, 
 the statute. (Per Pigott, B.) On the trial of an information respecting 
 the seizure of a vessel in a port at Liverpool for an alleged violation of 
 the Act for equipping her for the service of a belligerent state, Bramwell, 
 B., was of opinion, that a right direction would be, that if the jury were 
 satisfied that the parties concerned were equipping, or arming, or attempt- 
 ing to equip or arm, the ship claimed, with intent that it should be 
 employed in the service of a foreign power to cruise or commit hostilities 
 against others as alleged, they should find for the Crown ; but such equip- 
 ment or attempted equipment must be of a warlike character, so that 
 by means of it the ship was in a condition more or less effective to cruise 
 or commit hostilities ; otherwise they must find for the claimants. Chan- 
 nell, B., was of opinion that the questions left to the jury should have 
 been — 1. Was there an intent, on the part of any one having a controlling 
 power over the vessel, that she should be employed in the service of the 
 Confederate States, to cruise or commit hostihties against the United 
 States ? 2. If so, was she equipped, fitted out, or furnished in a British port 
 in order to be employed to cruise, &c. ? 3. If not equipped, was there 
 any attempt to equip her in a British port m order that she should be so 
 employed ? 4. Or did any one knowingly assist, &c., in such equipment 
 in a British port ? Pigott, B., said that the jury should have been directed 
 to see — 1. Whether the equippers or the purchasers had the prohibited 
 intent ; and, 2. Whether with such intent they had done any act towards 
 equipping, furnishmg, or fitting out the ship, beyond the mere work of 
 building the hull of the vessel, or had attempted to do so (o). 
 
 B. The Foeeign Enlistment Act, 1870. 
 
 In consequence of the defects in the Act of 1819, revealed by the 
 decision in Attorney-General v. Sillem {uhi sup.), and of the report of a 
 Royal Commission in 1867 (p), that Act was repealed on the outbreak of the 
 Franco-German War in 1870, and was replaced by the Foreign EnHst- 
 ment Act, 1870 (33 & 34 Vict. c. 90) now in force. The preamble of 
 that Act recites ' that it is expedient to make provision for the regula- 
 tion of the conduct of His Majesty's subjects during the existence of 
 hostilities between foreign states with which His Majesty is at peace,' 
 The Act of 1870 extends to ' all the dominions of the King, including 
 the adjacent territorial waters ' (sect. 2) ((/), and has been held to apply 
 
 (o) A.-G. V. Sillem, 2 H. & C. 431 : 33 (q) See Territorial Waters Jurisdiction 
 
 L. J. Ex. 92. Act, 1878 (41 & 42 Vict. c. 73), ante, p. 41. 
 
 . (p) Pari. Pap. (1867-8) o. 4027.
 
 CHAP. III.] Foreign Enlistment Act. 289 
 
 to British subjects everywhere, whether within the King's dominions or 
 not (r), and to foreign subjects within the King's dominions {s). It came 
 into operation in the United Kingdom immediately on its passing (August 
 9, 1870), 'and shall be proclaimed in every British possession by the 
 Governor thereof as soon as may be after he receives notice of this Act, 
 and shall come into operation in that British possession on the day of 
 such proclamation ' (sect. 3). 
 
 An indictment alleging that certain offences against the Act had 
 been committed within the limits of Her Majesty's dominions and after 
 the coming into operation of the Act, sufficiently avers the Act to have 
 been in force in that part of Her Majesty's dominions in which the 
 offences were alleged to have been committed. But proof must be given 
 where necessary of proclamation in a British possession, e/j., in one 
 acquired after August 9, 1870 {t). 
 
 Illegal Enlistment. — By sect. 4, ' if any person {u), without the 
 licence of His Majesty (v), being a British subject, within or without His 
 Majesty's dominions, accepts or agrees to accept any commission or 
 engagement in the military or naval service of any foreign state at war 
 with any foreign state at peace with His Majesty {vv), and in this Act 
 referred to as a friendly state, or, whether a British subject or not, within 
 His Majesty's dominions, induces any other person to accept or agree to 
 accept any commission or engagement in the military or naval service 
 of any such foreign state as aforesaid — ■ 
 
 ' He shall be guilty of an offence against this Act, and shall be 
 punishable ' as stated fost, p. 292. 
 
 Sect. 5. ' If any person, without the licence of His Majesty, being 
 a British subject, quits or goes on board any ship with a view of quitting 
 His Majesty's dominions, w4th intent to accept any commission or engage- 
 ment in the military or naval service of any foreign state at war with 
 a friendly state, or, whether a British subject or not, within His Majesty's 
 dominions, induces any other person to quit or to go on board any ship 
 with a view of quitting His Majesty's dominions with the like intent, 
 he shall be guilty of an offence against this Act, and shall be punishable ' 
 as stated j)ost, p. 292. 
 
 Sect. 6. ' If any person induces any other person to quit His Majesty's 
 dominions or to embark on any ship within His Majesty's dominions 
 under a misrepresentation or false representation of the service in which 
 such person is to be engaged, with the intent or in order that such person 
 may accept or agree to accept any commission or engagement in the 
 military or naval service of any foreign state at war with a friendly state, 
 he shall be guilty of an offence against this Act, and shall be punishable ' 
 as stated fost, p. 292. 
 
 Sect. 7. ' If the master or owner of any ship, without the licence of 
 His Majesty, knowingly either takes on board, or engages to take on 
 
 (r) R. v. Jameson [ 1896 J, 2 Q.B. 425, 430. under the Act of 1819. It is submitted 
 
 (s) R. V. Jameson, nhi sup. R. v. that corporations are within the Act of 
 
 Sandoval, 10 Cox, 206. 1870, vide ante, pp. 3. 102. 
 
 (t) R. V. Jameson, 2ih> sup. (v) See s. 15, post, p. 293. 
 
 {u) It was held in King of Two Sicilies r. (vv) See Burton v. Pinkerton, L. R. 2 
 
 Willcox, 1 Sim. (N. S.) 334, 19 L. J. Ch. 488, Ex. 340. 
 that a corporation could not be indicted 
 
 VOL. I. U
 
 290 Of Ofetices Relating to the Law of Nations, [book ii. 
 
 board or has on board such ship within His Majesty's dominions any 
 of the following persons, in this Act referred to as illegally enhsted 
 persons ; that is to say — 
 
 (1) ' Any person who, being a British subject within or without the 
 dominions of His Majesty, has, without the licence of His Majesty, 
 accepted or agreed to accept any commission or engagement in the 
 military or naval service of any foreign state at war with any friendly 
 state ; 
 
 (2) ' Any person, being a British subject, who, without the licence 
 of His Majesty, is about to quit His Majesty's dominions with intent 
 to accept any commission or engagement in the military or naval service 
 of any foreign state at war with a friendly state ; 
 
 (3) ' Any person who has been induced to embark under a misrepre- 
 sentation or false representation of the service in which such person is 
 to be engaged, with the intent or in order that such person may accept or 
 agree to accept any commission or engagement in the military or naval 
 service of any foreign state at war with a friendly state ; 
 
 ' Such master or owner shall be guilty of an offence against this Act, 
 and the following consequences shall ensue ; that is to say, 
 
 (1) ' The offender shall be punishable ' as stated post, p. 292. 
 
 (2) ' Such ship shall be detained until the trial and conviction or 
 acquittal of the master or owner, and until all penalties inflicted on 
 the master or owner have been paid, or the master or owner has given 
 security for the payment of such penalties to the satisfaction of two 
 justices of the peace, or other magistrate or magistrates having the 
 authority of two justices of the peace ; ' and 
 
 (3) ' All illegally enlisted persons shall immediately on the discovery 
 of the offence be taken on shore, and shall not be allowed to return to 
 the ship.' 
 
 Illegal Shipbuilding and Illegal Operations. — Sect. 8. ' If any person 
 within His Majesty's dominions, without the licence of His Majesty, 
 does any of the following acts ; that is to say — 
 
 (1) ' Builds or agrees to build, or causes to be built any ship with intent 
 or knowledge, or having reasonable cause to believe that the same shall 
 or will be employed in the military or naval service of any foreign state 
 at war with any friendly state : or 
 
 (2) ' Issues or delivers any commission for any ship with intent or 
 knowledge, or having reasonable cause to believe that the same shall or 
 will be employed in the military or naval service of any foreign state 
 at war with any friendly state : or 
 
 (3) ' Equips any ship with intent or knowledge, or having reason- 
 able cause to believe that the same shall or will be employed in the military 
 or naval service of any foreign state at war with any friendly state : or 
 
 (4) ' Despatches, or causes or allows to be despatched, any ship with 
 intent or knowledge, or having reasonable cause to believe that the same 
 shall or will be employed in the military or naval service of any foreign 
 state at war with any friendly state ; 
 
 ' Such person shall be deemed to have committed an offence against 
 this Act, and the following consequences shall ensue : 
 
 (1) ' The offender shall be punishable ' as stated post, p. 292.
 
 CHAP. III.] Foreign Enlistment Act. 291 
 
 (2) ' The ship in respect of which any such offence is committed, 
 and her equipment shall be forfeited to His Majesty ' {w) : 
 
 . ' Provided that a person building, causing to be built, or equipping 
 a ship in any of the cases aforesaid, in pursuance of a contract made 
 before the commencement of such war as aforesaid, shall not be liable 
 to any of the penalties imposed by this section in respect of such building 
 or equipping if he satisfies the conditions following : (that is to say), 
 
 (1) 'If forthwith upon a proclamation of neutrality being issued by 
 His Majesty he gives notice to the Secretary of State, that he is so 
 building, causing to be built, or equipping such ship, and furnishes such 
 particulars of the contract and of any matters relating to, or done, or to 
 be done under the contract as may be required by the Secretary of 
 State : 
 
 (2) ' If he gives such security, and takes and permits to be taken 
 such other measures, if any, as the Secretary of State may prescribe 
 for ensuring that such ship shall not be despatched, delivered, or removed 
 without the licence of His Majesty until the termination of such war 
 as aforesaid.' 
 
 Sect, 9. ' Where any ship is built by order of or on behalf of any 
 foreign state when at war with a friendly state, or is delivered to or to 
 the order of such foreign state, or any person who to the knowledge of 
 the person building is an agent of such foreign state, or is paid for by 
 such foreign state or such agent, and is employed in the military or naval 
 service of such foreign state, such ship shall, until the contrary is proved, 
 be deemed to have been built with a view to being so employed, and the 
 burden shall lie on the builder of such ship of proving that he did not know 
 that the ship was intended to be so employed in the military or naval 
 service of such foreign state.' 
 
 Sect. 10. ' If any person within the dominions of His Majesty, and 
 without the licence of His Majesty, — 
 
 ' By adding to the number of the guns, or by changing those on board 
 for other guns, or by the addition of any equipment for war, increases 
 or augments, or procures to be increased or augmented, or is knowingly 
 concerned in increasing or augmenting the warlike force of any ship 
 which at the time of her being within the dominions of His Majesty was 
 a ship in the military or naval service of any foreign state at war with 
 any friendly state, — such person shall be guilty of an offence against this 
 Act, and shall be punishable ' as stated post, p. 292. 
 
 Sect. 11. 'If any person within the limits of His Majesty's dominions, 
 and without the licence of His Majesty, — 
 
 ' Prepares or fits out any naval or military expedition to proceed 
 against the dominions of any friendly state, the following consequences 
 shall ensue : 
 
 (1) ' Every person engaged in such preparation or fitting out, or 
 
 (w) Under this provision, in the ' Gaunt- committee held that the engagement of 
 
 let,' L. R. 4 P.C. 184, a British steam tug the tug for the purposes above stated, 
 
 was forfeited to the Crown for towing a amounted to despatcliing a ship for the 
 
 prize taken by the French from the Ger- purpose of taking part in the naval service 
 
 mans from British territorial waters into of a belligerent. 
 French territorial waters. The judicial 
 
 u2
 
 292 Of Offences Relating to the Law of Nations, [book ii. 
 
 assisting therein, or employed in any capacity in such expedition, shall 
 be guilty of an offence against this Act, and shall be punishable ' as stated 
 infra. 
 
 (2) ' All ships, and their equipments, and all arms and munitions 
 of war, used in or forming part of such expedition, shall be forfeited 
 to His Majesty.' 
 
 The offence created by this section is constituted by the purchase of 
 guns and ammunition in this country and their shipment for a foreign 
 port for the purpose of there being put on board a ship, with the know- 
 ledge of the purchaser and shipper that they are to be used in a hostile 
 demonstration against such state, though the shipper takes no part 
 in any overt act of war, and the ship is not fully equipped for the 
 expedition within any port belonging to the King's dominions (x). 
 
 Where an expedition in contravention of this section is prepared by 
 any person within the King's dominions, any British subject who assists 
 in the preparation is guilty of an offence against the Act, even if his 
 assistance is rendered from a place without the King's dominions (y). 
 
 Sect. 12. ' Any person who aids, abets, counsels, or procures the com- 
 mission of any offence against this Act shall be liable to be tried and 
 punished as a principal offender.' 
 
 Punishment. — Each of the sects. 4, 5, 6, 7, 8, 10, and 11 provides 
 that an offence under the section shall be ' punishable by fine and 
 imprisonment, or either of such punishments, at the discretion of the 
 Court before which the offender is convicted ; and imprisonment, if 
 awarded, may be either with or without hard labour.' 
 
 By sect. 13, ' The term of imprisonment to be awarded in respect of 
 any offence against this Act shall not exceed two years.' 
 
 Legal Procedure. — Sect. 16. ' Any offence against this Act shall, for 
 all purposes of and incidental to the trial and punishment of any person 
 guilty of any such offence, be deemed to have been committed either 
 in the place in which the offence was wholly or partly committed, or in any 
 place within His Majesty's dominions in which the person who committed 
 such offence may be ' (z). 
 
 Sect. 17. ' Any offence against this Act may be described in any 
 indictment or other document relating to such offence, in cases where 
 the mode of trial requires such a description, as having been committed 
 at the place where it was wholly or partly committed, or it may be averred 
 generally to have been committed within His Majesty's dominions, 
 and the venue or local description in the margin may be that of the 
 county, city, or place in which the trial is held.' 
 
 Sect. 18. ' The following authorities, that is to say, in the United 
 Kingdom, any judge of a superior Court, in any other place within the 
 jurisdiction of any British Court of justice, such Court or, if there are 
 more Courts than one, the Court having the highest criminal jurisdiction 
 in that place, may, by warrant or instrument in the nature of a warrant 
 in this section included in the term " warrant," direct that any offender 
 
 {x) R. V. Sandoval, 16 Cox, 206. S. 11 (2) Under the Act of 1819 offences com- 
 
 applies to foreigners as well as to British mitted out of the United Kingdom were 
 
 subjects. See R. v. Sandoval, ubi sup. triable only in the Court of K.B. at West- 
 
 {y) R. V. Jameson [1896], 2 Q.B. 425. minster (59 Geo. III. c. 69, s. 3).
 
 CHAP. III.1 Foreign Enlistment Act. 293 
 
 charged with an offence against this Act shall be removed to some other 
 place in His Majesty's dominions for trial, in cases where it appears 
 to the authority granting the warrant that the removal of such offender 
 would be conducive to the interests of justice, and any prisoner so removed 
 shall be triable at the place to which he is removed, in the same manner 
 as if his offence had been committed at such place. 
 
 'Any warrant for the purposes of this section may be addressed to the 
 master of any ship or to any other person or persons, and the person or 
 persons to whom such warrant is addressed shall have power to convey 
 the prisoner therein named to any place or places named in such warrant, 
 and to deliver him, when arrived at such place or places, into the custody 
 of any authority designated by such warrant. 
 
 ' Every prisoner shall, during the time of his removal under any such 
 warrant as aforesaid, be deemed to be in the legal custody of the person 
 or persons empowered to remove him.' 
 
 Sect. 19 directs how proceedings are to be taken for the condemnation 
 and forfeiture of a ship, &c., for offences against the Act. 
 
 Sect. 20. ' Where any offence against this Act has been committed by 
 any person by reason whereof a ship, or ship and equipment, or arms 
 and munitions of war, has or have become liable to forfeiture, proceed- 
 ings may be instituted contemporaneously or not, as may be thought 
 fit, against the offender in any Court having jurisdiction of the offence, 
 and against the ship, or ship and equipment, or arms and munitions of 
 war, for the forfeiture in the Court of Admiralty ; but it shall not be 
 necessary to take proceedings against the offender because proceed- 
 ings are instituted for the forfeiture, or to take proceedings for the 
 forfeiture because proceedings are taken against the offender.' 
 
 Sect. 14 provides for the restoration of illegal prizes brought into 
 British ports. 
 
 Sect. 15 provides that for the purposes of this Act a licence by His 
 Majesty shall be under the sign manual of His Majesty or be signified 
 by Order in Council or by proclamation of His Majesty. 
 
 Sects. 21-26, and the following sections, enact that the Secretary of 
 State and certain other persons, including the Lord-Lieutenant of Ireland 
 and the Governors or Lieutenant-Governors of Man, the Channel Islands, 
 and British possessions (sect. 26), may seize or detain any shij) liable to be 
 seized or detained in pursuance of this Act, and give them certain powers 
 for such purpose. If there is no reasonable and probable cause for the 
 detention, the High Court Admiralty Division may release the ship and 
 order indemnity to the owner (sect. 23) {a). 
 
 Sect. 27 gives an appeal from decisions of a Court of Admiralty under 
 the Act or in other Admiralty cases. 
 
 Sect. 28 gives an indemnity to officers and local authorities in respect 
 of the seizure and detention of ships. 
 
 (a) In the ' International' [1871], L. R. the task on which the ship was engaged was 
 
 3 Adm. & Ecc. 321, release was ordered of a not military or naval service witliin the 
 
 British ship, which during the Franco- Act, as the cable was not being laid ex- 
 
 German war was laying a submarine tele- pressly for furtherance of military opera - 
 
 graph cable, under contract with the tions. 
 French Government, on the ground that
 
 294 Of Offences Relating to the Law of Nations, [book ii. 
 
 Sect. 29. ' The Secretary of State shall not, nor shall the chief (6) 
 executive authority be responsible in any action or other legal proceed- 
 ings whatsoever for any warrant issued by him in pursuance of this 
 Act, or be examinable as a witness, except at his own request, in any 
 Court of justice in respect of the circumstances which led to the issue of the 
 warrant.' 
 
 Interpretation. — Sect. 30. ' In this Act, if not inconsistent with the 
 context, the following terms have the meanings hereinafter respectively 
 assigned to them ; that is to say, 
 
 Foreign state " includes any foreign prince, colony, province or 
 part of any province or people, or any person or persons exercising or 
 assuming to exercise the powers of government in or over any foreign 
 country, colony, province, or part of any province or people (c) : 
 
 ' " Military service " shall include military telegraphy {d) and any 
 other employment whatever, in or in connection with any military 
 operation : 
 
 ' " Naval service " shall, as respects a person, include service as a 
 marine, employment as a pilot in piloting or directing the course of a 
 ship of war or other ship when such ship of war or other ship is being 
 used in any military or naval operation, and any employment whatever 
 on board a ship of war, transport, store ship, privateer or ship under 
 letters of marque ; and as respects a ship, include any user of a ship 
 as a transport, store ship, privateer or ship under letters of marque : 
 
 ' " United Kingdom " includes the Isle of Man, the Channel Islands, 
 and other adjacent islands : 
 
 British possession " means any territory, colony, or place 
 being part of His Majesty's dominions, and not part of the United 
 Kingdom, as defined by this Act : 
 
 ' " The Secretary of State " shall mean any one of Her Majesty's 
 Principal Secretaries of State : 
 
 ' " The Governor " shall as respects India mean the Governor 
 General or the Governor of any presidency, and where a British pos- 
 session consists of several constituent colonies, mean the Governor 
 General of the whole possession or the Governor of any of the con- 
 stituent colonies, and as respects any other British possession it shall 
 mean the officer for the time being administering the government of 
 such possession ; also any person acting for or in the capacity of a governor 
 shall be included under the term " Governor " : 
 
 ' " Court of Admiralty " shall mean the High Court of Admiralty 
 of England or Ireland (e), the Court of Session of Scotland, or any Vice- 
 Admiralty Court withm His Majesty's dominions : 
 
 Ship " shall include any description of boat, vessel, floating battery, 
 or floating craft ; also any description of boat, vessel, or other craft or 
 battery, made to move either on the surface of or under water, or some- 
 times on the surface of and sometimes under water : 
 
 ' " Building " in relation to a ship shall include the doing any act 
 
 [h) See s. 26, ante, p. 293. & Eccl. 321. 
 
 (c) This contemplates the case of states (e) These Courts are now merged in the 
 in a condition of civil war. High Court of Justice in England and 
 
 (d) See the ' International,' L. R. 3 Adm. Ireland.
 
 CHAP. III.] Foreign Enlistment Act. 295 
 
 towards or incidental to the construction of a ship, and all words having 
 relation to building shall be construed accordingly : 
 
 ' " Equipping " in relation to a ship shall include the furnishing a 
 ship with any tackle, apparel, furniture, provisions, arms, munitions, or 
 stores, or any other thing which is used in or about a ship for the purpose 
 of fitting or adapting her for the sea or for naval service, and all words 
 relating to equipment shall be construed accordingly : 
 
 ' " Ship and equipment " shall include a ship and everything in or 
 belonging to a ship : 
 
 ' " Master " shall include any person having the charge or command 
 of a ship.' 
 
 It must be noted that most of these definitions contain the word 
 ' include,' and do not restrict the words used in the prohibitory sections 
 to the matters specifically mentioned in the definition (/'). 
 
 Sect. 32. ' Nothing in this Act contained shall subject to forfeiture any 
 commissioned ship of any foreign state {g), or give to any British Court 
 over or in respect of any ship entitled to recognition as a commissioned 
 ship of any foreign state any jurisdiction which it would not have had if 
 this Act had not passed ' (A). 
 
 Sect. 33. ' Nothing in this Act contained shall extend or be con- 
 strued to extend to subject to any penalty any person who enters into 
 the military service of any prince, state, or potentate in Asia, with such 
 leave or licence as is for the time being required by law in the case 
 of subjects of His Majesty entering into the military service of princes, 
 states, or potentates in Asia ' {i). 
 
 It was held that the Act of 1819 created an offence against the State, 
 and the Court (of Queen's Bench) refused to grant a criminal information 
 for such offence on the application of a private prosecutor, leaving 
 the case to be dealt with like other public offences (/). 
 
 (/) The 'Gauntlet,' L. R. 4 P. C. 184, [i) This section is taken from 59 Geo. III. 
 
 192. c. 69, s. 12, with the omission of referencea 
 
 (g) See the definition, supra, p. 294. to Indian governors. 
 
 (h) See Dobree v. Napier, 2 Bing. (N. C.) (j) Ex parte Crawshaw, 8 Cox, 356. But 
 
 781. see R. v. GranateUi, 7 St. Tr. (N. S.) 759.
 
 ( m ) 
 
 CHAPTER THE FOURTH. 
 
 PUBLICATIONS CALCULATED TO INTERFERE WITH PEACEFUL RELATIONS 
 WITH FOREIGN STATES. 
 
 Upon the ground that malicious and scurrilous reflections ujion 
 foreign sovereigns or their representatives may tend to involve this 
 country in disputes, animosities, and warfare, it has been held that 
 publications tending to degrade and defame such persons are indictable. 
 Thus an information was filed, by the command of the Crown, for a libel 
 on the French ambassador at the British court, consisting principally 
 of angry reflections on his public conduct and fitness, and charging him 
 with ignorance in his official capacity, and with having used stratagems 
 to supplant and depreciate the defendant at the court of Versailles (a). 
 Lord George Gordon was found guilty upon an information for having 
 published severe reflections upon the Queen of France, in which she was 
 represented as the leader of a faction, and on the French ambassador 
 in London. Ashhurst, J., in passing sentence, said that the object of 
 the publication being to rekindle animosities between England and 
 France by the personal abuse of the sovereign of one of them, it was 
 highly necessary to repress an offence of so dangerous a nature : and 
 that such libels might be supposed to have been made with the connivance 
 of the state where they were published, unless the authors were sub- 
 jected to punishment (6). A defendant was found guilty upon an inform- 
 ation charging him with having published the following libel : ' The 
 Emperor of Russia is rendering himself obnoxious to his subjects by 
 various acts of tyranny, and ridiculous in the eyes of Europe by his 
 inconsistency. He has lately passed an edict to prohibit the exportation 
 of deals and other naval stores. In consequence of this ill-judged law, 
 a hundred sail of vessels are likely to return to this country without 
 freight' (c). And where the defendant was charged by an information 
 with a libel upon Napoleon Buonaparte, Ellenborough, C.J., said to 
 the jury : ' I lay it down as law, that any publication which tends to 
 degrade, revile, and defame joersons in considerable situations of power 
 and dignity in foreign countries, may be taken to be and treated as a 
 libel ; and particularly when it has a tendency to interrupt the pacific 
 relations between the two countries' (<Z). 
 
 (a) R. V. D'Eon [1764], 1 W. Bl. 510 ; Holt on Libel, 78 ; 2 Starkic on Libel, 218. 
 
 3 Burr. 1516. The defendant was convieted, but \va3 
 
 (h) R. V. Lord C4eorge Gordon [1787], never called upon to receive judgment. At 
 
 22 St. Tr. 177. the time of the prosecution there was peace 
 
 (c) R. V. Vint [1801], 27 St. Tr. 627. between England and France. Soon after 
 
 id) R. V. Peltier [1803], 28 St. Tr. 527. the trial war broke out again.
 
 298 Of Offences Relating to the Law of Nations. [BooK it. 
 
 In R. V. Most (e) the defendant was convicted upon an indictment 
 containing counts for libels on the sovereigns of Europe, published in 
 a newspaper, encouraging assassination, and intended to create discord 
 between the Queen and the said sovereigns. A case was stated on the 
 sufficiency of this and other counts in the indictment. The conviction 
 was affirmed with reference to counts charging incitement to assassina- 
 tion (/'). Coleridge, L.C.J., said: 'This is not the less an endeavour to 
 persuade, or an encouragement, to murder either named individuals or 
 unnamed individuals because it is under another aspect of the law a 
 seditious and scandalous libel ' (g). 
 
 In R. V. Antonelli(/i), Phillimore, J., said: 'Libels which bring persons 
 into hatred or contempt may apply to persons outside the dominions of 
 the King, because they are liable to bring the peaceful relations between 
 states to an end. So Lord George Gordon was tried and punished for 
 libelling Marie Antoinette, Queen of France ' {i). But he added : ' Seditiovis 
 libels are such as tend to disturb the government of this country, and in 
 my opinion a document published here, which was calculated to disturb 
 the government of some foreign country, is not a seditious libel, nor 
 punishable as a libel at all. ... To hold otherwise would be to hold 
 that all the strong language used against the government of Turkey at 
 the time of the Bulgarian rebellion was seditious libel, and it would 
 make many of our great statesmen guilty of seditious libel, and those 
 persons also who espoused the cause of Italian liberty.' 
 
 (e) [1881] 7 Q.B.D. 244. (h) [1905] 70 J. P. 4. 
 
 ( f) Vide post, p. 835. (/) Aiite, p. 297. 
 
 (g) 9 Q.B.D. 2.53.
 
 ( 298a ) 
 
 CANADIAN NOTES. 
 Libel on Foreign Sovereign. — Code sec. 135,
 
 ( 299 ) 
 
 CHAPTER THE FIFTH. 
 
 VIOLATION OF DIPLOMATIC PRIVILEGES. 
 
 By the Diplomatic Privileges Act, 1708 (7 Anne, c. 12 (a)), s. 3, ' . . . all 
 writs and processes that shall at any time hereafter be sued forth or prose- 
 cuted, whereby the person of any ambassador or other public minister 
 of any foreign prince or state, authorised and received as such by Her 
 Majesty, her heirs or successors, or the domestic or domestic servant of 
 any such ambassador or other public minister may be arrested or 
 imprisoned, or his or their goods or chattels may be distrained, seized 
 or attached, shall be deemed and adjudged to be utterly null and void 
 to all intents and purposes whatsoever.' 
 
 By sect. 4, ' ... In case any person or persons shall presume to sue 
 forth or prosecute any such writ or process, such person and persons and 
 all attorneys and solicitors prosecuting and soliciting in such case, and all 
 officers executing any such writ or process, being thereof convicted by 
 the confession of the party or by the oath of one or more credible witness 
 or witnesses before the Lord Chancellor or Lord Keeper of the Great Seal, 
 the Chief Justice of the Court of Queen's Bench, the Chief Justice of the 
 Court of Common Pleas, for the time being, or any two of them, shall be 
 deemed violaters of the laws of nations and disturbers of the public repose, 
 and shall suffer such pains, penalties, and corporal punishments as the said 
 Lord Chancellor, Lord Keeper and the said Chief Justices, or any two 
 of them, shall judge fit to be imposed and inflicted.' 
 
 Sect. 5 excludes from the benefit of the Act any merchant or other trader 
 within the bankruptcy statutes who ' shall put himself into the service 
 of any such ambassador or public minister.' And sect. 6 prohibits pro- 
 ceedings for arresting the servmit of an ambassador, unless the name of 
 the servant is first registered in the office of one of the principal secretaries 
 of state, and by him transmitted to the sheriffs of London and Middlesex. 
 
 There is no recorded case of a prosecution for breach of this Act : and 
 consequently it has not been determined whether the expressions ' writ 
 or process' are limited to civil proceedings or extend to criminal process. 
 The Act is regarded as declaratory of the common law with reference to 
 the privilege of diplomatic officers {b) and their suites. The immunity 
 
 (a) This statute, sometimes described as of Anne : U. S. Rev. Statt. ss. 4062-4065, 
 
 the Act of Apology, was passed in conse- originally framed in 1790. See U. S. i'. 
 
 quence of the arrest on civil j^rocess of the Ortega [1826J, 11 Wheaton U. S. 467. 
 ambassador of Peter the (Jrcat to the Court (b) The privilege is usually rested on the 
 
 of St. James'. See Phillimoro Int. Law fiction of exterritoriality. See Musurus v. 
 
 (2nd ed.), vol. ii. p. 228 ; Halleck Int. Law (iadban [1894J, 1 Q.B. 533 ; [1894] 2 Q.B. 
 
 (4th ed.), vol. i. p. 302 ; Hall Int. Law 352. It is not limited to subjects of the 
 
 (5th ed.) 172; Law Magazine (4th series), nation senduig the ambassador. Macartney 
 
 vol. XX. p. 43. There is in force in the i-. Garbutt, 24 Q.B.D. 368. 
 United States a statute based on the Act
 
 300 Of Offences Relating to the Law of Nations. [BOOK il. 
 
 recognised does not extend to consuls (c). Apart from this Act it seems 
 to be accepted that diplomatic officers and their suites are, as a matter of 
 amity if not of strict international law, privileged against prosecution 
 for any breach of the criminal law of England (d), and such immunity 
 has been claimed in respect of breaches of the law as to driving motor- 
 cars, public health, and of a claim by coroners to hold inquests on persons 
 dying in an embassy, or on diplomatic officials supposed to have committed 
 suicide. The immunity is the privilege of the sovereign or state which 
 accredits the officer, and might, it would seem, be waived by the 
 sovereign (d). 
 
 (c) Viveash v. Becker, 3 M. & S. 284. handed his passports, or a request may be 
 
 (d) Provisional arrest in extreme eases made for his recall for trial in his own 
 may be justified ; or the offender may be country. Hall Int. Law (5th ed.) 172.
 
 (301 ) 
 
 BOOK THE THIRD. 
 
 OF OFFENCES AGAINST THE SECURITY OF THE STATE. 
 
 PRELIMINARY. 
 
 The offences of treason and treason-felony are not within the scope of 
 this work («), and attempts to interfere with government by tumultuous 
 petitions and meetings to over-awe Parliament are dealt with under the 
 title ' Riot' (aa). 
 
 CHAPTER THE FIRST. 
 
 OF SEDITION. 
 
 A. General Definition of the Offence. 
 
 Sedition consists in acts, words, or writings intended or calculated, 
 under the circumstances of the time (6), to disturb the tranquillity of the 
 State, by creating ill-will, discontent, disaffection, hatred, or contempt 
 towards the person of the King, or towards the Constitution or Parlia- 
 ment (bb), or the Government, or the established institutions of the 
 country (c), or by exciting ill-will between different classes of the King's 
 subjects (d), or encouraging any class of them to endeavour to disobey, 
 defy, or subvert the laws (e) or resist their execution, or to create tumults 
 or riots, or to do any act of violence or outrage or endangering the public 
 peace ( /'). 
 
 When the offence is committed by means of writing, or print, or 
 pictures (r/), it is termed seditious libel. 
 
 The offence is a misdemeanor indictable at common law (h). 
 
 As to seditious conspiracy, vide ante, Book I., Chapter VI., and post, 
 p. 332. 
 
 (a) See Archb. Cr. PI. (23rd ed.), 928 et 507. Steph. Dig. Cr. L. (6th cd.) ait. 
 seq. 98. Odgers on Libel (4th ed.) 487. 
 
 {an) Post, Bk. vi. o. i., p. 409. ( f) See R. v. Burdett [1820], 1 St. Tr. 
 
 (b) R. V. Fussell [1848], 6 St. Tr. (N. S.) (N. S.) 1 ; 3 B. & Aid. 717 ; 4 B. & Aid. 9r>, 
 723. 314. R. V. Cobbett [1831], 2 St. Tr. (N. i>.) 
 
 (66) By vilif^'ing or degrading them, see 789. R. v. Lovett, 9 C. & P. 462. R. v. 
 
 Holt, Libel, 86. R. v. Burdett, 4 B. & SuUivan, 11 Co.r, 44, 51. R. ?•. Jone.s[1848], 
 
 Aid. 95. 6 St. Tr. (N. S.) 783 (Chartists) ; and see per 
 
 (c) R. V. Fussell, ubi sup. Crampton, J., R. v. O'Brien [1848], 6 St. 
 
 (d) R. V. Burns, 16 Cox, 355, Cave, J., Tr. (N. S.) 591n., and 6th Report, Criminal 
 post, p. 302, and see 60 Geo. III. & 1 Geo. Law Commissioners (1841), p. 17, cited 
 IV. c. 8, 8. 1, post, p. 310. 6 St. Tr. (N. S.) 727. 
 
 («■) R. V. Collins, 9 C. & P. 456 ; 3 St. (g) R. v. Sullivan. 11 Cox, 44. 51 (Ir.). 
 
 Tr. (N. S.) 1 149. R. v. Grant, 7 St. Tr. (N. S.) (h) R. i-. Stroud, 3 St. Tr. 235.
 
 302 Of Offences against the Security of the State, [book hi. 
 
 In the case of a seditious libel it is doubtful whether at common law the 
 offence is complete when the libel is composed, or whether it must be 
 shewn that it was also published {i). 
 
 Seditious publications are not justified or excused by proof of the 
 truth of the statements made (i). 
 
 According to the older authorities it is seditious wantonly to defame 
 or indecorously to calumniate that economy, order, and constitution of 
 things which make up the general system of the law and government of 
 the country (;') ; and more particularly to degrade or calumniate the 
 person and character of the sovereign (k), or the administration of his 
 government by his officers and ministers of state (l), or the administra- 
 tion of justice by his judges (m), or the proceedings of either House of 
 Parliament (n). 
 
 The present view of the law is best stated in R. v. Burns (o). In that 
 case the defendants were charged in one count ' that they at Trafalgar 
 Square with great numbers of other persons assembled and met together, 
 and that they being wicked, malicious, and seditious persons, wickedly, 
 maliciously, and seditiously contriving and intending the peace of our 
 said lady the Queen, and of this realm, and of the liege subjects of our said 
 lady the Queen, to disquiet and disturb, and the liege subjects of our 
 said lady the Queen, to incite and to move to contempt, hatred, and 
 dislike of the government established by law within this realm, and to 
 incite and to move and persuade great numbers of the liege subjects of 
 our said lady the Queen, to insurrections, riots, tumults, and breaches of 
 the peace, and to stir up jealousies, hatred, and ill-will between different 
 classes of the said liege subjects, and to prevent by force and arms the 
 execution of the laws of this realm and the preservation of the public 
 peace, on the day and in the year aforesaid, in the presence and hearing 
 of divers of the liege subjects of our lady the Queen, to wit, the persons 
 assembled together as aforesaid in Trafalgar Square as aforesaid and 
 within the jurisdiction of the said Court, in a certain speech and discourse 
 by him the said John Burns, then addressed to the said liege subjects so 
 then assembled together as aforesaid, unlawfully, wickedly, maliciously, 
 and seditiously, openly, and publicly did publish, utter, pronounce, and 
 declare, and cause to be published, uttered, pronounced, and declared, 
 with a loud voice of and concerning the government as established by 
 law within this realm, and of and concerning the Commons House of 
 Parliament, and the members thereof, and of and concerning divers 
 liege subjects of our said lady the Queen, whose names are to the jurors 
 aforesaid unknown, amongst other words and matters, the false, wicked, 
 seditious, and inflammatory words and matter following, that is to say : 
 [The words complained of were here set out] against the peace of our 
 lady the Queen, her crown and dignity.' 
 
 (t) R.t;.Burdett,l St. Tr.(N.S.) 1,122, 138. (m) Ante, p. 154, post, p. 537. Odgers 
 
 R. V. Duffy, 2 Cox, 45. As to evidence after on Libel (4th ed.), 484. 
 verdict in mitigation, see R. v. Burdett. (n) Post, p. 313. 
 
 (j) Holt, Libel, 82. (o) [1886], 16 Cox, 355. The first- 
 
 {k) Post, p. 31 i. named defendant became in 1906 President 
 
 (I) R. V. Lambert & Perry, 2 Camp. 398, of the Local Government Board and a 
 
 31 St. Tr. 335, post, p. 313. member of the Privy Council.
 
 CHAP. I.] Of Sedition. 303 
 
 Another count charged the defendants with a conspiracy to speak 
 seditious words and incite to sedition. 
 
 Cave, J., in charging the jury, said : ' It is now my duty to explain 
 to you the rules of law which ought to govern you in considering this 
 case, and also to summarise shortly for your benefit the evidence which 
 has been given, so that you may have the less difl&culty in applying 
 the principles of the law to that evidence. There is undoubtedly no 
 question at law of the right of meeting in public, and the right of free 
 discussion is also perfectly unlimited, with the exception, of course, 
 that it must not be used for the purpose of inciting to a breach of the 
 peace or to a violation of the law. The law upon the question of what 
 is seditious and what is not is to be found stated very clearly in a book 
 by Stephen, J., who has undoubtedly a greater knowledge of criminal 
 law than any other judge who sits upon the bench, and what he has said 
 upon the subject of sedition was submitted to the other judges, who some 
 time back were engaged with him in drafting a criminal code, and upon 
 their report the commissioners say that his statement of law appears 
 to them to be stated accurately as it exists at present. So that that state- 
 ment has not only the authority of Stephen, J., but also the authority of 
 the judges who were associated with him in preparing the criminal code. 
 This is what he says on seditious words and libels : " Every one commits 
 a misdemeanor who publishes verbally or otherwise words or any docu- 
 ment with a seditious intention. If the matter so published consists of 
 words spoken, the offence is called the speaking of seditious words." 
 That is what we have to deal with to-day. " If the matter so published is 
 contained in anything capable of being a libel the offence is called the 
 publication of seditious libel" (p). The next question that one asks is 
 this : There are two offences, one is the offence of speaking seditious 
 words, and the other offence is the publication of a seditious libel. It 
 is obviously important to know what is meant by the word " sedition," 
 and Stephen, J., proceeds in a subsequent article to give a definition of it. 
 He says : " A seditious intention is an intention to bring into hatred or 
 contempt, or to excite disaffection against the person of Her Majesty, 
 her heirs, or successors, or the government and constitution of the United 
 Kingdom, as by law established, or either House of Parliament, or the 
 administration of justice, or to excite Her Majesty's subjects to attempt 
 otherwise than by lawful means the alteration of any matter in Church 
 or State as by law established, or to raise discontent or disaffection amongst 
 Her Majesty's subjects or to promote feelings of ill-will and hostility 
 between different classes of such subjects." Stephen, J., goes on to point 
 out what sort of intention is not seditious. " An intention to shew that 
 Her Majesty has been misled or mistaken in her measures, or to point out 
 errors or defects in the government or constitution as by law established , 
 with a view to their reformation, or to excite Her Majesty's subjects to 
 attempt by lawful means the alteration of any matter in Church or State 
 as by law established, or to point out, in order to their removal, matters 
 which are producing, or have a tendency to produce feelings of hatred and 
 ill-will between classes of Her Majesty's subjects, is not a seditious 
 
 (p) Stephen, Dig. of Crim. Law (Gth ed.), Arts. 9G-98.
 
 304 Of Offences against the Security of the State, [book hi. 
 
 intention " (q). So there he gives in these two classes what is and what is 
 not sedition. Now, the seditious intentions which it is alleged existed in the 
 minds of the prisoners in this case are : First, an intention to excite Her 
 ]\Tajesty's subjects to attempt otherwise than by lawful means the altera- 
 t ion of some matter in Churcli or State as by law established ; and secondly, 
 to promote feelings of hostility between different classes of Her Majesty's 
 subjects. This is necessarily somewhat vague and general, particularly 
 the second portion, which says it is a seditious intention to intend to 
 promote feelings of ill-will and hostility between different classes of Her 
 Majesty's subjects. I should rather prefer to say, that the intention to 
 promote feelings of ill-will and hostility between different classes of Her 
 Majesty's subjects may be a seditious intention according to circumstances, 
 and of those circumstances, the jury are the judges ; and I put this 
 question to the Attorney-General in the course of the case : " Suppose a 
 man were to write a letter to the papers attacking bakers and butchers 
 generally with reference to the high prices of bread or meat, and imputing 
 to them that they were in a conspiracy to keep up high prices, — would 
 that be a seditious libel, being written and not spoken ? " To which the 
 Attorney-General gave me the only answer which it was clearly possible 
 to give under the circumstances : " That must depend upon the circum- 
 stances." I, sitting here as a judge, cannot go nearer than that. Any 
 intention to excite ill-will and hostility between different classes of Her 
 Majesty's subjects may be a seditious intention ; whether in a particular 
 case this is a seditious intention or not, the jury must judge and decide 
 in their own minds, taking into consideration the whole of the circum- 
 stances of the case. You may not unnaturally say that that is a some- 
 what vague statement of the law, and ask by what principle shall we be 
 governed in deciding when an intention to excite ill-will and hostility is 
 seditious, and when it is not. For your guidance, I will read to you what 
 was said by Fitzgerald, J., in the case of R. v. Sullivan (r), which was a 
 prosecution for a seditious libel, the only difference between the two cases 
 being, of course, that while seditious speeches are spoken a seditious libel 
 is written, but in each of them the adjective " seditious " occurs, and what 
 is a seditious intention in one case will equally be a seditious intention in 
 the other. He said : " As such prosecutions are unusual, I think it 
 necessary in the first instance to define sedition and point out what is a 
 seditious libel. Sedition is a crime against society, nearly allied to that 
 of treason, and it frequently precedes treason by a short interval." It 
 has been said very truly that there is no such offence as sedition itself, 
 but it takes the form of seditious language either written or spoken, and 
 it is in that sense of course that the learned judge's words are intended 
 to be understood. " Sedition itself is a comprehensive term, and it 
 embraces all those practices, whether by word, deed, or writing, which are 
 calculated to disturb the tranquillity of the State, and lead ignorant 
 persons to endeavour to subvert the government and the laws of the 
 Empire. The objects of sedition generally are to induce discontent and 
 insurrection, and to stir up opposition to the government, and bring the 
 
 {q) Stephen, Dig. Grim. Law (Gth ed.), (r) 11 Cox, 44 (Ir.). 
 
 Art. 98.
 
 CHAP, t] Of Sedition, 305 
 
 administration of justice into contempt ; and the very tendency of 
 sedition is to incite the people to insurrection and rebeUion. Sedition 
 has been described as disloyalty in action, and the law considers as 
 seditious all those practices which have for their object to excite discon- 
 tent or disaffection, to create public disturbances, or to lead to civil war ; 
 to bring into hatred or contempt the sovereign or the government, the 
 laws or constitution of the realm, and generally all endeavours to promote 
 public disorder." Then a little further on he says : " Words may be of a 
 seditious character, but they might arise from sudden heat, be heard only 
 by a few, create no lasting impression, and differ in malignity and per- 
 manent effects from writings. Sir Michael Foster said of the latter (s) : 
 ' Seditious writings are permanent things, and if published they scatter 
 the poison far and wide. They are acts of deliberation, capable of satis- 
 factory proof, and not ordinarily liable to misconstruction ; at least they 
 are submitted to the judgment of the Court naked and undisguised, as 
 they came out of the author's hands.' That points to the nature of the 
 distinction between seditious writings and words, and also points to the 
 difference in the effect which they have, and the extent to which that 
 effect goes, though of course in regard to seditious words, there may be a 
 very great distinction between words uttered to two or three companions 
 in social intercourse, and words uttered to a large multitude." That 
 language the learned judge s2:)oke when he was charging the grand jury 
 upon the subject. When he came to sum up the case to the jury who were 
 actually trying it, after a true bill had been found, he said, and perhaps 
 this is more apposite in shewing the spirit in which you ought to deal 
 with the present case so far as you can : " 1 invite you to deal with the 
 case, which is a grave and important case, in a fair, free, and liberal 
 spirit. In dealing with the articles you should not pause upon an objec- 
 tionable sentence here, or a strong word there. It is not mere strong 
 language, such as ' desecrated a court of justice,' or tall language, or 
 turgid language that should influence you. You should, I repeat, deal 
 with the articles in a free, fair, and liberal manner. You should recollect 
 that to public political articles great latitude is given (t). Dealing as 
 they do with the affairs of the day, such articles if written in a fair spirit, 
 and bona fide, often result in the production of great public good. There- 
 fore I advise and recommend you to deal with these publications in a 
 spirit of freedom, and not to view them with an eye of narrow criticism. 
 Again, I say you should not look merely to a strong word or a strong 
 phrase, but to the whole article, and so regarding each article, you should 
 recollect that you are the guardians of the liberty of the press, and that 
 whilst you will check its abuse, you will preserve its freedom. You 
 will recollect how valuable a blessing the liberty of the press is to all of us, 
 
 (5) The Editors have bfcii iinaMo to inciting them to violence and outrage, 
 
 trace this quotation. In R. v. Collins (9 C. & P. 4.1(>), 3 St. 
 
 (t) See R. V. Burdett, 1 St. Tr. (N. S.) 1, Tr. (N. S.) 1149, Littledalc, J., in dealing 
 
 where the jury were told to consider with a placard containing resolutions of a 
 
 whether a written address to the electors body known as the General Convention told 
 
 of Warwickshire relating to the Peterloo the jury that the question was wliether the 
 
 meeting at Manchester contained a sober resolutions were a calm discussion of the 
 
 address to the reason of mankind as to the conduct of the police in repressing a riot in 
 
 conduct of the military in suppressing a the Bull Ring at Birmingham or were 
 
 riot, or was an appeal to their passions meant to incite to the use of physical force. 
 VOL. I. X
 
 306 Of Offences against the Security of the State, [book 111. 
 
 and sure I am, that that liberty will meet no injury, suffer no diminution 
 at your hands. Viewing the case in a free, bold, manly, and generous 
 spirit toward the defendant, if you come to the conclusion that the 
 publications indicted are not seditious libels, or were not pubhshed in 
 the sense imputed to them, you are bound, and I ask you in the name of 
 free discussion, to find a verdict for the defendant. I need not remind 
 you of the worn-out topic to extend to the defendant the benefit of the 
 doubt. If on the other hand, on the whole spirit and import of these 
 articles, you are obliged to come to the conclusions that they are seditious 
 libels, and that their necessary consequences are to excite contempt of 
 Her Majesty's Government, or to bring the administration of the law 
 into contem]3t and impair its functions, — if you come to that conclusion 
 either as to the articles or prints, or any of them, then it becomes your 
 duty honestly and fearlessly to find a verdict of conviction upon such 
 counts as you believe are proved." Now, that language was used, as I 
 have said, in reference to a seditious libel, but changing the language so 
 as to apply it to a speech, the principles thus laid down are clearly applic- 
 able to the case which you have now got before you. And, — although as 
 a judge I can tell you no more than that the intention to incite ill-will 
 amongst the different classes of Her Majesty's subjects may be seditious, 
 and that it is for you to decide, — I confess I should, if I were sitting 
 amongst you as a juryman, go on to say something of this kind which 
 you would or would not listen to, according as you found it to be quite in 
 reason. It is not a matter of law which you are bound to take from me, 
 but it is merely a matter which you would say to each other ; if you 
 think that these defendants, from the whole matter laid before you, had 
 a seditious intention to incite the people to violence, to create public 
 disturbances and disorder, then undoubtedly you ought to find them 
 guilty. If from any sinister motive, as, for instance, notoriety, or for the 
 purpose of personal gain, they desired to bring the people into conflict 
 with the authorities, or to incite them tumultuously and disorderly to 
 damage the property of any unoffending citizen, you ought undoubtedly 
 to find them guilty. On the other hand, if you come to the conclusion 
 that they were actuated by an honest desire to alleviate the misery of 
 the unemployed, — if they had a real bona fide desire to bring that misery 
 before the public by constitutional and legal means, you should not be too 
 swift to mark any hasty or ill-considered expression which they might 
 utter in the excitement of the moment. Some persons are more led on, 
 more open to excitement than others, and one of the defendants, Burns, 
 even when he was defending himself before you, so prone was he to feeling 
 strongly what he does feel, could not refrain from saying that he was 
 unable to see misery and degradation without being moved to strong 
 language and strong action. I mention that to you to shew you the kind 
 of man he is, and for the purpose of seeing (if you come to the conclusion 
 that he was honestly endeavouring to call the attention of the authorities 
 to this misery, and honestly endeavouring to keep within the limits of 
 the law and the constitution) that you should not be too strong to mark 
 if he made use of an ill-considered, or too strong an expression. Now, 
 I come to the particular charge which is made against these men. It 
 
 1
 
 CHAP. I.] Of Sedition. 307 
 
 divides itself roughly into two heads. There is, first, the charge that 
 they uttered certain words upon the occasion of this demonstration, and 
 that is separated into nine counts, and then there comes a general charge 
 which involves the whole of them, namely, that they agreed together 
 before they went to this meeting that they would make speeches with the 
 intention of exciting the people to disorder. I am unable to agree 
 entirely with the Attorney-General when he says that the real charge is 
 that, though these men did not incite or contemplate disorder, yet as it 
 was the natural consequence of the words they used, they are responsible 
 for it. In order to make out the offence of speaking seditious words, there 
 must be a criminal intent upon the part of the accused, they must be 
 words spoken with a seditious intent, and although it is a good working 
 rule, to say that a man must be taken to intend the natural consequence 
 of his acts, and it is very proper to ask a jury to infer, if there is nothing 
 to shew the contrary, that he did intend the natural consequences of his 
 acts, yet, if it is shewn from other circumstances, that he did not actually 
 intend them, I do not see how you can ask a jury to act upon what has 
 then become a legal fiction. I am glad to say that with regard to this 
 matter, I have the authority again of Stephen, J., who, in his "History of 
 the Criminal Law," has dealt with this very point; he deals with it in 
 reference to the question of seditious libel. He says (u) : " To make 
 the criminality of an act dependent upon the intention with which it is 
 done, is advisable in those cases only in which the intent essential to the 
 crime is capable of being clearly defined and readily inferred from the 
 facts. Wounding, with intent to do grievous bodily harm, breaking into 
 a house with intent to commit a felony, abduction with intent to marry 
 or defile, are instances of such offences. Even in these cases, however, 
 the introduction of the term ' intent ' occasionally led either to a failure 
 of justice or to the employment of something approaching to a legal 
 fiction in order to avoid it. The maxim that a man intends the natural 
 consequences of his acts is usually true, but it may be used as a way of 
 saying that, because reckless indifference to probable consequences is 
 morally as bad as an intention to produce those consequences, the two 
 things ought to be called by the same name, and this is at least an aj^proach 
 to a legal fiction. It is one thing to write with a distinct intention to 
 produce disturbances, and another to write violently and recklessly 
 matter likely to produce disturbances "(mw). Now, if you apply that last 
 sentence to the speaking of words, of course it is precisely applicable to 
 the case now before you. It is one thing to speak witli the distinct inten- 
 tion to produce disturbances, and another thing to speak recklessly and 
 violently of what is likely to produce disturbances. I must, however, 
 notwithstanding what I have said upon that subject, go on to tell you 
 that it is not at all necessary to the offence of uttering seditious words 
 that an actual riot should follow, that there should be an actual disturb- 
 ance of the public peace ; it is the uttering with the intent which is the 
 
 («) Vol. ii. p. 359. Weekly Register was to manifest the design 
 
 («m) See R. v. Cobbett [1831], 2 St. Tr. alleged in the indictment, viz. to create 
 
 (N. S.) 789, where Tenterden, C.J., ruled discontent and incite to violence with 
 
 that the question for the jury was whether reference to firing stacks and breaking 
 
 the natural tendency of an article in the threshing machines. 
 
 X 2
 
 308 Of Offences against the Security of the State, [book hi. 
 
 offence, not the consequences which follow, and which have really nothing 
 to do with the offence. A man cannot escape from the consequences of 
 uttering words with the intent to excite people to violence solely because 
 the persons to whom they are addressed may be too wise or too temperate 
 to be seduced into that violence. That has, however, no important 
 bearing in this case. If you come to the conclusion that language was 
 used by the defendants or any of them upon the occasion of that meeting 
 in Trafalgar Square, and that it was their intention to excite the people 
 to violence, to a breach of the law, why then that would undoubtedly be 
 the uttering of seditious words. And I apprehend that the Attorney- 
 General was anxious to fortify himself with this, that the actual dis- 
 turbances were the natural consequence of what was said, and for perhaps 
 more than one reason. In the first place the Government undoubtedly 
 declined to prosecute on the assumption that the defendants had actually 
 incited to the particular disturbances, and although that as I have said is 
 not at all necessary or essential to the procuring of a conviction, yet 
 undoubtedly that is the moral justification, so to say, the grounds upon 
 which the Government do place the action which they take, and therefore 
 if they can shew, or if you are satisfied that these disturbances, although 
 not contemplated by the defendants, were the natural consequence of 
 their acts, although that has nothing at all to do with the charge which 
 we are engaged in investigating, yet it does affect in some way the position 
 which the Government desire to take up. There is another point, how- 
 ever, which does affect the question which you have to try, and it is this, 
 as to the language used by the defendant. Was it used with the intention 
 to produce violence ? As something no doubt may be gathered from the 
 effect which was actually produced, there does come a point when one 
 must say, " This was so violent and reckless that it is impossible to 
 conceive that the man who uttered this did not intend the consequence 
 which must ensue from it." Again, there is another passage of Stephen, 
 J.'s, book, where he says {v) : " If a meeting is held for the purpose of 
 speaking seditious words to those who may attend it, those who take 
 part in that design are guilty of a seditious conspiracy." Now in order 
 to have a conspiracy you must have an agreement formed beforehand 
 between the parties in that conspiracy, that they will hold or have a 
 meeting, and that the words there spoken shall be words of sedition. As 
 I have said, I do not see any evidence that at all points to any such con- 
 spiracy, and I certainly should recommend you strongly not to pay any 
 further attention to that part of the case. But the Attorney-General 
 says, and very properly, although there may have been no previous 
 conspiracy, yet when people do go to a meeting there are circumstances 
 under which a man may be responsible not only for what he says, but 
 also for what some one else says. Now what are those circumstances ? 
 Stephen, J., says : " If at a meeting lawfully convened seditious words 
 are spoken, of such a nature as are likely to produce a breach of the peace, 
 that meeting may become unlawful, and all those who speak the words 
 undoubtedly are guilty of uttering seditious words, and those who do 
 anything to help those who speak to produce upon the hearers the natural 
 
 (v) Hist. Crim. Law, ii. 386.
 
 CHAP. I.] Of Sedition. 309 
 
 effect of the words spoken." You must do something more than stand 
 by and say nothing ; if you express approval of the statements of speakers 
 who utter seditious language that equally will do ; if you make a speech 
 calculated to help that part of the speech made by some one else, and 
 which excited to disorder ; if you do anything to help that j)art of the 
 effect upon the hearers, then undoubtedly you will be guilty of uttering 
 seditious words just as if you spoke them yourself. But there must be 
 something of that kind. If one man uses seditious words at a meeting, 
 those who stand by and do nothing, although they do not reprobate them, 
 are not guilty of uttering seditious words. Those even who make a speech 
 themselves are not guilty of uttering seditious words unless you can 
 gather from the language they use that they are endeavouring to assist 
 the other man in carrying out that portion of his speech, and by that 
 course endeavouring to assist him in causing his words, which excite 
 to disorder, to produce their natural effect upon the people.' [The learned 
 judge then reviewed the evidence given on the part of the prosecution 
 and the defence, and pointed out that there was considerable difficulty 
 in separating and apportioning the different elements which contributed 
 to the riots, that public meetings and public discussions always 
 attracted together numbers of rough persons, members of criminal 
 classes, and other persons not dishonest, but noisy and disorderly, and 
 who would take advantage of the absence of the police to break windows 
 and street lamps, and do other mischief of that kind, and that it was 
 impossible to say that any disorder that arose was necessarily due to 
 speeches made by persons who were themselves orderly, because of the 
 presence of the disorderly elements of the crowd who had collected 
 together, and, in conclusion, said :] ' I must now leave you to apply the 
 principles of law I have laid down to the facts which have been laid before 
 you. I have to remind you of what you are asked to say. What you are 
 asked to decide on is whether the prisoners — all of them, or some of them, 
 and if some of them, which of them — did upon this occasion, in Trafalgar 
 Square, incite the people whom they were addressing to redress their 
 grievance by violence. Did they intentionally incite ill-will between 
 different classes in such a way as to be likely to lead to a disturbance of 
 the public peace ? I have already told you that you must take a broad 
 and even a generous view of the whole of tlie case presented to you. You 
 must not attach too much importance to isolated phrases, but you must 
 look at the general gist of the matter. You must consider the object 
 which took them there, the way they set about attaining it, and you must 
 also consider to some extent, as throwing some light upon your decision, 
 whether the riots which actually took place were the natural consequences 
 of speeches delivered on that occasion. I cannot conclude without 
 expressing my sense of the extreme folly of those who seek to incite the 
 people to violence. And for this reason : There has been no period of 
 history where violence was so practically useless. The Government being 
 m the hands of the people, none can hope to carry out by force views 
 which he might be able to effect by prudence and consistency, and by 
 legal and legitimate means. And therefore, to incite people to use force 
 is to expose foolish men, and men who do not see the danger they run, to
 
 310 Of Offences against the Security of the State, [book hi. 
 
 a conflict with the authorities, with the certainty that they will have to 
 pay with grievous loss of life' {w). 
 
 Trial and Punishment. — Sedition is not triable at quarter sessions {x). 
 Seditious libel may be tried in the county in which it was composed, 
 if composed for publication, or in the county where it is published {y). 
 At common law the punishment of sedition is by fine, or imprisonment 
 without hard labour, or both (2), with or without recognisances, with 
 sureties for good behaviour {a). There is no statutory limit to the term of 
 imprisonment or the amount of the fine. Persons sentenced to imprison- 
 ment for sedition or seditious libel are to be treated as offenders of the 
 first division (6). By the Criminal Libel Act, 1820 (c) (60 Geo. III. & 
 1 Geo. IV. c. 8), provisions are made as to seditious libels ' tending to bring 
 into hatred or contempt the person or government of His Majesty, or 
 the government or constitution of the United Kingdom as by law estab- 
 lished, or either House of Parliament, or to excite His Majesty's subjects 
 to attempt the alteration of any matter in Church or State as by law estab- 
 lished otherwise than by lawful means' (sect. 1). 'Any person legally 
 convicted of having composed, printed, or published any such seditious 
 libel, as aforesaid, and shall, after being so convicted, offend a second 
 time, and be thereof legally convicted before any Commission of Oyer and 
 Terminer or Gaol Delivery, or in the King's Bench Division of the High 
 Court of Justice, may, on such second conviction, be adjudged at the dis- 
 cretion of the Court to suffer such punishment as may now (December 30, 
 1820) by law be inflicted in cases of high misdemeanors ' . . . (sect. 4) {d). 
 Power is given in case of verdict or judgment by default for the Court in 
 which the verdict is taken or in which the judgment is had, to order 
 search for and seizure of all copies of the libel in the possession of the 
 defendant, or of any other person sworn to have copies in his possession 
 for the use of the defendant. The order for search may be executed by 
 a justice or constable (sect. 2). Copies seized under the order are disposed 
 of after final judgment as the Court may order, but returned if judgment 
 is arrested or on error revised (sect. 3). 
 
 No form of sedition can be justified at common law or under the Libel 
 Act, 1843 (6 & 7 Vict. c. 96), s. 6, by proof of the truth of the matters 
 published (e), the gist of the offence being in the intent to do one or other 
 of the matters stated in the definition (/'). 
 
 It seems to be unnecessary to use the words ' seditious ' or ' seditiously ' 
 in the indictment if the offence charged is by other words specifically 
 indicated {g). Seditious libel seems to be within sect. 7 of the Libel Act, 
 
 (w) The jury returned a verdict of not tween 1821 and 1834, see 1 St. Tr. (N. S.) 
 
 guilty. 1385. 
 
 (a;) 5 & 6 Vict. c. 38, s. 1, ' offences {d) The power to banish an offender on 
 
 against the king's title, prerogative, person, second conviction was repealed in 1830 
 
 or government.' Post, Bk. xii. c. i. (11 Geo. IV. & 1 Will. IV. c. 73, s. 1). As 
 
 (y) R. V. Burdett, 1 St. Tr. (N. S.) 1, 154, to certificates of conviction see 60 Geo. 
 
 and see ante, p. 52. III. & 1 Geo. IV. c. 8, s. 7, fost, Bk. xiii. 
 
 (z) R. V. Stroud, 3 St. Tr. 235. ' Evidence.' 
 
 (a) Ex parte Seymour v. Davitt, 15 Cox, (e) R. v. Duffy, 6 St. Tr. (N. S.) 303 ; 2 
 242. Cox, 45. Ex parte O'Brien, 15 Cox, 180. 
 
 (b) 40 & 41 Vict. c. 21, s. 40, as amended R. v. Franklin [1731], 17 St. Tr. 626. 
 by 61 & 62 Vict. c. 41, s. 6, vide ante, p. 213. (/) Ante, p. 301. 
 
 (c) For returns as to prosecutions be- (g) R. v. McHugh [1901], 2 Ir. Rep. 569.
 
 CHAP. I.] Of Publications against the King. 311 
 
 1843, enabling the defendant to displace a presumptive case of publica- 
 tion by his authority (h), and is within the rules applying to privileged 
 communications in the case of defamatory libel (i). Fair comment on 
 public matters has been held not a defence (j). Bona fide belief in the 
 truth of the matters stated may mitigate punishment but is no defence (k). 
 Under Fox's Act (l) the jury are entitled to return a general or special 
 verdict, as they choose. 
 
 B. Publications against the King. 
 
 Common Law. — Bare words, not relative to any act or design, how- 
 ever wicked, indecent, or reprehensible they may be, are not in themselves 
 overt acts of high treason (m), though words may expound an overt 
 act, and shew with what intent it was done (n). Generally speaking, any 
 words, acts, or writing in respect of the public acts or private conduct (o) 
 of the King which tend to vilify or disgrace the King, or to lessen him 
 in the esteem of his subjects, or any denial of his right to the crown, even 
 in common and unadvised discourse, may be punished as sedition {p). 
 
 Statute. — By the Succession to the Crown Act, 1707 (q), it is declared 
 treason to write or print against the Succession of the Crown as estab- 
 lished by the Acts of Settlement (r) and of Union with Scotland (s). 
 
 In R. V. Lambert (t), the defendant was charged with having published 
 a libel to the following effect : ' What a crowd of blessings rush upon 
 one's mind, that might be bestowed upon the country in the event of a 
 total change of system ! Of all monarchs, indeed, since the Revolution, 
 the successor of George the Third will have the finest opportunity of 
 becoming nobly popular.' Lord Ellenborough, C.J., in summing up 
 the case to the jury, said, that the first sentence of this passage would 
 easily admit of an innocent interpretation ; that the fair meaning of 
 the expression ' change of system ' was a change of political system, — 
 not a change in the frame of the established government, but in the 
 measures of policy which had been for some time pursued ; and that by 
 total change of system was certainly not meant subversion or demolition, 
 the descent of the crown to the successor of His Majesty being mentioned 
 
 (h) Post, p. 1040: R. v. Bradlaugh, 15 11, prohibited]telling or publishing any false 
 
 Cox, 218. As to this section see R. v. news or talcs whereby discord or occasion 
 
 Holbrook, 3 Q.B.D. 60; 4 Q.B.D. 42. of discord or slander might grow between 
 
 (0 R. I'. Gray, 10 Cox, 184 (Ir.). 1 Will. & the King and the people. They were 
 
 M. sess. 2, c. 2 ; 3 & 4 Vict. c. 84 (Parlia- repealed in 1887 (52 & 53 Vict. c. 59). It 
 
 ment) ; 51 & 52 Vict. c. 04, ss. 3, 4 (News- is said to have been resolved by all the 
 
 papers) ; fost, pp. 1047, 1049. judges that all writers of false news are 
 
 (/) R. V. McHugh, ubi sup. indictable and punishable (4 Read. St. L. 
 
 (k) R. V. Burdett, 1 St. Tr. (N. S.) 1. Dig. L. L. 23). See Odgers on Libel (4th 
 
 (/) 32 Geo. III. c. (iO, ss. 1, 3. ed.), 430. 
 
 (w) 1 East, P. C. 117. (q) (i Anne, c. 41 (c. 7 in Ruffhead's 
 
 {») Crohagan's case, Cro. Car. 332. edition) ; and see other statutes for the 
 
 (o) St. John's case, Noy, 105. purpose of guarding the King's character 
 
 (p) Shcbbeare's case. Holt on Libel, 88 ; and title, cited in 2 Starkie on Libel, 171, 
 
 3 T. R. 430n. R. v. Clerk, 1 Barnard. 2nd ed. 
 
 (K.B.), 304 ; 1 Hawk. c. (J. R. r. Wilkes, 4 (r) 1 & 2 Will. & M. sess. 2, c. 2 ; 12 & 13 
 
 Burr. 2527; 19 St. Tr. 1075. 4 Bl. Com. 123 ; Will. III. c. 2. 
 Odgers on Libel (4th ed.), 482. The old (s) (i Anne, c. 11. 
 
 statutes dc scandalis magmitum, 3 Edw. I. [t) 2 Camp. 398 ; 31 St. Tr. 340. 
 
 c. 34; 2 Rich. IL St. l,c. 5; 12 Rich. IL c.
 
 312 Of Offences against the Security of the State, [book hi. 
 
 immediately after. He proceeded : ' If a person who admits the wisdom 
 and virtues of His Majesty, laments that in the exercise of these he has 
 taken an unfortunate and erroneous view of the interests of his dominions, 
 I am not prepared to say that this tends to degrade His Majesty, or 
 to alienate the affections of his subjects, I am not prepared to say that 
 this is libellous. But it must be with perfect decency and respect, and 
 without any imputation of bad motives. Go one step further, and say or 
 insinuate that His Majesty acts from any partial or corrupt view or with 
 an intention to favour or oppress any individual or class of men, and it 
 would become most libellous.' Upon the second sentence, after stating 
 that it was more equivocal, and telling the jury that they must determine 
 what was the fair import of the words employed, not in the more lenient 
 or severe sense, but in the sense fairly belonging to them, and which they 
 were intended to convey, Lord EUenborough proceeded : ' Now do 
 these words mean, that His Majesty is actuated by improper motives, 
 or that his successor may render himself nobly popular by taking a more 
 lively interest in the welfare of his subjects ? Such sentiments, as it would 
 be most mischievous, so it would be most criminal to propagate. But 
 if the passage only means that His Majesty, during his reign, or any 
 length of time, may have taken an imperfect view of the interests of the 
 country, either respecting our foreign relations, or the system of our 
 internal policy ; if it imputes nothing but honest error, without moral 
 blame, T am not prepared to say that it is a libel.' And again, towards 
 the conclusion of his address, his Lordship said : ' The question of inten- 
 tion is for your consideration. You will not distort the words, but give 
 them their application and meaning as they impress your minds. What 
 appears to me most material is the substantive paragraph itself (u) ; 
 and if you consider it as meant to represent that the reign of His Majesty 
 is the only thing interposed between the subjects of this country and 
 the possession of great blessings which are likely to be enjoyed in the reign 
 of his successor, and thus to render His Majesty's administration of his 
 government odious, it is a calumnious paragraph, and to be dealt with 
 as a libel. H on the contrary you do not see that it means distinctly, 
 according to your reasoning, to impute any purposed maladministration 
 to His Majesty, or those acting under him, but may be fairly construed 
 as an expression of regret that an erroneous view has been taken of public 
 affairs, I am not prepared to say that it is a libel. There have been errors 
 in the administration of the most enlightened men.' 
 
 Falsely publishing that King George III. was labouring under mental 
 derangement was held to be an offence on the ground that it tended to 
 unsettle and agitate the public mind, and to lower the respect due to 
 the King (v). 
 
 As to libel by defaming a deceased sovereign, see K. v. Hunt (w). 
 
 (m) This libel was published in a news- rent character, 
 paper ; and it had been allowed to the (v) R. v. Harvey, 2 B. & C. 257 ; 2 St. 
 
 defendant to have read in evidence an ex- Tr. (N. S.) 1. Malice will be imphed from 
 
 tract from the same paper connected with such wilful defaming without excuse, 
 the subject of the passage claimed as [iv) 2 St. Tr. (N. S.) 69, where the indict- 
 
 libeUous, although disjoined from it by ment was for the publication of Byron's 
 
 exiraneous matter, and printed in a diffe- ' Vision of Judgment ' ; see post, p. 1026.
 
 CHAP. I.] Of Publications against the Constitution. 313 
 
 C. Publications arjainst the Constitution. 
 
 By an Act of 1662 (13 Car. II. st. 1, c. 1), s. 3, the penalties of praemunire 
 are incurred by persons who maliciously and advisedly, by ^writing, 
 printing, preaching, or express words, declare that Parliament has legis- 
 lative authority without the King. And by an Act of 1707 (6 Anne, c. 41), 
 s. 2, a like penalty is incurred by persons who maliciously or advisedly 
 by preaching, teaching, or express words, maintain or affirm that any 
 person has title to the crown otherwise than in accordance with the 
 Act of Settlement. Prosecutions under these Acts are narrowly limited (x), 
 and are, in fact, never undertaken. 
 
 Apart from these Acts, under the law of sedition as now interpreted 
 there is perfect liberty to deride the constitution or to advocate its 
 alteration, provided that the advocacy is not calculated or intended to 
 produce civil commotion or insurrection (y). 
 
 The following rulings are here retained as giving a view of the law once 
 held, but now unlikely to be adopted (z). It appears to have been adjudged, 
 that though no indictment lay for saying that the laws of the realm 
 were not the laws of God, because true it is that they are not the 
 laws of God ; yet that it would be otherwise to say that the laws of the 
 realm are contrary to the laws of God (z). And a defendant was con- 
 victed on an information charging him with having published, concerning 
 the government of England and the traitors who adjudged King Charles 
 the First to death, that the government of the kingdom consists of three 
 estates, and that if a rebellion should happen in the kingdom, unless 
 that rebellion was against the three estates, it was no rebellion (a). In 
 another case a person was convicted for publishing a libel, in which it 
 was suggested that the revolution was an unjust and unconstitutional 
 proceeding, and that the limitation established by the Act of Settlement 
 was illegal, and that the revolution and settlement of the crown as by 
 law established had been attended with fatal and pernicious consequences 
 to the subjects of the kingdom {b). 
 
 D. Publications against Parliament. 
 
 Both Houses of Parliament have and exercise the power of treating 
 libels against them as breaches of their privileges, and vindicating them 
 in the nature of contempts : and more cases of such libels are to be met 
 with in their journals than in the proceedings of the Courts of law(c). 
 
 {x) 1,3 Car. II. st. 1, o. 1, .s. 1, prosecution upon hereditary right was held criminal, 
 to be within six months and by order of though it contained no reflection upon any 
 King or Privy Council (s. 4). G Anne, c. 41 part of the then government. K. v. Bed- 
 prosecution within three days ; two credible ford [1713], Gilb. 297 ; 2 8tr. 789 oit. 
 witnesses.) Sacheverell's case [1709], 15 St. (6) R. v. Nutt [1754], Dig. L. L. 126, and 
 Tr. 1. see Dr. Shebbeare's case, 3 T. K. 430n.; 
 
 (y) See R. v. Bums, ante, p. 302. But Holt on Libel, 88 ; and R. v. Paine [1792], 
 
 see the Criminal Libel Act, 1820, ante, p. 22 St. Tr. 358 ; Holt on Libel, 88, 89 ; 2 
 
 310. Starkie on Libel, 164. 
 
 (2) See Odgers, Libel (4th ed.), 488. (c) They are collected in Jlay, Pari. Pr. 
 
 (a) R. V. Harrison [1077], 3 Kcb. 841; (11th ed.), pp. 76 et seq. The extent to 
 
 Vent. 324 ; Dig. L. L. 66. Dr. Odgers, which these powers are possessed by colonial 
 
 I. c. 488, suggests that the case was decidetl legislatures is considered in Odgers on Libel 
 
 under 13 Car. II. st. l,c. 1, snpra. A treatise (4th ed.), 492.
 
 314 Of Offences against the Security of the State, [book hi. 
 
 But publications reflecting upon the members or proceedings of the 
 Houses of ParHament are also punishable by the ordinary Courts (d). 
 In R. V. Stockdale (e), 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 : ' I state it as a measure which they have taken, thinking it in 
 their wisdom, as every one must think it, to be the fittest to bring before 
 a jury of their country an offender against themselves, avoiding thereby, 
 what sometimes indeed is unavoidable, but which they wish to avoid 
 whenever it can be done with propriety, the acting 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 purposes of 
 vindicating themselves against insult 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/ 
 
 E. Publications against the Government. 
 
 The measures of the King and his advisers, and the proceedings and 
 policy of his government, may be criticised within due limits without 
 incurring the penalties of sedition. Every man has a right to give 
 every public matter a candid, full, and free discussion ; but although 
 the people have a right to discuss any grievances they have to complain 
 of, they must not do it in a way to excite tumult ; and if a party publish 
 a paper on any such matter, and it contain no more than a calm and 
 quiet discussion, allowing something for a little feeling in men's minds, 
 that will be no libel ; but if the paper go beyond that limit, and be calcu- 
 lated to excite tumult, it is a libel ( /'). This right extends to the press {g). 
 
 But the discussion of political measures cannot lawfully be made a 
 cloak for an attack upon private character. Libels on persons employed 
 in a public capacity may tend to scandalise the government by reflecting 
 on those who are entrusted with the administration of public affairs ; 
 for they not only endanger the public peace, as all other libels do, by 
 stirring up the parties immediately concerned to acts of revenge, but 
 also have a direct tendency to incline the people to faction and sedition (h). 
 And if a publication has a direct tendency to cause unlawful meetings 
 and disturbances, and to lead to a violation of the laws, it is a seditious 
 libel (i). 
 
 (d) In R. V. Rayner, 2 Barnard. (K.B.), might go on if the Lords and Commons 
 
 293, the defendant was convicted of printing were lopped off.' In all these cases the 
 
 a scandalous libel on the Lords and Com- jury acquitted the defendants, 
 
 mens. And see R. v. Owen [1752], 18 St. (e) 22 St. Tr. 238, 247. 
 
 Tr. 1203 ; MS. Dig. L. L. 67. In R. v. (/) R. v. Collins, 9 C. & P. 456 ; 3 St. Tr. 
 
 Stockdale [1788], 22 St. Tr. 238, an infor- (N. S.) 1149, Littledale, J. See the opinion 
 
 mation was filed by the Attorney-General expressed by the Attorney-General in R. v. 
 
 for a libel upon the House of Commons. Lambert & Perry [1793], 22 St. Tr. 953, 
 
 A prosecution was also instituted in R. v. 990, ante, p. 311. 
 
 Reeves [1796], in consequence of a reso- (17) R. v. Sullivan, 11 Cox, 50, 54, Fitz- 
 
 lution of the House of Commons, declaring gerald, J. 
 
 a pamphlet, published by the defendant, (h) 1 Hawk. c. 73, s. 7. Bac. Abr. tit. 
 
 to be a Ubel. In the pamphlet, which ' Libel ' (A) 2. R. v. Franklin, 17 St. Tr. 
 
 was called ' Thoughts on the English 626. 
 
 Government,' there was this passage (i) R. v. Lovett, 9 C. & P. 462, Little- 
 
 amongst others which the House deemed dale, J. 
 libellous — ' That the King's government
 
 CHAP. I.J 0/ Publications against the Government. 315 
 
 According to certain rulings, it is seditious to publish any matter 
 tending to possess the people with an ill opinion of the government. In 
 R. V. Tuchin (;'), Holt, C.J., said: 'This is a very strange doctrine to say 
 that it is not a libel reflecting on the government, endeavouring to possess 
 the people that the government is maladministered by corrupt persons 
 that are emj^loyed in such stations, either in the navy or army. To say 
 that corrupt officers are appointed to administer affairs is certainly a 
 reflection on the government. If men should not be called to account 
 for possessing the people with an ill opinion of the government, no govern- 
 ment can subsist ; nothing can be worse to any government than to 
 endeavour 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 decision, if taken literally, is inconsistent with liberty of political 
 opinion (k). And in R. v. Cobbett {!), 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, Ellenborough, C.J., in his address to the 
 jury, said: 'It is no new doctrine that if a publication be calculated to 
 alienate the affections of the people, by bringing the government into 
 disesteem, whether the expedient be by ridicule or obloquy, the person 
 so conducting himself is exposed to the inflictions of the law. It is a 
 crime ; it has ever been considered as a crime, whether wrapt in one 
 form or another. The case of R. 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 conten- 
 tions existed, the matter was not again brought before the judges of the 
 Court by any appHcation 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, there the line of interdiction begins, 
 and the offence becomes the subject of penal visitation/ 
 
 (/) [1704] 14 yt. Tr. 1095; cas. tan p. 114,115. And .sec 2 .Starkic on Libd, 193. 
 
 Holt, 424. where sec in the note other cases referred 
 
 (k) 8ec Odgers on Libel (4th ed.). 48(). to. 
 (0 [1804] 29 St. Tr. 1 ; Holt on Libel,
 
 ( 316a ) 
 
 CANADIAN NOTES. 
 
 OF SEDITION. 
 
 Definition. — Code sec. 132. 
 
 Seditious Intention. — Code sec. 133. 
 
 Punishment. — Code sec. 134. 
 
 Puhlishing False News. — Code sec. 136. 
 
 The publication of a placard stating that settlers from the United 
 States are not wanted in Canada is an injury to the public interest 
 and under sec. 136 of the Code the person wilfully and knowingly 
 publishing such false statement is properly convicted of spreading 
 false news. R. v. Hoaglin, 12 Can. Cr. Cas. 226.
 
 ( 317) 
 
 CHAPTER THE SECOND. 
 
 OP WRONGFULLY OBTAINING OR DISCLOSING PUBLIC SECRETS. 
 
 The Official Secrets Act, 1889 (a) (52 & 53 Vict. c. 52), deals with two 
 classes of offence: (1) what is called espionnage, in obtaining secret infor- 
 mation; (2) breach of official trust by persons in the service of the State. 
 The Act provides as follows : — - 
 
 Sect. 1. — ' (1) (a.) Where a person for the purpose of wrongfully 
 obtaining information — 
 
 (i.) enters or is in any part of a place belonging to His Majesty 
 the King, being a fortress, arsenal, factory, dockyard, camp, 
 ship, office, or other like place, in which part he is not entitled 
 to be ; or 
 (ii.) when lawfully or unlawfully in any such place as afore- 
 said, either obtains any document, sketch, plan, model, or 
 knowledge of anything which he is not entitled to obtain, or 
 takes without lawful authority any sketch or plan ; or 
 (iii.) when outside any fortress, arsenal, factory, dockyard, or 
 camp belonging to His Majesty the King, takes or attempts 
 to take without authority given by or on behalf of His Majesty, 
 any sketch or plan of that fortress, arsenal, factory, dockyard, 
 or camp ; or 
 (6.) where a person knowingly having possession of, or control 
 over any such document, sketch, plan, model, or knowledge 
 as has been obtained or taken by means of any act which con- 
 stitutes an offence against this Act at any time wilfully and 
 without lawful authority communicates or attempts to com- 
 municate the same to any person to whom the same ought not, 
 in the interest of the State, to be communicated at that time ; 
 or 
 (c.) where a person after having been entrusted in confidence by 
 some officer under His Majesty the King with any document, 
 sketch, plan, model, or information relating to any such place 
 as aforesaid, or to the naval or military affairs of His Majesty, 
 wilfully and in breach of such confidence communicates the 
 same when, in the interest of the State, it ought not to be 
 communicated ; 
 he shall be guilty of a misdemeanor, and on conviction be liable to 
 
 (a) This Act was passed in consequence Guernsey, 1 F. & F. 394 ; 337 Hansard 
 
 of the coniniunicalion to the Press by a Pari. Del). 321. A bill to extend the 
 
 Ciovernnient clerk of the secret clauses of application of the Act was introduced in 
 
 the Anglo-Russian agreement. See R. v. l'J08, but was not passed.
 
 318 Of Offences against the Security of the State, [book in. 
 
 imprisonment, with or without hard labour, for a term not exceeding one 
 year, or to a fine, or to both imprisonment and a fine. 
 
 ' (2) Where a person having possession of any document, sketch, 
 plan, model, or information relating to any fortress, arsenal, factory, 
 dockyard, camp, ship, office, or other like place belonging to His Majesty, 
 or to any naval or military affairs of His Majesty, in whatever manner 
 the same has been obtained or taken, at any time wilfully communicates 
 the same to any person to whom he knows the same ought not, in the 
 interest of the State, to be communicated at that time, he shall be guilty 
 of a misdemeanor, and be liable to the same punishment as if he com- 
 mitted an offence under the foregoing provisions of this section. 
 
 '(3) Where a person commits any act declared by this section to be 
 a misdemeanor, he shall, if he intended to communicate to a foreign 
 State any information, document, sketch, plan, model, or knowledge 
 obtained or taken by him, or entrusted to him as aforesaid, or if he 
 communicates the same to any agent of a foreign State, be guilty of 
 felony, and on conviction be liable at the discretion of the Court to 
 penal servitude for life, or for any term not less than five years (6), or 
 to imprisonment for any term not exceeding two years, with or without 
 hard labour.' 
 
 Breach of Official Trust.^By sect. 2, ' (1) Where a person by means 
 of his holding or having held an office under His Majesty the King, has 
 lawfully or unlawfully either obtained possession of or control over any 
 document, sketch, plan, or model, or acquired any information, and at any 
 time corruptly or contrary to his official duty communicates or attempts 
 to communicate that document, sketch, plan, model, or information to 
 any person to whom the same ought not, in the interests of the State, 
 otherwise in the public interest, to be communicated at that time, he 
 shall be guilty of a breach of official trust. 
 
 ' (2) A person guilty of a breach of official trust shall — ■ 
 
 (a.) if the communication was made or attempted to be made to 
 a foreign State, be guilty of felony, and on conviction be liable 
 at the discretion of the Court to penal servitude for life, or for 
 any term not less than five years (6), or to imprisonment for any 
 term not exceeding two years, with or without hard labour ; and 
 (6.) in any other case be guilty of a misdemeanor, and on con- 
 viction be liable to imprisonment, with or without hard labour, 
 for a term not exceeding one year, or to a fine, or to both 
 imprisonment and a fine. 
 '(3) This section shall apply to a person holding a contract with 
 any department of the government of the United Kingdom, or with 
 the holder of any office under His Majesty the King as such holder, 
 where such contract involves an obligation of secrecy, and to any per- 
 son employed by any person or body of persons holding such a con- 
 tract, who is under a like obligation of secrecy, as if the person holding 
 the contract and the person so employed were respectively holders of 
 an office under His Majesty the King.' 
 
 By sect. 3, ' Any person who incites or counsels, or attempts to 
 
 (6) Now not less than three years ; see 54 & 55 Vict. c. 69, s. 1, ante, p. 211. 
 
 %
 
 CHAP. II.] Of Disclosing Official Secrets. 319 
 
 procure, another person to commit an offence under this Act, shall be 
 guilty of a misdemeanor, and on conviction be liable to the same punish- 
 ment as if he had committed the offence ' {Vide ante, Chapter V,). 
 
 By sect. 4, ' The expenses of the prosecution of a misdemeanor under 
 this Act shall be defrayed in like manner as in the case of a felony ' (c). 
 
 By sect. 5, ' If by any law made before or after the passing of this 
 Act by the legislature of any British possession provisions are made 
 which appear to His Majesty the King to be of the like effect as those 
 contained in this Act, His Majesty may, by Order in Council, suspend 
 the operation within such British possession of this Act, or of any part 
 thereof, so long as such law continues in force there, and no longer, 
 and such order shall have effect as if it were enacted in this Act : 
 Provided that the suspension of this Act, or of any part thereof, in 
 any British possession shall not extend to the holder of an office under 
 His Majesty the King who is not appointed to that office by the Govern- 
 ment of that possession. 
 
 'The expression "British possession" means any part of His Majesty's 
 dominions not within the United Kingdom ' [d) . 
 
 By sect. 6, ' (1) This Act shall ajjply to all acts made offences by 
 this Act when committed in any part of His Majesty's dominions or 
 when committed by British officers or subjects elsewhere. 
 
 '(2) An offence under this Act, if alleged to have been committed 
 out of the United Kingdom, may be inquired of, heard, and determined, 
 in any competent British Court in the place where the offence was 
 committed, or in His Majesty's High Court of Justice in England or the 
 Central Criminal Court, and the Criminal Jurisdiction Act, 1802 (42 
 Geo. III. c. 85) (e), shall apply in like manner as if the offence were 
 mentioned in that Act, and the Central Criminal Court as well as the 
 High Court possessed the jurisdiction given by that Act to the Court of 
 King's Bench. 
 
 '(3) An offence under this Act shall not be tried by any Court of 
 general or quarter sessions, nor by the Sheriff Court in Scotland, nor 
 by any Court out of the United Kingdom which has not jurisdiction 
 to try crimes which involve the greatest punishment allowed by law ' (/). 
 
 By sect. 7, ' (1) A prosecution for an offence against this Act shall 
 not be instituted except by or with the consent of the Attorney-General. 
 
 ' (2) In this section the expression " Attorney-General " means the 
 Attorney or Solicitor General for England ; and as respects Scotland, 
 means the Lord Advocate ; and as respects Ireland, means the Attor- 
 ney or Solicitor General for Ireland ; and if the prosecution is instituted 
 in any Court out of the United Kingdom, means the person who in 
 that Court is Attorney-General, or exercises the like functions as the 
 Attorney-General in England.' 
 
 By sect. 8, ' In this Act, unless the context otherwise requires — ■ 
 
 'Any reference to a place belonging to His Majesty the King includes 
 a place belonging to any department of the Government of the United 
 
 (c) S. 4 is repealed as to England by (e) Vide -post, Bk. xiii. c. iv. 
 
 8 Edw. VII. 0. 15, s. 9, post, Bk. xii. c. v. { /') Subs. 4 excludes tlie application of 
 
 {d) Orders in Council were made in 1890 the Criminal Law and I'roeedure (Ireland) 
 
 as to Jersey and the Isle of Man. Act, 1887 (50 & 51 Vict. c. 20).
 
 320 Of Offences against the Security of the State. [Book iii. 
 
 Kingdom or of any of His Majesty's possessions, whether the place is or 
 is not actually vested in His Majesty ; 
 
 ' Expressions referring to communications include any communica- 
 tion, whether in whole or in part, and whether the document, sketch, 
 plan, model, or information itself or the substance or effect thereof 
 only be communicated ; 
 
 ' The expression " document " includes part of a document ; 
 
 ' The expression " model " includes design, pattern, and specimen ; 
 
 ' The expression " sketch " includes any photograph or other mode of 
 representation of any place or thing ; 
 
 ' The expression " office under His Majesty the King " includes any 
 office or employment in or under any department of the Government 
 of the United Kingdom, and so far as regards any document, sketch, 
 plan, model, or information relating to the naval or military affairs of 
 His Majesty, includes any office or employment in or under any de- 
 partment of the Government of any of His Majesty's possessions.' 
 
 By sect. 9, ' This Act shall not exempt any person from any pro- 
 ceeding for an offence which is punishable at common law, or by military 
 or naval law, or under any Act of Parliament other than this Act, so, 
 however, that no person be punished twice for the same offence ' (gr). 
 
 The Census Act, 1900 (63 & 64 Vict. c. 4), and the Census (Inland) 
 Act, 1900 (63 & 64 Vict. c. 6), each contain the following clause (A) — 
 ' If any person employed in taking the census communicates 
 without lawfuJ authority any information acquired in the course 
 of his employment, he shall be guilty of a breach of official trust 
 within the meaning of the Official Secrets Act, 1889 (?'), and that 
 Act shall apply accordingly.' 
 
 There are few recorded instances of prosecution under the Act of 
 1889 [j). 
 
 (g) Cf. Interpretation Act, 1889, s. 33, (/) See R. v. Stuart, 63 J.P. 712, an 
 
 ante, p. 4. indictment for inciting to disclose official 
 
 (h) c. 4, s. 11 (3) : c. 5, s. 7 (3). secrets, 
 (i) In s. 2, ante, p. 318.
 
 ( 320a ) 
 
 CANADIAN NOTES. 
 
 Wrongfully Obtaining or Publishing Public Secrets. — Code sec. 85. 
 Breach of Official Trust — Code see. 86. 
 Prosecution. — Code sec. 592.
 
 (321 ) 
 
 CHAPTER THE THIRD. 
 
 OF SEDUCING SOLDIERS AND SAILORS TO MUTINY. 
 
 The Incitement to Mutiny Act, 1797 (37 Geo. III. c. 70), was passed in 
 consequence of the attempts of evil-disposed persons, by the publication 
 of written or printed papers, and by malicious and advised speaking, 
 to seduce soldiers and sailors from their duty and allegiance to the Crown. 
 It enacts (sect. 1) that ' any person 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 commit 
 any traitorous or mutinous practice whatsoever, shall, on being legally 
 convicted of such offence, be adjudged guilty of felony . . .' (a). By sect. 3, 
 ' any person who shall be tried and acquitted or convicted of any offence 
 against this Act shall not be liable to be indicted, prosecuted or tried 
 again for the same offence or fact as high treason or misprision of high 
 treason; and that nothing in this Act contained shall be construed to extend 
 to prevent any persons guilty of any offence against the Act, and who 
 shall not be tried for the same as an offence against this Act from being 
 tried for the same as high treason, or misj)rision of high treason, in such 
 manner as if this Act had not been made ' (6). By sect. 2, ' any offence 
 committed against this Act, whether committed on the high seas or within 
 that part of Great Britain called England, shall, and may, be prosecuted 
 and tried before any Court of Oyer and Terminer, or Gaol Delivery, for 
 any county in that part of Great Britain called England (c), in such 
 manner and form as if the said offence had been therein committed ' (d). 
 
 The Punishment of Offences Act, 1837 (7 Will. IV. & 1 Vict. c. 91), s. I, 
 after reciting the above Act, provides that ' if any person shall ' (after 
 the 1st of October, 1837) ' be convicted of any of the offences herein- 
 before mentioned, such person shall not suffer death, or have sentence 
 of death awarded against him or her for the same, but shall be 
 liable ... to be transj)orted (e) beyond the seas for the term of the 
 natural life of such person. . . . Mutiny appears to mean ' collective 
 insubordination ' (./'). 
 
 A sailor in a sick hospital, where he had been for thirty days, and 
 
 (a) For present punishment, vide infra. Vict. c. (59, s. 1, nntc, pp. 211, 212). Other 
 
 (b) Vide ante, p. 4. provisions of 7 Will. IV. and 1 Vict. c. 91,as 
 
 (c) The Act does not apply to Ireland. to minimum term of transportation, and a,s 
 
 (d) Vide ante, p. 31. to imprisonment, hard labour and solitary 
 
 (e) Now penal servitude for life or not confinement, are superseded and repealed, 
 less than three years, or imprisonment witli (/') See Manual of Military Law (ed. 
 or without hard labour for not more than 1903), p. 20. 
 
 two years (20 & 21 Vict. c. 3, s. 2 ; 54 & 55 
 
 VOL. I. Y
 
 322 Of Offences against the Security of the State, [book iu. 
 
 who therefore was not entitled to pay, nor liable for what he then did to 
 answer before a court-martial, is nevertheless a person serving in His 
 Majesty's forces by sea within this statute, so as to make the seducing him 
 an offence within its provisions (g). 
 
 An indictment upon this statute need not set out tJie mea^is used for 
 seducing the soldier from his duty and allegiance ; and it need not aver 
 that the prisoner knew the person endeavoured to be seduced to he 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 (h). 
 
 The Act of 1797 mainly concerns civilians. Mutiny, &c., by persons 
 in the army or navv is punished under other Acts. 
 
 By the Naval DiscipHne Act, 1866 (29 & 30 Vict. c. 109), it is made a 
 capital ofEence (i.) for j)ersons subject to the Act to join in mutiny with 
 violence, or treacherously to fail to do his best to suppress such mutiny 
 (sect. 10) or to be ringleader in mutiny (sect. 11) without violence ; (ii.) 
 for any person on board a King's ship whether otherwise subject to 
 the Act or not, to endeavour to seduce from his allegiance to His 
 Majesty any person subject to the Act (sects, 12-13) ; (iii.) for any person, 
 subject to the Act, to endeavour to incite any other person, subject 
 to the Act, to commit any act of mutiny (sect. 12). 
 
 The punishment of penal servitude may be awarded — 
 
 (1) For failing from cowardice to use utmost effects to suppress 
 
 mutiny with violence (sect. 10). 
 
 (2) To join in any mutiny without violence, or to fail to do their 
 
 utmost to support it (sect. 11). 
 
 (3) To make, or endeavour to make, a mutinous assembly (sect. 14). 
 
 (4) Wilfully to conceal any traitorous or mutinous practice (sect. 15). 
 By sect. 7 of the Army Act (i), persons subject to military law (j), 
 
 who cause, or conspire to cause, mutiny in any forces belonging to the 
 regular, reserve, or auxiliary forces, or navy, are liable on conviction by 
 court-martial to suffer death {k). 
 
 (q) R. V. Tierney [1804], R. & R. 74. (ed. 1903). 
 
 [h) R. V. Fuller, 2 Leach, 790 ; 1 East, {k) Sect. 153. Persons inducing soldiers 
 
 P. C. 92 ; 1 B. & P. 180. to desert are Liable to summary conviction. 
 
 {i) 44 & 45 Vict. c. 58, continued See also 45 & 46 Vict. c. 49, s. 25 (militia) ; 
 
 annually by the Army Annual Act. 45 & 46 Vict. c. 48, s. 17 (reserve forces) ; 
 
 (y) See Official Manual of Mihtary Law 7 Edw. VII. c. 9, s. 28 (territorial forces).
 
 ( 322a ) 
 
 CANADIAN NOTES. 
 
 Of Seducing Soldiers and Sailors to Mutiny. — Code sec. 81. 
 
 Indictment. — Overt acts must be stated. Code sec. 847. The 
 Court may not amend so as to add to the overt acts stated. Code sec. 
 847(2). 
 
 Evidence. — None shall be admitted of overt acts not stated in the 
 indictment. Code sec. 847.
 
 ( 323 ) 
 
 CHAPTER THE FOURTH. 
 
 OF AIDING THE ESCAPE OF PKISONERS OF WAR (a). 
 
 The Prisoners of War Escape Act, 1812 (52 Geo. III. c. 156), enacts, 
 sect. 1, that ' every person who shall (after 29 July, 1812) knowingly and 
 wilfully aid or assist any alien enemy of His Majesty, being a prisoner of 
 war in His Majesty's dominions, whether such prisoner shall be confined 
 as a prisoner of war in any prison or other place of confinement, or shall be 
 suffered to be at large in His Majesty's dominions or any part thereof on 
 his parole, to escape from such prison or other place of confinement, or 
 from His Majesty's dominions, if at large upon parole, shall upon being 
 convicted thereof be adjudged guilty of felony, and be liable to be trans- 
 ported as a felon for life, or for such term of fourteen or seven years as 
 the Court before whom such person shall be convicted shall adjudge ' (6). 
 
 Sect. 2. ' Provided always that . . . every person who shall knowingly 
 and wilfully aid or assist any such prisoner at large on parole in quitting 
 any part of His Majesty's dominions where he may be on his parole, 
 although he shall not aid or assist such person in quitting the coast 
 of any part of His Majesty's dominions, shall be deemed guilty of aiding 
 the escape of such person under the provisions of this Act.' 
 
 Sect. 3. ' If any person or persons owing allegiance to His Majesty, 
 after any such prisoner as aforesaid hath quitted the coast of any part 
 of His Majesty's dominions in such his escape as aforesaid, shall know- 
 ingly and wilfully upon the high seas aid or assist such prisoner in his 
 escape to or towards any other dominions or place, such person shall 
 also be adjudged guilty of felony, and be liable to be transported as afore- 
 said ; ' and such offences committed upon the high seas, and not within 
 the body of any county, may be tried in any county within the realm, (c). 
 Before this Act, upon an indictment for misdemeanor in unlawfully aiding 
 and assisting a prisoner at war to escape, where it appeared that such 
 prisoner was acting in concert with those under whose charge he was 
 placed, in order to effect the detection of the defendant, who was supposed 
 to have been instrumental in the escapes of other prisoners, and the 
 prisoner in question neither escaped nor intended to escape : it was held 
 that the offence was not complete, and that a conviction for such offence 
 was therefore wrong (d). 
 
 (a) ThLs subject was in the last edition might have been if the Act had not been 
 classified with offences against justice. passed ; but no person prosecuted other- 
 
 (b) Now penal servitude for life or for wise than under the provisions of the Act 
 not less than three years, or imprisonment is to be liable to be prosecuted for the same 
 with or without hard labour for not over offence under the Act ; and no person 
 two years (vide ante, pp. 211, 212). As to prosecuted under the Act is, for the same 
 punishment of accessories, vide ante, p. 1 30. offence, to be otherwise prosecuted : vide 
 
 (c) By s. 4, the Act is not to prevent ante, p. 4. 
 
 offenders from being prosecuted, as they {d) R. v. Martin [1811], R. & R. 19G. 
 
 y2
 
 ( 324a ) 
 
 CANADIAN NOTES. 
 Of Aiding Escape of Prisoners of War. — Code sec. 186.
 
 ( 325 ) 
 
 CHAPTER THE FIFTH. 
 
 OF UNLAWFUL OATHS, COMBINATIONS, AND CONFEDERACIES. 
 
 Sect. I. — Of Voluntary Oaths. 
 
 This section would perhaps be more properly associated with official 
 misconduct, but is here included as being of use for comparison with 
 the subsequent sections relating to ' unlawful oaths.' 
 
 Voluntary Oaths. — Coke says (3 Inst. 165) : ' oaths that have no 
 warrant by law are rather yiova tormenta guam sacramenta : and it is a 
 high contempt to minister an oath without warrant of law, to be punished 
 by fine and imprisonment.' In Bramat v. Fire Insurance Co. (a), 
 Kenyon, C.J,, said : ' he did not know but that a magistrate subjects 
 himself to a criminal information by taking a voluntary extra-judicial 
 affidavit,' In R. v. Eadon (6), in speaking of the Unlawful Oaths Act, 
 1797, Le Blanc, J., said: 'That which always was before a crime or 
 misdemeanor, the administering even an idle oath by a person not 
 having authority to administer an oath, was by that Act made more 
 penal.' 
 
 The Statutory Declarations Act, 1835 (5 & 6 Will. IV c. 62), s. 13, after 
 reciting that ' a practice has prevailed of administering and receiving 
 oaths and affidavits voluntarily taken and made in matters not the 
 subject of any judicial inquiry, nor in anywise pending or at issue before 
 the justice of the peace, or other person by whom such oaths of affidavits 
 have been administered or received,' and that ' doubts have arisen 
 whether or not such proceeding is illegal, for the more effectual suppression 
 of such practice and removing such douljts,' enacts, ' that from and after 
 the commencement of this Act, it shall not be lawful for any justice of 
 the peace or other person to administer, or cause or allow to be adminis- 
 tered, or to receive or cause or allow to be received, any oath, affidavit, 
 or solenni affirmation touching any matter or thing whereof such justice 
 or other person hath not jurisdiction or cognizance by some statute in 
 force at the time being : provided always, that nothing herein contained 
 shall be construed to extend to any oath, affidavit, or solemn affirmation 
 before any justice in any matter or thing touching the preservation of 
 the peace, or the prosecution, trial, or punishment of offences, or touch- 
 ing any proceedings before either of the Houses of Parliament, or any 
 committee thereof respectively, nor to any oath, affidavit, or affirmation 
 
 (a) [1800] K.B. Burn's Justice, by Clu't- VM, and R. v. Edgar, 33 St. Tr. 15 In. 
 wynd, vol. iii. 529. And see 4 Bl. Com. (h) [1813] 31 St. Tr. 1009.
 
 326 Of Offences against the Security of the State, [book iil. 
 
 which may be required by the laws of any foreign country to give validity 
 to instruments in writing designed to be used in such foreign countries 
 respectively ' (c). 
 
 The first count of an indictment upon the above enactment charged 
 that the defendant, being a justice of the peace, did unlawfully administer 
 to and receive from J. H. a certain voluntary oath touching certain 
 matters and things whereof the defendant had not jurisdiction or cognis- 
 ance by any statute. The second and third counts slightly varied, and 
 the fourth count negatived the proviso in sect. 13. There were other 
 counts charging the defendant with administering oaths to two other 
 persons. The defendant had made a complaint to the bishop against 
 two clergymen. The defendant obtained statements from the three 
 persons mentioned in the indictment, and swore them before himself, 
 as a justice of the peace, to the truth of the statements. It appeared 
 that the defendant was ignorant of the statute rendering the adminis- 
 tering voluntary oaths illegal. It was contended that the enacting part of 
 the statute must be construed with reference to the preamble. Coleridge, 
 J., in summing up, said, he was of opinion that the enacting part 
 of the statute was not governed by the preamble ; that he considered 
 the enacting part of the section and the proviso preserved to justices 
 of the peace all the jurisdiction they had, as weU at the common law as 
 by statute, to administer oaths ; and that the inquiry before the bishop 
 was clearly a matter in respect of which the defendant had no juris- 
 diction, either at common law or by statute. He directed the jury, 
 that, if they were satisfied the defendant did admmister the oaths, they 
 should find him guilty. The jury found the defendant ' guilty of inadver- 
 tently administering an oath or oaths ' ; and Coleridge, J., held that that 
 was a verdict of guilty {d). But the judgment was afterwards arrested 
 by the Court of Queen's Bench upon the ground that the indictment was 
 bad since it did not in any count shew what the nature of the oath was. 
 There ought to have been a distinct allegation of the subject-matter of 
 the oath, shewing affirmatively that it was out of the jurisdiction of the 
 magistrate. The question was matter of law for the Court, and though, 
 in the opinion of the majority of the Court, it was not necessary to set 
 out the whole of the oath (e), still the facts should have been so stated 
 as to enable the Court to form its opinion upon the question whether 
 the oath was within the jurisdiction of the magistrate or not. 
 
 The indictment in this case could be justified as being for a wilful 
 
 (c) As to when a justice may administer terms create an offence, all persons are 
 an oath outside the county, &c., for which bound to know it. But if a statute enacts 
 he is commissioned, see Paley (8th ed.), somethmg, without in terms making it an 
 18-24. A distinction seems to be drawn offence, and you would convict a person of 
 between voluntary or ministerial and co- misdemeanor in having disobeyed such an 
 ercive or judicial proceedings. 2 Hawk. enactment, are you not bound to shew that 
 c. 47 ; 2 Hale, 51. Helier v. Hundred of the disobedience was wilful, and m the 
 Benhorse, Cro. Car. 211 ; W. Jones, 239. nature of a contempt ? ' But no opinion 
 And see R. v. All Saints, Southampton, was pronounced on this point. 
 
 7 B. & C. 788. Bosanquet v. Woodford, (e) The Acts of 1797 and 1812 contain 
 
 5 Q.B. 310. express provisions on this point (see post, 
 
 (d) R. V. Nott, 4 Q.B. 7C8. It was p. 330). It would therefore be prudent to 
 argued that the defendant on the finding set out the whole oath, if practicable, in 
 of the jury had been guilty of no offence. some counts. 
 
 Denman, C.J., said : ' If the statute in
 
 CHAP, v.] Administering mid Taking Unlawful Oaths. 327 
 
 disobedience of the command of a statute as a matter of public 
 concern (/). 
 
 Sect. II. — Oaths to Commit Treason, Felony, &c. 
 
 The Unlawful Oaths Act, 1797 (37 Geo. III. c. 123), recites that 
 ' wicked and evil disposed persons have of late attempted to seduce 
 persons serving in His Majesty's forces by sea and land and others of His 
 Majesty's subjects from their duty and allegiance to His Majesty, and to 
 incite them to acts of mutiny (^) and sedition, and have endeavoured to 
 give effect to their wicked and traitorous proceedings by imposing upon 
 the persons whom they have attempted to seduce the pretended obligation 
 of oaths unlawfully administered ' {h). From tliis preamble it appears 
 as if the statute were mainly directed against combinations for purposes 
 of mutiny {h) and sedition : but in the enacting part, after dealing with 
 offences of that description, it goes on in much more extensive terms, and 
 embraces other more general objects. Sect. 1 enacts, ' that any person 
 or persons who shall in any manner or form whatsoever administer or 
 cause to be administered, or be aiding or assisting at, or present at and 
 consenting to, the administering or taking of any oath or engagement, 
 purporting or intended to bind 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 authority by law for that purpose, or not to inform 
 or give evidence against any associate, confederate or other person, 
 or not to reveal or discover any unlawful combination or confederacy, or 
 not to reveal or discover any illegal act done or to be done, or not to 
 reveal or discover any illegal oath or engagement which may have been 
 administered 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 conviction thereof by due course of law be adjudged 
 guilty of felony, and may be transported for any term of years not 
 exceeding seven (i) years ; and every person who shall take any such oath 
 or engagement, not being compelled thereto, shall on conviction thereof 
 by due course of law be adjudged guilty of felony, and may be transported 
 for any term of years not exceeding seven {i) years.' 
 
 The question was raised whether this Act applied to the unlawful 
 administering of an oath by an associated body of men to a person, 
 purporting to bind him not to reveal or discover an unlawful combination 
 or conspiracy of persons, nor any illegal act done by them (/), the object 
 of the association being a conspiracy to raise wages and make regulations 
 in a certain trade, and not to stir up mutiny or sedition. It was contended 
 
 (/) R. V. Pricp, 11 A. & E. 727, 738, imprisonment with or without hard labour 
 
 Denman, C.J., vide ante, p. 12. for not more than two years (54 & 55 Vict. 
 
 {g) Vide 37 Geo. III. c. 70, ante, p. 321. c. 69, s. 1, ante, pp. 211, 212). 
 
 (h) The recitals in the preamble refer to (j) The oath was, ' You shall be true to 
 
 the mutmies at Spithead and the Norc in every journeyman shearman, and not to 
 
 1797. See Annual Register, 1797, p. 209. hurt any of them, and you shall not divulge 
 
 (ii) Now penal servitude for not more any of their secrets ; so help you God.' 
 than seven nor less than three vcars or
 
 328 Of Offences against the Security/ of the State, [book hi. 
 
 that the words of the statute, however large in themselves, must be 
 confined to the object 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 within the statute (k). 
 
 Sixteen persons, with their faces blackened, met at a house at night, 
 having guns with them, and intending to go out for the purpose of night 
 poaching, and were all sworn not to betray their companions. It was 
 objected that this oath was not within the statute, as it was not for a 
 mutinous or seditious object, and that the statute only prohibited those 
 oaths of secrecy which related to some illegal act, and that the word 
 ' illegal ' imported a criminal act, and not a mere civil trespass, whereas 
 it was a mere civil trespass which was contemplated at the time when 
 the oath was administered. It was held that the oath was within the 
 statute ; and as to the assembly itself, and its object, it was impossible 
 that a meeting to go out with faces thus disguised, at night, and under 
 such circumstances, could be other than an unlawful assembly : in which 
 case, the oath to keep it secret was an oath prohibited by the statute (/). 
 An oath administered to the members of a trades' union, binding 
 them not to make buttons for less than the lodge prices, and not to 
 divulge the secrets of the lodge, was held to be an oath within the statute ; 
 because to administer an oath or engagement not to reveal the secrets 
 of any association is within the Act of 1797, as explained by subsequent 
 statutes, not because it had reference to any matter respecting wages, 
 but on the ground that every association of that kind, bound together 
 by an oath, not to disclose the proceedings of that society, was for that 
 reason an unlawful combination within the statutes (m). 
 
 An oath not to reveal what they saw or heard administered by members 
 of an association, formed for the purpose of raising wages by a general 
 strike on the part of its members, and for other purposes in furtherance 
 of that design, was held to be within the Act of 1797 (n). 
 
 In R. V. Eadon (o), the prisoner was indicted under the Act of 1797 
 for administering to R. H. an oath taken by R. H. and intended to bind 
 him to be of an association, society, and confederacy formed to disturb 
 the public peace. The second count stated the oath to be intended 
 to bind R. H. not to give evidence against any associate or confederate 
 in such association. In other counts the word ' engagement ' was 
 
 {k) R. i>. Marks, 3 East, 157. Lawrence, the law.' 
 
 J., said: ' It is true that the preamble and {I) R. v. Brodribb, G C. & P. 571, Hol- 
 
 the first part of the enacting clause are royd, J. 
 
 confined in their objects to cases of mutiny (m) R. v. Ball, G C. & P. 5G3, WiUiams, J. 
 
 and sedition ; but it is nothing unusual in (n) R. zk Lovelass, 1 M. & Rob. 349, 
 
 Acts of Parliament for the enacting part to Williams, J. See R. i\ Dixon, G C. & P. 
 
 go beyond the preamble ; the remedy often GOl, Bosanquet, J. 
 
 extends beyond the particular act or mis- (o) [1813] 31 8t. Tr. 10G4. 
 chief which first suggests the necessity of
 
 CHAP, v.] Administering and Taking Unlawful Oaths. 329 
 
 substituted for ' oath/ The oath or engagement in question related to 
 the Luddites, an organisation arising out of disputes in the stocking and 
 lace trades, which broke the new machinery then coming into use in the 
 stocking, lace, cotton, and woollen manufactures, and committed other 
 acts of violence and destruction. 
 
 The evidence {])) proved the administering and taking of the oath, and 
 the only question was whether R. H. took it in joke or in earnest. Le 
 Blanc, J., ruled that if it was proved that the prisoner administered 
 the oath without any mental reservation, and with the intention that it 
 should be obligatory, the prisoner would be guilty, even if R. H. had 
 merely taken the oath for the purpose of deluding the prisoner, and 
 without meaning to bind his conscience (</). 
 
 The Unlawful Oaths Act, 1812 (52 Geo. III. c. 104), passed to render 
 the Act of 1797 more el^^ectual in respect to oaths of a particular nature, 
 enacts (sect. l),that 'every person, who shall in any manner or form what- 
 soever administer or cause to be administered, or be aiding or assisting 
 at the administering of any oath or engagement, purporting or intend- 
 ing to bind the person taking the same to commit any treason (r) or 
 murder, or any felony punishable by law with death, shall on convic- 
 tion thereof by due course of law, be adjudged guilty of felony . . . (s), 
 and every person who shall take any such oath or engagement, not 
 being compelled thereto, shall, on conviction thereof by due course of 
 law, be adjudged guilty of felony, and shall be transported as a felon for 
 the term of his natural life (t), or for such term of years as the Court before 
 which the said offender or offenders shall be tried shall adjudge.' 
 
 Persons taking the oaths mentioned in either of these Acts by com- 
 pulsion must make a full disclosure of the fact, and the circumstances 
 attending it, within a limited time, in order to be justified or excused. 
 The Act of 1797 (sect. 2) enacts, that ' compulsion shall not justify or 
 excuse any person taking such oath or engagement, unless he or she shall, 
 within four days after the taking thereof, if not prevented by actual 
 force or sickness, and then within four days after the hindrance produced 
 by such force or sickness shall cease, declare the same, together with the 
 whole of what he or she shall 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 information on oath 
 before one of His Majesty's justices of the peace or one of His Majesty's 
 principal secretaries of state or His Majesty's 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 Act of 1812 
 
 (p) Ibid. pp. 1068, 1073. 1837 by 7 Will. IV. & 1 Vict. c. 91, s. 1. 
 
 (q) See also R. v. Baiiies [1813], 31 St. The punishment is now penal servitude for 
 
 Tr. 1074. life, or for not less than three years, or im- 
 
 {r) See R. v. Edgar [1817], 33 St. Tr. 145. prisonment, with or without "hard labour, 
 
 R. V. M'Kinley [1817J. 33 St. Tr. 275 ; for for not more than two years (7 Will. IV. 
 
 trials in Scotland under this Act for ad- & 1 Vict. c. 91, s. 2 ; 54 & 55 Vict. c. 69, 
 
 ministering oaths to commit treason. Tlie s. 1 (1). (2), ante, pp. 211, 212). 
 
 oaths were in aid of a combination for adult {t) Now penal servitude for not more 
 
 male suffrage and annual Parliaments. than seven nor less than three years, or 
 
 (s) The punishment of death originally imprisonment (54 & 55 Vict. c. G9, s. 1 (1). 
 
 imposed for this offence was abolished in (2), ante, pp. 211, 212).
 
 330 Of Offences against the Security of the State, [book hi. 
 
 (sect, 2) contains a similar enactment as to oaths or engagements within 
 that Act, except that the words ' fourteen days ' are substituted for 
 ' four days.' 
 
 By sect. 5 of the Act of 1797, ' any engagement or obligation whatso- 
 ever in the nature of an oath,' and by sect. 6 of the Act of 1812, 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 meaning of ' those Acts, ' in whatever 
 form or manner the same shall be administered or taken : and whether 
 the same shall be actually 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.' 
 
 If the oath administered was intended to make the party believe 
 himself under an engagement, it is equally within the Acts, whether 
 the book made use of be a testament or not {u). So the precise form 
 of the oath is immaterial ; it is an oath within the meaning of the Acts, 
 if it was understood by the party tendering, and by the party taking 
 it, as having the force and obligation of an oath {v). 
 
 Accessories, Aiders and Abettors. — The Act of 1797 enacts (sect. 3), 
 that persons aiding and assisting at, or present and consenting to, the 
 administering or taking of any oath or engagement before mentioned in 
 that Act ; and persons causing any such oath or engagement to be ad- 
 ministered or taken, though not present at the administering or taking 
 thereof, shall be deemed principal offenders, and tried as such; although the 
 person or persons who actually administered such oath or engagement, 
 if any such there shall be, shall not have been tried or convicted. By the 
 Act of 1812 (sect. 4), 'persons aiding and assisting at the administration of 
 any such oath or engagement as aforesaid, and persons causing any such 
 oath or engagement to be administered, though not present at the ad- 
 ministering thereof, shall be deemed principal offenders, and on convic- 
 tion thereof by due course of law shall be adjudged guilty of felony . . . (w) 
 although the persons or person who actually administered such oath or 
 engagement, if any such there shall be, shall not have been tried or 
 convicted ' (x). 
 
 Both statutes provide that it shall not be necessary to set forth in the 
 indictment ' the words of the oath or engagement ; ' and that ' it shall 
 be sufficient to set forth the purport of such oath or engagement, or 
 some material part thereof ' (y). In an indictment on the Act of 1797, 
 the fourth count charged that the defendants administered to J. H. 
 an oath ' intended to bind him not to inform or give evidence against 
 any member of a certain society formed to disturb the public j)eace for 
 any act or expression of his or theirs done or made collectively or indivi- 
 dually, in or out of that or other similar societies, in pursuance of the 
 
 (m) R. v. Brodiibb, 6 C. & P. 571, Hoi- IV. & 1 Vict. c. 91, s. 1. See note (s), 
 
 royd, J., where an account book, called aide, p. 329. 
 
 The Young Man's Best Companion, was (x) As to accessories, vide ante, pp. 104 
 
 used. et seq. 
 
 (v) R. V. Lovelass, 1 M. & Rob. 349, (y) 37 Geo. III. c. 123, s. 4 : 52 Geo. III. 
 
 Williams, J. c. 104, s. 5. 
 
 {w) Death penalty abolished by 7 Will.
 
 CHAP, v.] Administering and Taking Unlawful Oaths. 331 
 
 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 ad- 
 ministered, and the objects of the society, differently and more generally 
 adapted to several prohibitory parts of the statute. Upon objection 
 taken at the trial to the generality of the statements in the indictment, 
 Lord Alvanley was of opinion that the Act intended that it should be 
 sufficient to allege and prove what the object of the oath and engagement 
 was, without stating any words at all ; and that the offence being de- 
 scribed 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 fourth and eighth a material part of the 
 oath or engagement was set forth according to the terms of the Act. 
 The point was submitted to the judges, who, without giving any opinion 
 against the other counts, all agreed that the fourth and eighth counts 
 were good (2:). 
 
 If the indictment states the oath to have been not to inform or give 
 evidence against any person belonging to a confederacy of persons 
 associated together to do ' a certain illegal act,' it is sufficient without 
 going on to state what the illegal act was : for the offence is not the 
 illegal act, but the administration of the oath, which preceded it, and 
 all that the rules of pleading require is that the offence — that is the 
 oath itself — should be sufficiently described (a). Where an indictment 
 charged that the prisoner administered ' a certain oath ' to J. P. and 
 fifteen others, naming them, and it was proved that the sixteen were all 
 sworn in the same manner, on the same book, two or three at a time, at 
 the same meeting, it was held that this was sufficient, for it was the same 
 act of administering. Or it might be taken to be a complete transaction 
 with respect to each person sworn ; and the charge would be substantiated 
 by evidence of the prisoner having sworn any one of the party, in the 
 same way as a man may be convicted of larceny on proof of stealing one 
 out of several articles named in an indictment (6). 
 
 Where the witness, swearing to the words spoken by way of oath by 
 the prisoner when he administered it, said that he held a paper in his 
 hand at the time when he administered the oath, from which paper it 
 was supposed that he read the words ; it was held that parol evidence 
 of what he in fact said was sufficient, without giving him notice to pro- 
 duce such paper (c). And where the oath on the face of it did not purport 
 to be for a seditious purpose, though it was objected that no parol evi- 
 dence could be given to shew that the ' brotherhood ' mentioned in it was 
 of a seditious nature, it was held that declarations made at the time by 
 the party administering such oath were admissible to prove the real 
 object of it (rf). 
 
 Both Acts provide that oft'ences committed on the high seas, or out of 
 the realm, or in England, shall and may be prosecuted, tried, and deter- 
 mined before any Co.urt of Oyer and Terminer or Gaol Delivery for any 
 
 (2) R. V. Moors, 6 East, 419, note {b). (6) Ibid. 
 
 (a) R. V. Brodiibb, 6 C. & P. 571, Hoi- (c) R. v. Moors, G East, 421. 
 
 loytl. J- (d) Id. ibid.
 
 33^ Of Offences against the Security of the State, [book hi. 
 
 county in England in such manner and form as if such offence had been 
 therein committed (e). 
 
 Both Acts also provide that ' any person who shall be tried and 
 acquitted or convicted of any offence against' the Acts, '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 ' Acts ' contained 
 shall be construed to extend to prevent any jjerson guilty of any offence 
 against ' the Acts, ' and who shall not be tried for the same as an offence 
 against ' the Acts, ' from being tried for the same, as high treason, or 
 misjDrision of high treason, in such manner as if ' those Acts ' had not 
 been made ' (/). 
 
 Neither Act extends to Ireland ; but very similar provisions are made 
 by the Unlawful Oaths (Ireland) Acts of 1810 (50 Geo. III. c. 102, ss. 1-4) 
 and 1823 (4 Geo. IV. c. 87). 
 
 Sect. III. — Of Combinations against Public Tranquillity 
 AND the Government. 
 
 The offences included in this section are closely allied to treason and 
 sedition, but might also be described as conspiracies (jf), and the meetings 
 of the societies at which the statutes are aimed could be dealt with as 
 unlawful assemblies (g). 
 
 The Unlawful Societies Act, 1799 (39 Geo. III. c. 79) (h), after 
 reciting that a traitorous conspiracy had long been carried on in 
 conjunction with the persons from time to time exercising the power 
 of government in France to overturn the laws, constitution, and 
 government, and every existing establishment, civil and ecclesiastical, 
 both in Great Britain and Ireland, and to dissolve the conjunction 
 of the two kingdoms, and that in pursuance of such design divers 
 societies had been instituted in this kingdom and in Ireland, of a new 
 and dangerous nature, inconsistent with public tranquillity and with 
 the existence of regular government, particularly certain societies calling 
 themselves ' Societies of United Englishmen, United Scotsfnen, United 
 Britons, United Irishmen, and The London Corresponding Society,^ and 
 that the members of many such societies had taken unlawful oaths and 
 engagements of fidelity and secrecy, &c., and that it was expedient 
 and necessary that all such societies, 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 government thereof, as by law 
 
 (e) 37 Geo. III. c. 123, s. G ; 52 Geo. III. to 39 as relates to the above-mentioned sec- 
 
 c. 104, s. 7. tions. But ss. 28, 29, 31, 34, 35 and 36 are 
 
 ( /■) 37 Geo. III. c. 123, s. 7 ; 52 Geo. III. re-enacted in the second schedule of 32 & 
 
 c. 104, s. 8. 33 Vict. c. 42. By 9 & 10 Vict. c. 33, s. 1, 
 
 Iff) Vide ante, pp. 146, et seq. also re-enacted in that schedule, ' No per- 
 
 (g) See R. v. Ball, 6 C. & P. 563. R. v. son shall be prosecuted or sued for any 
 
 Dixon, 6 C. & P. 601. Cf. R. v. O'Connell, penalty imposed by the Act of 1799 unless 
 
 2 St. Tr. (N. S.) 629. such prosecution shall be commenced or 
 
 (h) Sec. 4, s. 11, from 'save' to the such action shaU be brought within three 
 
 end of that section, and ss. 12 & 39 of this calendar months next after such penalty 
 
 Act were repealed in 1871 (34 & 35 Vict. shall have been incurred.' As to tlie re- 
 
 c. 116). The Act of 1799 was rejDealed in covery and application of these penalties 
 
 part in 1869 (32 & 33 Vict. c. 24), viz., ss. 15 see the above schedule, 
 to 33, both inclusive, and so much of ss. 34
 
 CHAP, v.] Unlawful Confederacies. 333 
 
 established, enacts (sect. 1), ' That all the said societies of United Ewjlish- 
 men, United Scotsmen, United Irishnen, and United Britons, and the said 
 society commonly called the London Corresponding Society, and all other 
 societies called Corresponding Societies, of any other city, town, or place, 
 shall be, and the sam.e are hereby utterly suppressed and prohibited, as 
 being unlawful combinations and confederacies against the government 
 of our sovereign lord the King, and against the peace and security of His 
 Majesty's liege subjects/ 
 
 Sect. 2. ' . . . All and every the said societies, and also every other 
 society now established or hereafter to be established, the members 
 whereof shall, according to the rules thereof or to any provision or 
 agreement for that purpose, be required or admitted to take any oath or 
 engagement which shall be an unlawfid oath or engagement within 
 the intent or meaning of the Unlawful Oaths Act, 1797 (i), or to take 
 any oath not required nor authorised by law ; and every society 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 con- 
 sequence of being members of such society ; and every society the 
 members whereof shall take, subscribe or assent to any test or declara- 
 tion not required by law, or not authorised in manner hereinafter men- 
 tioned ; and every society of which the names of the members or any of 
 them shall be kept secret from the society at large, or which shall have 
 any 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, treasurer, secretary, delegate or other officer, so chosen or 
 appointed that the election or appointment of such persons to such offices 
 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, treasurers, secretaries, delegates and other officers, shall not 
 be entered in a book or books to be kept for that purpose, and to be open 
 to the inspection of all the members of such society ; and every society 
 which shall be composed of different divisions or branches, or of different 
 parts acting in any manner separately or distinct from each other, or 
 of which any part shall have any separate or distinct president, secre- 
 tary, treasurer, delegate or other officer, elected or appointed by or for 
 such part, or to act as an officer for such part, shall be deemed and taken 
 to be unlawful comhinations and confederacies (j) : every person who . . . 
 shall directly or indirectly maintain correspondence or intercourse with 
 any such society, or with any division, branch, committee, or other select 
 body, president, treasurer, secretary, delegate or other officer, or member 
 thereof as such, or who shall, by contribution of money or otherwise, aid, 
 abet or support such society, or any members or officers thereof as such, 
 shall be deemed guilty of an unlawful combination and confederacy.' 
 
 By sect. 13, ' ... If any person shall knowingly permit any meeting of 
 any society hereby declared to be an unlawful combination or confederacy, 
 
 (i) 37 Geo. III. c. 123, ante, p. 327. purposes of a religious or charitable nature 
 
 (j) By s. 27 of the Act of 1817, this enact- only, and in which no other matter shall be 
 
 ment is not to extend to meetings of discussed. 
 
 Quakers, or to any meeting or society for
 
 334 
 
 Of Offences against the Security of the State, [book hi. 
 
 or of any division, branch or committee of such society, to be held in his 
 or her house or apartment, such person shall, for the first offence forfeit 
 the sum of £5, and shall, for any offence committed after the date of his 
 or her conviction for such first offence, be deemed guilty of an unlawful 
 combination or confederacy in breach of this Act.' 
 
 By sect. 8, ' Every person who . . , after the passing of this Act (July 
 12, 1799) shall, in breach of the provisions thereof, be guilty of any such 
 unlawful confederacy as in this Act is described, shall and may be 
 proceeded against ... by indictment to be preferred in the county, 
 riding, division, city, town, or place in England, wherever such offence 
 shall be committed . . . and every person convicted of any such offence 
 upon indictment in due course of law shall and may be transported 
 for the term of seven years in the manner provided by law for the trans- 
 portation of offenders, or imprisoned for any time not exceeding two 
 years, as the Court before whom such ofiender shall be tried shall think 
 ■fit ... ' (k). 
 
 The Act of 1799 does not extend to declarations approved by two 
 justices, and registered with the clerk of the peace ; but such approba- 
 tion shall only remain valid till the next general session, unless the same 
 shall be confirmed by the major part of the justices at such general 
 session (l). And it does not extend to the meetings of societies, or lodges 
 of Freemasons, which, before the passing of the Act, had been usually 
 held, under the denomination of ' Lodges of Freemasons,' and in con- 
 formity to the rules prevailing among such societies (m) ; 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, deposited 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 descriptions 
 of the members are to be registered yearly (n). The clerk of the peace 
 is required to enrol such certificate and registry, and to lay the same 
 once in every year before the general session of the justices ; and the 
 justices may, upon complaint upon oath, that the continuance of the 
 meetings of any such lodge or society is likely to be injurious to the public 
 peace and good order, direct them to be discontinued ; and any such 
 meeting, held notwithstanding such order of discontinuance, and before 
 the same shall, by the like authority, be revoked, shall be deemed an 
 unlawful combination and confederacy under the provisions of the Act (o). 
 
 (k) The omitted portions relate to sum- the Unlawful Societies Act, 1799, or of the 
 
 mary convictions on which the justices 
 may mitigate the maximum punishment — 
 three months' imprisonment or a fine of 
 £20. S. 9. 
 
 (I) S. 4 was repealed in 1871 (34 & 35 
 Vict. c. 116. S. L. R.). 
 
 (m) S. 5. 
 
 (n) S. 6. 
 
 (o) S. 7. By the Friendly Societies Act, 
 1896 (59 & 60 Vict. c. 25), s. 32 (1), ' a regis- 
 tered friendly society or branch or a meeting 
 of a registered society or branch shall not 
 be affected by any of the provisions of 
 
 Seditious Meetings Act, 1817, if in the 
 society or branch or at the meeting no 
 business is transacted other than that 
 which directly and immediately relates to 
 the objects of the society or branch as 
 declared in the registered rules thereof, but 
 the society or branch and all officers thereof 
 shall on request in writing by two justices 
 of the peace give to such justices full infor- 
 mation of the nature, objects, proceedings 
 and practices of the society or branch. 
 
 (2) If the society or branch when so 
 required fails to give such information as
 
 CHAP, v.] Unlawful Confederacies. 335 
 
 By sect. 10 it is provided, that any person who shall be convicted 
 or acquitted by any justice, upon a summary prosecution, shall not after- 
 wards be prosecuted by indictment, or otherwise, for the same ofience ; 
 and in like manner that any person convicted, or acquitted, upon an 
 indictment, shall not afterwards be prosecuted before any justice in a 
 summary way. 
 
 By sect. 11, the Act is not to ' extend to prevent any prosecution, 
 by indictment or otherwise for anything which shall be an offence within 
 the intent and meaning of this Act, and which might have been so pro- 
 secuted if the Act had not been made, unless the offender shall have been 
 prosecuted for such offence under the Act, and convicted or acquitted 
 of such offence' (p). 
 
 By the Seditious Meetings Act, 1817 (57 Geo. III. c. 19), s. 25, ' All 
 and every [the said societies or clubs (q), and also all and every other] 
 society or club now established or hereafter to be established, the 
 members whereof shall be required or admitted to take any oath or 
 engagement which shall be an unlawful engagement within the meaning 
 of the Unlawful Oaths Act, 1797 (r), or within the meaning of the Un- 
 lawful Oaths Act, 1812 (s), or to take any oath not required or authorised 
 by 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 engage- 
 ment on becoming or in order to become or in consequence of being a 
 member or members 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, or shall take, subscribe, or assent to any 
 test or declaration not required or authorised by law, in whatever manner 
 or form such taking or assenting shall be performed, whether by words, 
 signs, or otherwise, either on becoming or in order to become or in con- 
 sequence of being a member or members of any such society or club ; 
 and every society or club that shall elect, appoint, nominate, or employ 
 any committee, delegate or delegates, representative or representatives, 
 missionary or missionaries, to meet, confer, or communicate with any 
 other society, or club, or with any committee, delegate or delegates 
 representative or representatives, missionary or missionaries, of such 
 other society or club, or with any committee, &c., of such other 
 society or club, or to induce or persuade any person or persons to 
 become members thereof, shall be deemed and taken to be unlaivful 
 combinations and confederacies, within the meaning of the Unlawful 
 Societies Act, 1799 (t), and shall and may be prosecuted, proceeded 
 against, and punished, according to the provisions of the said Act ; and 
 every person who, from and after the passing of this Act (March 31, 
 1817), shall become a member of any such society or club, or who, 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, 
 
 aforesaid, the provisions of those Acts shall, (34 & 35 Vict. c. 116). 
 
 so far as applicable, be in force in respect of (q) The clubs meant were referred to in 
 
 the society or branch.' This enactment s. 24, which was repealed in 1890 (S. L. E.). 
 
 incorporates the substance of 38 & 39 Vict. (r) 37 Geo. III. c. 123, ante, p. 327. 
 
 c. 60, s. 15, and 39 & 40 Vict. e. 32, s. 0. (s) 52 Geo. III. c. 104, a7ite, p. 329. 
 
 (p) The rest of s. 11 was repealed in 1871 (t) 37 Geo. III. c. 79, ante, pp. 332 et seq.
 
 336 Of Offences against the Security of the State, [book hi. 
 
 or with any committee or delegate, representative or missionary, or with 
 any officer or member thereof as such, or who shall, by contribution of 
 money or otherwise, aid, abet, or support 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 meaning of the 
 Unlawful Societies Act, 1799, and shall and may be proceeded against, 
 prosecuted, and punished, according to the provisions of the said Act, 
 with regard to the prosecution and punishment of unlawful combinations 
 and confederacies ' (u). 
 
 By sect. 26, nothing contained in this Act is to extend to lodges of 
 Freemasons, complying with the regulations of the Unlawful Societies 
 Act, 1799 (y), nor to any declaration approved and subscribed by two 
 or more justices of the peace, and confirmed by the major part of the 
 justices at a general session, or at a general quarter sessions of the peace, 
 pursuant to the regulations in the Act of 1799 {v) ; nor to meetings of 
 Quakers ; nor ' to any meeting or society formed or assembled for 
 purposes of a religious or charitable nature only, and in which no other 
 matter or business whatsoever shall be treated of or discussed.' 
 
 By sect. 28, ' If any person shall knowingly permit any meeting of 
 any society or club hereby declared to be an unlawful combination 
 or confederacy, or of any division, branch, or committee of such society 
 or club, to be held in any house or apartment, building or other place, 
 to him or her belonging, or in his or her possession or occupation, such 
 person shall for the first offence forfeit the sum of £5 {;w), and shall, 
 for any such offence committed after the date of his or her conviction 
 for such first offence, be deemed guilty of an unlawful combination and 
 confederacy in breach of this Act' (a;). 
 
 By sect. 29, any two or more justices, upon evidence on oath that 
 any such meeting, or any meetmg for any seditious purpose, has been 
 held at any house, &c., licensed for the sale of liquors, with the knowledge 
 and consent of the persons keeping such house, &c., may adjudge the 
 licence to be forfeited {y). 
 
 By sect. 35, nothing contained in the Act ' shall be deemed to take 
 away, or abridge, any provision already made by the law of the realm, 
 or of any part thereof, for the suppression or punishment of any offence 
 whatsoever described in the Act ' (2). 
 
 By sect. 36, ' . . . No person who shall be prosecuted and convicted, 
 or acquitted, of any offence against this Act, shall be subject or liable 
 to be again prosecuted for the same offence . . . ' (a). 
 
 By sect. 37, where any proceeding or prosecution shall be instituted 
 for any offence against the Act of 1799 (6), or this Act, either by action 
 or information, before any justice or justices, or otherwise, the Attorney- 
 
 {u) Ante, p. 332. {x) 39 Geo. III. c. 79, s. 13 is nearly 
 
 (i') Ante, p. 332. similar. 
 
 {w) Ss. 30, 31 regulate the recovery (y) 39 Geo. III. c. 79, s. l-l does not con- 
 
 of fines, penalties or forfeitures. Those tain the words ' with the knowledge and 
 
 not exceeding £20 are recoverable in a consent of the person keeping such house.' 
 
 Court of Summary Jurisdiction. Ss. 32, (;:) Vide ante, p. 4. 
 
 33 were repealed in 1893 (56 & 57 Vict. (n) Vide ante. p. 4. 
 
 C. 61). (6) Ante, p. 332.
 
 CHAP, v.] 
 
 Unlawful Confederacies. 
 
 337 
 
 General in England, or the Lord- Advocate in Scotland, may order them 
 to be stayed ; and, in case of any judgment or conviction, one of His 
 Majesty's principal secretaries of state may, by an order under his hand, 
 stay the execution of sucli judgment or conviction, or mitigate, or remit, 
 any fine or forfeiture, or any part thereof (c). 
 
 The mutual promises and engagements of societies are lawfvil, unless 
 they are clearly prohibited by law ; and it lies on the party who alleges 
 that such promises and engagements are illegal to prove that they are so. 
 Where, therefore, it appeared from the rules of a lodge of Oddfellows 
 that the members entered into an engagement to abide by the rules, 
 and one of the rules was to keep the secrets of the society ; but all secrets 
 had been abolished ; and the rules had not been enrolled : Erie, J., held 
 that there was nothing to shew that the engagement was illegal ; the 
 subjects of this realm might enter into any engagement they pleased, 
 unless prohibited by law, and the party objecting to the legality of an 
 engagement must shew that it is illegal (d). 
 
 By 9 & 10 Vict. c. 33, it was enacted (sect. 1) that it should not be 
 lawful for any person or persons to commence, enter, prosecute, or file, 
 or cause or procure to be entered, prosecuted, or filed, any action, bill, 
 plaint, or information in any of Her Majesty's Courts, or before any 
 justice or justices of the peace, against any person for the recovery of 
 any fine or forfeiture under the Acts of 1799 and 1817, except in the name 
 of the Attorney-General or Solicitor-General in England (e). 
 
 (c) S. 38 (damage by riot) was re- 
 pealed as to England in 1827 (7 & 8 Geo. 
 IV. c. 27, s. 1). The Act does not extend 
 to Ireland (s. 39). Many sections of 36 Geo. 
 III. c. 8, were intended to remedy the evil 
 occasioned by persons who, under pretence 
 of delivering lectures and discourses on 
 public grievances, delivered lectures and 
 discourses, and held debates, tending to 
 stir up hatred and contempt of the King's 
 person and government, and of the con- 
 stitution : but this statute was Umited to 
 a duration of three years from the passing 
 
 of the Act, and until the end of the then 
 session of Parliament, and was repealed in 
 1869 (32 & 33 Vict. c. 24). 
 
 (d) R. V. Rouse, 4 Cox, 7. 
 
 (e) This enactment was repealed in 1869 
 (32 & 33 Vict. c. 24, s. 1), so far as it re- 
 lated to any proceedings under the sections 
 of the Act of 1799 which are included in 
 the repeal schedule of the Act of 1869, but 
 is re-enacted in that schedule as to the 
 portion of the 1799 Act there set forth. 
 See note (h), ante, p. 332. 
 
 VOL. I.
 
 ( 338a ) 
 
 CANADIAN NOTES. 
 
 OF UNLAWFUL OATHS, ETC. 
 
 To Commit Crime. — Code sec. 129. 
 
 To Commit Treason, etc. — Code see. 130. 
 
 Declaration After Compulsion. — Code sec. 131.
 
 ( 339 ) 
 
 BOOK THE FOURTH. 
 
 OF OFFENCES RELATING TO THE RIGHTS AND REVENUES 
 OF THE CROWN. 
 
 CHAPTER THE FIRST. 
 
 OF OFFENCES RELATING TO PRECIOUS METALS AND TREASURE TROVE. 
 
 A. Precious Metals. 
 
 Mines. — By its prerogative, the Crown has at common law a right of 
 property in all mines of gold or silver {thesauri de terra) opened within 
 the King's dominions, whether in lands of the Crown or of a subject (a). 
 The prerogative was held to extend to mines of baser metal in which 
 gold or silver was mixed, until the law was altered (6). By virtue of 
 this prerogative, gold and silver mines, until aptly severed from the 
 title of the Crown and vested in a subject, are not regarded as fartes soli, 
 or as incidents of the land where they are found (c), and do not pass 
 out of the Crown except by aj)t and express words of grant ((?). The 
 severance of the minerals from the soil is not larceny, and the remedy 
 for mining for gold or silver without royal licence is not by indictment 
 or criminal information, but by English information for intrusion upon 
 the rights of the Crown (e). Non-disclosure of gold or silver mines is said 
 to be a concealment from the King (/), and punishable (</). 
 
 B. Treasure Trove. 
 
 By its prerogative the Crown is entitled to all treasure trove {the- 
 saurus in terra), i.e., ' gold or silver in coin or plate or bullion,' ' found 
 concealed in a house, or in the earth, or other private place, the owner 
 thereof being unknown ' (A). The royal right attaches on the hiding of 
 the treasure, and not where it was casually lost or deliberately abandoned 
 by being thrown into the sea or into a public place (i), in which ease 
 
 («) Case of Minos [1508], Plowd. 310. [187()], 2 A.C. Wi. 
 
 Case of Saltpetre, 12 Co. Rep. 12. Att.- (e) Plowd. 310. 
 
 (!en. r. Morgan [1891], 1 Ch. 432, 455, ( /) Plowd. 317. 
 
 Lindley, L.J. Chit. Preiog. Crown, 145. (g) Ibid. 320. 
 
 4 Bl. Com. 121. (h) Chit. Prerog. Crown, 153; 3 Co. 
 
 (6) 1 Will. & M. c. 30 ; 5 Will. & M. c. (J. Inst. 132 ; Caj). It. 1 Wtatt. Realm, 233 ; 
 
 Att.-(Jen. V. Morgan [ISBl], 1 Cli. 432. Staundf. 39. Att.-Gen. v. British Museum 
 
 (c) Att.-(;en. of British Columbia v. Alt.- Trustees [1903], 2 Ch. 598, 008, Farwell, J. 
 
 Cen. of Canada [1889], 14 A.C. 295, .302. (i) Ibid. 
 
 {(1) Woolley V. Att.-Gen. of Vietoria 
 
 z2
 
 340 
 
 Of Offences Relating to the Revenue, &c. [book iv. 
 
 the finder is entitled to tlie property as against every one but the 
 owner (/). In the case of Saltpetre (A"), it is said that 'the King may dig 
 in the land of a subject for treasure trove, for he hath the property.' This 
 prerogative, described as one of the flowers of the Crown, may be devested 
 by express grant to a subject {I). Until the Crown has acquired possession 
 of treasure trove it is not the subject of larceny (m). 
 
 It is the duty of every person who finds, or knows of the finding of 
 hidden treasure, to give notice to the coroner of the district within which 
 it is found, who thereupon must hold an inquiry as to who were the finders 
 and who is suspected thereof (w). Wilful and knowing concealment 
 from the King of the finding of hidden treasure is a misdemeanor, now 
 punishable by fine (or) imprisonment, or both {nn), which has been 
 described as a form of misprision of felony (o). The offender may be 
 proceeded against on the coroner's inquisition (^j), or on indictment (9), 
 or on both (r). It is not necessary in the indictment to aver that an 
 inquisition was taken before the coroner or office found as to the title 
 of the Crown (s). Indeed, the title of the Crown is independent of the 
 findings of the inquest, and the coroner has no jurisdiction to inquire 
 into the title to treasure as between Crown and subject {t). It is not 
 necessary to prove that the concealment was fraudulent {u). Where 
 B. found hidden treasure of gold, and believing it to be brass, offered to 
 sell it to T. and others, who, knowing that it had been found, and was 
 gold, bought it as brass and resold it as gold, and told lies to conceal the 
 transaction, it was held that T. and the others were guilty of concealing 
 treasure trove {v). 
 
 C. Bullion and Plate. 
 
 Bullion properly means gold or silver in the mass or lump, as dis- 
 tinguished from coin or manufactured articles. The term is, however, 
 sometimes applied to coin or gold or silver wares and manufactures 
 considered simply with reference to the value of the raw material {iv). 
 
 (j) See fosl. Vol. ii. p. 1291, ' Larceny.' 
 
 {k) 12 Co. Rep. 13. 
 
 [l) Att.-Gen. v. British Museum Trustees 
 [1903], 2 Ch. at p. (il4, Fanvell, J. 
 
 (rw) 3 Co. Inst. 108; 1 Hale, 510; 1 
 Hawk. c. 19, s. 38. 
 
 [n) 50 & 51 Vict. c. 71, s. 36. Att.-Gen. 
 r. Moore [1893], 1 Ch. 676. 
 
 {mi) Where in ploughing a field B. turned 
 up certain pieces of old gold, and sold them 
 to T. for old brass at sixpence a pound, 
 saymg where he had found them, and T. 
 went to W., and they ascertained it was 
 gold, and T. sent W. to London, and he 
 sold it for gold ; they were held to be 
 properly convicted of the misdemeanor of 
 concealing treasure trove, although B. was 
 wholly innodent ; and it was also held that 
 it is not necessary in an indictment for this 
 offence to allege that the prisoners con- 
 cealed the treasure fraudulently ; but it is 
 enough to allege that they did it ' unlaw- 
 fully, wilfully, and knowingly.' R. v. 
 
 Thomas, L. & C. 313 ; 33 L. J. M. C. 22. 
 
 It is not necessary in an indictment for 
 concealing treasure trove to allege an inqui- 
 sition before the coroner or to shew the title 
 of the Crown by ofhce found. R. v. Toole, 
 Ir. Rep. 2 C. L. 36 ; 11 Cox, 75 (I). See 
 Att.-Gen. v. Moore [1893], 1 Ch. 676. In 
 R. V. Thomas the old authorities are dis- 
 cussed. 
 
 (o) 3 Co. Inst. 133 : 4 Bl. Com. 121. 
 
 Ip) See R. V. Thomas, L. & C. 313, 315 ; 
 33 L. J. M. C. 22, for the form of 
 inquisition. 
 
 [q) R. V. Toole [1867], 11 Cox, 75. 
 
 (r) R. V. Thomas, libi sup. 
 
 (s) R. V. Toole, nhi sup. Chit. Prerog. 
 Crown, 259. 
 
 (t) Att.-Gen. v. Moore [1893], 1 Cii. 676. 
 
 (m) R. v. Thomas, uhi sup. 
 
 {v) Ibid. 
 
 (w) Murray Oxford Diet. s. r. Bullion ; 
 1 Hawk. c. 18, s. 1. 
 
 i
 
 CHAP. I.] Of Treasure Trove. 341 
 
 1. The melting down of coin was contrary to a series of enactments [x), 
 which were repealed in 1819 (59 Geo. III. c. 49, s. 11). With a view more 
 effectually to prevent the clipping, diminishing, or impairing coin of 
 the realm, power was given for making entry to search for bullion, and 
 to punish persons found in possession of bullion unless they could j)rove 
 it to be lawful silver, and not before melting either coin or clippings (y). 
 
 2. The counterfeiting, exportation, and dealing with bullion were 
 dealt with by statutes, all now repealed (2). 
 
 3. Frauds with respect to making, working, putting to sale, exchanging, 
 selling, importing (a), or exporting gold or silver wares are regulated 
 by a series of enactments (6), with the aim of securing the fineness required 
 by the statutory standards and authenticated by the marks of the Gold- 
 smiths Company. In the legislation now in force, which ranges from 
 1423 to 1907, such wares are usually described as gold or silver plate (c). 
 Of the offences created by the statutes, except as to counterfeiting or 
 transposing assay marks (d), many are outside the scope of this treatise, 
 being usually penalties or forfeitures of specified sums or of the offending 
 wares : and the residue fall within the class of frauds and cheats in trade, 
 and do not affect the coin of the realm (e). 
 
 It has been held that knowingly exposing for sale and selling wrought 
 gold under the sterling alloy as gold of the true standard, though indictable 
 in goldsmiths, is a private imposition only in a common person, and the 
 party injured is left to his civil remedy {/). 
 
 Offenders fraudulently affixing public and authentic marks on sucli 
 wares of a value inferior to that indicated by the marks would seem to be 
 indictable at common law as for a cheat, as well as incurring the penalties 
 imposed by the Merchandise Marks Act, 1887 (50 & 51 Vict. c. 28) {post, 
 Vol. ii. p. 1591). F., a working goldsmith, was indicted for falsifying 
 plate, by putting in too much copper, and then corrupting one of the 
 assay master's servants to help him to the proper assay marks, with 
 which he stamped his plate, and sold it to the goldsmiths; and being 
 convicted, he was fined £100 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 workman (7). 
 
 (x) e.g., 17 Eclw. IV. c. 1. This Act is in 1 East, V.€. pp. 188 194. The date of 
 
 repealed in loto as to J^nglaud (in ]8().3) repeal of such as are not now in force is 
 
 (S. L. R.), and as to Ireland in 1872 stated in the Chronological Table prefixed 
 
 (S. L. R.): 14 Car. II. c. 31. to the Oflficial Index to the .Statutes. For 
 
 (y) 6 & 7 Will. III. c. 17, s. 8. This Act a discussion of certain of the Acts, sec 
 
 was expressly repealed iii 1867 (S. L. R.), Coldsmiths Co. v. Wyatt [1907], 1 K.B. 95. 
 
 having, it would seem, already been vir- The earliest Act (28 Edw. I. stat. 3, c. 20) 
 
 tually repealed in 1819 (59 Oeo. III. c. 49, was repealed in 18.5(3 (19 & 20 Vict. e. (54). 
 
 8. 12). (r) See (Joldsniiths Co. r. Wvatt [1907]. 
 
 {z) See 1 East, P.C. 194 ; 1 Hawk. c. 18. 1 K.B. 95 (C. A.). 
 
 83- 1 -14. (d) See post, tit. ' Forgery.' Vol. ii. p. 1 7 1 4. 
 
 (a) See 5 & Vict. c. 47, s. 59 ; 39 & 40 (e) Post, p. 343 et .■^cq. 
 
 Vict. c. 36, 8. 49. (/) R. v. Bower, 1 Cowp. 323. 
 
 (h) For a list of these enactments, sec (g) R. v. Fabian [1()()4], Kel. (.J.), 39; 
 
 Official Index to the Statutes (ed. 1907). 1 liast, P.C. 194. ^I'his judgment must 
 
 tit. ' Plate.' The earlier Acts are collected have been at common law.
 
 ( 342a ) 
 
 CANADIAN NOTES. 
 
 Of Offences with Relation to Precious Metals, etc. — See Code 
 sec. 424; 8 & 9 Edw. VII. ch. 9. 
 
 Holder of Lease of Gold or Silver Mine Defrauding His Majesty 
 or the Owner of the Mine.— Code sec. 424; 8 & 9 Edw. YII. ch. 9. 
 
 Unlawful Purchase or Sale of Quartz, Gold or Silver. — Code sec. 
 424 ; 8 & 9 Edw. VII. ch. 9. 
 
 In any indictment for any offence mentioned in sec. 424 it shall 
 he sufficient to lay the property in Ilis Majesty or in any person or 
 corporation, in different counts in such indictment. Code sec. 866. 
 
 Upon a prosecution for any offence under sec. 424 any variance 
 when the property is laid in a person or corporation, between the 
 statement in the indictment and the evidence adduced, may be 
 amended at the trial. If no owner is proved, the indictment may be 
 amended by laying the property in His Majesty. Code sec. 893. 
 
 On complaint in writing made to any justice of the comity, dis- 
 trict or place by any person interested in any mining claim, that 
 mined gold or gold-bearing quartz or mined or unmanufactured silver 
 or silver ore is unlawfully deposited in any place, or held by any 
 person, contrary to law, a general search warrant may be issued by 
 such justice as in the case of stolen goods, including any number of 
 places or persons named in such complaint ; and if, upon such search, 
 any such gold or gold-bearing quartz or silver or silver ore is found 
 to be unlawfully deposited or held, the justice shall make such order 
 for the restoration thereof to the lawful owner as he considers right. 
 Sec. 637. 
 
 The decision of the justice in such case is subject to appeal as in 
 ordinary cases coming within the provisions of Part XV. Code sec. 
 637.
 
 ( 343 ) 
 
 CHAPTER THE SECOND. 
 
 OF OFFENCES WITH RESPECT TO COIN. 
 
 Most offences with respect to British or foreign coin committed in 
 the United Kingdom are punishable under the Coinage Offences Act, 
 1861 (24 & 25 Vict. c. 99) (a). By the Coinage Colonial Offences Act, 1853 
 (16 & 17 Vict. c. 48), the provisions of the United Kingdom Acts, 2 & 3 
 Will. IV. c. 34, and 7 Will. IV. & 1 Vict. c. 90, as to coinage offences are to 
 extend to and be in force in all British colonies and possessions abroad, 
 except so far as by the law in force on August 4, 1853, in the colony, or 
 by subsequent local legislation, provision was or should thereafter be made 
 for the punishment of offences relating to the coin or the repeal of all 
 or any of the extended enactments. 
 
 Sect. I. — Definitions and General Provisions. 
 
 King's Money. — The coin or money of this kingdom consists properly 
 of what is called sterling money, made of gold or silver only, with a 
 certain alloy, coined and issued by the King's authority : and such 
 money is supposed to be referred to by any statute naming * money ' 
 generally (6). 
 
 By the Coinage Act, 1870 (33 & 34 Vict. c. 10, s. 5), no piece of gold, 
 silver, copper, or bronze, or of any metal or mixed metal of any value 
 whatever, shall be made or issued except by the mint as a coin or a token 
 for money, or as purporting that the holder thereof is entitled to demand 
 any value denoted thereon. Every person who acts in contravention of 
 this section is liable on summary conviction to a penalty not exceed- 
 ing twenty pounds. 
 
 The weight, alloy, impression, and denomination of the coin of tl e 
 realm was for many centuries settled by indenture between the King and 
 the master of the mint. The standard of coins is now regulated by the 
 Coinage Acts, 1870 (33 & 34 Vict. c. 10), 1889 (52 & 53 Vict. c. 58), 1891, 
 and 1893. Proclamation is not essential to give currency to coin ; but the 
 currency of any given pattern or denomination of coin is regulated by 
 proclamation of the King. The proclamations have since 1870 been 
 issued under sect. 11 of the Coinage Act, 1870. These proclamations 
 
 {(i) Tlii« superseded 2 & 3 Will. IV. c. .34, treason, as ifc affected the prerogative of 
 
 which was repealed by 24 & 2.') Vict. c. 05, tlie Crown with reference to tlie coining and 
 
 s. 1. Prior to 1832 counterfeiting the legalisation of money. 1 East, P.G. 147 ; 
 
 King's money was punishable by a series 1 Hale, cc. 17, 18, 10, 20. 
 
 of statutes. l)eginning with the Treason (b) 1 East, P.C. 147 ; 1 Hale, cc. 17, 
 
 Act, 1351 (25 Edw. III. st. 5, c. 2), under 18,10,20. Coin of l)ra.ss,&c., was not within 
 
 most of which the offence was treated as the definition. 1 Hawk. c. 17, s. 57.
 
 344 Of Offences Relating to the Revenue, &c. [book iv. 
 
 have effect as if enacted in the statute (sect. 11). They need not be 
 proved (c), but are printed as statutory rules and orders and can be 
 proved by an official edition or print. In prosecutions for coining, it may 
 be of use in case of any new coin with a new impression, not yet familiar 
 to the people, to produce the relevant proclamation or one of the officers 
 of the mint cognisant of the fact, or the stamps used, or the like evidence. 
 But in general, whether the coin is the King's current coin or not is a 
 mere question of fact which may be found upon evidence of common 
 usage or notoriety {d). Any coin, once legally made and issued by the 
 King's authority, continues to be the current coin of the kingdom until 
 decried or recalled, notwithstanding any change in the authority by which 
 it was constituted (e). His Majesty in council may direct the estab- 
 lishment of any branch of the mint in any British possession, and make 
 the coins issued by it a legal tender ( /'). His Majesty in council may 
 direct that foreign coins may be a legal tender in any part of his 
 dominions {g). 
 
 The Coinage Offences Act, 1861 (24 & 25 Vict. c. 99), which applies 
 to the whole of the United Kingdom (A), contains the following definitions, 
 Beet. 1 : that, ' In the interpretation of and for the purposes of this 
 Act, the expression — 
 
 "The King's current gold or silver coin," shall include any gold or 
 silver coin coined in any of His Majesty's mints, or (i) lawfully current, 
 by virtue of any 'proclamation or otherwise (ii), in any part of His Majesty's 
 dominions, whether within the United Kingdom or otherwise ; and the 
 expression — 
 
 "The King's copper coin," shall include any copper coin and any 
 coin of bronze or mixed metal coined in any of His Majesty's mints, or 
 lawfully current, by virtue of any froclamation or otherwise, in any part 
 of His Majesty's said dominions ; and the expression — 
 
 "False or counterfeit coin resembling or aj)parently intended to 
 resemble or pass for any of the King's current gold or silver coin," shall 
 include any of the current coin which shall have been gilt, silvered, 
 washed, coloured, or cased over, or in any manner altered, so as to 
 resemble or be apparently intended to resemble or pass for any of the 
 King's current coin of a higher denomination ; and the expression— 
 
 "The King's current coin" slmll include any coin coined in any of 
 
 (c) 1 East, P.C. 142, where see some old power has not been exercised as to the 
 
 cases in which proclamation by the writ of United Kingdom. As to other parts of the 
 
 proclamation under the great seal, or a Empire, see Chaloner's Colonial Currency, 
 
 remembrance thereof, is considered to be 1893, and St. R. & 0. (rev. ed. 1904), under 
 
 necessary to prove a coin current. the titles ' Coin, Colonies,' and of the 
 
 {(1) 1 East, P.C. 149. particular colonies. 
 
 (e) 1 East, P.C. 148. Coin is now decried {h) Sect. 43. It came into force on 
 
 or recalled by proclamation under the Nov. 1, 1861. 
 
 Coinage Act, 1870. Proclamation has for {i) The word 'or' in this and the subse- 
 
 centuries been the recognised mode of dc- quent definitions was substituted for the 
 
 crying coin. But decrial has also been word ' and ' used in 2 & 3 Will. I V. c. 34, 
 
 effected by Act of Parliament, as by 9 s. 21, and the words ' in virtue of any 
 
 Will. III. c. 2, and 6 Geo. II. c. 26. proclamation or otherwise ' were added, so 
 
 ( f ) Such branches are established in as to bring all coin lawfully current within 
 
 AustraUa (Sydney, Melbourne and Perth), the British Empire within the scope of the 
 
 South Africa, and Canada. Act. 
 
 , (y) 33 _^Vict. c. 10, s. 11 (7). Tliis (m) cr/., By Colonial Act or Ordinance.
 
 CHAP. II.] Of Offences Relating to Coin. 345 
 
 His Majesty's mi?its, or lawfully current, by virtue of any proclamation 
 or otherwise, in any part of His Majesty's said dominions, and whether 
 made of gold, silver, copper, bronze, or mixed metal (/). 
 
 Possession. — And where the having any matter in the custody or 
 possession of any person is mentioned in this Act, it shall include, not only 
 the having of it by himself in his personal custody or possession, but also 
 the knowingly and wilfully having it in the actual custody or possession of 
 any other person, and also the knowingly and wilfully having it in any 
 dwelling-house or other building, lodging, apartment, field, or other place, 
 open or inclosed, whether belonging to or occupied by himself or not, 
 and whether such matter shall be so had for his own use or benefit or for 
 that of any other person ' {h). 
 
 Right to test Suspected Coin. — By sect. 26, ' Where any coin shall 
 be tendered as the King^s current gold or silver coin to any person who shall 
 suspect the same to be diminished otherwise than by reasonable wearing, 
 or to be counterfeit, it shall be lawful for such person to cut, break, bend, 
 or deface such coin ; and if any coin so cut, broken, bent, or defaced shall 
 appear to be diminished otherwise than by reasonable wearing, or to be 
 counterfeit, the person tendering the same shall bear the loss thereof ; but 
 if the same shall be of due weight, and shall appear to be lawful coin, the 
 person cutting, breaking, bendiyig, or defacing the same is hereby required 
 to receive the same at the rate it was coined for; and if any dispute shall 
 arise whether the coin so cut, broken, bent, or defaced be diminished in 
 manner aforesaid, or counterfeit, it shall be heard and finally deter- 
 mined in a summary manner by any justice of the peace, who is hereby 
 empowered to examine upon oath as well the parties as any other person, 
 in order to the decision of such dispute ; and the tellers at the receipt of 
 His Majesty's Exchequer, and their deputies and clerks, and the receivers 
 general of every branch of His Majesty's revenue, are hereby required 
 to cut, break, or deface, or cause to be cut, broken, or defaced, every 
 piece of counterfeit or unlawfully diminished gold or silver coin which 
 shall be tendered to them in payment of any part of His Majesty's 
 revenue' {I). 
 
 Seizure of Suspected or Counterfeit Coin and Coining Tools.— By sect. 
 27, ' If any person shall find or discover in any place whatever, or in the 
 custody or possession of any person having the same without lawful 
 authority or excuse, any false or counterfeit coin resembling or apparently 
 intended to resemble or pass for any of the King's current gold, silver, or 
 copper coin, or any coin of any foreign prince, state, or country, or any 
 
 {}) The definition of current coin was and Pollock and Huddloston, BB. (diss. 
 
 new in 186]. The word inchide 'used' in Lush and Stephens, JJ.). 
 
 this and the preceding dehnitions is not a {k) Framed on 2 & 3 Will. IV. c. 34, s. 21, 
 
 word of limitation, but of extension. It and 22 & 23 Vict. c. 30. The words 
 
 has, therefore, been licld that a genuine ' knowingly and wilfully,' &c. (italicised 
 
 sovereign has been made false and counter- above), were inserted to remove the doubts 
 
 feit which had been fraudulently tiled at raised as to the meaning of 2 & 3 Will. IV. 
 
 the edges, thereby reducing its weight })y c. 34, s. 21, in R. v. Rogers, 2 Mood. 85; 
 
 one twenty-fourth, and by destroying the R. v. Gcrrish, 2 M. & Rob. 219 ; and R. v. 
 
 old milling, in place whereof a new milling Williams, 1 C. & M. 259. 
 
 of the edges had been made, so as to make (I) Coin which is light, or has been called 
 
 the coin look like a current coin. R. v. in by proclamation, is defaced under 33 <& 
 
 Hermann, 4 Q.B.D. 284, Coleridge, CJ., 34 Vict. c. 10, s. 7.
 
 346 Of Offences Relating to the Revenue, <&c. [book iv. 
 
 instrument, tool, or engine whatsoever adapted and intended for the 
 counterfeiting of any such coin, or amj flings or clippings, or any gold or 
 silver bullion, or any gold or silver in dust, solution, or otherwise, uihAch 
 shall have been "produced or obtained by diminishing or lightening any of the 
 King''s current gold or silver coin, it shall be lawful for the person so finding 
 or discovering, and he is hereby required, to seize the same, and to carry 
 the same forthwith, before some justice of the peace ; and where it shall 
 be proved, on the oath of a credible witness, before any justice of the 
 peace, that there is reasonable cause to suspect that any person has been 
 concerned in counterfeiting the King's current gold, silver, or copper 
 coin, or any such foreign or other coin as in this Act before mentioned, or 
 has in his custody or possession any such false or counterfeit coin, or any 
 instrument, tool, or engine whatsoever adapted and intended for the 
 making or counterfeiting of any such coin, or any other machine used or 
 intended to be used for makimj or counterfeitiruj any such coin, or any such 
 -filings, clippings, or bidlion or any such gold or silver in dust, solution, or 
 otherwise, as aforesaid, it shall be lawful for any justice of the peace, by 
 warrant under his hand, to cause any place whatsoever belonging to or in 
 the occupation or under the control of such suspected person to be 
 searched, either in the day or in the night, and if any such false or counter- 
 feit coin, or any such instrument, tool, or engine, or any such machine, 
 or any such filings, clipjmigs, or bullion or any such gold or silver in dust, 
 solution, or otherwise as aforesaid, shall be found in any place so searched, 
 to cause the same to be seized and carried forthwith before some justice 
 of the peace ; and whensoever any such false or counterfeit coin, or any 
 such instrument, tool, or engine, or any such machine, or any such filings, 
 clippimjs, or bullion, or any such gold or silver in dust, solution, or otherwise, 
 as aforesaid, shall in any case whatsoever be seized and carried 
 before a justice of the peace, he shall, if necessary, cause the same to be 
 secured, for the purpose of being produced in evidence against any person 
 who may be prosecuted for any offence against this Act ; and all such 
 false and counterfeit coin, and all instruments, tools, and engines adapted 
 and intended for the making or counterfeiting of coin, and all such 
 machines, and all such filinfjs, clippings, and bidlion, and all such gold and 
 silver in dust, solution, or otherwise, as aforesaid, after they shall have been 
 produced in evidence, or when they shall have been seized, and shall not 
 be required to be produced in evidence, shall forthwith be delivered up 
 to the officers of His Majesty's Mint, or to the solicitors of His 
 Majesty's Treasury {m), or any person authorized by them to receive the 
 same ' [n). 
 
 Proof of Coin being Counterfeit.— By sect. 29, ' Where upon the trial 
 of any person charged with any offence against this Act it shall be neces- 
 sary to prove that any coin produced in evidence against such person is 
 false or counterfeit, it shall not be necessary to prove the same to be false 
 and counterfeit by the evidence of any moneyer, or other officer of His 
 
 (m) See 8 Edw. VII. c. 3, s. 2 (5). of filings of coin, gold or silver dust, and 
 
 (n) Framed on 2 & 3 Will. IV. e. 34, s. 14; machines mentioned in the preceding 
 
 37 Geo. III. c. 126, s. 7 ; and 43 Geo. III. clauses of the Act. As to the words ' with- 
 
 c. 139, s. 7. The parts in italics are intro- out lawful authority or excuse,' sec R. v. 
 
 duced in order to provide for the seizure Harvey, L. R. 1 C. C. R. 284.
 
 CHAP. II.] Of Offences Relating to Coin. 347 
 
 Majesty's Mint, but it shall be sufficient to prove the same to be false or 
 counterfeit by the evidence of any other credible witness ' (o). 
 
 Where the Offence is Complete. — By sect. 30, * Every offence of falsely 
 making or counterfeiting any coin, or of buying, selling, receiving, paying, 
 tendering, uttering, or putting off, or of offering to buy, sell, receive, pay, 
 utter, or put off, any false or counterfeit coin, against the provisions of 
 this Act, shall be deemed to be complete, although the coin so made or 
 counterfeited, or boiujht, sold, received, paid, tendered, uttered, or put off, 
 or offered to be bought, sold, received, paid, littered, or put off, shall not 
 be in a fit state to be uttered, or the counterfeiting thereof shall not be 
 finished or perfected' (p). 
 
 Power to apprehend Persons found committing Offences.— Sect. 31. 
 ' It shall be lawful for any person whatsoever to apj^reliend any person 
 who shall be found committing any indictable offence, or any high crime 
 and offence, or crime and offence, against this Act, and to convey or 
 deliver him to some peace officer, constable, or officer of police, in order 
 to his being conveyed as soon as reasonably may be before a justice of the 
 peace or some other proper officer, to be dealt with according to law ' (g). 
 
 Misdemeanors, Fine, &c.— Sect. 38. ' Whenever any person shall be 
 convicted of any indictable misdemeanor punishable under this Act, the 
 Court may, if it shall think fit, in addition to or in lieu of any of the 
 punishments by this Act authorised, fine the offender, and require him 
 to enter into his own recognizances, and to find sureties, both or either, 
 for keeping the peace and being of good behaviour ; and in case of any 
 felony punishable under this Act the Court may, if it shall think fit, 
 require the offender to enter into his own recognizances and to find sureties, 
 both or either, for keeping the peace, in addition to any punishment by 
 this Act authorised ; provided that no person shall be imprisoned under 
 this clause, for not finding sureties for any period exceeding one year ' (;). 
 The offender may also be dealt with under the Probation of Offenders 
 Act, 1907 {s). 
 
 The provisions of sects. 39 and 40 as to hard labour and solitary 
 confinement have been superseded by other legislation (/), and repealed 
 in 1893 (S. L. R.). Sect. 42, which related to the payment of the costs 
 in England, was repealed in 1908 (u). 
 
 {()) Taken from 2 Will. IV. c. 34, s. 17, unwillingness to apprehend in such cases, in 
 
 vtde antr, p. 343. consequence of doubts tliat prevailed among 
 
 (p) Taken from 2 & 3 Will. IV. c. 34, s. 3. t!\e pul)]ic as to the right, to do so. 
 which was limited in teinis to making or The words, ' or officer of police,' were 
 
 counterfeiting gold or silver coin, and it. introduced in the House of Commons quite 
 
 was held not. to apply to selling counterfeit uiniecessarily, as without doubt every 
 
 coin. The words in ilfilics have, therefore". officer of police is a peace officer ; and tiiey 
 
 been added in order to include all eases of r(>nder this clause inconsistent with other 
 
 ' buying, selling,' &c. .See R. r. Bradford, clauses in some of the otlier Acts. C. .S. (J. 
 2 Crawf. & l)ix, Ir. Circ. Rep. 41. Sect. 41 provides for summary proceed- 
 
 (7) This clause is clearly unnecessary, so ings. 
 
 far as it relates to any felony or indictable [. {/•) Tliis .section was new in 18(11. 
 
 misdemeanor, for there is no doubt wliat- ■ (.v) Avtc, p. 227. 
 ever that any person in the act of com- (I) Ante, pp. 212. 213; iwst, p. .348. 
 
 mitting any such ofTcnce is liable by the (it) By 8 Edw. VII. c. 15, q.v. post, Bk. 
 
 common law to be apprehended by any xii. c. v. For the earlier practice a.s to costs 
 
 pei-son ; but it was introduced at tiic in such cases sec the fith ed. of this work, 
 
 instigation of the Solicitors of the Treasury, Vol. i. p. 428, and Archb. Cr. PI. (23rd 
 
 a,<i it had been found that there was great ed.), 246.
 
 348 Of Offences Relating to the Revenue, &c. [book iv. 
 
 Sect. II. — Punishment and Venue. 
 
 General Rule. — The punishment of offences relating to the coin is, as to 
 the maximum term of penal servitude, fixed by the enactment defining 
 each offence, and if no maximum is fixed by the statute the maximum 
 term is five years. By the Penal Servitude Act, 1891 (54 & 55 Vict, 
 c. 69), s. 1, the minimum term of penal servitude is fixed at three' 
 years {v) ; and in lieu of penal servitude the Court may in its discretion 
 (unless an Act passed since August 5, 1891, otherwise provides) award 
 imprisonment for any term not exceeding two years, with or without 
 hard labour. Principals in the second degree and accessories before the 
 fact to felonies within the Act are punishable as principal offenders ; and 
 accessories after the fact are liable to imprisonment, with or without hard 
 labour, for any term not exceeding two years {w). The provisions of the 
 Coinage Offences Act, 1861, as to punishment superseded by this section 
 were repealed by the Statute Law Revision Acts of 1892 and 1893, and 
 are omitted from the text of this work (t). 
 
 Accessories and Accomplices. — Accomplices in offences concerning 
 the coin which amount to felony, follow the general rule applicable to 
 felony. If two agree to counterfeit, and one does it in consequence of that 
 agreement, both are guilty. If one counterfeits, and another by agree- 
 ment beforehand afterwards puts it off ; the latter is a principal. So 
 if he puts it off afterwards, knowing that the other coined it ; or if he 
 furnished the coiner with tools, or materials for coining {y). 
 
 Proof that a man occasionally visited coiners ; that the rattling of 
 money was occasionally heard with them ; that he was seen counting 
 something as if it was money when he left them ; that, on coming to 
 the lodgings just after their apprehension, he endeavoured to escape, 
 and was found to have bad money about him ; is not sufficient evidence 
 to implicate him, as counselling, procuring, aiding, and abetting the 
 coining {z). 
 
 Venue. — Bysect. 28, ' Where any person shall tender, utter, or put 
 off any false or counterfeit coin in one county or jurisdiction, and shall also 
 tender, utter, or put off any other false or counterfeit coin in any other county 
 or jurisdiction, either on the day of such first mentioned tendering, uttering, 
 or putting off, or within the space of ten days next ensuing, or where two or 
 more persons, acting in concert in different counties or jurisdictions, 
 shall commit any offence against this Act, every such offender may be 
 dealt with, indicted, tried, and punished, and the offeiice laid and charged 
 to have been committed, in any one of the said counties or jurisdictions, 
 in the same manner in all respects as if the offence had been actually and 
 wholly committed within such one county or jurisdiction ' {a). 
 
 [v) Ante, pp. 211, 212. The Act of 1861 (//) 1 East, P.C. 186. 
 
 contained a minimum term of three years, (z) R. v. Isaacs, Hil. T. 1813. MS. 
 
 raised tofive in 1864 (27 & 28 Vict. c. 47. s. 2), Bayley, J. 
 
 but restored to three by the Act of 1891. (o) Taken from 2 Will. IV. c. 34, s. 15, 
 
 (iv) 24 & 25 Vict. c. 99, s. 35, taken from except the words in italics, which were new 
 
 2 & 3 Will. IV. c. 34, s. 18 ; vide ante, •g.2V2. in 1861, introduced to remove a doubt 
 
 {x) The parts repealed include not only which had arisen whether a person tendering, 
 
 portions of the section defining offences, &c., coin in one jurisdiction, and afterwards 
 
 but also s. 39 (hard labour) and s. 40 tendering, &c., coin in another jurisdiction, 
 
 (solitary confinement). within 9. 10, cowld be tried rn either. As
 
 CHAP, ii.i Of Counterfeiting Coin. 349 
 
 Offences in Admiralty Jurisdiction. — By sect. 36, ' All indictable 
 offences mentioned in this Act which shall be committed within the juris- 
 diction of the Admiralty of England or Ireland shall be deemed to be 
 offences of the same nature and liable to the same punishments as if 
 they had been committed upon the land in England or Ireland, and may 
 be dealt with, inquired of, tried, and determined in any county or place 
 in England or Ireland in which the offender shall be apprehended or be 
 in custody, m the same manner in all respects as if the same had been 
 actually committed in that county or place ; and in any indictment for 
 any such offence, or for being accessory to any such offence, the venue 
 in the margin shall be the same as if such offence had been committed 
 in such county or place, and the offence itself shall be averred to have 
 been committed " on the high seas " ; . . • provided that nothing herein 
 contained shall alter or affect any of the laws relating to the government 
 of His Majesty's land or naval forces ' (b). 
 
 Sect. III. — Of Counterfeiting Coin. 
 
 A. British Coin. 
 
 King's Gold and Silver Coin.— Sect. 2. ' Whosoever shall falsely 
 make or counterfeit any coin resembhng or apparently intended to 
 resemble or pass for any of the King's current gold or silver coin, shall 
 in England and Ireland, be guilty of felony, and in Scotland of a high 
 crime and offence, and being convicted thereof shall be liable ... to be 
 kept in penal servitude for life . . .'(c). 
 
 Colouring Coin or Pieces of Metal with Intent to make them pass for 
 British Gold or Silver Coin.— Sect. 3. ' Whosoever shall gild or silver, 
 or shall, with any wash or materials capable of producing the colour or 
 apjiearance of gold or of silver, or by any ineans whatsoever, wash, case over, 
 or colour any coin whatsoever resembling or apparently intended to 
 resemble or pass for any of the King's current gold or silver coin ; or 
 shall gild or silver, or shall, with any wash or materials capable of pro- 
 ducing the colour or appearance of gold or of silver, or by any means 
 whatsoever, wash, case over, or colour any piece of silver or copper, or of 
 coarse gold or coarse silver, or of any metal or mixture of metals respec- 
 tively, being of a fit size and figure to be coined, and with intent that 
 the same shall be coined into false and counterfeit coin resembling or 
 apparently intended to resemble or pass for any of the King's current 
 gold or silver coin ; or shall gild, or shall, with any wash or materials 
 capable of producing the colour or appearance of gold, or by any means 
 ivhatsoever, wash, case over, or colour any of the King's current silver 
 coin, or file or in any manner alter such coin, with intent to make the same 
 resemble or pass for any of the King's current gold coin ; or shall gild 
 or silver, or shall, with any wash or materials capable of producing the 
 
 the oflencD created by that section is only (b) See ante, p. 31 ei .^e^. 
 
 a misdemeanor, probably there was no (c) Taken from 2 & 3 Will. IV. c. 34, 3. 3. 
 
 substantial ground for that doubt, but it See the interpretation clause, ante, p. 344, 
 
 was thought better to set the matter at and as to punishment, ante, p. 348. 
 
 rest.
 
 350 
 
 Of Offences Relating to the Revenue, &c. [book iv. 
 
 colour Of a'ppearance of gold or silver, or by any means whatsoever, wash, 
 case over, or colour any of the King's current copj)er coin, or file or in 
 any manner alter such coin, with intent to make the same resemble or 
 pass for any of the King's current gold or silver coin, shall, in England 
 and Ireland, be guilty of felony, and in Scotland of a high crime and 
 offence, and being convicted thereof shall be liable, ... to be kept in 
 penal servitude for life . . .'' (d). 
 
 Counterfeiting the King's Copper Coin.— Sect. 14. ' Whosoever shall 
 falsely make or counterfeit any coin resembling or apparently intended to 
 resemble or pass for any of the King's current copper coin . . . shall, in 
 England and Ireland, be guilty of felony, and in Scotland of a high crime 
 and offence, and being convicted thereof shall be liable ... to be kept 
 in penal servitude for any term not exceeding seven years . . .'(e). 
 
 The counterfeiting of copper coin was only a misdemeanor at common 
 law (/), such coin not being the King's money within the Statute of 
 Treasons (g). It was first made felony in 1771 (A). 
 
 Selling Medals resembling Current Coin.— By the Counterfeit Medal 
 Act, 1883 (46 & 47 Vict. c. 45), s. 2, ' If any person without due authority 
 or excuse (the proof whereof shall lie on the person accused) makes or 
 has in his possession for sale, or offers for sale, or sells, any medal, cast, 
 coin, or any other like thing, made wholly or partially of metal or any 
 metallic combination and resembling in size, figure, and colour any of the 
 King's current gold or silver coin, or having thereon a device resembling any 
 device on any of the King's current gold or silver coin, or being so formed 
 that it can by gilding, silvering, colouring, washing, or other like process, 
 be so dealt with as to resemble any of the King's current gold or silver 
 coin, he shall be guilty in England and Ireland of a misdemeanor, and 
 in Scotland of a crime and offence, and on being convicted shall be 
 liable to be imprisoned for any term not exceeding one year, with or 
 without hard labour.' By sect. 3 ' " The King's current gold or silver 
 coin " includes any gold or silver coin coined in or for any of His Majesty's 
 mints, or lawfully current by virtue of any proclamation or otherwise 
 
 (d) Taken from 2 & 3 Will. IV. c. 34, s. 4, 
 with the addition of the words in italics. 
 The words omitted are repealed. For other 
 punishments vide ante, p. 348 et seq. The 
 words ' by any means whatsoever,' were 
 introduced in order to include evei-y pro- 
 cess by which false metal can be made to 
 appear like gold or silver, whether such 
 appearance be produced by galvanism or 
 otherwise howsoever. The order of the 
 words in the former section was ' wash, 
 colour, or case over,' and it was advisedly 
 altered. On an indictment under 8 & 9 
 Will. III. c. 26, s. 4 (rep.), the use of aqua 
 fortis to draw to the suiface of base metals 
 the silver latent therein was held to be 
 colouring with silver. R. v. Lavey, 1 
 Leach, 153 ; 1 East, P.C. 106. And on 
 another indictment on the same statute 
 where blanks (made of an alloy of brass and 
 silver) had to be taken out of a wash and 
 rubbed to give them the appearance of 
 silver, the preparing and steeping them in 
 
 the wash was held to be colouring. R. v. 
 Case, 1 Leach, 154n. ; 1 East, P.C. 106. 
 Certain differences of opinion among the 
 judges in this case appear to have led to the 
 substitution for the words ' materials pro- 
 ducing the colour ' in the Act of William 
 III. of the words ' materials cajjable of 
 producing the colour, &c.,' in 2 & 3 Will. IV. 
 c. 34, s. 4, and in the present enactment. 
 In R. V. Turner, 2 Mood. 42, an indictment 
 containing the words ' capable, &c.' it was 
 jDroved that the accused was found gilding 
 sixpences with gold. It was contended 
 that the words ' capable, &c.' excluded 
 gold and applied only to imitation sub- 
 stances. But a verdict of guilty was given 
 and was sustained by the majority of the 
 consulted judges. 
 
 (e) Taken from 2 Will. IV. c. 34, s. 12. 
 
 ( /') It is so recited in 15 & 16 Geo. II. 
 c. 28, s. 6. 
 
 ((/) Ante, p. 343, note («). 
 
 (h) 11 Ceo. III. c. 40.
 
 CHAP. II.] Of Counterfeiting Coin. 351 
 
 in any part of His Majesty's dominions, whether within the United 
 Kingdom or otherwise.' 
 
 Counterfeit Coin by Officers in the Mint. — Not only those who 
 counterfeit the King's coin without his authority, but even persons 
 employed in the mint or its branches are within the Coinage Offences 
 Act, 1861, if for their own lucre they make the money of baser alloy, or 
 lighter than they are authorised and bound by law to do : for they can 
 only justify coining at all under the Coinage Acts and proclamations, 
 and the terms of their appointment ; and if they have not pursued that 
 authority, it is the same as if they had none. But mere mistake 
 in weight or alloy will not make them guilty ; the act must be 
 wilful, corrupt, and fraudulent {i). 
 
 What is Counterfeiting. — To be counterfeit within the statute, the 
 coin must resemble or be apparently intended to resemble or pass for a 
 genuine coin (/), but this resemblance is a matter of fact of which the 
 jury are to judge ujDon the evidence before them ; the rule being, that 
 the resemblance need not be perfect, but such as may in circulation 
 ordinarily impose upon the world {h). Thus a counterfeiting with some 
 small variation in the inscrijjtion, effigies, or arms, done probably with 
 intent to evade the law is yet within it ; and so is the counterfeiting in 
 a different metal, if in appearance it be made to resemble the true coin [1). 
 
 By sect. 30 of the Act of 1861 {ante, p. 347), the offence is complete 
 even if the counterfeiting is not finished or perfected nor the coin in a fit 
 state to be uttered {m). It is laid down by old authorities that if there is 
 a counterfeiting in fraud of the King, the offence is complete before 
 any uttering, or attempt to utter {n). 
 
 On an indictment for uttering a counterfeit half-sovereign, the coin 
 uttered was a Prince of Wales's medal ; and though on one side it bore 
 some resemblance to a good half-sovereign, having Queen Victoria's 
 head and the usual inscription, on the other side was the plume of the 
 Prince of Wales, with the words ' Prince of Wales's model half-sovereign.' 
 It was held that it was a question for the jury whether the coin was 
 intended by the maker to pass as a counterfeit coin, or was merely designed 
 for a plaything, a card-marker, &c. (o). 
 
 There is a sufficient counterfeiting where the counterfeit money is 
 made to resemble coin, the impression on which has been worn away 
 by time (p). 
 
 (t) 1 East, P.C. IGG. 1 Hale, 213. ton, J. 
 
 1 Hawk. c. 17, s. 55. 3 Co. Inst. 16, 17. (/j) In R. v. Wilson [1783], 1 Leach, 285, 
 
 4 Ml. Com. 84. the shillings produeod in evidence were 
 
 (j) 1 Hawk. c. 17, s. 81. (jiiite smooth, without the smallest vestige 
 
 (k) 1 Hale, 178, 184, 211, 215. of either head or tail, and witiiout any 
 
 (/) 1 East, P.C. 164, citing 1 MS. Sum. resemblance of tlie siiillings in circulation, 
 
 .W, and R. v. Ridgeley, 1 East, P.C. 171 ; except their colour, size, and siiape ; and 
 
 1 Leach, 18f>, Old Bailey, Dec. 1778. the Master of the Mint proved that they 
 
 (m) This section altered the law as laid were bad, but that they were very like 
 
 down under tlie Treason Act, 1351 (R. v. those shillings the impressions on which 
 
 Harris, 1 Leach, 135), and before 2 & 3 liad been worn away by time, and might 
 
 Will. IV. c. 34 (R. V. Varley, 1 Leach, 76 ; very probabty be taken by persons having 
 
 1 East. P.C. 164 ; 2 W. Bl. 682). less skill than himself for good shillings. 
 
 («) 3 Co. Inst. 61 ; 1 Hale, 215, 228; 1 Tiie Court were of opinion that a blank 
 
 Hawk. c. 17, s. 55 ; 1 East, P.C. 1(55. that is smoothed and made like a piece of 
 
 (o) R. r. Byrne, 6 Cox. 475 dr.), Cramp- legal coin, the impression of which is worn
 
 352 Of Offences Relating to the Revenue^ &c. [book iv. 
 
 B. Foreign Coin. 
 
 Counterfeit Foreign Gold and Silver Coin.— Sect. 18 ((/). 'Whosoever 
 shall make or counterfeit any kind of coin, not being the King's current 
 gold or silver coin, but resembling or ajjparently intended to resemble 
 or pass for any gold or silver coin of any foreign prince, state, or 
 country, shall in England and Ireland be guilty of felony, and in 
 Scotland of a high crime and offence, and being convicted thereof shall 
 be liable ... to be kept in penal servitude for any term not exceeding 
 seven years . . . ' (r). 
 
 Counterfeit Foreign Coin other than Gold and Silver Coin.— Sect. 
 22 (s). 'Whosoever shall falsely make or counterfeit any kind of coin, 
 not being the King's current coin, but resembling or apparently intended 
 to resemble or pass for any copper 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, shall in England and Ireland be guilty of a 
 misdemeanor, and in Scotland of a crime and offence, and being con- 
 victed thereof shall be liable ... for the first offence to be imprisoned 
 for any term not exceeding one year, and for the second offence, to be 
 kept in penal servitude for any term not exceeding seven years . . . ' (0- 
 
 Sect. IV. — Impairing and Defacing Current Coin. 
 
 Impairing Gold or Silver Coin, with intent.— Sect. 4 (w) enacts that, 
 ' Whosoever shall imjDair, diminish, or lighten any of the King's current 
 gold or silver coin, with intent that the coin so impaired, diminished, or 
 lightened may pass for the King's current gold or silver coin, shaU in 
 England and Ireland be guilty of felony, and in Scotland of a high crime 
 and offence, and being convicted thereof shall be liable ... to be kept 
 in penal servitude for any term not exceeding fourteen years . . . ' (v). 
 
 Unlawful Possession of Filings or Clippings of Gold or Silver Coin. — 
 Sect. o{w). ' Whoever shall unlawfully have in his custody or possession 
 
 out, and yet suffered to remain in circula- readily from having no appearance of an 
 
 tion, is sufficiently counterfeited to the impression : and in the deception the 
 
 similitude of the current com of this realm offence consists. 
 
 to bring the counterfeiters and comers of {q) Framed from 37 Geo. III. c. 126, s. 2. 
 
 such blanks within the statute ; these See the interpretation clause, ante, p. 343. 
 
 blanks having some reasonable likeness to (r) For other punishments, vide ante, 
 
 that coin which has been defaced by time, p. 348 et seq. The words omitted are 
 
 and yet passed in circulation. In R. v. repealed. 
 
 Walsh, 1 Leach, 364, 1 East, P.C. 164, the (s) Framed from 43 Geo. III. c. 139, s. 3. 
 
 counsel for the prisoners havmg objected, See s. 37 for the form of indictment for a 
 
 upon the fact of no impression of any sort second oifence, &c., post, p. 360. 
 
 or kind being discernible upon the shillings {t) For other punishments, vide ante, 
 
 produced m evidence, that they were not p. 348 et seq. The words omitted are 
 
 counterfeited to the likeness and similitude repealed. 
 
 of the good and legal coin of the realm, the (w) Taken from 2 & 3 Will. IV. c. 34, 
 
 judges were of opinion, that it was a ques- s. 5, the words of which were ' with intent 
 
 tion of fact whether the counterfeit monies to m,ake the com pass,' &c., which intent 
 
 were of the likeness and similitude of the never existed ; for the coin was not im- 
 
 lawful current silver coin called a shilliBg. paired in order to make it pass, but in order 
 
 And the jury having so found it, the want to obtain some metal from the coin, and 
 
 of an impression was immaterial ; because, that it might nevertheless pass in cu'cula- 
 
 from the impression being generally worn tion. The words in italics have therefore 
 
 out or defaced, it was notorious that the been substituted for those of the former 
 
 currency of the genuine coin of that denom- enactment. C. S. G. 
 
 ination was not thereby affected ; the (v) For other punishments, vide ante, 
 
 counterfeit therefore was perfect for circu- p. 348. 
 
 lation, and possibly might deceive the more (w) Tliis section was new in 1861.
 
 CHAP. II.] Of Importing Counterfeit Coin. 353 
 
 any filings or clippings, or any gold or silver bullion, or any gold or 
 silver in dust, solution, or otherwise, which shall have been produced 
 or obtained by impairing, diminishing, or lightening any of the King's 
 current gold or silver coin, knowing the same to have been so produced 
 or obtained, shall, in England and Ireland, be guilty of felony, and in 
 Scotland of a high crime and offence, and being convicted thereof shall 
 be liable ... to be kept in penal servitude for any term not exceeding 
 seven years . . . ' (ic). 
 
 Defacing Coin by Stamping Words thereon.— Sect. 16. ' Whosoever 
 shall deface any of the King's current gold, silver, or copper coin, by 
 stamping thereon any names or words, whether such coin shall or shall 
 not be thereby diminished or lightened, shall, in England and Ireland, 
 be guilty of a misdemeanor, and in Scotland of a crime and offence, 
 and being convicted thereof shall be liable, at the discretion of the Court, 
 to be imprisoned for any term not exceeding one year, with or without 
 hard labour ' (y). 
 
 Tender of Coin so Defaced not Legal.— Sect. 17. ' No tender or pay- 
 ment in money made in any gold, silver, or copper coin so defaced by 
 stamping as in the last preceding section mentioned shall be allowed to 
 be a legal tender ; and whosoever shall tender, utter, or put off any coin 
 so defaced shall, on conviction thereof before two justices, be liable to 
 forfeit and pay any sum not exceeding forty shillings ; Provided that 
 it shall not be lawful for any person to proceed for any such last-mentioned 
 penalty without the consent, in England or Ireland, of His Majesty's 
 Attorney-General for England or Ireland respectively, or in Scotland 
 of the Lord Advocate ' [z). 
 
 Sect. V. — Of Importation of Counterfeit Coin. 
 
 Counterfeit British Coin.— By 24 & 25 Vict, c.99, s. 7 {a), ' Whosoever, 
 without lawful authority or excuse {the proof whereof shall lie on the party 
 
 {x) For other punishments, vide mite, must be by proclamation, or by writ under 
 
 p. 348. the great seal. And the money, the bringing 
 
 (y) Taken from 16 & 17 Vict. c. 102, s. 1, in of which was prohibited by 25 Edw. 
 
 which contained the words 'or shall use III. st. 5, e. 2, and 1 & 2 Ph. & M. c. 11 
 
 any machine or instrument for the purpose (rcjip.), must be brought from some foreign 
 
 of bending the same,' but it was considered place out of the King's dominions into 
 
 that this provision was much too compre- some place within the same (1 East, P.C. 
 
 hensive, and therefore it was omitted. 175), and not from Ireland or some other 
 
 C. S. G. place subject to the Crown of England, for 
 
 (.-) Taken from 16 & 17 Vict. c. 102, s. 2. though to some purposes they are distinct 
 
 (n) Taken from 2 & 3 Will. IV. c. 34, s. 6, from England, yet as the counterfeiting 
 
 with the alterations and additions italicised. was punishable there as much as in 
 
 As to the first words in italics, see s. 6, iwst, England, the bringing money from such 
 
 p. 304. The words 'or receive ' were added places was not within those Acts (1 Hawk, 
 
 to cover cases where the evidence was insuf- e. 17, s. 87). It may be observed also that 
 
 ficient to prove that the receiver had im- these Acts were confined to the itnfxyrter 
 
 ported the coin. The section appears to (using the word ' bring '). and did not 
 
 apply to importation from any place be- extend to a receiver at second hand ; and 
 
 yond seas within or without the King's such importer must also have been averred 
 
 dominions. Under 1 & 2 I'h. & M. c. 1 1 (rep.) and proved to have known that the money 
 
 it was held that the words ' false or counter- was counterfeit. 1 Hale, 227, 228, 317; 
 
 feit coin or money bemg current within 1 Hawk. c. 17, ss. 86, 88 ; 1 East, P.C. 
 
 this realm,' referred to gold and silver coin c. 4. It seems not to have been necessary 
 
 of foreign realms, current here by the under 25 Edw. III. s. 5, c. 2, to prove that 
 
 sufferance and consent of the Crown, which false money was actually paid away or 
 
 VOL. I. 2 A
 
 354 Of Offences Relating to the Revenue, &c, [book iv. 
 
 accused), shall import or receive into the United Kingdom from beyond 
 the seas any false or counterfeit coin resembling or apparently intended to 
 resemble or pass for any of the King's current gold or silver coin, knowing 
 the same to be false or counterfeit, shall, in England and Ireland, be guilty 
 of felony, and in Scotland of a high crime and offence, and being 
 convicted thereof shall be liable ... to be kept in penal servitude for 
 life . . . ' (6). 
 
 By 16 & 17 Vict. c. 48, s. 2, ' If any person shall import into any of His 
 Majesty's Colonies or possessions abroad any false or counterfeit coin 
 resembling or apparently intended to resemble or pass for any of His 
 Majesty's current gold or silver coin coined in any of His Majesty's Mints, 
 whether in the United Kingdom or elsewhere, knowing the same to be 
 false or counterfeit, he shall be liable ... to be transported for life ' (c). 
 
 By the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36), ss. 150- 
 151, the importation of base or counterfeit coin (by sea or land carriage) 
 into Mauritius and the British possessions in America is absolutely 
 prohibited. 
 
 By the Kevenue Act, 1889 (52 & 53 Vict. c. 42), imitation coin is 
 included in the table of goods prohibited and restricted under the Customs 
 Consolidation Act, 1876 {vide -post, p. 374). 
 
 Importing Foreign Counterfeit Gold or Silver Coin. — By sect. 19 {d), 
 ' Whosoever, without lawful authority or excuse [the proof whereof shall 
 lie on the party accused), shall bring or receive into the United Kingdom (e) 
 any such ( / ) false or counterfeit coin resembling or apparently intended 
 to resemble or pass for any gold or silver coin of any foreign prince, state, 
 or country, knowing the same to be false or counterfeit, shall, in England 
 and Ireland, be guilty of felony, and in Scotland of a high crime and 
 offence, and being convicted thereof shall be liable ... to be kept in 
 penal servitude for any term not exceeding seven years . . . ' (^). 
 
 By sect. 2 of the Customs Amendment Act, 1886 (49 & 50 Vict. c. 41), 
 power is given to His Majesty to make and revoke proclamations 
 prohibiting the importation into the United Kingdom of coins coined in a 
 foreign country specified in the proclamation. Such coins during the 
 currency of the proclamation are treated as prohibited goods within the 
 
 merchandised with. 1 Hawk. c. 17, s. 89. ing. It seems that 37 Geo. III. c. 126, did 
 Coke and Hale seem to have thought not provide for the case of a person collect- 
 differently. 3 Co. Inst. 18 ; 1 Hale, 229. ing the base money therein mentioned from 
 But see 1 East, P.C. 175, 176, where it is the vendors of it in this country, with 
 said that though the best trial and proof of intent to utter it within the realm, or the 
 an intent may be by the act done, yet it dominions of the realm. See 1 East, P.C. 
 may also be evinced by a variety of circum- 177. ' Bringing ' over counterfeit foreign 
 stances, of which the jury are to judge. coin was treason within 1 & 2 Ph. & M. c. 11 
 
 (6) For other punishments, vide ante, (rep.). 1 Hawk. c. 17, s. 89. The Act of 
 
 p. 348. 1861 has neither the words ' to merchan- 
 
 (c) This enactment applies to a colony dise or make payment,' wliich were in 25 
 
 only so far as provision is not made by local Edw. III. st. 5, c. 2, nor the words ' to the 
 
 legislation (ss. 3, 4). intent to utter or make payment with the 
 
 {d) Framed on 37 Geo. III. c. 126, s. 3, same,' which were in 1 & 2 Ph. &. M. c. 11. 
 
 omitting the words ' with intent to utter the The crime, therefore, seems now to consist 
 
 same,' which were in the former statute. in importing counterfeit coin knowing it to 
 
 From the words of the present Act (s. 19), be counterfeit. C. S. G. 
 
 an importation of counterfeit foreign coin, (e) See note to s. 6, post, p. 364. 
 
 with a knowledge that it is counterfeit, is (/ ) See s. 18, ante, p. 352. 
 
 clearly sufficient, without any actual utter- {g) For other punishments, vide ante, p. 348.
 
 CHAP. II.] Of Exportmg Counterfeit Com. 355 
 
 Customs Consolidation Act, 1876 (h). Under this enactment a procla- 
 mation has been issued prohibiting the importation into the United 
 Kingdom of all coins coined in a foreign country other than gold or 
 silver (March 27, 1887. St. K. & 0. Kevised (ed. 1904), Vol. II. tit. 
 • Coin,' 49). 
 
 Sect. VI. — Of Exporting Counterfeit Current Coin. 
 
 By sect. 8, ' Whosoever, without lawful authority or excuse (the 
 proof whereof shall lie on the party accused), shall export, or put on 
 board any ship, vessel, or boat for the purpose of being exported from 
 the United Kingdom, any false or counterfeit coin, resembling or 
 apparently intended to resemble or pass for any of the King's current 
 coin, knowing the same to be false or counterfeit, shall, in England and 
 Ireland, be guilty of a misdemeanor, and in Scotland of a crime and 
 offence, and being convicted thereof shall be liable, at the discretion of 
 the Court, to be imprisoned for any term not exceeding two years, with 
 or witliout hard labour . . . ' (t). 
 
 The definition of current coin includes the coin of British possessions 
 and protectorates as well as coin of the realm (y). 
 
 Sect. VII. — Of Uttering, Tendering, &c.. Counterfeit Coin. 
 A. Common Law and Former Statutes. 
 
 Formerly the putting off counterfeit money might amount to treason. 
 Thus if A. counterfeited current gold or silver coin, and by agreement 
 before that counterfeiting B. was to put off and vend the counter- 
 feit money, B. was an aider and abettor to such counterfeiting, and 
 consequently liable as a principal traitor {k). In the case of copper 
 coin, B. acting a similar part was an accessory before the fact to the 
 felony, within II Geo. III. c. 40 (/). And if B., knowing that A. 
 had counterfeited coin, put off this false coin for him ' after the fact,' 
 without any such agreement precedent to the counterfeiting, he seems to 
 have been liable as an accessory after the fact to A., because he maintains 
 him (m). According to Coke (n), if money, false or clipped, were found in 
 tlie hands of any suspicious person, he might be imprisoned until he proved 
 his warrant fcr statutum de moneta (20 Edw. I. stats. 4, 5, 6 (rep.) ). 
 
 If A. counterfeited the King's money, and B, knowing the money to 
 be counterfeited uttered the same for his own benefit, B. was not guilty 
 of treason, nor misprision of treason. But he was liable at common law 
 to be punished as for a cheat (o). The defendant was indicted for 
 
 (h) Post, p. 374. punishable under 15 Geo. II. c. 28 (rep.). 
 
 (0 This section was new in 1801. 8ee precedents of indictments for a mis- 
 
 (;) 8ee the interpretation clause, ante, demeanor at common law in uttering a 
 
 p. 344. counterfeit half-guinea : Cro. Circ. Comp. 
 
 (Ic) 1 Hale, 214. 315 (7th ed.) ; 2 Chit. Cr. L. 110. See also 
 
 (/) 1 East, P.C. 178. a precedent of an indictment for a misde- 
 
 (m) 1 Hale, 214. Concealment by B. meanor at common law, against a man for 
 
 of counterfeiting by A. was misprision of uttering a counterfeit sixpence, and having 
 
 treason. Hale, 214. another found in his custody : Cro. Circ. 
 
 (n) 3 Inst. 18. Comp. 315 (7th ed.) ; 2 Chit. Cr. L. 117. 
 
 (o) 1 East, P.C. 179 ; 1 Hale. 214 ; The uttering of false money, knowing it to 
 
 1 Hawk. c. 17, s. 50. The offence was be false, is mentioned as a misdemeanor in 
 
 2 a2
 
 356 Of Offences against the Revenue, &c. [bookiv. 
 
 ' unlawfully uttering and tendering in payment to T. H. ten counterfeit 
 halfpence, knowing them to be counterfeit.' One count laid the offence 
 as contrary to the statute, a second count laid the offence generally. He 
 was convicted on the second count. It was admitted that no statute 
 applied to the case of counterfeit copper coin, and on a case reserved all 
 the judges held the offence not to be indictable (p). 
 
 Possession of counterfeit coin of the realm with intent to utter it is 
 not an offence at common law {q). But the unlawful procurmg of counter- 
 feit coin with intent to circulate it, though no act of uttering be proved, 
 is a misdemeanor at common law (r), and the possession of counterfeit 
 coin under suspicious circumstances, and without any circumstances to 
 induce a belief that the defendant was the maker, was held to be evidence 
 of unlawful procuring with intent to utter {s). Upon the argument in 
 E. V. Fuller (s), Thomson, C.B., mentioned a case where he had directed 
 an acquittal, because from certain powder found upon the prisoner, there 
 was a presumption that he was the maker of the coin. 
 
 B. Of Uttering or Possessing Counterfeit British Coin. 
 
 Uttering Counterfeit Gold or Silver Current Coin. — By sect. 9, ' Whoso- 
 ever shall tender, utter, or put off any false or counterfeit coin, resembling 
 or apparently intended to resemble or pass for any of the King's current 
 gold or silver coin, knowing the same to be false or counterfeit, shall, in 
 England and Ireland, be guilty of a misdemeanor, and in Scotland of a 
 crime and offence, and being convicted thereof shall be liable, at the 
 discretion of the Court, to be imprisoned for any term not exceeding 
 one year, with or without hard labour . . .' (t). 
 
 the recital to 15 Geo. II. c. 28, s. 2 (rep.). twenty shillings, wrapped up with soft paper 
 
 There is also a precedent for a misdemeanor to prevent theii' rubbing. In the marginal 
 
 at common law, in uttermg, and causing to note to R. v. Parker, 1 Leach, 41, it is stated 
 
 be uttered as good, gumeas which had been that having the possession of counterfeit 
 
 filed or diminished : Cro. Circ. Comp. 317 money with intention to pay it away 
 
 (7th ed.), and 2 Chit. Ci*. L. 116 ; and also as and for good money, is an indictable 
 
 a precedent for a misdemeanor at common offence at common law. This may be 
 
 law in seUuig counterfeit Dutch guilders ; criminal in some cases of such possession, 
 
 Cro. Cut. Comp. 313 (7th ed.) ; 2 Chit. as we have seen above ; but, qua;re, if the 
 
 Cr. L. 119, 120. point, as stated in the marginal note, was 
 
 (p) R. V. Cirwan [1794], MS. Jud. ; 1 actually decided in Parker's case. See also 
 
 East. P.C. 182 ; 2 Leach, 834, note (a). R. v. Jarvis, Dears. 552, post, p. 362. 
 
 iq) R. V. Heath [1810], R. & R. 184. R. (t) Taken from 2 AVill. IV. c. 34, s. 7. 
 
 V. Stewart [1814], R. & R. 288 (silver coin). For other pimishments, vide ante, p. 348. 
 
 R. V. Cu-wan [1794], 2 Leach, 834n. (copper Under 8 & 9 Wih. III. c. 26, s. 6 (rep.), which 
 
 coin). had the words 'take, receive, pay, or put off,' 
 
 {}■) R. V. Fuller [1816], R. & R. 308, it was necessary to prove actual passmg of 
 
 and MS. Bayley, J. In R. v. Brown, the money. R. v. Wooldridge, 1 Leach, 
 
 1 Lew. 42, upon an indictment for pro- 307; 1 East, P.C. 179. The word ' tender ' 
 
 curing counterfeit money with intent to in the present Act obviates the need of 
 
 utter it, the uttermg the money, knowing proving actual passing. C. S. G. Under 2 
 
 it to be counterfeit, was held evidence & 3 Will. IV. c. 34, s. 7 (rep. ), it was held that 
 
 that it was procured with that intent. a charge of uttering and putting off was 
 
 Hoh'oyd, J., there seemed to consider a proved by evidence that the prisoner had 
 
 procurement elsewhere, with intent to entered a shop, and had asked for tea and 
 
 utter, a continuing procurement in the sugar, and had in payment placed on the 
 
 county where the uttering took place. counter a counterfeit shilling, but on being 
 
 (.s) R. V. Fuller [1816], R. & R. 308. The told that it was bad, had left the shop and 
 
 possession in this case was under particularly left the coin behind. R. v. Welch, 2 Den. 
 
 suspicious cu'cumstances ; on the prisoner 78. Cf. R. v. Ion, ibid. 475. 
 were found two parcels, each containing
 
 CHAP. II. ] Of Uttering Counterfeit Coin of the Realm. 357 
 
 The words ' tender, utter, or put off,' being in the disjunctive, appear 
 to apply to the uttering of counterfeit money though not tendered in 
 payment, but passed by the common trick of ringing the changes {u). 
 
 Uttering Counterfeit Gold or Silver Current Coin accompanied by 
 Possession of other such Coin, or followed by a Second Uttering of other 
 such Coin. — Sect. 10. ' Whosoever shall tender, utter, or put off any false 
 or counterfeit coin resembling, or apparently intended to resemble or pass 
 for any of the King's current gold or silver coin, knowing the same to be 
 false or counterfeit, and shall, at the time of such tendering, uttering, or 
 putting off, have in his custody or possession, besides the false or counter- 
 feit coin so tendered, uttered, or put off, any other piece of false or 
 counterfeit coin resembling or apparently intended to resemble or pass 
 for any of the King's current gold or silver coin, or shall, either on the 
 day of such tendering, uttering, or putting off, or within the space of ten 
 days then next ensuing, tender, utter, or put off any false or counterfeit 
 coin resembling or apparently mtended to resemble or pass for any of 
 the King's current gold or silver coin, knowing the same to be false or 
 counterfeit, shall, in England and Ireland, be guilty of a misdemeanor, 
 and in Scotland of a crime and offence, and being convicted thereof shall 
 be liable, at the discretion of the Court, to be imprisoned for any term not 
 exceeding two years, with or without hard labour . . . ' (r). 
 
 Where one of two persons utters base coin, and other base coin is 
 found on the other, they are jointly guilty of the aggravated offence 
 under this section, if they are acting in concert, and the one knows of 
 the possession of the base coin by the other ; for by the interpretation 
 clause the having any coin in possession includes ' the knowing and 
 wilfully having it in the actual custody or possession of any other person ' ; 
 and as it is clear that under that clause a man may have possession of 
 coin in a house or other place, though he is far away, so the possession 
 of coin by one man may be the possession of another within that clause, 
 though they are at a great distance from each other (?r). 
 
 Having Three or More Pieces of Counterfeit Gold or Silver Coin in 
 Possession, &c., with Intent, &c. — Sect. 11. 'Whosoever shall have in 
 
 («) Sec R. V. Franks, 2 Leach, i'A\, dc- in the same count of the mdictment. See 
 
 cided on 15 Geo. II. c. 28, s. 2 (rep.), which R. v. Martin [1801], coram Craham, B., 
 
 had the words ' utter or tender in pay- decided by the judges on 15 Geo. II. c. 28 
 
 ment.' In that case the prosecutor having (rep.). 2Leach,923; 1 East, P.C. xviii. ; MS. 
 
 bargained for the purchase of sixpenny- Ba3dey, J. Convictions for separate utter- 
 
 wortli of fruit from tlie defendant, a street ings on the same day, charged in separate 
 
 vendor, handed to the defendant a good counts of the indictment, do not seem 
 
 shiUing to change. The defendant put the to warrant such punishment. See R. v. 
 
 shilling into his mouth as if to bite it, ainl Tandy, 2 Leach, 8;«. 1 East, P.C. 182, 
 
 returned a shilHng to the prosecutor, saying 18i : decided on 15 Geo. II. c. 28 
 
 that it was bad. The prosecutor liaving (rep.). Eyre, C.J., BuUer, J., and Heath, 
 
 lianded him a second and a third shilling, .1., were absent when this opinion wa.s 
 
 the defendant practised the same trick as given, viz., Hil. T. 1799. The judges also 
 
 to each. thought it advisable to give judgment of 
 
 (f) Taken from 2 WiU. IV. c. 34, s. 7. imprLsonment for six months singly, and 
 
 The words ' any other piece ' are substi- not on each of the counts. And see R. r. 
 
 tutcd for ' one or more piece or pieces,' and Smith, 2 Leach, 850 ; 1 East, P.C. 183 ; 
 
 the words ' any false or counterfeit coin ' and R. v. Robinson, 1 Mood. 413, decided 
 
 for ' any more or other false or counterfeit on 2 & 3 Will. IV. c. 34, s. 7 (rep.), 
 
 coin.' The words omitted are repealed. («•) R. v. Greenwood, 2 Den. 453, over- 
 
 To warrant the punishment imposed by ruling R. v. Hayes, 1 Cox, 362 ; 2 Cox, H8 ; 
 
 this section, the utterings should be charged and R. r. West, 2 Cox, 237.
 
 358 Of Offences against the Revenue, dc. [bookiv. 
 
 his custody or possession three or more pieces of false or counterfeit 
 coin resembUng or apparently intended to resemble or pass for any of 
 the King's current gold or silver coin, knowing the same to be false 
 or counterfeit, and with intent to utter or put off the same or any of 
 them, shall, in England and Ireland, be guilty of a misdemeanor, and 
 in Scotland of a crime and offence, and being convicted thereof shall 
 be liable ... to be kept in penal servitude . , .' {x). 
 
 Uttering after a Previous Conviction. — Sect. 12 {y). ' Whosoever having 
 been convicted (2), either before or after the passing of this Act, of any 
 such misdemeanor or crime and offence as in any of the last three pre- 
 ceding sections mentioned, or of any felony or high crime and offence 
 against this or any former Act relating to the coin, shall afterwards commit 
 any of the misdemeanors or crimes and offences in any of the said sections 
 mentioned, shall, in England and Ireland, be guilty of felony, and in 
 Scotland of a high crime and offence, and being convicted thereof shall 
 be liable . . . to be kept in penal servitude for life . . .'(«). 
 
 Sect. 13, ' Whosoever shall, with intent to defraud, tender, utter, 
 or put off as or for any of the King's current gold or silver coin, any 
 coin not being such current gold or silver coin, or any medal or piece 
 of metal or mixed metals, resembling in size, figure, and colour the 
 current coin as or for which the same shall be so tendered, uttered, or 
 put off', such coin, medal, or piece of metal or mixed metals so tendered, 
 u,ttered, or put off being of less value than the current coin as or for 
 which the same shall be so tendered, uttered, or put off, shall, in England 
 and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and 
 offence, and being convicted thereof, shall be liable, at the discretion of 
 the Court, to be imprisoned for any term not exceeding one year, with 
 or without hard labour . . . ' (6). 
 
 The prisoner w^as indicted under this section for uttering a medal 
 resembling in size, figure, and colour, a half-sovereign. The medal was 
 made of metal, and of the same diameter as a half-sovereign, and somewhat 
 similar in colour. On the obverse there was the head of Queen Victoria, 
 similar to that on a half-sovereign ; but the legend was entirely different 
 from that on the half-soverejgn, being ' Victoria, Queen of Great Britain,' 
 
 (x) Framed from 2 & 3 Will. IV. c. 34, conviction for felony than for such a mis- 
 
 ss. 7, 8, with the addition of the words in demeanor ; as the former might have taken 
 
 italics. For other punishments, see ante, place in the same county where the subse- 
 
 p. 348. Possession of counterfeit coin, quent offence was committed, but not the 
 
 with intent to utter, is not an offence at latter. As to the effect of s. 12 see R. r. 
 
 common law. R. r. Stewart, R. & R. 288. Lee, 72 J. P. 253. 
 
 R. V. Heath, R. & R. 184, denying R. v. (z) i.e., found guilty by verdict or con- 
 
 Sutton, cas. temp. Hardw. 370. fession, though not sentenced. R. v 
 
 (y) Taken from 2 Will. IV. c. 34, ss. 7, 8: Blaby [1894]. 1 Q.B. 170. 
 but those sections only applied to offences (a) For other punishments, vide ante, 
 
 committed after a conviction for a misde- p. 348. 
 
 meanor : but it was expedient to extend (6) This section was new law in 1861, and 
 
 the clause to convictions after a previous intended to meet cases of uttering coin 
 
 conviction for felony ; for such previous other than British current coin or medals 
 
 conviction rendered the offender deserving as and for the current coin of the realm, 
 
 of at least as high a punishment as if he had In order to brmg a case within this section, 
 
 been previously convicted of any misde- the coin or medal uttered must be of less 
 
 meanor mentioned in any of the three value than the coin for which it was uttered, 
 
 preceding sections, and it sometimes hap- and must have been uttered with intent to 
 
 pened that it was easier to prove a previous defraud. 
 
 J
 
 CHAP. II.] Of Uttering Counterfeit Coin of the Realm. 359 
 
 instead of ' Victoria Dei Gratia.' The medal was queried, but the 
 querling was round and not square. The medal was of less value than a 
 half-sovereign. The coin was lost before a full description of it was given, 
 and it was never shewn to the jury. It was objected that ' figure ' in 
 the indictment meant the impression on the medal, and that such 
 impression must be similar to the impression on the genuine coin for 
 which it was uttered, and that there was no evidence that the medal 
 resembled the half-sovereign in size, figure, and colour. It was answered 
 that ' figure ' meant the general shape and outline of the medal, and that 
 there was evidence for the jury ; and the jury having convicted, it was 
 held, on a case reserved, that there was some evidence that the medal, 
 in size, figure, and colour resembled a half-sovereign (c). 
 
 Uttering Counterfeit Copper Coin. — Sect. 15. ' Whosoever shall tender, 
 utter, or put off any false or counterfeit coin resembling or apparently 
 intended to resemble or pass for any of the King's current copper coin, 
 knowing the same to be false or counterfeit, or shall have in his custody 
 or possession three or more pieces of false or counterfeit coin resembling 
 or apparently intended to resemble or pass for any of the King's current 
 copper coin, knowing the same to be false or counterfeit, and with intent 
 to utter or put off the same or any of them, shall, in England and Ireland, 
 be guilty of a misdemeanor, and in Scotland of a crime and offence, 
 and being convicted thereof shall be liable, at the discretion of the Court, 
 to be imprisoned for any term not exceeding one year, with or without 
 hard labour . . . ' (c?). 
 
 Form of Indictment. — The word ' knowing ' in indictments for 
 uttering coin sufficiently applies to the time and place of uttering, and 
 no addition of time or place is necessary. The word ' knowing ' refers 
 to the prisoner, and not to the person to whom the coin was uttered, 
 although that person's name immediately precedes the word ' knowing.' 
 
 If the names of the persons to whom the coin was uttered can be 
 ascertained, they ought to be mentioned, and laid severally in the indict- 
 ment : but if they cannot be ascertained, the same rule will apply which 
 prevails in the case of stealing the property of persons unknown (e). 
 
 It is sufficient, in an indictment for a felony for uttering counterfeit 
 coin after a previous conviction, to state that the prisoner was in due 
 form of law tried and convicted by a jury (/). 
 
 (c) R. V. Robinson [1837], L. & C. 604. 2 Mood. 219. In the latter case the indict- 
 
 (d) Taken from 2 & 3 Will. IV. c. 34, ment, which was under 2 & 3 Will. IV. 
 8. 12. The words omitted are repealed. c. 34, s. 7, for uttering counterfeit money 
 
 (e) See 1 East, P.O. 180, citing a case after a previous conviction, alleged that the 
 from MS. Tracy, of a woman who was in- prisoner, ' together with one T. P., was in 
 dieted at the Old Bailey, 1702, for putting due form of law tried and convicted ' by a 
 off ten pieces of counterfeit gilt money like jury upon an indictment against them, for 
 guineas, to divers persons unknown ; Holt, that they did unlawfully utter a shilling 
 C.J., said, that the names of the persons ' to A. W., knowing the same to be false,' 
 ought to be mentioned and laid severally ; and thereupon it was considered that tho 
 yet he tried the prisoner, and she was eon- j^risoner should be imprisoned for two 
 victed. Probably the names of the persons years ; and that the prisoner afterwards 
 to whom the money was put off could not feloniously did utter a half-crown ' to T. H., 
 be ascertained. knowing the same to be false.' The copy 
 
 (/ ) 24 & 25 Vict. c. 99, s. 37. R. v. of the record of the former trial stated the 
 Blaby [1894], 1 Q.B. 170. R. v. Page conviction of the prisoner and the acquittal 
 [1841], Coleridge, J., MSS. C. S. G., and of T. P. It was objected, 1st. That the
 
 360 Of Offences against the Revenue, (&c. [book iv. 
 
 It is no objection that an indictment for felony, for uttering counterfeit 
 coin after a previous conviction, states that the prisoner, together with 
 another person, was tried and convicted ; and the record of the former trial 
 shews the conviction of the prisoner and the acquittal of the other person. 
 
 Sect. 37. ' Where any person shall have been convicted (g) of any 
 ofience against this Act, or any former Act (h) relating to the coin, and 
 shall afterwards be indicted for any offence against this Act committed 
 subsequent to such conviction, it shall be sufficient in any such indict- 
 ment, after charging such subsequent offence, to state the substance and 
 effect only (omitting the formal part) of the indictment and conviction for 
 the previous off ence ; . . . (A/?) and the proceedings upon any indictment 
 for committing any offence after a previous conviction or convictions 
 shall be as follows ; (that is to say), the offender shall, in the first instance, 
 be arraigned upon so much only of the indictment as charges the subse- 
 quent offence, and if he plead not guilty, or if the Court order a plea 
 of not guilty to be entered on his behalf (i), the jury shall be charged, 
 in the first instance, to inquire concerning such subsequent offence only ; 
 and if they find him guilty, or if on arraignment he plead guilty, he shall 
 then, and not before, be asked whether he had been previously con- 
 victed as alleged in the indictment, and if he answer that he had been so 
 previously convicted, the Court may proceed to sentence him accordingly; 
 but if he deny that he had been so previously convicted, or stand mute 
 of malice, or will not answer directly to such question, the jury shall 
 then be charged to inquire concerning such previous conviction or con- 
 victions, and in such case it shall not be necessary to swear the jury again, 
 but the oath already taken by them shall for all purposes be deemed 
 to extend to such last-mentioned inquiry : provided that if upon the trial 
 of any person for any such subsequent offence such person shall give 
 evidence of his good character, it shall be lawful for the prosecutor, in 
 
 indictment was bad for want of an addition that the prisoner alone had been convicted 
 of time and place to the allegation of know- and T. P. acquitted, and therefore there 
 ledge, which was to be found neither in tlie was a variance ; the learned judge over- 
 recital of the former indictment, nor in ruled this objection also, but entertaining 
 the substantive charge on the face of the some doubt upon the point, he reserved the 
 present mdictment ; but the learned judge case for the opinion of the judges, who held 
 thought that the former indictment was the conviction right. Coleridge, J., stated 
 good, beuag in the words of the statute and the other points to the judges, that the 
 after verdict ; and that ' knowing ' in the prisoner might have the benefit of them, if 
 present indictment, being a participle in he had been wrong in overruling them, 
 the present tense, must import knowledge (g) i.e., by verdict or plea of guilty, even 
 at the time of the uttering. 2ndly. That if no sentence was pronounced. E. r. 
 the word 'knowing' did not refer to the Blaby [1894], 1 Q.B. 170. 
 prisoner, but to A. W. and T. H. ; but {?i) The questions discussed in former 
 Coleridge, J., thought that ' knowing ' did editions as to offences under statutes prior 
 refer to the prisoner, as all that was alleged to 1861, are now by lapse of time rendered 
 to be done was alleged to be done by him. of no importance. See R. v. Montrion, 
 3rdly. That the indictment did not state 9 Cox, 27. Anon., 9 Cox, 28, Byles, J. 
 any former conviction, because neither the As to effect of repealing clauses on offences 
 plea nor the verdict of the jury was recited ; committed before the repeal operates, vide 
 but the learned judge thought that the ante, pp. 6, 7. And see Greaves Crim. L. 
 allegation that he had been in due course of Cons. Acts {2nd ed.), 199. 
 law tried and convicted, together with a {hh) For words here omitted, ride post. 
 statement of the judgment, was sufficient. p. 363. 
 
 4thly. That the recital of the former record {i) Under 7 & 8 Geo. IV. c. 28, s. 2 (E), 
 
 shewed a conviction of the prisoner and or 9 Geo. IV. c. 54, s. 8 (I). 
 T. P., whereas the record produced shewed
 
 CHAP. II.] Of Uttering Counterfeit Coin of the Realm. 361 
 
 answer thereto, to give evidence of the conviction of such person for 
 the previous offence or offences, before such verdict of guilty shall be 
 returned, and the jury shall inquire concerning such previous conviction 
 or convictions at the same time that they inquire concerning such 
 subsequent offence' (/). 
 
 Where the indictment charged a felonious uttering after a previous 
 conviction, the jury found the prisoner guilty of the uttering but not 
 guilty of the previous conviction, it was held that this was a verdict 
 of not guilty of the felony charged, and that the prisoner could not be 
 convicted of the misdemeanor of uttering upon that indictment (A-). 
 
 Evidence.— As to evidence of what is a current coin (/), and coin 
 being counterfeit, and of possession, see ante, p. 344. 
 
 For the purpose of f)roving the uttering, &c., to have been done 
 knowingly, it is the practice to receive proof of more than one uttering 
 committed by the party about the same time, though only one uttering 
 be charged in the indictment. This is in conformity with the practice 
 upon indictments for disposing of and putting away forged bank notes, 
 knowing them to be forged (m) ; upon one of which the counsel for the 
 prisoners, objecting to such evidence, contended that it would not be 
 allowed upon an indictment for uttering bad money ; and stated that the 
 proof in such case was always exclusively confined to the particular utter- 
 ing charged in the indictment. But Thomson, B., said, that he by no 
 means agreed in the conclusion of the prisoners' counsel, that the prose- 
 cutor could not give evidence of another uttering on the same day to prove 
 the guilty hioidedge. ' Such other uttering,^ he observed, ' cannot be 
 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 descrip- 
 tion of a common utterer (n) : but if the indictment do not contain that 
 charge, yet these circumstances may be given in evidence on any other 
 
 (j) Under 2& 3 Will. IV. c. 34(iep.), it was should not l)e mentioned, even by accident, 
 
 necessary in an indictment for a subsequent before a verdict of guilty of the subsequent 
 
 offence, to set out at longtli the previous offence had been delivered. C. S. G. This 
 
 indictment, &c., and to give in evidence a section is virtually .superseded by 34 & 3.1 
 
 copy of that indictment, &c. This was Vict. c. 112,8. ^, post, Bk. xii. c. iii. For 
 
 found objectionable, and therefore th(^ present procedure as to offences after 
 
 present enactment provided for a short previous convictions, see fost. Bk. xii. c. iii. 
 
 statement in the indictment, and for a cer- (k) R. i\ Thomas, L. R. 2 C. C. R. 141. 
 
 tificate containing the substance and effect The prisoner was in fact charged with and 
 
 of the former indictment, &c. ; it pro- tried for a felony, and the jury found him 
 
 vides for the proceedings on the arraign- guilty of a misdemeanor onlj'. 
 
 ment, and in the same manner as on an {/) In R. r. Connell, 1 C. & K. 190, a 
 
 indictment for larceny after a previous modern fourpenny piece was held to be 
 
 conviction for felonj'. The words ' after sufficiently described as a ' groat,' although 
 
 charging the subsequent offence' were in- the value of the coin originally denominated 
 
 serted in order to render it absolutely a ' groat ' had greatly changed since such 
 
 necessary always to cliargc the subsequent coins were i)laccd in currency, Ump. 
 
 offence or offences first in the indictment, Edward III. 
 
 and after so doing to allege the previous (?/i) R. v. Whiley, 2 Leach, 983 : 1 B. & 
 
 conviction or convictions. This was the W (N. R.) 92. R. v. Tattcrshall [1801], 
 
 invariable practice on the Oxford Circuit, 2 Leach, 985, cit. R. r. Ball, 1 Camp. 325 ; 
 
 and the Select Committee of the Commons 2 Leach, 987n. ; and other cases, post, 
 
 were clear that it ought to be universally Bk. xiii. c. ii. ' Evidence.' 
 
 followed, ,so that the previous convictioii (n) That is, within 15 Ceo. IT. c. 28 (rep.)
 
 362 Of Offences against the Revenue, dec. [book iv. 
 
 charge of uttering, to shew that he uttered the money with a knowledge 
 of its being bad ' (o). So, upon an indictment for uttering a counterfeit 
 shilling, the fact of five other counterfeit shilhngs having been found in 
 the prisoner's possession five days afterwards, has been held admissible 
 in order to shew guilty knowledge (p). 
 
 In order to j^rove guilty knowledge, both previous and subsequent 
 utterings of the same and of different kinds of coin are admissible. On an 
 indictment for uttering a counterfeit half-crown on the 12th of December, 
 that uttering was proved, and the uttering of another counterfeit half- 
 crown on the 11th of December, and evidence was admitted of an uttering 
 of a counterfeit shilhng on the 4:th of January, although it was objected 
 that a subsequent uttering of a different species of counterfeit coin was 
 not admissible to shew guilty knowledge at a prior time ; and it was held 
 that this evidence was properly received. In order to shew guilty know- 
 ledge, it would not be sufficient merely to prove some other dishonest 
 act ; but here the uttering of the bad silver was so connected with 
 the offence charged, as to make the evidence of it admissible, although 
 the coin was of a different denomination ; and the difference of the 
 denomination goes to the weight of the evidence, but does not affect 
 its admissibility (q). 
 
 On an indictment on 2 Will. IV. c. 34, s. 8, for having in possession 
 counterfeit crowns and half-crowns with intent to utter the same, it 
 appeared that there were found in different pockets of the prisoner's 
 dress four counterfeit crowns, all electro-plated, of the same date and 
 same mould, each wrapped in a separate piece of paper : thirteen counter- 
 feit half-crowns, all electro-plated, of the same date and the same mould, 
 each wrapped in a separate piece of paper ; and fourteen counterfeit 
 shillings, all electro-plated, of the same date and the same mould. The 
 j)risoner said that they had been given him while gambling, and that he 
 did not know that they were counterfeit : and it was held that there was 
 sufficient evidence to go to the jury that he knew that the coin was 
 counterfeit, and intended to utter it (r). 
 
 Intent. — The gist of the offence, as now defined, lies in the know- 
 ledge that the coin is counterfeit. Except in sect. 13, intent to defraud 
 is not a part of the definition of the said offence, and it is no longer essential 
 to prove that the uttering was done with intent to defraud the party 
 receiving the money, or with intent that that party should pass it as the 
 agent of the utterer. But to warrant a conviction there must be some 
 indication of a dishonest purpose {s) or 7nens rea {t). 
 
 (o) R. V. Wliilej', 2 Leach, 983. more, on which she gave the woman the 
 
 (p) Pi. V. Harrison, 2 Lew. 118, Taunton, bad half-crown in question, telling her to 
 
 J., and Alderson, B. get what she could for her children : it was 
 
 (g) R. V. Foster, Dears. 456. held that, although in the statute there are 
 
 (r) R. V. Jarvis, Dears. 552. no words with respect to defrauding, yet in 
 
 (s) Upon an indictment on 2 Will. IV. the proof it is necessary to go beyond the 
 
 c. 34, s. 7 (rep.), against husband and wife mere words of the statute, and to shtw an 
 
 for uttering a counterfeit half-crown, it intention to defraud some person. There 
 
 appeared that a woman asked the female might be cases of a party giving a person a 
 
 prisoner to give her something, as her piece of counterfeit money, and at the same 
 
 children were without food, and the male time teUing the person that it was bad, and 
 
 prisoner gave her twopence, and told her yet he would stUl be Uable to be convicted 
 
 that his wife would give her something on an indictment like the present, if a case
 
 CHAP. II.] Of Uttering Counterfeit Foreign Coin. 363 
 
 Evidence of Previous Conviction.— By 24 & 25 Vict. c. 99, s. 37, . . . 
 
 and a certificate containing the substance and effect only (omitting the 
 formal j)art) of the indictment and conviction for the previous offence, pur- 
 porting to be signed by the Clerk of the Court or other officer having or 
 purporting to have the custody of the records of the Court where the 
 offender was first convicted, or by the deputy of such clerk or officer, shall, 
 uj^on proof of the identity of the person of the offender, be sufficient 
 evidence of the previous conviction, without proof of the signature or official 
 character or authority of the person appearing to have signed the same, 
 or of his custody or right to the custody of the records of the Court, 
 and for every such certificate a fee of six shillings and eightpence, and 
 no more, shall be demanded or taken . . . ' (w). 
 
 It is clear from the terms of the enactment that the certificate is 
 admissible without further proof if it appears to be in proper form (y). 
 
 If the prisoner, whether by himself or his counsel, attempts to prove 
 a good character for honesty, either directly, by calling witnesses, or 
 indirectly, by cross-examining the witnesses for the Crown, the prosecu- 
 tion may give the previous conviction in evidence against the prisoner {w). 
 If, however, a witness for the prosecution were asked by the prisoner's 
 counsel some question, which has no reference to character, and he 
 happened to say something favourable to the prisoner's character, the 
 prisoner would not be said to give evidence as to his character, and the 
 previous conviction ought not to be admitted (»). 
 
 C. Of Uttering, Tendering, &c., Foreign Counterfeit Coin, &c. 
 
 By 24 & 25 Vict. c. 99, s. 20, ' Whosoever shall tender, utter, or put 
 off any such false or counterfeit coin resembling or apparently intended 
 to resemble or pass for any gold or silver coin of any foreign prince, state, 
 or country {y), knowing the same to be false or counterfeit, shall, in 
 
 falling within the mere words of the statute that R. v. Page is overruled, and that ' the 
 
 were sufficient. R. v. Page, 8 C. & P. 122. intent is inferred by law,' in like manner as 
 
 ' As every person is taken to intend the ' if a forged instrument is put away in order 
 
 probable consequence of his act, and as the to get money or credit, that amounts to an 
 
 probable consequence of giving a piece of uttering.' 
 
 bad money to a beggar is that that beggar [t) Vide ante, Bk. i. c. iv. p. 101. 
 
 will pass it to some one else, and thereby («) As to alternative modes of j^roof, see 
 
 defraud that person ; quaere, whether this 2^0''*'> I^k. xii. c. iii. and Bk. xiii. 
 
 case rests upon satisfactory grounds ? In (y) In R. v. Whale, 1 Cox, 69 ; R. r. 
 
 any case a party 7nay not be defrauded by Stone, ibid. 70, Cresswell, J., is reported as 
 
 taking base coin, as he may pass it again, having held that, where a certificate was 
 
 but still the probability is that he will be produced purporting to be signed by a 
 
 defrauded, and that is sufficient.' C. S. G. clerk of the peace, there must bo some 
 
 But where on an indictment for uttering evidence in addition that the certificate is 
 
 counterfeit coin, it appeared that the priso- genuine and comes from the proper custody, 
 
 ner had given the coin to a girl with whom as by proof of the handwriting, or that tlie 
 
 he had had connection, Uenman, C.J., and document came from the office of the clerk 
 
 ("oltman, J., held that if the prisoner gave of the peace. These eases are very prob- 
 
 the com to tlie girl under the circumstances ably misreportcd, as it is quite clear that no 
 
 proved, knowing it to be counterfeit, he such evidence is required, and the universal 
 
 was guilty of the offence charged ; that the practice has been to the contrary. C. S. O. 
 
 preceding decision was not in point, as that {ic) R. v. Shrimpton, 2 Den. 319. R. v. 
 
 was a case of charity ; but that there were Ciadbury, 8 C. & P. G70. 
 
 great doubts as to the correctness of that {x) R. v. Shrimpton, uhi sup., Campbell, 
 
 ruling. Anon., 1 Cox, 250. And in R. v. C.J. 
 
 Ton, 2 Den. 484, it was said by Alderson, B., (y) See s. 18, ante, p. 352.
 
 364 Of Offences against the Revenue, do. [book iv. 
 
 England and Ireland, be guilty of a misdemeanor, and in Scotland of a 
 crime and offence, and being convicted thereof shall be liable, at the 
 discretion of the Court, to be imprisoned for any term not exceeding six 
 months, with or without hard labour ' (2). 
 
 Sect. 21. ' Whosoever, having been so convicted as in the last 
 preceding section mentioned, shall afterwards commit the like offence of 
 tendering, uttering, or putting oS any such false or counterfeit coin as 
 aforesaid, knowing the same to be false or counterfeit, shall, in England and 
 Ireland, be guilty of a misdemeanor, and in Scotland of a crime and oJEEence, 
 and being convicted thereof shall be liable, at the discretion of the Court, 
 to be imprisoned for any term not exceeding two years, with or without 
 hard labour, [and with or without solitary confinement (a) ;] and who- 
 soever, having been so convicted of a second offence, shall afterwards 
 commit the Hke offence of tendering, uttering, or putting off any such 
 false or counterfeit coin as aforesaid, knowing the same to be false or 
 counterfeit, shall, in England and Ireland, be guilty of felony, and in 
 Scotland of a high crime and offence, and being convicted thereof shall be 
 liable ... to be kept in penal servitude for life . . . ' (6). 
 
 Sect. VIII. — Of Buying, Selling, Receiving, or Paying for Counter- 
 feit Coin at a Lower Rate than its Denomination Imports. 
 
 Gold or Silver Coin. — By sect. 6, ' Whosoever, without lawful authority or 
 excuse {the proof whereof shall lie on the party accused), shall buy, sell, 
 receive, pay, or put off, or offer to buy, sell, receive, pay, or put off, any 
 false or counterfeit coin resembhng or apparently intended to resemble 
 or pass for any of the King's current gold or silver coin at or for a lower 
 rate or value than the same imports or ivas apparently intended to import, 
 shall, in England and Ireland, be guilty of felony, and in Scotland of a 
 high crime and offence, and being convicted thereof shall be liable . . . 
 to be kept in penal servitude for life . . . (c) ; and in any indictment for 
 any such fence as in this section aforesaid it shall be sufficient to allege that 
 the party accused did buy, sell, receive, pay, or put of, or did offer to buy, 
 sell, receive, pay, or put of the false or counterfeit coin at or for a lower rate or 
 value than the same imports or was apparently intended to import, without 
 alleging at or for what rate, price, or value the same was bought, sold, 
 received, paid, or put of, or offered to be bought, sold, received, paid, or put 
 oi'{d). 
 
 (2) Framed from 37 Geo. III. c. 126, s. 4, (c) As to omitted parts and substituted 
 
 with such alterations in its terms as to punishments, see ante, p. 348. 
 
 make it correspond with the rest of this (d) Taken from 2 Will. IV. c. 34, s. (J, 
 
 Act. with the additions and substitutions itali- 
 
 (a) As to solitary confinement, see ante, cised. The words ' without lawful autho- 
 
 p. 214. lity,' &c., were mtroduced in order to pro- 
 
 (6) Framed from 37 Geo. III. c. 126, s. 4. tcct officers and others who are authorised 
 
 As to other punishments, vide ante, p. 348. to buy or procure false coin in order to 
 
 As to the indictment and proceedings, see detect coiners. In the repealed enactment 
 
 s. 37, ante, p. 360. Having in custody a there was no qualification. The words 
 
 greater number than five pieces of counter- ' apparently intended to import ' are sub- 
 
 feit foreign com, whether current here or stituted for ' or was coined, or counterfeited 
 
 not, makes the party liable to punishment for.' The last part of the section renders 
 
 by proceedings before a justice of the peace, it unnecessary to allege the sum for which 
 
 under s. 23 of the statute. the coin was bought, &c., and consequently
 
 CHAP. II.] Of the Making, (&c., Instruments for Coining. 365 
 
 Copper Coin. — By sect. 14, ' Whosoever . . . (e) shall buy, sell, 
 receive, pay, or put off, or offer to buy, sell, receive, pay, or put off any 
 false or counterfeit coin resembUng or apparently intended to resemble 
 or pass for any of the King's current copper coin, at or for a lower rate 
 or value than the same imports or ivas apparetitly intended to import, 
 shall, in England and Ireland, be guilty of felony, and in Scotland of a 
 high crime and offence, and being convicted thereof shall be liable ... to 
 be kept in penal servitude for any term not exceeding seven years . . .' (/"). 
 
 The mere vending of the coin was not considered to come within 8 & 9 
 Will. III. c. 26, s. 6 (rep.), unless it were done at a lower value than 
 the coin imported ((/). The mode of stating the lower value in indict- 
 ments under the present enactments is regulated bv the latter part of 
 sect. 13 of the Act of 1861. 
 
 If the names of the persons to whom the money was put off can be 
 ascertained, they ought to be laid in the indictment ; but if they cannot 
 be ascertained the same rule applies as in stealing the property of persons 
 unknown {h). 
 
 Sect. IX. — Of the Making, Mending, or Having in Possession any 
 Instruments for Coining. 
 
 In R. V. Sutton (2 Str, 1074; cas. temp. Hardw. 370), it was said that 
 the possession of tools for coining with intent to use them was a mis- 
 demeanor at common law. But in R. v. Heath {i) this decision was said 
 to be untenable. 
 
 By 24 & 25 Vict. c. 99, s. 24, ' Whosoever, without lawful authority 
 or excuse (the proof whereof shall lie on the party accused), shall knowingly 
 make or mend, or begin or proceed to make or mend, or buy or sell, or 
 have in his custody or possession, any puncheon (/), counter-puncheon, 
 matrix, stamp, die, pattern, or mould {k), in or upon which there shall be 
 
 whatever the evidence on that point may tioncd by Hale (1 P.O. 184), that the 
 
 be, there can be no variance between it and omitting the inscription on the true seal of 
 
 the allegation in the indictment, and all state would not take the case out of the 
 
 that need be proved is that the coin was statute. See R. v. Robinson, 2 Rolle Rep. 
 
 bought, &c., at some lower rate or value .50 ; 1 East, P.C. 8(). 
 
 than it imports. Under 2 & 3 Will. IV. {k) Mould was spccitically mentioned in 
 
 c. 34, s. 7, it was necessary to aver and one clause of 8 & 9 Will. III. c. 26, s. 1, and 
 
 prove the sum for which the coin was was held to fall within the words ' or other 
 
 bought, &c. R. V. Joyce, Carr. Supp. 184. tool or instrument hereinbefore mentioned ' 
 
 R. V. Hedges, 3 C. & P. 410. used in a later clause. R. v. Lennard 
 
 (e) For the portion of this section which [17721, 1 Leach, 90 ; 2 W. Bl. 807 ; 1 East, 
 
 relates to counterfeiting copper coin, see P.C. 170. Upon the form of the indict- 
 
 ante, p. 350. And for the portion relating ment the question was raised, whether the 
 
 to coining tools, see post, p. 367. mould which was found in the prisoner's 
 
 (/) Taken from partof 2 Will. IV. c. 34, custody, it having only the resemblance of 
 
 8. 12. As to other punishments, see ante, a shilling inverted, viz., the convex parts of 
 
 p. 348. As to the words in italics, see the shilling being concave in the mould, 
 
 remarks on s. 6, ante, p. 364. and vice versa, the head or profile being 
 
 (fj) 1 East, P.C. 180. turned the contrary way of the coin, and 
 
 (h) Ibid. all the letters of the inscription reversed, 
 
 (t) [1810] R & R. 184. was not properly an instrument which 
 
 (j) It is enough if the pinicheon, &c., will would make and impress the resemblance, 
 
 impress a resemblance, whether exact or stamp, &c., rather than an instrument on 
 
 not, to the genuine coin such as would which the same were made and impressed, 
 
 impose upon the world. R. v. Ridgelay as laid in this mdictment, the statute seem- 
 
 [1778], 1 Leach, 180. Cf. the cases men- ing to distinguish between such ns irill
 
 366 Of Offences against the Revenue, &c. [book iv. 
 
 made or impressed, or which will make or impress, or which shall be 
 adapted and intended to make or impress, the figure, stamp, or apparent 
 resemblance of both or either of the sides of any of the King's current 
 gold or silver coin, or of any coin of any foreign prince, state, or country (/), 
 or any part or parts im) of both or either of such sides ; or shall make or 
 mend, or begin or proceed to make or mend, or shall buy or sell, or have 
 in his custody or possession, any edger, edging or other tool, collar {n), 
 instrument, or engine adapted and intended for the marking of coin round 
 the edges with letters, grainings, or other marks or figures apparently 
 resembling those on the edges of any such coin as in this section afore- 
 said, knowing the same to be so adapted and intended as aforesaid ; or 
 shall make or mend, or begin or proceed to make or mend, or shall buy 
 or sell, or have in his custody or possession, any press for coinage (o), or 
 any cutting engine for cutting, by force of a screw or of any other contriv- 
 ance, round blanks out of gold, silver, or other metal or mixture of metals, 
 or any other machine, knowing such press to be a press for coinage, or 
 knowing such engine or machine to have been used, or to be intended to 
 be used, for or in order to the false making or counterfeiting of any such 
 coin as in this section aforesaid, shall, in England and Ireland, be guilty 
 of felony, and in Scotland of a high crime and offence, and being convicted 
 thereof shall be liable . . . to be kept in penal servitude for life . . . ' (p). 
 Conveying Tools or Monies out of the Mint without Authority. — Sect. 
 25. ' Whosoever, without lawful authority or excuse (the proof whereof 
 shall lie on the party accused), shall knowingly convey out of any of His 
 Majesty's mints any puncheon, counter-puncheon, matrix, stamp, die, 
 pattern, mould, edger, edging or other tool, collar, instrument, press, or 
 engine used or employed in or about the coining of coin, or any useful part 
 of any of the several matters aforesaid, or any coin, bullion, metal, or 
 mixture of metals, shall, in England and Ireland, be guilty of felony, and 
 in Scotland of a high crime and offence, and being convicted thereof shall 
 be liable ... to be kept in penal servitude for life . . . ' (q). 
 
 make and impress the similitude, &c., as the (m) These words, which were in 2 & 3 
 
 matrix, die, and mould ; and such on Will. IV. c. 34, s. 10, were held to apply to 
 
 which the same is made and impressed, as a cases where several moulds were used to 
 
 puncheon, or counter-puncheon, or pattern. make one side of a coin. R. v. Richmond, 
 
 But a great majority of the judges were 1 C. & K. 240, Rolfe, B. In R. v. Macmil- 
 
 of opinion that this evidence sufficiently Ian, 1 Cox, 41, Maule, J., held that the 
 
 maintained the indictment; because the words 'part or parts' refer to the impression, 
 
 stamp of the current coin was certainly and not to the mould itself, 
 impressed on the mould in order to form («) 8 & 9 Will. III. c. 26, ajiplied to 
 
 the cavities thereof. They agreed, how- collars and instruments newly invented 
 
 ever, that the indictment would have been after its passing. R. v. Moore, 1 Mood, 
 
 more accurate had it charged that ' he had 122. 
 
 in his custody a mould that loould make {o\ Presses, &c., were tools or instru- 
 
 and impo-ess the similitude,' &c., and in this ments within 8 & 9 Will. III. c. 20. R. v. 
 
 opmion some, who otherwise doubted, Bell, Fost. 430. 
 
 acquiesced. In R. v. Macmillan, 1 Cox, 41, [p) Framed from 2 & 3 Will. IV. c. 34, 
 Maule, J., seems to have ruled that a mould s. 10, and extended to tools for counter- 
 must be something with which a coin can feiting foreign coin, and to tools and 
 be made, and to have directed an acquittal machines other than those specified in the 
 where a mould having a perfect impression former enactment, including tools for cut- 
 of one side of a shilling, had no channel ting blanks out of mixed metals. For 
 through which the metal could run. other punishments, see ante, p. 348. 
 
 [1) These words provide for foreign coin (q) Taken from 2 & 3 Will. IV. c. 34, 
 
 not dealt with by 8 & 9 Will. III. c. 20. R. s. 11. As to other punishments, see ante. 
 
 V. Bell, 1 East, P.C. 169 ; Post. 430. p. 348.
 
 CHAP. II.] Of the Making, dc, Instruments for Coining. 367 
 
 Making or having Tools for Coining Copper.— Sect. 14. ' . . . Whoso- 
 ever, without lawful authority or excuse (the proof whereof shall lie on 
 the party accused), shall knowingly make or mend, or begin or proceed 
 to make or mend, or buy or sell, or have in his custody or possession, any 
 instrument, tool, or engine adapted and intended for the counterfeiting 
 any of the King's current copper coin . . . shall, in England and Ireland, 
 be guilty of felony, and in Scotland of a high crime and offence, and 
 being convicted thereof shall be liable ... to be kept in penal servitude 
 for any term not exceeding seven years . . .' (r). 
 
 Lawful Authority or Excuse.— It has been decided upon sect. 24 that 
 the word ' excuse ' includes authority, and that it is unnecessary to allege 
 or prove any intent. The felony is knowingly to have possession of a 
 die, and the guilty knowledge required is that of being in possession of 
 the die, contrary to the provisions of the Act of Parliament, that is, 
 without lawful authority or excuse. A guilty intention to use the dies is 
 not necessary (s). 
 
 Where two galvanic batteries were found in the prisoner's house, with 
 white metal and other things plainly indicating that they had been used 
 for coining, and it was proved that counterfeit coin is electro-plated 
 before it is put in circulation, and that that is generally done by the aid 
 of galvanic batteries, it was held that the batteries were machines within 
 the meaning of this section (t). 
 
 Innocent Agent. — Where a die calculated to make shillings is made 
 by an innocent agent, the party procuring him to make such die is the 
 principal. The prisoner was indicted under 2 & 3 Will. IV. c. 34, s. 10 
 (repealed and replaced by 24 & 25 Vict. c. 99, s. 24), for feloniously 
 making a die which would impress the resemblance of the obverse side 
 of a shilling. The prisoner applied to a die-sinker to sink four dies for 
 counters for two whist clubs, stating that it was their practice to play 
 with counters with one side resembling coins. The dies were to be 
 obverse in the one case head of Queen Victoria, as in the shilling ; in the 
 other the shilling as in coin, with wreath, &c. Reverses the names of 
 the clubs. The die-sinker was directed to execute the prisoner's order. 
 The prisoner afterwards desired to have the two obverses finished first, 
 and they were so. When they were finished, they formed a die for the 
 coining of a shilling. For the prisoner, it was objected that he could 
 not be convicted, as he had not himself done anything in the making of 
 the die, and that he was not answerable in this form of charge for the 
 act of the die-sinker ; that the die-sinker having acted under the instruc- 
 tions of the Mint, no felony whatever had been committed, and that the 
 prisoner should have been indicted for a misdemeanor in inciting the 
 die-sinker to commit a felony. But, upon a case reserved, all the judges 
 present (except Cresswell) thought the die-sinker an innocent agent, 
 and held the conviction good (w). 
 
 Evidence. — On an indictment for having in possession a die made of 
 
 {>■) Taken from part of 2 & 3 Will. IV. Office Protection Act, 1884 (47 & 48 Vict, 
 
 c. 34, s. 12. As to other punishments, see c. 76, re-enacted as 8 Edw. VII. c. 48, s. 6 (5). 
 ante, p. 348. (t) R. v. Gover, 9 Cox, 282, The Common 
 
 (s) R. V. Harvey, L. R. 1 C. C. R. 284 ; Serjeant, after consulting Keating, J. 
 46 L. J. M. C. 63. Cf.Dickinsr. Gill [1896], (ii) R. v. Banncn [1844], 2 Mood. 309. 
 
 2 Q.B. 310, decided on s. 7 of the Post As to innocent agents, vide ante, p. 104.
 
 368 Of Offences against the Revenue, &c. [book iv. 
 
 iron and steel, a witness who saw the die said it was made of iron ; another 
 witness, who had not seen it, said that dies were usually made of steel, 
 and that iron dies would not stand. It was held that this evidence 
 would support the indictment, for it was immaterial to the offence of 
 what the die was made, and proof of a die either of iron or steel, or both, 
 would satisfy charge {v). 
 
 The degree of resemblance to the real coin which the tools or instru- 
 ment must be capable of impressing in order to bring the case within 
 sect. 24, must be governed by considerations similar to those which 
 have been stated with respect to the counterfeit coin itself {w). Whether 
 the instrument in question be adapted and intended to impress the figure, 
 stamp, resemblance, or similitude of the coin current is a question for 
 the jury ; and it is clear, that the offence is not confined to ' an exact 
 i?nitation of the original and proper effigies of the coin ' (x). 
 
 An indictment alleged in one count that a prisoner feloniously had 
 in his possession a mould ' upon wliich was impressed the figure and 
 apparent resemblance of one of the sides (that is to say) the obverse 
 .side of the King's current coin called a shilling,' and in another count the 
 substituted word ' reverse ' for ' obverse.' The moulds when produced 
 appeared not to have a complete impression of the obverse and reverse 
 sides of a shilling, but only the outside rim, and a slight portion of the 
 other j)arts of the impression ; the entire impressions, however, appeared 
 to have been upon them at one time, but part had been obliterated. It 
 was held, that if the jury believed that no more than part of the impres- 
 sion was impressed upon the moulds while the prisoner was in possession 
 of them, he ought to be acquitted (y). But where an indictment charged 
 that the prisoner made a mould, which was intended to impress the 
 resemblance of the obverse side of a shilling, it was held sufficient to 
 prove that the prisoner made a mould, which would make a part of the 
 impression. One count charged the prisoner with making a mould, 
 ' which said mould was intended to make and impress the figure and 
 apparent resemblance ' of the obverse side, and another the reverse 
 side, of a shilling ; the evidence being the same as in the former case ; 
 it was held, that the term ' intended ' did not mean in a state to make 
 an entire impression, and therefore if the prisoner had only begun to 
 make, the intention to make the whole might be inferred, though 
 only part was actually made, and consequently that the evidence was 
 sufficient (z). 
 
 An indictment charging that the prisoner had in his possession a 
 mould ' upon which was made and impressed the figure ' of one of the 
 sides of a coin was held bad for not shewing that the figure was on the 
 mould at the time when the prisoner had it in his possession. The words 
 ' then and there ' should be introduced before the word ' made ' (a). 
 
 (v) R. V. Oxford [1819], R. & R. 382, and (x) 1 East, P.C. 171. 
 
 MS. Bayley, J. R. v. Phillips [1818], R. (y) R. v. Foster, 7 C. & R 494, Patteson, 
 
 & R. 369. In proceedings under 8 & 9 J. 
 
 Will. III. c. 26, it was not necessary to (z) R. v. Foster, 7 C. & P. 495, Patteson, 
 
 prove that coin was actually made with the J. 
 
 instrument. R. v. Ridgelay, 1 East, P.C. (a) R. v. Richmond, 1 C. & K, 240, 
 
 172. Rolfe, B. 
 
 («•) See 1 East, P.C. 171, and ante, p. 3.51.
 
 I 
 
 CHAP. II.] Of the Making, &c., Instruments for Coining. 369 
 
 W. and two other men and two women were indicted for having in 
 their possession a mould impressed with one side of a half-crown. W. 
 had occupied a house for a month, and the police one night went to the 
 house and found the other prisoners there. The men attacked the 
 police, whilst the women snatched up something which they threw into 
 the fire. The police preserved part of this, which proved to be fragments 
 of a plaster of Paris mould of a half-crown, ^mrls of which were still tvet. 
 A quantity" of plaster of Paris was found in a cupboard up stairs, with 
 several bottles of liquid. In a cupboard down stairs an iron ladle, such 
 as might have been used for melting metal, was found ; on the hearth 
 in one of the rooms up stairs was found a small portion of white metal 
 and some fragments of plaster of Paris moulds. Thirteen days before 
 W. had passed a bad half-crown ; but there was no evidence to shew 
 that it was made in the mould found in the house. The jury found that 
 W. knew that the mould was in the house. It was held that W. was 
 rightly convicted, as the mould was found in the house of which he was 
 the master, and that the evidence of the uttering of the half-crown by 
 him was rightly admitted to establish the scienter (b). 
 
 On an indictment against husband, wife, and boy aged ten years, for 
 having in possession a mould on which was impressed the obverse side 
 of a shilling, it appeared that the boy was apprehended whilst passing 
 a counterfeit half-crown, and on the officer going to the house where 
 he said he resided the husband was found in an upper room. In the 
 lower room the mould and various coining implements were found, 
 and whilst the officer was searching the wife came in, and soon after- 
 wards broke up a mould used in casting counterfeit shillings ; on her 
 counterfeit money was found, but none on her husband, Talfourd, J., 
 held that as the husband occupied the room in which the mould was 
 found, pn7na facie he must be presumed to be in possession of what the 
 room contained ; but that presumption might be rebutted, and the 
 jury must consider all the circumstances, and see whether they satisfied 
 them that the trade was carried on there with his sanction. If they 
 were satisfied that the husband was in possession of the mould, they 
 ought to acquit the wife, as she could not in law be said to have any 
 possession separate from her husband ; but if they thought that the 
 criminality was on her part alone, and that he was entirely guiltless of 
 any participation in her conduct, she might be convicted. If they 
 thought she broke the mould to screen him from detection, that would 
 not affect the case. Either husband or wife might be convicted on this 
 evidence, but not both. As to the boy, it would be going too far to say 
 that he was a joint possessor with either of his parents (c). 
 
 The counterfeiting of foreign coin was then a felony under 37 Geo. Ill, 
 c, 126, s. 2, repealed and now represented by 24 & 25 Vict. c. 99, s. 18 
 ante, p. 352. 
 
 Procuring Dies with Intent to Counterfeit Foreign Coin.— An indict- 
 ment {d) contained one count charging the prisoner with unlawfully causing 
 to be made two dies, one of the obverse side, the other of the reverse 
 
 (6) R. V. Weeks, L. & C. 18. (J) Under 37 Geo. III. c. 12G (rep,), 
 
 (c) R, V. Boober, 4 Cox, 272. 
 VOL. I, 2 B
 
 370 Of Offences against the Revenue, &c. [book iv. 
 
 side of a silver half-dollar of Peru, with intent feloniously to make counter- 
 feit Peruvian half-dollars, another count charging him with attempting 
 feloniously to coin by making the dies, with intent to use them in coining 
 such counterfeit coins. From the evidence it appeared that the prisoner, 
 without any authority or licence so to do, caused to be made by one 
 Jackson, a die-sinker (who, though he executed the order, gave notice 
 to the police, and committed no offence against the law), the necessary 
 dies for making a counterfeit dollar of Peru. The dies, though suitable 
 and necessary for making such counterfeit coin, could not alone produce 
 it ; a press, copper blanksj galvanic battery, and a preparation of silver 
 being also necessary for that purpose. The prisoner had procured 
 galvanic batteries, and had been in negotiation for the purchase of a 
 press and coj^per blanks for the aforesaid purpose ; but he had not 
 actually procured either press, blanks, or preparation of silver. There 
 Was no doubt that the prisoner intended to use the whole apparatus 
 when procured in making counterfeit Peruvian dollars, and the only 
 doubt was whether he intended to coin in Peru only, or in this country 
 also ; and it was contended that, if he only intended to make the coin 
 in Peru, no offence had been committed ; and even if he did intend to 
 coin in this country, that intention, though coupled with the act of causing 
 the dies to be made in pursuance of such intention, fell short of an attempt 
 to commit a felony. The jury found that the intention of the prisoner 
 was to cause to be made and procure the dies and other apparatus in 
 order therewith to coin counterfeit Peruvian half-dollars, and to make a 
 few only of the counterfeit coin in England by way of trying whether 
 the apparatus would answer before sending it out to Peru, to be there 
 used in making the counterfeit coin, and convicted the prisoner ; and 
 upon a case reserved, it was held that the conviction was right. 
 Jervis, C.J., said : * This is not an indictment for an attempt to commit 
 statutable offence ; as was the case in R. v. Williams (e), where the charge 
 was an attempt to administer poison. Here there is no direct attempt 
 to coin, but the indictment is founded on a criminal intent coupled with 
 an act immediately connected with the offence. . . . Nobody can doubt 
 that the prisoner was in possession of machinery necessarily connected 
 with the offence, for the express jDurpose of committing it, and which 
 was obtained, and could be obtained, for no other purpose.' And Wight - 
 man, J., said : ' No doubt the act was done with intent to commit a felony, 
 and was sufficient to support such an indictment as the present. It is 
 an act immediately connected with the offence, and the prisoner could 
 have no other object than to commit the offence ' ( /"). 
 
 (e) ] Den. 39 : 1 C. & K. 589. pose would have been a felony within the 
 
 (/) R. V. Roberts, Dears. 539, Jervis, statute; and that even making a few 
 
 C.J., Parke, B., Wightman, Cresswell, and specimens to put in a cabinet would also be 
 
 Wilkes, JJ. The Court seem to have been within the statute. And see R. v. Harvey, 
 
 clear that making a few specimens to ascer- L. R. 1 C. C. R. 284, ante, p. 367. 
 tain whether they would answer the pur- 
 
 \
 
 ( 370a ) 
 
 CANADIAN NOTES. 
 
 OP AND RELATING TO COIN. 
 
 Sec. 1 — Definition and General Provisions. 
 
 Definition. — Code sees. 546, 547. 
 
 Completion of offence. — Code sec. 548. 
 
 Knoivledge and Intent. — Code sec. 549. 
 
 In the case of persons who have passed counterfeit money or bills, 
 when it is necessary to establish a guilty knowledge on the part of the 
 prisoner, the prosecutor is allowed to give evidence of the prisoner 
 having passed other counterfeit money or bills at about the same 
 time, or that he had many such in his possession, which circum- 
 stances tend strongly to shew that he was not acting innocently and 
 had not taken the money casually, but that he was employed in 
 fraudulently putting it off. R. v. Brown (1861), 21 U.C.Q.B. 330, 
 per Robinson, C.J. 
 
 Possession, Meaning of, — Code sec. 5. 
 
 Sec. 2. — Punishment. 
 Code sec. 552. 
 
 Punishment for Second Offence. — Code sec. 568. 
 
 Sees. 851 and 963 as to the procedure where a previous convic- 
 tion is charged seems to imply that the second offence must have 
 been committed subsequently to the first conviction. 
 
 As to certificates of previous convictions. See Code sec. 982. 
 
 A conviction for an offence charged as a second offence, which 
 second offence was committed prior to the date of the conviction of 
 the first offence was bad at common law. Ex parte jMiller, 2 Pugs. 
 485 ; Ex parte McCoy, 7 Can. Cr. Cas. 487. 
 
 Evidence on Trial. — Code sec. 980. 
 
 Sec. 3. — Counterfeiting Coin. 
 
 Definition. — Code sec. 2(8). 
 
 Importing. — Code sec. 554. 
 
 Seizure and Forfeiture by Justices. — Code sec. 623. 
 
 Knowledge. — Code sec. 624. 
 
 Recovery of Penalty. — Code sec. 625.
 
 3705 Offences as to Coin. [book iv. 
 
 Seizure and Forfeiture hy Customs Officers. — Code sec. 626. 
 Counterfeiting. — Code sec. 562. 
 
 Sec. 4. — Impairing and Defacing Current Coin. 
 
 Clipping Gold and Silver Coin. — Code sec. 558. 
 
 Unlawful Possession of Clippings. — Code sec. 560, 
 
 Defacing Current Coin. — Code sec. 559. 
 
 No proceeding or prosecution for the offence of uttering any coin 
 defaced by having stamped thereon any names or words, shall be taken 
 without the consent of the Attorney-General. Code sec. 598. 
 
 Sec. 5. — Of Importation of Counterfeit Gold and Silver Coin. 
 
 Gold or Silver Coin. — Code sec. 563. 
 
 On a charge of having counterfeit coins in possession, proof that 
 the accused also had in his possession "trade dollars" which, al- 
 though genuine, were not worth their stamped value, is not admis- 
 sible as shewing intent to put off the coimterfeit coin. R. v. Benham, 
 4 Can. Cr. Cas. 63. 
 
 Copper Coin. — Code sec. 554. 
 
 Sec. 6. — Exporting Counterfeit Current Coin. 
 Exporting. — Code sec. 555. 
 
 Sec. 7. — Of Uttering, Tendering, etc. 
 
 Possessing ivith Intent to Utter. — Code sec. 561. 
 
 Where an indictment for having possession of counterfeit coin 
 with intent to utter same was, on demurrer, held bad for not alleg- 
 ing that the counterfeit coin "resembled some gold or silver coin then 
 actually current, ' ' the order made was that the indictment be quashed, 
 so that another indictment might be preferred, not that the defendants 
 be discharged. R. v. Tierney, 29 U.C.Q.B. 181. 
 
 Uttering Counterfeit Coin. — Code sec. 564. 
 
 Uttering Light Coin. — Code sec. 565. 
 
 Uttering Defaced Coin. — Code sec. 566. 
 
 Uttering Uncurrent Coin. — Code sec. 567. 
 
 Sec. 8. — Of Buying, Selling, etc. 
 
 Gold or Silver Coin. — Code sec. 553, 
 
 Advertising Counterfeit Money. — Code sec. 569. 
 
 Evidence of Fraudulent Scheme. — Code sec. 981. 
 
 This section covers not only the case of counterfeit money, i.e., 
 false tokens purporting to be bank notes, etc., but false tokens pur- 
 porting to be counterfeit tokens. 
 
 The words "what purports to be" in sec. 569 (formerly 51 Vict. 
 (Can.), ch. 40) import what appears on the face of the instrument;
 
 CHAP. II.] Traffic in Counterfeit Coin. 370c 
 
 and therefore what was said to the prisoner, or what he thought or 
 believed, would not be of any moment. Per Rose, J., R. v. Attwood 
 (1891), 20 Ont. R. 574, 578. 
 
 When a person exhibits to another bank notes representing them as 
 counterfeit, when in fact they are not so, the offer to purchase such 
 notes cannot be an offence under the Act, as the prisoner was offering 
 to purchase that which the party had to sell, which were not counter- 
 feit tokens of value. Per MacMahon, J., R. v. Attwood (1891), 20 
 Ont. R. 574, 581. 
 
 In the last named case, the defendant was prosecuted for offering 
 to purchase bank notes which were she\^^l to him as counterfeit, but 
 were in fact genuine bank notes unsigned. 
 
 Doubt was also expressed in the Attwood Case as to whether the 
 section applies to counterfeit tokens not in esse, MacMahon, J., saying 
 that it may be that the clause of the statute would require to be 
 amended in order to reach a person offering to purchase such. 
 
 A paper which is a spurious imitation of a government treasury 
 note is a counterfeit, or what purports to be a counterfeit, token 
 of value although there is no original of its description. R. v. Corey 
 (1895), 1 Can. Cr. Cas. 161 (N.B.). 
 
 As to evidence of admissions made by the accused, see note to 
 sec. 685. 
 
 Although the taking possession of or using a counterfeit token of 
 value is an offence under sec. 569 (tZ), if such counterfeit be also a 
 forged bank note the prosecution may be under Code sec. 550 for the 
 offence of having a forged bank note in possession knowing it to be 
 forged. R. v. Tutty (1905), 9 Can. Cr. Cas. 544, 38 N.S.R. 136. 
 
 Sec. 9. — Of the Making, etc. 
 
 Making or Possessing Implements for Counterfeiting. — Code see. 
 556. 
 
 Search Warrant. — Code sees. 629 and 632(2). 
 
 Sec. 10. — Supplementary. 
 
 Bank Notes. — Code sec. 550. 
 
 Meaning of "Possession or Custody." — Code sec. 5. 
 Bank or Government Securities. — Code sec. 551. 
 Conveying Tools from Mint into Canada. — Code sec. 557.
 
 I
 
 ( 371 ) 
 
 CHAPTER THE THIRD. 
 
 OFFENCES AGAINST THE REVENUE LAWS 
 
 A. — Customs. 
 
 Conspiracy to defraud the Crown of customs duties is a misdemeanor 
 indictable at common law (a). 
 
 There has been much legislation passed from time to time in order 
 to prevent smuggling (6) and other acts tending to defeat the due collec- 
 tion of certain duties, which gave to revenue officers extraordinary powers 
 and protections, and punished persons endeavouring to resist or evade 
 the Customs law (c). 
 
 The earlier Acts have been superseded and their substance re-enacted 
 in the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36). That 
 Act contains much relating to the forfeiture of vessels engaged in illegal 
 traffic, and of uncustomed goods, which does not come within the scope of 
 this treatise. But it is necessary to notice the enactments relating to 
 the right to seize vessels suspected of being employed for smuggling 
 and to search for and seize uncustomed goods, and also the indictable 
 offences created by the statute. The Act applies to the United 
 Kingdom, to the Isle of Man (sect. 277), and to the Channel Islands 
 (sect. 289). 
 
 By sect. 151, 'The Customs Acts shall extend to and be of full force 
 and effect in the several British possessions abroad, except where other- 
 wise expressly provided for by the said Acts, or limited by express 
 reference to the United Kingdom or the Channel Islands, and except 
 also as to any such possessions as shall by local Act or ordinance have 
 provided, or may hereafter, with the sanction and approbation of His 
 Majesty, make entire provision for the management and regulation of 
 the customs of any such possession, or make in like manner express pro- 
 visions in lieu or variation of any of the clauses of the said Act {sic), 
 for the purposes of such possession ' {d). 
 
 False Declarations. — By sect. 168, ' If any person shall in any matter 
 relating to the Customs or under the control or management of the 
 
 (a) R. V. Thompson, Ki Q.IJ. 832. indictments for misdemeanors, iii assault- 
 
 (h) i.e., bringing on shore or oariying ing and obstructing officers of excise and 
 
 from the shore goods, wares, or morcliandise customs, acthig in tiic due execution of 
 
 on whicii duty has not been paid, or tlie their offices. 4 Wentw. 38o t'< .«e^. 2 Chit, 
 
 importation or exportation whereof is pro- Cr. L. 127 et seq. And see R. v. Brady, 
 
 hibited [vide jjo.^^t, p. 374). See 1 Hawk. 1 B. & P. 187, where it was admitted that 
 
 c. 48, s. ] ; 4 Bl. Com. loo ; Bar. .\hv. tiie offence charged was indictable at com- 
 
 ' SmuggHng.' mon law. 
 
 (c) This legishition was cunudative upon. (d) Laws, by-laws, and usages, &c., of a 
 
 or alternative to. the common law remedies British possession contrary to the Acts, are 
 
 by indictment. See the precedents of declared void (s. IHl). 
 
 2 B 2
 
 372 Of Offences against the Revenue Laivs. [book iv. 
 
 Commissioners of Customs, make and subscribe, or cause to be made and 
 subscribed, any false declaration, or make or sign any declaration certifi- 
 cate or other instrument required to be verified by signature only, the same 
 being false in any particular, or if any person shall make or sign any 
 declaration made for the consideration of the Commissioners of Customs 
 on any application presented to them, the same being untrue in any 
 particular, or if any person required by this or any other Act relating 
 to the Customs to answer questions put to him by the officers of Customs 
 shall not truly answer such c[uestions, or if any person shall counterfeit 
 falsify or wilfully use when counterfeited or falsified, any document 
 required by this or any Act relating to the Customs or by or under 
 the directions of the Commissioners of Customs, or any instrument used 
 in the transaction of any business or matter relating to the Customs, 
 or shall alter any document or instrument after the same has been 
 officially issued, or counterfeit the seal signature initials or other mark 
 of or used by any officer of the Customs for the verification of any such 
 document or instrument, or for the security of goods, or any other purpose 
 in the conduct of business relating to the Customs or under the control 
 or management of the Commissioners of Customs or their officers, every 
 person so offending shall for every such offence forfeit the penalty of one 
 hundred pounds ' (e). 
 
 Smuggling. — By sect. 179, ' If any ship or boat shall be found or 
 discovered to have been within any port bay harbour river or creek 
 of the United Kingdom or the Channel Islands, or within three leagues of 
 the coast thereof if belonging wholly or in part to British subjects, or 
 having half the persons on board subjects of His Majesty, or within one 
 league if not British, have false bulk heads false bows double sides or 
 bottom, or any secret or disguised place adapted for concealing goods, or 
 any hole tube pipe or device adapted for running goods, or having on 
 board or in any manner attached thereto, or having had on board or in any 
 manner attached thereto, or conveying or having conveyed in any manner 
 any spirits tobacco snuff or packages of any size and character in 
 which they are prohibited to be imported into the United Kingdom or 
 the Channel Islands, or any spirits or tobacco or snuff imported contrary 
 to the Customs Acts, or any tobacco stalks ; tobacco stalk flour, or snuff 
 work, or which (sic) shall be found or discovered to have been within three 
 leagues of any part of the coast of the United Kingdom from which any 
 part of the lading of such ship or boat shall be or have been thrown 
 overboard, or on board which any goods shall be or have been staved or 
 destroyed to prevent seizure," the ship, boat, spirits, &c., shall be for- 
 feited (/), and ' every person who shall be found or discovered to have 
 been on board any ship or boat liable to forfeiture as aforesaid, within 
 three leagues of the coast if a British subject, and within one league if a 
 foreigner (g), or on board any vessel in His Majesty's service, or on board 
 
 (e) As to recovery of penalties, see 42 & vessel, or in serious cases of condemning 
 
 43 Vict. c. 21, s. 11, post, p. 383. the vessel in a sum not exceeding £500. 
 
 (/ ) By 53 & 54 Vict. c. 56, s. 1, ships or The ship may be detained till the fines are 
 
 boats of 250 tons burden and upwards are paid or secured. 
 
 excepted from forfeiture, and by ss. 2, 3, (g) See Territorial Waters Jurisdiction 
 
 provisions are made for dealing with larger Act, 1878, ante, p. 41. 
 vessels by fining a responsible officer of the
 
 CHAP. III.] Of Offences afjainst the Customs. 373 
 
 any foreign post office packet employed in carrying mails between any 
 foreign country and the United Kingdom having on board any sj)irits or 
 tobacco in such packages as aforesaid or any tobacco stalks, tobacco 
 stalk flour or snuff work, shall forfeit a sum not exceeding £100 ; and 
 every such j)erson may be detained and taken before any justice, to be 
 dealt with as hereinafter directed : Provided, that no person shall be 
 detained whilst actually on board any vessel in the service of a foreign 
 state or country ' {h). ' And provided also that no person shall be liable 
 to conviction under this section unless there shall be reasonable cause 
 to believe that such person was concerned in or privy to the illegal act 
 or thing proved to have been committed ' (i). 
 
 Sect. 180 provides for the forfeiture of any ships or boats belonging 
 wholly or in part to His Majesty's subjects or having half the persons 
 on board His Majesty's subjects if they do not bring to on signal by a 
 vessel or boat in His Majesty's service or in the service of the revenue 
 and on chase throw overboard stave or destroy any part of the lading 
 to prevent seizure. All persons escaping from such ship or boat during 
 chase are to be deemed subjects of His Majesty unless the contrary is 
 proved. 
 
 Search and Seizure of Smuggling Vessels, &c. — By sect. 181, 'If any 
 ship or boat liable to seizure or examination under the Customs Acts 
 shall not bring to when required so to do, the master of such ship or boat 
 shall forfeit the sum of £20 ; and on being chased by any vessel or boat in 
 His Majesty's navy having the proper pendant and ensign of His Majesty's 
 ships hoisted, or by any vessel or boat duly employed for the prevention 
 of smuggling, having a proper pendant and ensign hoisted, it shall be 
 lawful for the captain, master (see sect. 284), or other person having the 
 charge or command of such vessel or boat in His Majesty's navy, or 
 employed as aforesaid (first causing a gun to be fired as a signal), to fire 
 at or into such ship or boat, and such captain, master, or other person 
 acting in his aid or by his direction shall be and is hereby indemnified and 
 discharged from any indictment penalty action or other proceeding for 
 BO doing.' 
 
 By sect. 182, ' Any officer of Customs or other person duly employed 
 for the prevention of smuggling may go on board any ship or boat which 
 shall be within the limits of any port of the United Kingdom or the 
 Channel Islands, and rummage and search the cabin and all other parts 
 of such ship or boat for prohibited or uncustomed goods, and remain 
 on board such ship or boat so long as she shall continue within the limits 
 of such port.' 
 
 By sect. 12 of the Customs, &c., Act, 1881 (44 & 45 Vict. c. 12) (/), '.Vny 
 officer of Customs or other persons duly employed in the prevention of 
 smuggling may search any person on board any ship or boat within the 
 limits of any port in the United Kingdom or the Channel Islands, or 
 any person who shall have landed from any ship or boat, provided such 
 officer or other person duly employed as aforesaid shall have good reason 
 
 (h) See The Mail Ships Acts. 1891 (54 & c. 7, s. 1. 
 55 Vict. c. 31), and 1902 (2 Edw. VII. c. 36). (/) Substituted by 44 & 45 Vict. c. 12, 
 
 (t) Proviso added by 50 Vict. scss. 2, s. 13, for s. 184 of the Act of 187'-.
 
 374 Of Qlfences acfaiyist the Revenue Laws. [book iv. 
 
 to suppose that such person is carrying or has any uncustonaed or 
 })rohibited goods about his person. 
 
 A person shall be guilty of an offence — 
 
 1. If he staves breaks or destroys any goods to prevent the seizure 
 
 thereof by an officer of Customs or other person authorised to 
 seize the same. 
 
 2, If he rescues or staves breaks or destroys to prevent the securing 
 
 thereof any goods seized by an officer of Customs or any other 
 person authorised to seize the same. 
 '3. If he rescues any person apprehended for any offence punishable 
 by fine or imprisonment under the Customs Acts. 
 
 4. If he prevents the apprehension of any such person. 
 
 5. If he assaults or obstructs any officer of Customs or any officer 
 
 of the army, navy, marines, coastguard, or other person duly 
 employed for the prevention of smuggling, going or returning 
 from on board any ship within the limits of any port in the 
 United Kingdom or the Channel Islands, or in searching such a 
 ship or boat, or in searching a person who has landed from any 
 such ship or boat, or in seizing any goods liable to forfeiture 
 under the Customs Acts, or otherwise acting in the execution 
 of his duty. 
 
 6. If he attempts or endeavours to commit, or aids, abets, or assists 
 
 in the commission of any of the offences mentioned in this section. 
 And a person so offending, shall, for each offence, forfeit a penalty not 
 exceeding £100 (A-), and he may either be detained or proceeded against 
 by information and summons. 
 
 By sect, 185 of the Act of 1876, ' Before any person shall be searched 
 he may require to be taken with all reasonable despatch before a justice, 
 or before the collector or other superior officer of Customs, who shall, 
 if he see no reasonable cause for search, discharge such person, but if 
 otherwise, direct that he be searched, and if a female she shall not be 
 searched by any other than a female ; but if any officer shall without 
 reasonable ground cause any person to be searched, such officer shall 
 forfeit and pay a sum not exceeding ten pounds. If any passenger or 
 other person on board any such ship or boat, or who may have landed 
 from any such ship or boat, shall, upon being questioned by any officer 
 of Customs or other person duly employed for the prevention of smuggling 
 whether he has any foreign goods upon his person or in his possession or 
 in his baggage, deny the same, and any such goods shall after such denial 
 be discovered to be or to have been upon his person or in his possession 
 or in his baggage, such goods shall be forfeited, and such person shall 
 forfeit one hundred pounds, or treble the value of such goods, at the 
 election of the Commissioners of Customs.' 
 
 Prohibited and Restricted Goods. — Sec. 186. ' Every person who shall 
 import or bring, or be concerned in importing or bringing into the 
 United Kingdom any prohibited goods or any goods the importation 
 of which is restricted (/), contrary to such prohibition or restriction, 
 
 (/.•) Recoverable under 42 & 43 Vict. enumerated in ss. 42-45 of the Act of 187C. 
 
 c. 21, s. 11, post, p. 383. The following additions have been made to 
 
 (Z) Prohibited and restricted goods are the text : ' Imitation coin,' 52 & 53 Vict.
 
 CHAP. III.] Of Offences against the Customs. 375 
 
 whether the same be unshipped or not ; or shall unship or assist or be 
 otherwise concerned in the unshipping of any goods which are prohibited, 
 or of any goods which are restricted and imported contrary to such 
 restriction, or of any goods liable to duty, the duties for which have not 
 been paid or* secured ; or shall deliver, remove or withdraw from any 
 ship, quay, wharf, or other place previous to the examination thereof 
 by the proper officer of Customs, unless under the care or authority of 
 such officer, any goods imported into the United Kingdom or any goods 
 entered to be warehoused after the landing thereof, so that no sufficient 
 account is taken thereof by the proper officer, or so that the same are not 
 duly warehoused ; or shall carry into the warehouse any goods entered 
 to be warehoused or to be rewarehoused, except with the authority or under 
 the care of the proper officer of the Customs, and in such manner, by such 
 persons, within such time, and by such roads or ways as such officer shall 
 direct ; or shall assist or be otherwise concerned in the illegal removal 
 or withdrawal of any goods from any warehouse (sect. 284) or place of 
 security in which they shall have been deposited ; or shall knowingly 
 harbour, keep, or conceal, or knowingly permit or suffer, or cause or 
 procure to be harboured, kept, or concealed, any prohibited, restricted, 
 or uncustomed goods, or any goods which shall have been illegally re- 
 moved without payment of duty from any warehouse or place of security 
 in which they may have been deposited ; or shall knowingly acquire 
 possession of any such goods ; or shall be in any way knowingly con- 
 cerned in carrying, removing, depositing, concealing, or in any manner 
 dealing with any such goods with intent to defraud His Majesty of any 
 duties due thereon, or to evade any prohibition or restriction of or ap- 
 plication to such goods ; or shall be in any way knowingly concerned in 
 any fraudulent evasion or attempt at evasion of any duties of Customs, 
 or of the laws and restrictions of the Customs relating to the importation, 
 unshipping, landing, and delivery of goods, or otherwise contrary to 
 the Customs Acts ; shall for each such offence forfeit either treble the 
 value of the goods, including the duty payable thereon, or one hundred 
 pounds, at the election of the Commissioners of Customs ; and the offender 
 may either be detained or proceeded against by summons ' {m). 
 
 Assembling for Smuggling, and Use of Offensive Weapons.— By the 
 Customs Act, 1879 (42 & 43 Vict. c. 21), s. 10 (w), ' All persons to the 
 number of three or more who shall assemble for the purpose of unshipping, 
 landing, running, carrying, concealing, or having so assembled shall unship, 
 land, run, carry, convey, or conceal any spirits, tobacco, or any prohibited, 
 restricted, or uncustomed goods, shall each forfeit a penalty not exceeding 
 £500 nor less than £100.' 
 
 By sect. 189 of the Act of 1876, ' every person wlio shall by any means 
 
 c. 42, s. 2 ; ' certain foreign coin,' 49 & 50 Vict. c. 42), extended to the separation of 
 
 Vict. c. 41, s. 2 ; 42 & 43 Vict. c. 21, s. 5. dutiable goods from other matter, where 
 
 And see 50 & 51 Vict. c. 78 ; 59 & 60 Vict. the dutiable goods have been taken to a 
 
 c. 28, ss. 4, 5, 6 ; GO & 61 Vict. c. 63, s. 1 ; warehouse as unfit for consumption, by 
 
 61 & 62 Vict. c. 46, s. 1 ; 3 Edw. VII. c. 21, reason of their being mixed with any other 
 
 s. 1 ; 6 Edw. VII. c. 20, s. 6 ; 7 Edw. VII. matter. 
 
 c. 21, s. 5: 8 Edw. VII. c. 42, s. 5. {n) Substituted by 42 & 43 Vict. c. 21. 
 
 (m) The penalties of this section are by s. 14 and sched. for s.' 188 of the Act of 1876, 
 8. 6 of the Revenue Act, 1889 (52 & 53
 
 376 Of Offences against the Revenue Laws. [book iv. 
 
 procure or hire or shall depute or authorise any other person to procure 
 or hire, any person or persons to assemble for the purpose of being con- 
 cerned in the landing or unshipping or carrying conveying or concealing 
 any goods which are prohibited to be imported, or the duties for which 
 have not been paid or secured, shall be imprisoned for any term not 
 exceeding twelve months ; and if any person engaged in the commission 
 of any of the above offences be armed with fLrearms or other ofiensive 
 weapons, or whether so armed or not be disguised in any way, or being 
 so armed or disguised, shall be found with any goods liable to forfeiture 
 under the Customs Acts, within five miles of the seacoast or of any tidal 
 river, shall be imprisoned with or without hard labour for any term not 
 exceeding three years ' (o). 
 
 Assembling. — In a case under 19 Geo. TI. c. 34 (rep.), it was held 
 that the assembling must be deliberate, and for the purpose of committing 
 the offence described in the statute. So that where a set of drunken men 
 came from an alehouse, and hastily set themselves to carry away some 
 Geneva which had been seized by the excise officers, it was thought very 
 questionable whether the object which the Legislature had in view could 
 be extended to such a case; and the Court said, that the words of the 
 statute manifestly alluded to the circumstance of great midtitudes 
 of persons coming down upon the beach of the sea for the purpose of 
 escorting uncustomed goods to the places designed for their reception (p). 
 
 Offensive Weapons.^ — The term ' weapon ' would seem to include 
 any instrument of metal or wood, or any club, stone, or other thing 
 which is had for the purpose of effecting an injary on the person, according 
 to the doctrine of the Roman law, Teli appellatione et ferrinn, el fustis, 
 et lapis, et denique omne quod nocendi causa habztur, siijni'ficatur (q). 
 
 It was held that to bring offenders within the penalties of 19 Geo. 11, 
 c. 34 (rep.), for offences committed by persons, to the number of three or 
 more, armed with firearms, or other offensive weapons, it was necessary 
 that the offenders should be armed with offensive (r) weapons. It seems 
 to have been held that a person catching up a hatchet accidentally, during 
 the hurry and heat of an affray, was not armed with an offensive weapon 
 
 (o) The intention of these two sections imposed by the clause. Alderson, B., said 
 
 probably is that three or more persons (p. 44) : ' We must look at the statute to see 
 
 assembling are to be liable to a penalty, whether it was intended that every person 
 
 and persons procuring them to assemble offending should be punished, or merely 
 
 are to be liable to twelve months' imprison- that every offence should be punished, 
 
 ment ; but if persons assemble armed, or The question is whether an offence that is 
 
 procure others to assemble armed, they are committed by several persons is to be 
 
 to be liable to three years' imprisonment. visited by a penalty.' 
 
 The sections are difficult to construe. See (p) R. v. Hutcliinson, 1 Leach, 343. 
 
 Stephen's Digest (6th ed.), art. 81. The The Court offered the Attorney-General a 
 
 term of three years does not seem to have special verdict upon this case : but he 
 
 been altered by 54 & 55 Vict. c. 69, s. 1, declined to take it, and the prisoners were 
 
 ante, p. 212. In R. v. Dean, 12 M. & W. acquitted. This construction of the statute 
 
 39, two persons were separately convicted as to the assembling being deliberate, and 
 
 of unshipping goods against 3 & 4 Will. IV. for the purpose of committing the offence, 
 
 c. 53, s. 44, by which ' every person con- is stated to have been adopted by Willes, 
 
 cerned in the unshipping of goods, the J., and Hotham, B., in R. v. Spice, and by 
 
 duties of which have not been paid, was Heath, J., in R. v. Gray (both in 1785). 
 
 liable to forfeit either the treble value 1 Leach, 343, note (a), 
 thereof, or to a penalty of £100, and it was {q) Heinecc. Antiq. Tit. 1, s. 9. 
 
 held that each was liable to the penalties (r) R. v. Hutchinson, 1 Leach, 342,
 
 CHAP. III.] Of Offences against the Customs. 377 
 
 within the meaning of that Act (s) ; and that large sticks about three 
 feet long, with large knobs at the end, with several prongs, the natural 
 growth of the stick, arising out of them, were not offensive weapons ; and 
 that, from the preamble of that Act, the weapons must be such as the 
 law calls dangerous (t). But in a subsequent case, the Court said, that 
 although it was difficult to say what should or should not be called an 
 offensive weapon, it would be going a great deal too far to say that nothing 
 but guns, pistols, daggers, and instruments of war, should be so considered ; 
 and that bludgeons properly so called, clubs, and anything that was not in 
 common use for any other purpose but a weapon, were clearly offensive 
 weapons within the meaning of the Legislature (?/). Upon 9 Geo. II. c. 35, 
 s. 10 (rep.), where the same words, ' armed with firearms, or other offensive 
 arms or weapons,' occurred, it was held that a person armed only with a 
 common ivhif was not witliin the meaning of the Act ; though he aided 
 and assisted other persons who were armed with firearms and weapons 
 which were clearly offensive (y). But the correct rule seems to be that 
 laid down by Lord Mansfield in a case under 19 Geo. II. c. 34 (rep.), viz., 
 that where a person was assembled together with others who were armed, 
 and was active, it was not necessary that such individual should be 
 armed {w). 
 
 Where a number of persons were assembled for the purpose of landing 
 smuggled goods, and they were, as is usual on such occasions, divided into 
 two different parties, one called the company, who had bats in thein 
 hands for the purpose of carrying tubs of spirits (which bats were hop- 
 poles about seven feet in length), and the other, called the protecting 
 party, who were armed with muskets ; and the prisoner was one of the 
 company, and carried a bat, but he did not strike any one with it, but 
 some of the men with bats struck some of the preventive men ; as the 
 bats might be used for offensive purposes, it was left to the jury to say 
 whether the bats were offensive weapons or not (x). 
 
 Upon 7 Geo. II. c. 21 (rep.), by which any person who should, with an 
 offensive weapon or instrument, assault with intent to rob, was made 
 guilty of felony, it was decided that the words, ' offensive weapon or 
 instrument,' would apply to a stick, though not of extraordinary size, and 
 though it might in general have been used as a walking-stick. An indict- 
 ment was for assaulting with an offensive weapon, viz., a stick, with 
 intent to rob ; and it appeared that the stick was like a common waUcing- 
 stick, about a yard long, and not very thick, but that the prisoner, when 
 he came up to the prosecutor, struck him violently on the head with it, so 
 as to cut his head and make it bleed ; and two of the prisoner's comrades 
 afterwards came up and beat the prosecutor on the head with similar 
 sticks. Holroyd, J., told the jury, that as the prisoner had used the 
 stick as a weapon of offence, he thought it ought to be considered as an 
 offensive weapon ; and the jury having convicted the prisoner, the judges 
 
 («) R. V. Rose, 1 Leach, 342, note («). (v) R. v. rietclier, 1 Leach, 23. 
 
 (0 R. V. Ince, 1 Leach, 342, note (n). [w) R. v. Franklin, 1 Leach, 255 ; Cald. 
 
 (m) R. v. Cosan, 1 Leach, 342, 343, note 244. See R. v. Smith, R. & R. 368, 'post, 
 
 (a). It was contended, upon the authority Vol. ii. p. 1341. 
 
 of R. V. Ince, that very large club sticks, {x) R. v. Noakes, 5 C. & P. 326, Little- 
 such as people ride with, to defend them- dale, J., Alderson, J., BoUand, B, 
 selves, are not offensive weapons,
 
 378 Of fences against the Revenue Laws. [book iv. 
 
 agreed with Holroyd, J., and held the conviction right (?/). And in a case 
 on the Night Poaching Act, 1828 (9 Geo. IV, c. 69), s. 9, it was held to be a 
 question for the jury whether the prisoner had taken out a stick, large 
 enough to be called a bludgeon, which he, being lame, was in the habit of 
 using as a crutch, with intent to use it as an offensive weapon, or merely 
 for the purpose to which he usually applied it (2). From a case upon 
 the same repealed statute (7 Geo. II. c. 21), where the indictment was for 
 assaulting with a certain offensive weapon called a wooden staff, and the 
 evidence proved a violent blow with a great stone, as it was held that the 
 conviction of the prisoner was proper, it appears to follow that both a 
 wooden staff and a great stone were considered as offensive weapons 
 within the meaning of that statute (a). 
 
 Signalling in Aid of Smugglers. — By sect. 190 of the Act of 1876, ' No 
 person shall, after sunset or before sunrise, between the twenty-first 
 day of September and the first day of April, or after the hour of eight 
 in the evening and before the hour of six in the morning at any other 
 time of the year, make, aid, or assist in making any signal in or on board 
 or from any ship or boat, or on or from any part of the coast or shore of the 
 United Kingdom, or within six miles of any part of such coast or shore, 
 for the purpose of giving notice to any person on board any smuggling 
 ship or boat, whether any person so on board of such ship or boat be or 
 not within distance to notice any such signal ; and if any person, contrary 
 to the Customs Acts, shall make or cause to be made, or aid or assist in 
 making, any such signal, he shall be guilty of a misdemeanor, and may be 
 stopped arrested detained and conveyed before any justice, who, if he 
 see cause, shall commit the offender to the next county gaol, there to 
 remain until delivered by due course of law ; and it shaU not be necessary 
 to prove on any indictment or information in such case that any ship or 
 boat was actually on the coast ; and the offender, being duly convicted, 
 shall, by order of the Court before whom he shall be convicted, either 
 forfeit the penalty of one hundred pounds, or, at the discretion of such 
 Court, be committed to a gaol or house of correction, there to be kept to 
 hard labour for any term not exceeding one year ' (6). 
 
 (y) R. V. Johnson [1822], R. & R. 492. indictment did not state the offence to have 
 
 (2) R. V. Palmer, 1 M. & Rob. 70, Taun- been committed between Sept. 21 and 
 
 ton, J. Vide post. Vol. ii. p. 1342. April 1, and that the allegation that the 
 
 (a) R. V. Sherwin [1785], 1 East, P. C. offence was committed on March 9 was not 
 421. The ground upon which the judges sufficient, because the prosecutor was not 
 held in this case, that the evidence was bound to the day laid, but might prove the 
 sufficient to mamtain the charge in the in- offence to have taken place on any other 
 dictment, and the weapon proved, produce day ; that the time was of the essence of 
 the same sort of mischief, viz., by blows the offence, and therefore it ought to have 
 and bruises ; and that the description formed a distinct and substantive aver- 
 would have been sufficient in an indict- ment in the words of the Act ; but it was 
 ment for murder. held that the day having been proved as 
 
 (b) In R. V. Brown, M. & M. 163, where laid, the objection could only properly be 
 an indictment upon (5 Geo. IV. c. 108, s. 52 made in arrest of judgment, and even then 
 (rep.), which was similar to s. 190 of the it was no valid objection ; for judicial 
 Act of 1876, stated that the defendants notice must be taken that the day averred 
 between sunset on March 8 and sunrise on in the indictment is, in fact, within the 
 March 9, that is to say, on the morning of period mentioned in the statute, and there- 
 the said March 9, about three o'clock, did fore the indictment was good. Littledale, 
 make certain lights, &c. It was proved J., after consulting Gaselee, J., and see R. 
 that the lights were made on the morning v. Martin, ante, p. 357. 
 
 of March 9, and it was objected that the
 
 CHAP. III.] Of Offences against the Customs. 379 
 
 By sect. 191, ' If any person be charged with having made or caused 
 to be made, or for aiding or assisting in making, any such signal as afore- 
 said, the burden of proof that such signal so charged as having been 
 made with intent and for the purpose of giving such notice as aforesaid 
 was not made with such intent and for such purpose shall be upon the 
 defendant against whom such charge is made.' 
 
 By sect. 192, ' Any person whatsoever may prevent any signal being 
 made as aforesaid, and may go upon any lands for that purpose, without 
 being liable to any indictment suit or action for the same.' 
 
 Shooting at Preventive Vessels. — By sect. 193, ' If any person shall 
 maliciously shoot at any vessel or boat belonging to His Majesty's navy, 
 or in the service of the revenue, or shall maliciously shoot at, maim, or 
 wound any officer of the army navy marines or coastguard, being duly 
 employed in the prevention of smuggling and on full pay, or any officer 
 of customs or excise, or any person acting in his aid or assistance, or 
 duly employed for the prevention of smuggling, in the execution of his 
 office or duty, every person so offending, and every person aiding abetting 
 or assisting therein, shall, upon conviction, be adjudged guilty of felony, 
 and shall be liable, at the discretion of the Court, to j)enal servitude for 
 any term not less than five years (c), or to be imprisoned for any term 
 not exceeding three years ' (d). 
 
 Upon the similar section in 52 Geo. III. c. 143, s. 11 (rep.) (e), it was 
 held that where a custom-house vessel had chased a smuggler and fired 
 into her without hoisting the pendant and ensign then required (by 56 
 Geo. III. c. 104, s. 8), the returning such fire was not malicious. The 
 indictment was for shooting at a vessel in the service of the customs on 
 the high seas within one hundred leagues of the coast of Great Britain ; 
 and also for maliciously shooting at an ofiicer of the customs, &c. The 
 revenue vessel had chased a smuggler within the limits ; the smuggler'did 
 not bring to upon being chased and a signal-gun fired ; whereupon the 
 revenue vessel fired at the smuggler, and the smuggler returned the fire, and 
 they had a regular engagement, in which one of the custom-house officers 
 was severely wounded. In order to prove the right to fire at the smuggler, 
 reference was made to 56 Geo. III. c. 104, s. 8, which, in the case of ships 
 employed by the Treasury, Admiralty, Customs, or Excise to prevent 
 smuggling, gave the power of firing at the smuggler, if the ship had a 
 pendant and ensign hoisted of such description as His Majesty by any 
 order in council, or by royal proclamation under the Great Seal, should 
 direct. There had been no proclamation, nor was any order in council 
 proved ; though, after the trial, an order in council w^as discovered, which 
 required certain particulars in the pendant and ensign which this ship's 
 pendant and ensign had not. Upon a case reserved, eleven judges (Best, 
 J., being absent) were clear that, as the custom-house vessel had not 
 complied with what was required to make her shooting legal, the smuggler's 
 firing was not in law malicious (/). 
 
 (c) Apparently this means 'for life, or not imprLsonment is altered by 54 & 55 Vict, 
 less than.' The minimum term is now c. 69, s. 1, atite, p. 212. 
 
 three years. 54 & 55 Vict. c. G9, s. 1, ante, (e) The Hovering Act. 
 
 P- 211. (/) R. r. Reynolds, Mich. T. 1821, R. & 
 
 [d) Qiiceri whether the maximum term of R. 4t)5, and MS. Bayley, J.
 
 380 Of Offences against the Revenue Laws. [book iv. 
 
 By sect. 195, ' Every person who shall cut away, cast adrift, remove, 
 alter, deface, smk, or destroy, or in any other way injure or conceal any 
 vessel boat buoy anchor chain rope or mast in the charge of or used 
 by any person for the prevention of smuggling, or in or for the use of the 
 service of the customs, shall for every such offence forfeit the sum 
 of £10.' 
 
 By sect. 196, officers of the army, navy, marines, or coastguard 
 on full pay and duly employed for the prevention of smuggling and 
 officers of customs and any person acting in their aid, when on duty, may 
 patrol and pass freely along and over the coasts, and railways, and creeks 
 and inlets of the sea, except in gardens and pleasure grounds. 
 
 Detention of Crew of Smugglers. — By sect. 198, ' Where any person, 
 being part of the crew of any ship in His Majesty's employment or service, 
 shall have been detained under the Customs Acts, such person, upon 
 notice thereof to the commanding officer of the ship, shall be placed in 
 security by such commanding officer on board such ship or vessel, until 
 required to be brought before a justice to be dealt with according to law, 
 for which purpose such commanding officer shall deliver him to the 
 detaining officer.' 
 
 By sect. 199, ' If any person liable to be detained under the Customs 
 Acts shall not be detained at the time of committing the offence, or 
 being detained shall escape, he may afterwards be detained at any 
 place in the United Kingdom within three years from the time such 
 offence was committed, and if detained may be taken before any justice 
 to be dealt with as if he had been detained at the time of committing 
 such offence, or if not so detained may be proceeded against by informa- 
 tion and summons.' 
 
 Taking up Floating Spirits. — By sect. 200, ' If any person not being an 
 officer of the navy, customs, or excise shall intermeddle with or take up 
 any spirits being in casks of less content than nine {g) gallons found 
 floating upon or sunk in the sea, such spirits shall be forfeited, together 
 with any vessel or boat in which they may be found ; but if any person 
 shall give information to any such officer so that seizure of such spirits 
 may be made, he shall be entitled to such reward as the Commissioners 
 of Customs may direct.' 
 
 Offer of Prohibited Goods. — By sect. 201, ' If any person shall offer for 
 sale any goods under pretence that the same are prohibited, or have been 
 unshipped and run ashore without payment of duties, all such goods 
 (although not liable to any duties or prohibited) shall be forfeited, and 
 every person so offering the same for sale shall forfeit treble the value of 
 such goods.' 
 
 Seizure of Vessels or Vehicles in Use for Smuggling. — By sect. 202, 
 ' All ships boats carriages, or other conveyances, together with all horses 
 and other animals and things made use of in the importation landing 
 removal or conveyance of any uncustomed prohibited restricted or 
 other goods liable to forfeiture under the Customs Acts shall be forfeited, 
 and all ships boats goods carriages or other conveyances, together with 
 
 {g) Substituted by s. 4 of the Finance the quantity originally specified in the 
 Act, 1896 (59 & 60 Vict. c. 28), for ' twenty,' section.
 
 CHAP, iii.i Of Offences agamst the Customs. 381 
 
 all horses and other animals and things liable to forfeiture, and all persons 
 liable to be detained for any offence under the Customs Acts, or any other 
 Act whereby officers of customs are authorised to seize or detain persons, 
 goods, or other things, shall or may be seized or detained in any place 
 either upon land or water by any of the following persons, being duly 
 employed for the prevention of smuggling, that is to say, any officer of His 
 Majesty's army navy marines coastguard customs, or excise, or by any 
 person having authority from the Commissioners of Customs or Inland 
 Revenue to seize, or by any constable or police officer of any county city 
 or borough in the United Kingdom so employed with the sanction of the 
 magistrates having jurisdiction therein, or under or by virtue of any Act 
 in relation thereto, and all ships boats goods carriages or other convey- 
 ances, together with all horses and other animals and things so seized, 
 shall forthwith be delivered into the care of the collector or other proper 
 officer of customs at the nearest custom-house ; and the forfeiture of any 
 ship boat carriage animal or other things shall be deemed to include 
 the tackle, apparel, and furniture thereof, and the forfeiture of any goods 
 shall be deemed to include the package in wiiich the same are found and 
 all the contents thereof.' 
 
 Stopping and Searching Vehicles. — Sect. 203. ' Any officers of customs 
 excise coastguard constabulary police or other person duly employed 
 for the prevention of smuggling, may upon reasonable suspicion or 
 probable cause stop and examine any cart waggon or other conveyance, 
 to ascertain whether any smuggled goods are contained therein ; and if 
 none shall be found the officer or other person shall not on account of 
 such stoppage and examination be liable to any prosecution or action 
 at law on account thereof ; and any person driving or conducting such 
 cart, waggon, or other conveyance refusing to stop or allow such ex- 
 amination when required in the King's name, shall forfeit not less than 
 twenty nor more than one hundred pounds.' 
 
 Writs of Assistance. — Sect. 204. ' All writs of assistance issued from 
 the Court of Exchequer or other proper Court {h) shall continue in force 
 during the reign for which they were granted and for six months after- 
 wards, and any officer of customs, or person acting under the direction 
 of the Commissioners of Customs, having such writ of assistance or any 
 warrant issued by a justice of the peace may, in the daytime, enter 
 into and search {i) any house shop cellar warehouse room or other 
 place, and in case of resistance, break open doors chests trunks and 
 other packages, and seize and bring away any uncustomed or prohibited 
 goods, and put and secure the same in the King's warehouse ; and may 
 take with him any constable or police officer, who may act as well without 
 as within the limits of the district or place for which he shall have been 
 sworn or appointed.' 
 
 Search of Houses, &c. — Sect. 205. ' If any officer of customs shall have 
 
 {h) Now from the Revenue side of the in consequence of R. v. Watts, 1 B. & Ad. 
 
 High Court of Justice (K.B.D.). See 166, where it was doubted whether that 
 
 Exchequer Rules, 1860, r. 126. As to the power existed under 6 Geo. IV. c. 108, s. 40 
 
 writ of assistance in other branches of the (reii.), and where it was also doubted 
 
 High Court, see Wyman v. Knight, .39 Ch. whether the ordinary writ of assistance 
 
 D. 165. was not too general. 
 
 (0 The power to search was introduced
 
 382 Of Offences against the Revenue Laws. [book iv. 
 
 reasonable cause to suspect that any uncustomed or prohibited goods 
 are harboured kept or concealed in any house or other place either 
 in the United Kingdom or the Channel Islands, and it shall be made to 
 appear by information on oath before any justice of the peace in the 
 United Kingdom or the Channel Islands, it shall be lawful for such 
 justice, by special warrant under his hand, to authorise such officer to 
 enter and search such house or other place, and to seize and carry away 
 any such uncustomed or prohibited goods as may be found therein ; and 
 it shall be lawful for such officer, and he is hereby authorised, in case of 
 resistance, to break open any door, and to force and remove any other 
 impediment or obstruction to such entry search or seizure as aforesaid : 
 and such officer may, if he see fit, avail himself of the service of any 
 constable or police officer to aid and assist in the execution of such 
 warrant, and any constable or other police officer is hereby required 
 when so called upon, to aid and assist accordingly/ 
 
 Stoppage and Seizure of Goods. — By sect. 206, ' If any such goods 
 liable to duties of customs, or prohibited to be imported, or in any way 
 restricted, shall be stopped or taken by any police officer on suspicion 
 that the same had been feloniously stolen, he may carry the same to the 
 police office to which the offender if detained is taken, there to remain 
 until and in order to be produced at the trial of such offender, and 
 in such case the officer is required to give notice in writing to the Com- 
 missioners of Customs of such stoppage or detention, with the particulars 
 of the goods, but immediately after such stoppage, if the offender be 
 not detained, or if detained immediately after the trial of such offender, 
 such officer shall convey to and deposit the goods in the nearest customs 
 warehouse, to be proceeded against according to law ; and if any police 
 officer so detaining any such goods shall neglect to convey the same to 
 such warehouse, or to give the notice hereinbefore prescribed, he shall 
 forfeit a sum not exceeding twenty pounds/ 
 
 By sect. 207, ' Whenever any seizure shall be made, unless in the 
 possession or in the presence of the offender, master, or owner as forfeited 
 under the Customs Acts or under any Act by which customs officers 
 are empowered to make seizures, the seizing officer shall give notice in 
 writing of such seizure and of the grounds thereof to the master or 
 owner of the things seized, if known, either by delivering the same to 
 him personally or by letter addressed to him and transmitted by post to 
 or delivered, at his last known place of abode or business, if known ; and 
 all seizures made under the Customs Acts or under any Act by which 
 customs officers are empowered to make seizures shall be deemed and 
 taken to be condemned, and may be sold or otherwise disposed of in 
 such manner as the Commissioners of Customs may direct, unless the 
 person from whom such seizure shall have been made, or the master or 
 owner thereof, or some person authorised by him, shall, within one 
 calendar month from the day of seizure, give notice in writing, if in 
 London, to the person seizing the same, or to the secretary or solicitor 
 for the customs, and if elsewhere, to the j)erson seizing the same, or to 
 the collector or other chief officer of the customs at the nearest port, that 
 he claims the things so seized or intends to claim them, whereupon 
 proceedings shall be taken for the forfeiture and condemnation thereof
 
 CHAP. III.] Of Offences against the Customs. 383 
 
 either by information filed in . . . the High Court of Justice in Eng- 
 land (/) on the Eevenue side, or exhibited before any justice of the peace ; 
 but if any things so seized shall be of a perishable nature, or consist of 
 horses or other animals, the same may by direction of the Commissioners 
 of Customs be sold, and the proceeds thereof retained to abide the result 
 of any claim that may legally be made in respect thereof/ 
 
 By sect. 208, ' AH seizures whatsoever which shall have been made 
 and condemned under the Customs Acts or any other Act by which 
 seizures are authorised to be made by officers of customs shall be disposed 
 of in such manner as the Commissioners of Customs may direct.' 
 
 By sect. 209, ' When any seizure shall have been made or any fine 
 or penalty incurred or inflicted, or any person committed to prison for 
 any offence under the Customs Acts, the Commissioners of the Treasury 
 or Customs may direct the restoration of such seizure, whether con- 
 demnation shall have taken place or not, or waive proceedings, or mitigate 
 or remit such fine or penalty, or release from confinement either before 
 or after conviction such person on any terms and conditions as they 
 shall see fit.' 
 
 Bribes. — Sect. 217, after imposing penalties on officials who make 
 collusive seizures or take bribes, enacts that, ' Every person who shall 
 give or offer, or promise to give or procure to be given, any bribe recom- 
 pense or reward to, or shall make any collusive agreement with any such 
 officer or person as aforesaid, to induce him in any way to neglect his 
 duty, or to do, conceal or connive at any act whereby any of the pro- 
 visions of any Act of Parliament relating to the Customs may be evaded, 
 shall forfeit the sum of £200 ' (k). 
 
 By sect. 11 of the Customs, &c.. Act, 1879 (42 & 43 Vict. c. 21) {I), ' All 
 duties, penalties, and forfeitures incurred under or imposed by the Customs 
 Acts, and the liability to forfeiture of any goods seized under the authority 
 thereof, may be sued for prosecuted determined and recovered by 
 action information or other appropriate proceeding in the High Court 
 of Justice in England ' . . . ' in the name of the Attorney-General for 
 England ' . . . ' or of some officer of customs or excise, or by information 
 
 (j) King's Bench Division. the count did not shew that H. was a 
 
 (k) In R. V. Everett, 8 B. & C. 114 ; person coming within any of the three 
 
 2 M. & R. 3.5, a case under 6 Geo. IV. c. 108, classes described in 6 Geo. IV. c. 108, the 
 
 H. 34 (reji.), a count alleged that certain count was bad : and the Court held that 
 
 spirituous liquors were about to be im- the allegation that it was H.'s duty to seize 
 
 ported, in respect of which certain duties the goods, which upon importation were 
 
 would be payable, and that R. H. was a forfeited, was an allegation of matter of 
 
 person employed in tiie service of the cus- law. That being so, the facts from which 
 
 toms of our Lord the King, and tliat it was tliat duty arose ought to have been stated 
 
 the duty of R. H., as sucli person so em- in the count. If, indeed, it could be said 
 
 ployed in the service of the customs as to be the duty of every person employed in 
 
 aforesaid, to arrest and detain all such goods the service of the customs to seize such 
 
 and merchandise as sliould within his goods, then the allegation would have been 
 
 knowledge be imported which, upon such sufficient. But it clearly was not the duty 
 
 importation thereof, would become for- of every such person, and therefore the 
 
 feited ; and that the defendant unlawfully indictment was bad. As to proof of charac- 
 
 solicited R. H. to forbear an arrest and ter of the official, see now s. 261 of the Act 
 
 detain the said goods ; it was objected, in of 187G, post, p. 38(5. 
 
 arrest of judgment, that as the law did not (I) Substituted by 42 & 43 Vict. c. 21, 
 
 cast upon all persons in the service of the s. 14 and sched. for s. 218 of the Customs 
 
 customs the duty of making seizures, and Consolidation Act, 187C.
 
 384 Of Offences against the Revenue Laivs. [bookiv. 
 
 in the name of some officer of customs or excise, before one or more 
 justices of the peace in the United Kingdom' , . . 'provided always 
 that 2 & 3 Vict. c. 71, s. 44 (m), shall not apply to any offence against 
 the Customs laws : and provided that in any proceedings for any penalty 
 or forfeiture under the Customs Acts the fact that the duties of customs 
 have been secured by bond or otherwise shall not be pleaded or made 
 use of in answer to or in stay of any such proceedings.' 
 
 By sect. 53 of the Summary Jurisdiction Act, 1879 (42 & 43 Vict, 
 c. 49), ' The Summary Jurisdiction Acts shall, notwithstanding any special 
 provisions to the contrary contained in any of the statutes relating to 
 His Majesty's Revenue under the control of the Commissioners of 
 Inland Revenue or the Commissioners of Customs, apply to all in- 
 formations, complaints, and other proceedings before a Court of Summary 
 Jurisdiction under or by virtue of any of the said statutes ' (w). 
 
 Offences on the Water.— By sect. 229 of the Act of 1876, ' Where 
 any offence shall be committed in any place upon the water not being 
 within any county of the United Kingdom, or where the officers have any 
 doubt whether such place is \\dthin the boundaries or hmits of any such 
 county, such offence shall for the purposes of the Customs Acts be deemed 
 and taken to be an offence committed on the high seas ; and for the 
 purpose of giving jurisdiction under such Acts every offence shall be 
 deemed to have been committed, and every cause of complaint to have 
 arisen, either in the place in which the same actually was committed or 
 arose, or in any place on land where the offender or person complained 
 against may be or be brought ' (o). 
 
 Sect. 239, as amended in 1883 (46 & 47 Vict. c. 55, s. 8), provides 
 that where the attendance of a justice of the county where the offence 
 was committed cannot conveniently be obtained, resort may be had 
 to a justice of a neighbouring or adjoining county, or neighbouring or 
 adjoining borough having separate magisterial jurisdiction, and geo- 
 graphically situate within the county where the offence was committed. 
 
 Imprisonment. — By sect. 12 of the Customs Act, 1879 (42 & 43 Vict. c. 
 21) [oo), ' When any verdict shall pass or conviction be had against any 
 person for any offence against the Customs Acts, and he shall have been 
 adjudged to pay a penalty of one hundred pounds or upwards, the pre- 
 siding justice may, if for a first offence, commit the offender to one of 
 His Majesty's prisons for not less than six nor more than nine months, 
 and if for a subsequent offence, may order that the offender shall, in heu 
 of payment of the penalty, be imprisoned, . . . with or without hard 
 labour, for a period of not less than six nor more than twelve months.' 
 
 By the proviso to sect. 53 of the Summary Jurisdiction Act, 1879 
 (42 & 43 Vict. c. 49), where the sum adjudged by conviction under or 
 by virtue of any of the said statutes (relating to inland revenue or customs) 
 ' to be paid exceeds £50, the period of imprisonment imposed by a Court 
 of Summary Jurisdiction in respect of the non-payment of such sum, 
 
 (m) This enactment relating to the of justices of adjoining counties or boroughs 
 
 metropolitan police district was repealed see 39 & 40 Vict. c. 36, a. 230 ; 46 & 47 
 
 in 1884 (47 & 48 Vict. c. 43, s. 4). Vict. c. 55, s. 8. 
 
 (n) This enactment overrides 11 & 12 {oo) Substituted for, and to be read as 
 
 Vict. c. 42, s. 35. s. 237 of the Act of 1876. See 42 & 43 
 
 (o) As to the attendance on emergency Vict. c. 21, s. 14.
 
 CHAP. III.] Of Offences against the Customs. 385 
 
 or in respect of the default of a sufficient distress to satisfy such sum, 
 may exceed three months but sliall not exceed six months.' 
 
 Proceedings for Forfeitures.— By sect. 255 of the Act of 1876, ' All in- 
 dictments or suits for any offences or the recovery of any penalties or for- 
 feitures under the Customs Acts shall, except in the cases where summary 
 jurisdiction is given to justices, be preferred or commenced in the name 
 of His Majesty's Attorney-General for England or Ireland, or of the Lord 
 Advocate of Scotland, or of some officer of customs or inland revenue.' 
 
 By sect. 256, ' In any prosecution for recovery of any fine, penalty, 
 or forfeiture incurred under the Customs Acts, His Majesty's Attorney 
 General for England, His Majesty's Attorney-General for Ireland, or 
 the Lord Advocate of Scotland, if satisfied that such fine, penalty, or 
 forfeiture was incurred without any intention of fraud or that it may 
 be inexpedient to proceed in the said prosecution, may enter a nolle 
 prosequi or otherwise on such information.' 
 
 Limitation of Time.— By sect. 257, ' All suits indictments or 
 informations brought or exhibited for any offence against the Customs 
 Acts in any Court or before any justice, shall be brought or exhibited 
 within three years next after the date of the offence committed ' [q). 
 
 Venue. — By sect. 258, ' Any indictment prosecution or information 
 which may be instituted or brought under the direction of the Com- 
 missioners of Customs for offences against the Customs Acts shall and 
 may be inquired of examined tried and determined in any county of 
 England when the offence is committed in England, and in any county 
 in Scotland when the offence is committed in Scotland, and in any county 
 in Ireland when the offence is committed in Ireland, in such manner 
 and form as if the offence had been committed in the said county where 
 the said indictment or information shall be tried ' (r). 
 
 Costs.— By sect. 5 of the Customs, &c.. Act, 1877 (40 & 41 Vict. c. 
 13), ' In all informations, prosecutions, suits, or proceedings at the suit 
 of the Crown under the Customs Acts, the same rule as to costs shall be 
 observed as in suits and proceedings between subject and subject. 
 
 Presumption and Evidence.— By sect. 259 of the Act of 1876, ' If in 
 any prosecution in respect of any goods seized for non-payment of duties, 
 or any other cause of forfeiture, or for the recovering any penalty or 
 penalties under the Customs Acts, any disputes shall arise whether the 
 duties of customs have been paid in respect of such goods, or whether 
 the same have been lawfully imported or lawfully unshijiped, or concern- 
 ing the place from whence such goods were brought, then and in every 
 such case the proof thereof shall be on the defendant in such prosecution (s), 
 and where any such proceedings are had in the . . . High Court 
 
 (q) .See R. v. Thompson, Ki Q.B. 8.32 ; an indictment, of a common assault on the 
 
 20 L. J. M. C. 13. prosecutor, who was an excise officer, the 
 
 (r) Upon 9 Geo. II. c. 35, s. 2G (rcji.), Court of King's Bench arrested the judg- 
 
 which enacted that an assault committed ment, though the prosecutor was described 
 
 upon any of the officers of the customs and to be an excise officer, the offence being 
 
 excise should be tried in any county in laid in Surrey, and the venue in Middlesex. 
 
 England, in such manner and form as if K. v. Cartwright, 4 T. R. 490. 
 the offence had been therein committed, it («) Where the proceedings are criminal, 
 
 was decided that the provision extended the Criminal Evidence Act, 1898 (61 & 62 
 
 only to revenue officers, qua officers : and Vict. c. 36), applies. Sec jxist, Bk. xiii. c. v. 
 a defendant having been found guilty, on 
 
 VOL. I. 2 C
 
 386 Of Offences against the Revenue Laws. [book iv. 
 
 of Justice oil the Revenue side, the defendant shall be competent and 
 compellable to give evidence/ 
 
 By sect. 260, ' The averment that the Commissioners of Customs or 
 Inland Revenue have directed or elected that any information or pro- 
 ceedings under the Customs Acts shall be instituted, or that any ship or 
 boat is foreign or belonging wholly or in part to His Majesty's subjects, 
 or that any person detained or found on board any ship or boat liable to 
 seizure is or is not a subject of His Majesty, or that any goods thrown 
 overboard, staved, or destroyed, were so thrown overboard, staved, or 
 destroyed to prevent seizure, or that any goods thrown overboard, staved, 
 or destroyed during chase by any ship or boat in His Majesty's service 
 or in the service of the Revenue, were so thrown overboard, staved, or 
 destroyed to avoid seizure, or that any person is an officer of customs or 
 excise, or that any person was employed for the prevention of smuggling, 
 or that the offence was committed within the limits of any port, or where 
 the offence is committed in any port of the United Kingdom, the naming 
 of such port in any information or proceedings shall be deemed to be 
 sufficient, unless the defendant in any such case shall prove to the 
 contrary/ 
 
 By sect. 261, ' If upon any trial a question shall arise whether any 
 person is an officer of the army, navy, marines, or coastguard duly 
 employed for the prevention of smuggling, or an officer of customs or 
 excise, his own evidence thereof, or other evidence of his having acted 
 as such, shall be deemed sufficient, without production of his commission 
 or deputation ; and every such officer and any person acting in his aid 
 or assistance shall be deemed a competent witness upon the trial of any 
 suit or information on account of any seizure or penalty as aforesaid, 
 notwithstanding such officer or other person may be entitled to the whole 
 or any part of such seizure or penalty, or to any reward upon the 
 conviction of the party charged in such suit or information.' 
 
 By sect. 262, ' Upon the trial of any issue, or upon any judicial hear- 
 ing or investigation touching any seizure, penalty, or forfeiture, or other 
 proceeding under the Customs Acts, or any Act relating to the excise, 
 or incident thereto, Avhere it may be necessary to give proof of any 
 order issued by the Treasury, or by the Commissioners of Customs or 
 Inland Revenue respectively, the order, or any letter or instructions 
 referring thereto, which shall have been officially received by any officer 
 of customs or excise for his government, and under which he shall have 
 acted as such officer, shall be admitted and taken as sufficient evidence 
 and proof of such order.' 
 
 By sect. 263, ' Condemnation by any justice under the Customs laws 
 may be proved in any Court of justice, or before any competent tribunal, 
 by the production of a certificate of such condemnation purporting to 
 be signed by such justice, or an examined copy of the record of such 
 condemnation certified by the clerk to such justice.' 
 
 Definitions.^Sect. 284. ' For the purposes of this or any other Act 
 relating to the Customs and in construing the same, the following terms, 
 when not inconsistent with the context or subject matter, shall have the 
 several meanings, and include the several matters and things hereinafter 
 prescribed and assigned to them ; that is to say :
 
 CHAP, iii.i Of Offences against the Excise. 387 
 
 ' " Attorney-General " shall include solicitor-general, attorney-general 
 in the Isle of Man, procureur, or other chief law officer of the Crown in 
 any of His Majesty's possessions abroad, where there is no attorney-general. 
 
 '"British possession"' shall mean and include colony, plantation, 
 island, territory, or settlement belonging to His Majesty. 
 
 ' " County " shall mean and include any city, county of a city, county 
 of a town, borough, or other magisterial jurisdiction where such construc- 
 tion is not inconsistent with the context. 
 
 ' " Customs Acts " shall mean and include this and all or any other 
 Acts or Act relating to the Customs. 
 
 ' " Drawback " shall include bounty. 
 
 ' ^^ His Majesty " shall mean His Majesty, his heirs and successors. 
 
 ' " Importer " shall mean, include, and apply to any owner or other 
 person for the time being possessed of or beneficially interested in any 
 goods at and from the time of the importation thereof until the same are 
 duly delivered out of the charge of the officers of customs. 
 
 Justice " shall mean and include justice of the peace, county court 
 judge, recorder, sheriff depute, governor, deputy-governor, lieutenant- 
 governor, bailiff, chief magistrate, deemster, jurat, and any other magis- 
 trate in the United Kingdom and the Channel Islands. 
 
 ' " Master " shall mean the person having or taking the charge or 
 command of any ship. 
 
 ' " Official import lists and official export lists "'' shall mean any lists 
 which are now or shall from time to time be issued under the authority 
 of the Commissioners of the Treasury or Customs prescribing the denomi- 
 nations, descriptions, and quantity by tale, weight, measure, value, or 
 otherwise, by which articles of merchandise shall be required to be entered 
 on their importation into or exportation from the United Kingdom. 
 
 ' " Proper officer of Inland Revemie," in the fourth section of the Act 
 of the thirty-seventh and thirty-eighth years of Her Majesty's reign, shall 
 mean " proper officer of customs " {t). 
 
 ' " King's ivar chouse " shall mean any place provided by the Crown 
 or approved by the Commissioners of Customs for the deposit of goods 
 for security thereof and of the duties due thereon. 
 
 ' " Warehouse " shall mean any place in which goods entered to be 
 warehoused may be lodged, kept, and secured.' 
 
 B. — Excise. 
 
 Most of the penalties and forfeitures imposed by the many statutes 
 relating to the excise are recoverable by information in the High Court 
 or by proceedings before a Court of Sunmiary Jurisdiction (m), or relate to 
 forgery of licences, permits, and other documents (v), or to perjury or 
 false declarations {u-). 
 
 The powers of search, arrest, detention, &c., under the Excise laws 
 
 (0 37 & 38 Vict. c. 46. s. 7, post. Vol. ii. p. 1721, ' Forgery.' 
 
 (n) See Highmorc's Excise Laws (2nd (?<,-) 1 & 2 Will. IV. c. 4, ss. 1, 4 ; 7 & 8 
 
 ed.), 1899. Geo. IV. c. 53, s. 31 ; 32 & 33 Vict. c. 14, 
 
 (y) Sec 2 & 3 Will. IV. c. 16, ss. 3, 4, 13 ; s. 25, post, p. 451 el seq., ' Terjuiy.' 
 
 II & 12 Vict. c. 121, s. 18 ; 26 Vict. c. 7, 
 
 2 c 2
 
 388 Of Offences against the Revenue Laws. [book iv. 
 
 and the Customs Acts may be exercised interchangeably by officers of 
 either department and most of the excise is now under the management 
 of the Customs Department (x). 
 
 The Excise Management Act, 1827 (7 & 8 Geo. IV. c. 53), by sect. 40 
 enacts that, ' if any person, armed with any offensive weapon whatsoever, 
 shall with force or violence assault or resist any officer of excise, or 
 any person employed in the revenue of excise (y), or any person acting 
 in the aid or assistance of such officer or person so employed, who, in 
 the execution of his office or duty, shall search for, take, or seize, or 
 shall endeavour or offer to search for, take, or seize, any goods or com- 
 modities forfeited under or by virtue of this Act, or any other Act or 
 Acts of Parliament, relating to the revenue of excise or customs, or 
 who shall search for, take, or seize, or shall endeavour or offer to search 
 for, take, or seize any vessel, boat, cart, carriage, or other conveyance, 
 or any horse, cattle, or other thing used in the removal of any such goods 
 or commodities, or who shall arrest, or endeavour or offer to arrest, any 
 person carrying, removing, or concealing the same, or employed or 
 concerned therein, and liable to such arrest, then and in every such case, 
 it shall be lawful for every such officer and person so employed, and person 
 acting in such aid and assistance as aforesaid, who shall be so assaulted or 
 resisted, to oppose force to force, and by the same means and methods 
 by which he is so assaulted or resisted, or by any other means or methods, 
 to oppose such force and violence, and to execute his office or duty, 
 and if any person so assaulting or resisting such officer as aforesaid, 
 or any person so employed, or any person acting in such aid and assist- 
 ance as aforesaid, shall in so doing be wounded, maimed, or killed, and 
 the said officer or person so employed, or person acting in such aid 
 and assistance as aforesaid, shall be sued or prosecuted for any such 
 wounding, maiming, or killing, it shall be lawful for every such officer, 
 or person so employed, or person acting in such aid and assistance, to plead 
 the general issue, and give this Act and the special matter in evidence 
 in his defence ; and it shall be lawful for any justice or justices of the 
 peace, or other magistrate or magistrates before whom any such officer 
 or person so employed, or person acting in such aid and assistance as 
 aforesaid, shall be brought for, or on account of, any such wounding, 
 maiming, or killing as aforesaid, and every such justice of the peace 
 and magistrate is hereby directed and required to admit to bail every 
 such officer, and every person so employed, and every person acting in 
 such aid and assistance as aforesaid, any law, usage, or custom to the 
 contrary thereof in anywise notwithstanding ' (z). 
 
 Venue. — By sect. 43, for the better and more impartial trial of any 
 indictment or information for any such violent assault as aforesaid, 
 ' every such offence shall and may be inquired of, examined, tried, 
 and determined in any county in England, if such offence shall have 
 
 (a;) 7 & 8 Geo. IV. c. 53, s. 38 ; and see or filed for such assaults, are to be bound 
 
 Highmore Excise Laws, i. 28. with two sureties to answer the same, and 
 
 (y) 39 & 40 Vict. c. 36, s. 189, ante, p. 375, in default to be committed : by s. 42, if 
 
 and the cases on former Customs Acts in any offender be in prison for want of bail, 
 
 similar terms, collected ante, p. 376. a copy of the indictment or information 
 
 (z) By s. 41, persons against whom in- may be delivered to the gaoler with a notice 
 
 dictments or informations have been found of trial and proceedings had thereon.
 
 CHAP, iii.j Assessed Taxes. 389 
 
 been committed in England or in any of the islands thereof, or in any 
 county in Scotland, if the same shall have been committed in Scotland 
 or in any of the islands thereof, or in any county in Ireland, if the same 
 shall have been committed in Ireland or in any of the islands thereof, 
 in such manner and form as if the same offence had been committed 
 in such county respectively (a) ; and that whenever any person shall be 
 convicted of any such violent assault or resistance as aforesaid, it shall 
 be lawful for the Court before which any such offender shall be convicted, 
 or which by law is authorised to pass sentence upon any such offender, 
 to award and order (if such Court shall think fit) sentence of imprisonment, 
 with hard labour, for any term not exceeding the term of three years, 
 either in addition to, or in lieu of, any other punishment or penalty 
 which may by law be inflicted or imjiosed upon any such offender ; and 
 every such offender shall thereupon suffer such sentence in such place, 
 and for such term as aforesaid, as such Court shall think fit to direct ' {h). 
 Forcible opposition to the execution of the Spirits Act, 1880 (43 & 44 
 Vict. c. 24), is punishable under sect. 150 of that Act. 
 
 C. — Assessed Taxes. 
 
 Obstruction of officers of inland revenue or persons acting in their 
 aid in collecting taxes is now ordinarily punishable under sect. 11 of 
 the Inland Revenue Regulation Act, 1890 (53 & 54 Vict. c. 21) (r). 
 
 The following decisions upon Acts now repealed relate to assaults 
 on revenue officials engaged in the collection of assessed taxes. 
 
 In R. V. Ford (d), upon an indictment charging the defendants 
 with assaulting J. S., then being in lawful possession of goods seized 
 for £6 15.9. 6^., arrears of assessed taxes, and in another count with 
 a common assault, it appeared that the goods of one F. had been dis- 
 trained on his premises for taxes due from him, and J. S. had been left 
 in possession. In order to shew that the taxes had been regularly 
 demanded before putting in the distress, it was proved that the collector 
 had gone to F.'s house on January 23, and F. not being at home, had 
 demanded the taxes of a female who was there, and said that he had called 
 often before, and would distrain on the following da}'^ if they were not 
 paid. The woman answered that F. had been told before of the collector's 
 coming for taxes, but said he could not pay ; the collector left a message 
 with the woman, requesting F. to call on him, which F. afterwards did, 
 and stated that he was very poor and could not pay. It was objected 
 that this was not sufficient evidence of a demand and refusal within 
 the terms of 43 Ceo. III. c. 99, s. :]3{e) ; but Denman, C.J., hekl that it 
 
 (a) This provision would probably be Cart \v right, 4 T. R. 490. 
 held to extond only to assauhs upon ofWcers (b) !Ss. 40, 4J, and 43 have not been 
 
 when in the execution of their duty. If, repealed by Kul)se()uent legislation with 
 
 thei'efore, upon an indictment containing reference to the excise. 
 
 counts for assaulting an olheer in the execu- (r) 24 & 25 V'ict. c. 100, s. ;}8, docs not 
 
 tion of his duty, and for a common assault, contain the provisions inserted in prior 
 
 the jury were to actjuit on all the counts Acts as to assaidts on reveinie ofticers. 
 except on that for the common assault, the (d) 2 A. & E. 588. 
 
 judgment would be arrested if the venue (e) Repealed in 1880 and replaced by 
 
 were laid in any county except that in s. 8(i of the Taxes Management Act (43 & 
 
 which the assault was committed. R. v. 44 V'ict. c. 19).
 
 390 Of Offences against the Revemie Laws. [book IV. 
 
 was not necessary to shew a refusal given by the householder himself, 
 or to the collector personally ; but that it was sufficient, if the circum- 
 stances shewed that the householder, from poverty or otherwise, would 
 not pay, and if the party meeting with the refusal was one authorised 
 to act for him : and he left it to the jury to say whether they were satisfied 
 that there had been a refusal. He also held that upon the second count, 
 which mentioned no sum, there might be a verdict against the defendants, 
 if the prosecutor was lawfully in possession for any amount. A motion 
 for a new trial was refused ; the Court holding that by the statute a 
 distress was to be taken only if there had been a demand and refusal of 
 the taxes, but nothing was said to apply that provision to particular 
 individuals, or particular sums ; and that it was sufficient if there had 
 been a demand of the taxes, which the party had understood, and he 
 had not objected to the amount, but had refused to pay (/). 
 
 In E.. V. Clark {g), C. and A. were indicted for assaulting G., a peace 
 officer, in the execution of his duty, and for a common assault. T., a 
 collector of land-tax, had applied on October 28 to C. for arrears of land- 
 tax due from him, which had been repeatedly demanded before ; C. said, 
 ' I suppose if I do not pay it, you are going to distrain ? ' T. replied 
 that he probably should. C. answered, ' If you put your hand upon any- 
 thing, I will split your skull.' On November 29 following, T. went to 
 C.'s house, with B., G., and a third constable : he desired the two last to 
 remain outside, and to be on the alert, lest there should be a row ; he and 
 B. entered a room, and again demanded the arrears ; as soon as the 
 demand was made C. quitted the room, and directly afterwards he was 
 lieard to fasten the house door ; upon this, B., by T.'s order, unfastened 
 the door, and brought in G. and the other constable. C. soon afterwards 
 returned into the room, with bank-notes in his hand, accompanied by ten 
 or twelve men, among whom was A. C. asked what G. did there ; and 
 B. answered that G. was there to aid and assist if required : upon this C. 
 said, ' I will not pay the taxes till the thief-catcher has left the room.' 
 G. refused to depart, upon which C. desired A. to put him out, saying that 
 he would be answerable ; A. then attempted to force G. out of the room, 
 and, in so doing, committed the assault in question. C. afterwards paid 
 the taxes with the notes in his hand. It was left to the jury to say, 
 whether T. introduced G. for the purpose of keeping the peace, and if 
 they thought he did so, they were directed to find a verdict of guilty ; 
 the jury found in the affirmative of the question left, and convicted both 
 defendants. Upon a motion for a new trial, it was contended that the 
 collector had no right to take a constable with him ; that it ought to 
 have been shewn that the collector had a warrant to distrain, or the book of 
 assessments with him ; but it was held that it was not necessary that the 
 collector should have either the warrant or the book of assessments with 
 him ; and although the statute was applicable only to cases where a house 
 or chest was to be broken open, and therefore the collector had no right 
 to take B. or any other person with him for the purpose of demanding the 
 money ; yet as the collector had good ground, from what had passed at 
 
 {/) As to the first count, Denuian, C.J., and the sum proved, fatal, 
 held the variance between the sum stated {g) 3 A. & E. 287.
 
 CHAP. III.] Assessed Taxes. 39 1 
 
 that time and on tlie previous occasion, to apprehend violence, he wtis 
 perfectly justified in introducing G. and the other constable to keep 
 the peace, and that G. was justified in remaining to prevent violence, 
 and consequently was assaulted whilst in the execution of his duty. And 
 although the collector had no right to take B. into the house on either 
 occasion, yet, as no objection was made to his presence, it did not vary 
 the case (h). 
 
 The other offences against the Acts relating to the Income Tax or Land 
 Tax which are indictable are in the nature of forgery, ferjury, or false 
 declarations. 
 
 Income Tax. — Forgery of receipts or certificates given under the 
 Income Tax Act, 1842, or assisting in such forgery, or issuing such docu- 
 ments with intent to defraud the Crown or any corporation or person, is 
 felony punishable by penal servitude from three to fourteen years, or 
 imprisonment with or without hard labour for not over two years (i). 
 
 Wilfully and corruptly giving false evidence on oath or affirmation, in 
 an affidavit, deposition, or affirmation authorised by the Income Tax Act, 
 1842, is punishable as perjury, and may be tried in any county in which 
 the affidavit, &c., is exhibited to the Income Tax Commissioners (/). 
 
 Land Tax. — The forgery of land tax redemption certificates is felony (k) 
 punishable by penal servitude for life, or not less than three years, or by 
 imprisonment with or without hard labour for not more than two years (1). 
 
 Perjurv in matters under the Land Tax Acts is punishable under 
 42 Geo. III. c. 116, s. 193. 
 
 Death Duties. — Perjurv with reference to death duties is punishable 
 under 48 Geo. III. c. 149,"s. 37 (E), and 56 Geo. III. c. 156, s. 131 (I). 
 
 (h) The case turned to some extent on (k) 52 Geo. III. c. 143, s. 6. 
 
 38 Geo. III. c. 5, s. 17, which was repealed (/) By the joint effect of 24 & 25 Vict, 
 
 in 1898, as super.seded by s. 80 of the c. 98, s. 48, po.s/. Vol. ii. p. 1(580, ' Forgery,' 
 
 Taxes Management Act, 1880. and 54 & 55 Vict. c. (59, s. 1, ante, pp. 211, 
 
 (i) 5 & (5 Vict. c. 3.5, s. 181; 54 & 55 212. The specific provisions of 52 Geo. III. 
 
 Vict. c. 09, s. 1, ante, pp. 211,212. c. 143, s. (5, as to punishment, were repealed 
 
 (j) 5 & Vict. c. 35, s. 180. in 1890 (S. L. R.).
 
 ( 392a ) 
 
 CANADIAN NOTES. 
 
 OFFENCES AGAINST THE REVENUE LAWS. 
 See Dominion Customs Act. R.S.C. (1906) ch. 48. 
 
 A. — Customs. 
 
 False Declarations. 
 
 Entering place other than port of landing. R.S.C. ch. 48, sec. 
 
 186. 
 Goods imported not at port of entry. R.S.C. ch. 48, sec. 187. 
 Making untrue report, etc. R.S.C. ch. 48, sees. 188, 253. 
 Landing goods before due entry is made. R.S.C. ch. 48, sec. 189. 
 Goods found on board not included in report. R.S.C. ch. 48, sec. 
 
 190. 
 Breaking bulk. R.S.C. ch. 48,, sec. 191. 
 Goods imported by night except under permit. R.S.C. ch. 48, 
 
 sec. 192. 
 Vehicle containing goods. R.S.C. ch. 48, sec. 193. 
 Conductor of train making untrue report. R.S.C. ch. 48, sec. 
 
 194. 
 Forfeiture of goods and cars for unlawful importation by rail- 
 way. R.S.C. ch. 48, sec. 195. 
 Forfeiture of goods not corresponding with report. R.S.C. ch, 
 
 48, sec. 199. 
 , Forfeiture of goods not corresponding with invoice. R.S.C. ch. 
 
 48, sec. 200. 
 Forfeiture of goods not mentioned in invoice or declaration. 
 
 R.S.C. ch. 48, sec. 201. 
 Forfeiture of prohibited goods. R.S.C. ch. 48, sec. 202. 
 Forfeiture of medicinal preparations not properly marked. 
 
 R.S.C. ch. 48, sec. 203. 
 Possession of wreck without report or payment of duty, forfei- 
 ture of, etc. R.S.C. ch. 48, sec. 204. 
 Removing or altering wreck before warehoused. R.S.C. ch. 48, 
 
 sec. 205. 
 Making false invoice of goods. R.S.C. ch. 48, sees. 206, 253. 
 Possession of blank invoice certificates. R.S.C. ch. 48, sec. 207. 
 Person sending in false invoices cannot recover price of goods. 
 
 R.S.C. ch. 48, sec. 208. 
 Forfeiture for false statements in declaration. R.S.C. ch. 48, 
 
 sec. 209.
 
 392b Offences Against Revenue Laws. [book iv. 
 
 Smuggling. 
 
 Seizure of vessels for fraudulent importation of goods. R.S.C. 
 
 ch. 48, sec. 196. 
 Procuring persons to assist in smuggling. R.S.C. ch. 48, sec. 197. 
 Forfeiture of smuggled goods. R.S.C. ch. 48, sec. 198. 
 Smuggling goods into Canada. R.S.C. ch. 48, sec. 206. 
 Seizure of goods and ship found hovering near coast with intent 
 
 to smuggle. R.S.C. ch. 48, sec. 210. 
 Seizure of prohibited or smuggled goods found in any vessel or 
 
 vehicle. R.S.C. ch. 48, sec. 211. 
 Placing dutiable goods in building upon the boundary line. 
 
 R.S.C. ch. 48, sec. 212. 
 Forfeiture of goods found in building upon boundary line. 
 
 R.S.C. ch. 48, sec. 213. 
 Seizure of goods found concealed on board vessel. R.S.C. ch. 48, 
 
 sec. 214. 
 Persons smuggling goods in company. R.S.C. ch. 48, sec. 215. 
 Being on board of smuggling vessel. R.S.C. ch. 48, sec. 216. 
 Resisting search of person. R.S.C. ch. 48, sec. 217. 
 Forfeiture and penalty for concealing prohibited or dutiable 
 
 goods on person. R.S.C. ch. 48, sec. 218. 
 Keeping or selling, etc., goods unlawfully imported. R.S.C. ch. 
 
 48, sec. 219. 
 Altering or defacing marks of customs on goods. R.S.C. ch. 48, 
 
 sec. 220. 
 
 Warehouses and Warehousing. 
 
 Unlawful removal of goods from customs warehouse. R.S.C. ch. 
 
 48, sec. 221. 
 Not warehousing or ex-warehousing goods entered therefor. 
 
 R.S.C. ch. 48, sec. 222. 
 Stores of ship relanded and sold in Canada, R.S.C. ch. 48, 
 
 sec. 223. 
 Goods ex-warehoused upon entry not corresponding shall be 
 
 forfeited. R.S.C. ch. 48, sec. 224. 
 Goods ex- warehoused upon entry not corresponding with' report 
 
 inwards or not properly describing the goods. R.S.C. ch. 48, 
 
 sec. 225. 
 Cancelling or removing warehoused goods. R.S.C. ch. 48, sec. 226. 
 Obtaining access to goods in bonded car. R.S.C. ch. 48, sec. 227. 
 Obtaining fraudulent access to warehouse. R.S.C. ch. 48, sec. 
 
 228. 
 Opening and unpacking goods under control of customs. R.S.C. 
 
 ch. 48, sec. 229. 
 Refusing to return goods to customs. R.S.C. ch. 48, sec. 230. 
 Unlawful warehousing of goods. R.S.C. ch. 48, sec. 231.
 
 I 
 
 CHAP, III.] Entry Outwards. 392c 
 
 Appraisement. 
 
 Refusing to act as appraiser. R.S.C. ch. 48, sec. 232. 
 Refusing to attend and answer interrogatories. R.S.C. ch. 48, 
 
 sec. 233. 
 False swearing of owner. R.S.C. ch. 48, sec. 234. 
 
 Non-payment of Duty. 
 
 Selling goods without payment of duty. R.S.C. ch. 48, sees. 
 235, 236. 
 
 Entry Outwards and. Exportation. 
 
 Entering goods outward and not exporting. R.S.C. ch. 48, sec. 
 
 237. 
 Re-landing, or failing to perform obligation to export. R.S.C. 
 
 ch. 48, sec. 238. 
 Carrying goods out of limits of port of outward entry before 
 
 entry. R.S.C. ch. 48, sec. 239. 
 Others than owners making entry outwards. R.S.C. ch. 48, sec. 
 
 240. 
 Failure to make report and entry of goods shipped in Canada. 
 
 R.S.C. ch. 48, sec. 241. 
 Seizure of prohibited goods carried coastwise. R.S.C. ch. 48, 
 
 sec. 242. 
 Making false entry. R.S.C. ch. 48, sec. 253. 
 Contravening any provision as to exportation. R.S.C. ch. 48, 
 
 sees. 243, 245. 
 Contravening provisions as to goods in transit. R.S.C. ch. 48, 
 
 sees. 244, 245. 
 Vessel leaving without a clearance. R.S.C. ch. 48, sec. 246. 
 
 Contravention of Government Regulations. 
 
 Generally as to contravention. R.S.C. ch. 48, sec. 247. 
 Where vessel is of value of $400. R.S.C. ch. 48, sec. 248. 
 
 Breach of Duty by Customs Officer. 
 
 Penalty for illegal search of person. R.S.C. ch. 48, sec. 249. 
 Neglecting to convey goods seized to custom house. R.S.C. ch. 
 
 48, sec. 250. 
 Collector allowing payment of duty to be avoided or deferred. 
 
 R.S.C. ch. 48, sec. 251. 
 Collusive seizure in release, accepting bribes, etc. R.S.C. ch. 48, 
 
 sec, 252. 
 
 Falsification of Documents. 
 
 Counterfeiting, falsifying, or forging, or using counterfeited 
 documents. R.S.C. ch. 48, sec. 254.
 
 S92d Offences Against Revenue Laws. [book iv. 
 
 Refusal to Answer Questions. 
 
 Additional penalty for. R.S.C. ch. 48, sec. 255. 
 
 Refusal to maintain or accommodate customs officer on ship. 
 
 R.S.C. ch. 48, sec. 256. 
 Refusal to produce invoice, etc. R.S.C. ch. 48, sec. 257. 
 Goods. 
 
 Theft of goods under seizure. R.S.C. ch. 48, sec. 258. 
 Offering goods for sale as prohibited or smuggled. R.S.C. ch. 
 48, sec. 260. 
 Vessels. 
 
 Refusal of vessels to stop when required in King 's name. R.S.C. I 
 
 ch. 48, sec. 259. ' 
 
 Powers and Duties of Officers. 
 
 Generally. R.S.C. ch. 48, sec. 146. 
 
 May search and detain vessels and seize goods. R.S.C. ch. 48, 
 
 sec. 147. 
 May enter building and seize goods during day-time. R.S.C. ch. 
 
 48, sec. 148. 
 As to building on boundary line. R.S.C. ch. 48, sec. 149. 
 May board vessels and have access to all parts thereof. R.S.C. 
 
 ch. 48, sec. 150. 
 May station officers thereon. R.S.C. ch. 48, sec. 151. 
 May call in aid to seize goods, etc. R.S.C. eh. 48, sec. 152. 
 May examine vessels hovering near coast. R.S.C. ch. 48, sec. 154. 
 Search of Person. 
 
 On reasonable suspicion. R.S.C. ch. 48, sec. 155. 
 Before justice of the peace. R.S.C. ch. 48, sec. 156. 
 Of females. R.S.C. ch. 48, sec. 156. 
 Reasonable despatch to be used. R.S.C. ch. 48, sec. 157. 
 Writs of Assistance. 
 
 Issue of. R.S.C. ch. 48, sees. 158, 159. 
 Powers of officer under. R.S.C. ch. 48, sec. 152. 
 Proceedings upon Seizure or Alleged Penalty or Forfeiture In- 
 curred. 
 Report of officer to commissioner of customs. R.S.C. ch. 48, sec. 
 
 174. 
 Commissioner to notify owner or claimant. R.S.C. ch. 48, sec. 
 
 175. 
 Commissioner to report to Minister. R.S.C. ch. 48, sec. 176. 
 Decision of Minister in the matter. R.S.C. ch. 48, sec. 177. 
 Decision of Minister is final when. R.S.C. ch. 48, sec. 178. 
 Minister may refer matter to Court. R.S.C. ch. 48, sec. 179. 
 Hearing by Court. R.S.C. ch. 48, sees. 180, 181. 
 Where claim is not over $100.00. R.S.C. ch. 48, sec. 182.
 
 CHAP. III.] Procedure. 392e 
 
 Procedure in Court. 
 
 Production and delivery of books, invoices, etc. R.S.C. ch. 48, 
 
 sees. 183, 184, 185. 
 Action may proceed in Exchequer Court or other Superior Court. 
 
 R.S.C. ch. 48, see. 265. 
 Proceedings to be by Attorney-General or officer of customs, 
 
 R.S.C. ch. 48, sec. 266. 
 In Quebec. R.S.C. ch. 48, sec. 267. 
 Procedure shall be according to practice of Court. R.S.C. ch. 
 
 48, sec. 268. 
 Venue. .R.S.C. ch. 48, sec. 269. 
 Arrest of defendant if leaving province. R.S.C. ch. 48, sees. 
 
 270, 274. 
 Averments in pleadings. R.S.C. ch. 48, sec. 271. 
 Disposal of costs and how levied. R.S.C. ch. 48, sec. 272. 
 Nolle prosequi may be entered by Attorney-General. R.S.C. 
 
 ch. 48, sec. 273. 
 Judgment of Court. R.S.C. ch. 48, sees. 275, 276. 
 Claims, filing of, etc. R.S.C. ch. 48, sec. 277. 
 Claimant to give security. R.S.C. ch. 48, sec. 278. 
 Limitation of actions. R.S.C. ch. 48, sec. 279. 
 Seizure to be coramencement of action. R.S.C. ch. 48, sec. 280. 
 
 Appeals. 
 
 From convictions by justices of peace. R.S.C. ch. 48, sec. 281. 
 From Exchequer or Superior Court. R.S.C. ch. 48, sec. 282. 
 From Circuit Court in Quebec. R.S.C. ch. 48, sec. 283. 
 Xo security on appeal need be given by Attorney-General. 
 
 R.S.C. ch. 48, sec. 284. 
 Restoration of goods not prevented by appeal if security is given. 
 
 R.S.C. ch. 48, sec. 285. 
 
 Procedure, Evidence. 
 
 Certified copies and extracts of invoices to be evidence. R.S.C. 
 
 ch. 48, sec. 261. 
 Certified copies of official papers to be evidence. R.S.C. ch. 48, 
 
 sec. 262. 
 Existence of two different sets of invoices of goods is prima facie 
 
 evidence of fraud. R.S.C. ch. 48, sec. 263. 
 Burden of proof. R.S.C. ch. 48, sec. 264. 
 
 Procedure in Court. 
 
 Procedure for contravention of regulations. R.S.C. ch. 48, sec. 
 285.
 
 392/ Offences Against Revenue Laivs. [book iv. 
 
 Disposition of Articles Seized. 
 
 To be placed temporarily in custody of nearest collector of 
 
 customs. R.S.C. ch. 48, sec. 166. 
 To be condemned unless notice of claim given within one month. 
 
 R.S.C. ch. 48, sec. 167. 
 Proceedings for condemnation independent of notice. R.S.C. ch. 
 
 48, sec. 168. 
 Goods seized to be taken to nearest customs house. R.S.C. ch. 
 
 48, sec. 169. 
 Goods stopped on suspicion of being stolen to be taken to nearest 
 
 customs house. R.S.C. ch. 48, sec. 170. 
 Delivery of goods seized upon deposit of security, R.S.C. ch. 
 
 48, sec. 171. 
 Deposit of money to be made to cover penalty and costs. R.S.C. 
 
 ch. 48, sees. 171, 172. 
 Limitation of time for claim. R.S.C. ch. 48, sec. 172. 
 Animals or perishable goods may be sold as if condemned. 
 
 R.S.C. ch. 48, sec. 173. 
 
 Protection of Officers of Customs. 
 
 No action to be commenced against customs officer while proceed- 
 ing pending in respect of the Customs Act. R.S.C. ch. 48, 
 
 sec. 160. 
 Defendant officer may tender amends and plead tender in bar 
 
 to action. R.S.C. ch. 48, sec. 161. 
 Limitation of time for action against customs officer. R.S.C. ch. 
 
 48, sec. 162. 
 Discretion of Court in action against customs officer. R.S.C. 
 
 ch. 48, sec. 163. 
 No action against Crown or customs officer pending forfeiture 
 
 proceedings. R.S.C. ch. 48, sec. 164. 
 No action for search or detention if reasonable cause therefor. 
 
 R.S.C. ch. 48, sec. 165.
 
 ( 393 ) 
 
 BOOK THE FIFTH. 
 
 OF OFFENCES AGAINST RELIGION AND PUBLIC WORSHIP. 
 
 I 
 
 CHAPTER THE FIRST. 
 
 OF BLASPHEMY. 
 
 At common law it is an indictable misdemeanor (a), punishable by fine 
 and (or) imprisonment (6), to speak or otherwise publish any matter 
 blaspheming God, e.g., by denying His existence or providence, or 
 contumeliously reproaching Jesus Christ, or vilifying or bringing into 
 disbelief or contempt or ridicule (<:) Christianity in general (d), or 
 any doctrine of the Christian religion, or the Bible (e), or the Book of 
 Common Prayer (/). 
 
 Christian Religion. — Upon the trial of an information in the Court 
 of King's Bench, for uttering expressions grossly blasphemous, Hale, 
 C.J., said, that ' such kind of wicked blasphemous words were not only 
 an offence to God and religion, but a crime against the laws, state, and 
 government, and therefore punishable in this Court : for to say religion 
 is a cheat is to dissolve all those obligations whereby civil society is 
 preserved ; and Christianity is part of the laws of England, and therefore 
 to reproach the Christian religion is to speak in subversion of the law ' (</). 
 
 Where the defendant had been convicted for publishing blasphemous 
 libels, in which the miracles of our Saviour were turned into ridicule 
 and contemjjt, and His life and conversation calumniated, it was moved 
 in arrest of judgment that this was not an offence within the cognisance 
 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 
 
 («) The olTenoe docs not seem to have (c) R. v. Richard Carlile, 1 St. Tr. (N. S.) 
 been dealt witli by the coinnion-law Courts 1388, Abbott, C.J. R. v. Mary Carlile, 
 until after the aboHtioii of the Courts of 1 St. Tr. (N. S.) 1033. 
 Star Chamber and Hitili Commission. Sec (d) R. v. Woolston, Fitz^il)bon, 60. 
 Traske's case (Com. s'tell.). Hob. 382. At- (e) Whether the Old or the New Testa- 
 wood's case. (ho. .lac. 421. R. v. Curl, 2 nient. R. v. Hetherington [1840J, 4 St. 
 Str. 790 ; 1 Hawk. c. 5. Tr. (N. S.) 5(33 ; 5 Jur. 529. 
 
 {h) At the discretion of the Court. The (/) In 1817 W. Hone was tried for pub- 
 older a\ithorities say that infamous corpo- lishing parodies on the Catechism, the 
 real punishment might be impo.sed for Litany, and the Athanasian Creed, and 
 blasphemy. Ollendcrs were at one time acquitted. See Odgers on Libel (4th e<l.), 
 put in the pillory. K. v. Annet, 1 W. Bl. 451. 
 
 .395; 3 Burn Eccl. Law (9th ed.). 38(5. {g) R. r. Taylor. Ventr. 293 ; 3 Keb. 607, 
 
 And see 2 Rolle Abr. 78. They could be 621. See the information in Tremayne, 
 
 r)ut inidcr recognisances to be of good be- 226. 
 laviour for life ; vide R. v. Annet.
 
 394 Of Offences against Retigiofi, &c. [book V. 
 
 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 (fi). 
 
 The accuracy of these dicta, and of the old authorities upon which 
 they are based, was challenged arguendo, in R.. v. Hetherington {i), and 
 to some extent questioned in R. v. Ramsay (/), but Hale's conclusion 
 has been accepted as the law in many cases (k). 
 
 On the trial of a criminal information against the defendant for 
 publishing a false, malicious, and scandalous libel upon a religious order, 
 professing the Roman Catholic faith, called the Scorton Nunnery, Alder- 
 son, B., said, ' a person may, without being liable to prosecution for it, 
 attack Judaism or Mahomedanism, or even any sect of the Christian 
 religion (save the established religion of the country), and the only 
 reason why the latter is in a different situation from the other is, because 
 it is the form established hy law, and is therefore a part of the constitution 
 of the country. In like manner and for the same reason any general 
 attack on Christianity [1) is the subject of a criminal prosecution, because 
 Christianity is the established religion of the country. The defendant 
 here has a right to entertain his opinions, to express them, to discuss 
 the subject of the Roman Catholic religion, and its institutions ' ; but 
 he ruled that there was no right in so doing to attack the characters of 
 individuals {m). 
 
 By Statute. — Some provisions have also been made upon this subject 
 by statutes. 1 Edw. VI. c. 1 (w), enacts, that persons reviling the Sacra- 
 ment of the Lord's Supper by contemptuous words or otherwise, shall 
 suffer imprisonment. 1 Eliz. c. 2 (o), enacts, that if any yninister shall 
 speak anything in derogation of the Book of Common Prayer, he shall, if 
 not beneficed, be imprisoned one year for the first offence, and for life 
 for the second (2 & 3 Edw. VI. c. 1, s. 3) ; and if he be beneficed, shall 
 for the first offence be imprisoned six months and forfeit a year's value 
 of his benefice ; for the second, shall be deprived and suffer one year's 
 imprisonment ; and for the third, shall in like manner be deprived and 
 suffer imprisonment for life. And that if any person whatsoever shall 
 in plays, songs, or other open words, speak anything in derogation, 
 depraving, or despising of the said book, or shall forcibly prevent the 
 reading of it, or cause any other service to be read in its stead, he shall 
 forfeit for the first offence 100 marks ; for the second, 400 ; and for the 
 third, shall forfeit all his goods and chattels, and suffer imprisonment 
 for life. This Act (1 Edw. VI. c. 1) was at the Restoration applied to the 
 Prayer Book of 1662 (14 Car. II. c. 4, s. 1). 
 
 The Toleration Act, 1688 (1 Will, and M. c. 18), s. 17, enacted, that 
 whosoever should deny in his preaching or writing the doctrine of the 
 Blessed Trinity, should lose all benefit of the Act for granting toleration. 
 
 (h) R. V. Woolston, Barnard, 1(52 ; 2 Str. {/) See R. v. Woolston, Fitzgibbon, 66. 
 
 834 ; FitzgJb. 04. (m) R. v. Gatliercole, 2 Lew. 237, 254. 
 
 (*■) 4 St. Tr. (N. S.) 577 : 5 J. R 496. (n) Rep. 1 Mary, c. 2, but revived 
 
 (i) 15 Cox. 231, Coleridge, C.J. 1 Eliz. c. 1. 
 
 [k) R. V. Williams [1797], 26 St. Tr. 056. (o) Partly repealed 7 & 8 Vict. e. 102 : 
 
 R. r. Richard Carlile, 4 St. Tr. (N. S.) 1423, 9 & 10 Vict. c. 59 ; but not so as to affect 
 
 Abbott, C.J. R. i\ Tunbridge, 1 St. Tr. the provisions here mentioned. 
 (N. S.) 1309n, Bayley, J.
 
 Chap, i.] Of Blasphemy. 
 
 This section was repealed in 1813 by 53 Geo. III. c. 160 : but while it 
 was in force it was considered as operating to deprive the offender 
 of the benefit of the Toleration Act, leaving the punishment of the 
 offence as for a misdemeanor at common law (p). An Act of 1698 
 (9 Will. III. c. 35 (9 & 10 Will. III. c. 32 (Ruffhead) ), entitled 
 ' an Act for the more effectual sujspressing of blasphemy and pro- 
 faneness ') enacts, that if any person, educated in or having made 
 profession of the Christian religion, shall, by writing, printing, teaching, 
 or advised speaking, [denij any one of the Persons in the Holy Trinity 
 to be God (7), or] should assert or maintain there are more gods than one, 
 or should deny the Christian religion to be true, or the Holy Scriptures 
 to be of divine authority, he should, on lawful conviction on indictment 
 or information in any of His Majesty's Courts at Westminster, at the 
 assizes, by the oath of two or more credible witnesses, upon the first offence 
 be rendered incapable to hold any office or place of trust ; and for the 
 second be rendered incapable of bringing any action, being guardian, 
 executor, legatee, or purchaser of lands, and should suffer three years' 
 imprisonment without bail (r). The statute does not abrogate the 
 common law, but is cumulative (s). Thus in R. t'. Richard Carlile {t), 
 made in arrest of judgment on an information for a blasphemous libel, 
 on the ground that this statute had })ut an end to the common law 
 offence : in summing up to the jury, Abbott, C. J., said : ' If the whole 
 Act of Will. III. had been repealed, the common law would still have 
 remained ' ; and on a motion made the Court were clear that it had 
 not. On few branches of the law has there been more change in the 
 policy of prosecution, and the views of the judges, thaji in that relating 
 to blasphemy. Prosecutions were numerous early in the nineteenth 
 century {u). Since 1837 they have been few. There is one reported 
 in 1857 (v). The latest of any importance were in 1882 (iv) and 1908 (x). 
 The opinions of the judges have also changed with respect to the essential 
 elements of the offence : and the gist of the offence is not now considered 
 to be in holding an opinion (y) contrary to the general tenets of Christi- 
 anity, or the particular doctrines of the Church of England, which may 
 be heretical, but in the mode of expressing it (2). In R. v. Woolston (a), 
 
 (p) R. V. AVilliams [1797], 2(5 St. Tr. 56.3, Ccn. v. Peanson, 3 Mer. 353, 379. 398, 405, 
 
 Kenyon, CI. Holt on Ijibel, (jG. 407. One was in respect of the publication 
 
 (q) The words in italics were repealed in of Shelley's ' Queen Mab.' 11. v. Mo.von 
 
 1813 (53 (ico. III. c. KiO, s. 2). See R. v. [1841], 4 St. Tr. (N. S.)()93, which resulted 
 
 Waddiiigton, 1 B. & C. 2(5 ; 1 St. Tr. (N. S.) in a conviction, not followed by judgment. 
 
 1339. For a prosecution on the repealed As to the motives for the prosecution and 
 
 words, see R. v. Elwell [172(1], Odgers on the value of the case as an authority, see 
 
 Libel (4th ed.), 449. R. v. Hicklin, h. R. 3 Q.B. 372, Blackburn, J. 
 
 (r) But the delinquent publicly renoun- (v) R. r. Poolcy. 8 St. Tr. (N. S.) 1089. 
 
 cing his error in open Court, within four See Steph. Dig. C'r. Law ((ith ed.) ; 2 Steph. 
 
 months after tlu^ first conviction, is to be Hist. (V. L. 475. 
 di.schargedfor that once from all disabilities. (w) R. ?•. Ramsay, 15 Cox, 231, Cole- 
 
 (s) R. V. Woolston, liarnard, 1(12 ; 2 St. ridge, L.C.J. 
 Tr. 834; Fitzgib. (i4. R. v. Williams, 2() {x) R. v. Boulter [1908], 72 J. P. 18L 
 
 St. Tr. 5(i3. R. v. Eaton, 31 St. Tr. 927. Phillimore, J. 
 
 (I) 1st. Tr. (N. S.) 1387. Cf. R. r. Wad- (y) See Odgers on Libel (4th ed.), 448, 
 
 dington, 1 B. & C. 2(i; 1 St.Tr. (N. S.) 1342. (pioting Evans v. Chamberlain of London 
 
 («) There were .seventy- three convictions 1 17()7]. Lord Mansfield, 
 between 1821 and 1834. See the statistics (c) Shore r. Wilson, 9 CI. & F. 353. But 
 
 collected, 1 St.Tr. (N.S.) 1385, and list of de- see Cowan r. Milburn, L. R. 2 Ex. 280. 
 cisions 1 St. Tr. (N. S.) 1039n. Sec also Att.- (a) Fitzgibbon, 615.
 
 396 Of Offences against Religion, Ac. [book v. 
 
 an indictment for publishing a blasphemous book, it was 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 received proof of His being the Messiah ; to which 
 the Court said, that the attacking Christianity in the way in which it 
 was attacked in this publication was destroying the very foundation of 
 it ; and that, though there were professions in the book that its design 
 was to establish Christianity upon a true bottom by considering these 
 narrations in Scripture as emblematical and prophetical, yet that such 
 professions were not to be credited, and that the rule is allegatio contra 
 factum non est admittenda. But the Court also said, that though to write 
 against Christianity in general is clearly an offence at common law, they 
 laid 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, C.J., said: ' I would 
 have it taken notice of that we do not meddle with any differences of 
 opinion, and that we interpose only where the very root of Christianity 
 itself is struck at.' 
 
 It is said by Blackstone (b) that ' contumely and contempt are what 
 no establishment can tolerate : but, on the other hand, it would not be 
 proper to lay any restraint upon rational and dispassionate discussions 
 of the rectitude and propriety of the established mode of worship.' In 
 Starkie on Libel (1st ed.), 496, 497, it is said that ' it may not be going 
 too far to infer, from the princij)les and decisions, that no author or 
 preacher who fairly and conscientiously promulgates the opinions with 
 whose truth he is impressed, for the benefit of others, is, for so doing, 
 amenable as a criminal ; but a malicious and mischievous intention is 
 in such case the broad boundary between right and wrong ; and that if 
 it can be collected, from the offensive levity with which so serious a 
 subject is treated, or from other circumstances, that the act of the 
 party was malicious, then, since the law has no means of distinguish- 
 ing between different degrees of evil tendency, if the matter published 
 contain any such tendency, the publisher becomes amenable to jus- 
 tice ' (c). In R. V. Mary Carlile (d), Best, J., ruled that the jury must 
 inquire whether the alleged libel was a temperate discussion of the truth 
 of Christianity or an attempt to vilify and degrade it, to excite prejudice 
 and not to convince. 
 
 In R. V. Richard Carlile (e), the Court appears to have considered 
 that a fair, reasonable, open, and temperate discussion of the religion of 
 this country was not blasphemy. 
 
 It is a question for the jury whether or not the words amount to a 
 blasphemous libel. The wilful intention to insult and mislead others 
 by means of licentious and contumelious abuse offered to sacred subjects 
 
 {h) 4 Com. 51. mer was declared to be ' full of contradic- 
 
 (c) See 2iid edition, vol. 2, 146-7. tions and wickedness.' 
 
 (d [1821] 1 St. Tr. (N. S.) 1033. The (e) [1819] (second trial), 1 St. Tr. (N. S.) 
 
 prosecution was in respect of a pamphlet, 1387, 1390n. As to first trial, see 4 St. Tr. 
 
 in which the morality of the Old and New (N. S.) 1423. See also authorities collected 
 
 Toetaments were contrasted, and the for- L. T. Journal, July 22, 1882. 
 
 d
 
 CHAP. I.] Of Blasphemy. 397 
 
 or by wilful misrepresentations or wilful sophistry calculated to mislead 
 the ignorant and unwary, is the criterion and test of guilt. A malicious 
 and mischievous intention, or what is equivalent to such an intention 
 in law as well as morals — a state of apathy and indifference to the interests 
 of society — is the broad boundary between right and wrong (/'). 'To 
 asperse the truth of Christianity cannot per se be sufficient to sustain a 
 criminal prosecution for blasphemy. To maintain that merely because 
 the truth of Christianity is denied without more, therefore the person 
 denying it may be indicted for blasphemous libel is, I venture to think, 
 absolutely untrue. It is a view of the law which cannot be historically 
 j ustified . Parliament, the supreme authority as to old law, has passed Acts 
 which render the dicta of the judges in former times no longer applicable. 
 And it is no disparagement to their authority to say that observations 
 which were made under one state of the law are no longer applicable 
 under a different state of things. As I observed before, I put it as a 
 reducfio ad absurdum that if it was enough to say that " Christianity was 
 part of the law of the land," then there could be no discussion on any 
 part of the law of the land, and it would be impossible, for example, to 
 discuss in a grave argumentative way the question of a monarchical form 
 of government, as Harrington discussed it in his " Oceana," without 
 being liable to be indicted for a seditious libel. I was not aware that what 
 I then put as a reductio ad absurdum had been judicially held, and that a 
 man had actually been convicted of a seditious libel (R. v. Bedford, 
 Gilbert's Rep. K.B. 297) (7), for discussing such a question, his work con- 
 taining, as the report states, no reflection upon the existing government. 
 No judge or jury in our day would convict a man of seditious libel in such 
 a case, — it would be regarded as monstrous. I have no doubt there- 
 fore that the mere denial of the truth of Christianity is not enough to 
 constitute the offence of blasphemy. . . . Whatever the older cases may 
 have been, the fact remains that Parliament has altered the law as to 
 religion. It is no longer the law that none but believers in Christianity 
 can hold office in the State. The state of things is no longer the same 
 as when the older judgments were pronounced, — judgments, how- 
 ever, which have been strained, I think, beyond what they will justly 
 warrant. . . . The defendants have admitted that these publications 
 were intended to be attacks on Christianity and on the Hebrew Scrip- 
 tures, and have cited a number of passages from approved writers which 
 they say are to the same effect. That may be so . . . and I lay it 
 down as law that if the decencies of controversy are observed, even 
 the fundamentals of religion may be attacked without the writer being 
 guilty of blasphemy. But no one can fail to see the difference between 
 the woi'ks of the writers who have been quoted and the language used 
 in the publications now before us, and I am obliged to say that it is differ- 
 ent not only in degree but in kind and nature. There is a grave and 
 earnest tone^ a reverent, perhaps I might even say a religious, spirit 
 about the very attacks on Christianity itself which we find in the authors 
 
 (/) R. V. Bradlaugh, 15 Cox, 217, Cole- man. The nature of the libel i,s not in- 
 ndge, C..J. (licate;! in tlie report, whieh only gives 
 
 (?) 1713. The defendant \va.s a clergy- the title, ' The Hereditary Rights, &.c.'
 
 398 Of Offences against Religion, &c. [book v. 
 
 referred to which shews that what they aimed at was not insult to the 
 opinions of the majority of mankind nor to Christianity itself, but real, 
 quiet, earnest pursuit of truth. And if the truth at which they have 
 arrived is not that which you and I have been taught and at which 
 perhajjs we might now arrive, it is not because their conclusions differ 
 from ours that they are to be deemed fit subjects for criminal prosecu- 
 tion ' (/<). 
 
 The rulings above given have been criticised by Sir James Stephen 
 as amounting to a judicial change in the law(?'). But their substance 
 has been accepted as correct in the most recent prosecution, R. \\ 
 Boulter (/), an indictment for blasphemous speeches, where Phillimore, J., 
 directed the jury as follows : ' A man is free to speak and teach what 
 he pleases as to religious matters, though not as to morals. He is free 
 to teach what he likes as to religious matters even if it is unbelief. 
 But when we come to consider whether he has exceeded the limits, we 
 must not neglect to consider the place where he speaks, and the persons 
 to whom he speaks. A man is not free in a public place where passers 
 by who might not willingly go to listen to him knowing what he was 
 going to say might accidentally hear his words, or where young people 
 might be present. A man is not free in such places to use coarse ridicule 
 on subjects which are sacred to most people in the country. He is free to 
 use arguments.' He suggested further that it was for the jury to draw 
 the line, and they should do so in favour of the accused if he were arguing 
 in favour of his honest belief or nnbelief, but not if he were making a 
 scurrilous attack on the beliefs of most people in a public place where 
 passers by might have their ears offended or the young might come. 
 Such conduct would tend to a breach of the peace by hot-headed believers. 
 
 In a case where a pamphlet stated that Jesus Christ was an impostor, 
 a murderer in principle, and a fanatic, a juryman asked whether a work 
 denying the divinity of our Saviour was blasphemous ; and Abbott, 
 C.J., answered that a work sj^eaking of Jesus Christ in the language 
 used in the pamphlet was blasphemous ; and on a motion for a new trial, 
 on the ground that this was a wrong answer, the Court held that the 
 answer was right {k). 
 
 In R. V. Williams {I), in pronouncing the judgment of the Court of 
 King's Bench upon a person convicted of blasphemy in resjDCct of having 
 published Paine's 'Age of Reason,' Ashhurst, J., said, that, although 
 the Almighty did not require 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 
 religion treated with contempt, the solemnity of an oath, on which the 
 due administration of justice depended, would be destroyed, and the 
 
 (h) R. V. Ramsay, 15 Cox, 231, Coleridge, [k) R. v. Waddington, 2 B. & C. 26. 
 
 L.C.J. {I) [1797] 26 St. Tr. 696. See Holt on 
 
 (t) Steph. Dig. Cr. Law (6th ed.). 125. Libel, 69, note (a); 2 Starkie on Libel, 
 
 0) 72 J. P. 188, Phillimore, J. 141 ; Odgers on Libel (4th od.), 445. 
 
 I
 
 CHAP. I.] Of BlaspJiemy. 399 
 
 law be stripped of one of its principal sanctions, the dread of future 
 punishments (ni). 
 
 In R. V. Petcherine (m), a Roman Catholic priest was indicted for burning 
 a copy of the Authorised Version of the Scriptures, but M^as accjuitted. 
 
 It has already been stated that it is immaterial whether the publica- 
 tion is oral or written (o). Committing mischievous matter to print or 
 writing, and thereby affording it a wider circulation, may be an aggra- 
 vation of the offence, and affect the measure of punishment (p). On 
 the other hand, the open speaking of blasphemous matter in a public 
 place where many must pass may be a graver offence than abuse of religion 
 at a ticket meeting of a secular society (</). 
 
 Pleas, &c. — The privilege attaching to reports of judicial proceedings 
 does not cover the republication of blasphemous matter. This was so 
 laid down in R. v. Mary Carlile (r), where the defendant published the 
 proceedings at the trial of Richard Carlile (s), in which he read to the 
 jury the whole of Paine's ' Age of Reason.' 
 
 In R. V. Creevey (t), which related to proceedings in Parliament, 
 Bayley, J., said: ' It has been argued that the proceedings of Courts of 
 justice are open to publication. Against that, as an unqualified proposi- 
 tion, I enter my protest. Suppose an indictment for blasphemy, or a 
 trial where indecent evidence was necessarily introduced ; would every 
 one be at liberty to poison the minds of the 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, tlierefore, that in ail instances the proceed- 
 ings of a Court of justice may be published.' 
 
 The provisions of the Law of Libel Amendment Act, 1888 (51 & 52 
 Vict. c. 64), giving privilege to fair and accurate reports in newspapers 
 of proceedings in courts of justice and public meetings, expressly 
 exclude blasphemous matter from the privilege (m). 
 
 The provisions of the Libel Act, 1843 (6 & 7 Vict. c. 96), s. 6, as to 
 justification, do not extend to blasphemous libel (ij). At common law it 
 is no answer to an indictment for blasphemy to prove the truth of the 
 attack on Christianity which is the subject of the indictment (w) ; in one 
 case the Court went so far as to punish as contempt the persistence of 
 the defendant in reviling Christianity in the course and as part of his 
 defence (x). In other cases the Court has stopped attempts to repeat or 
 justify the alleged blasphemy as part of the defence (y). 
 
 (m) This libel attacked the truth of the infra. 
 
 Old and Now Testaments ; arguing that (s) 3 B. & Aid. 1.31; 1 St. Tr. (N. 8.) 1387. 
 
 there was no genuine revelation of tlie will {f) 1 M. & S. 223, 231. 
 
 of God existing in the world ; and that (k) Ss. 3, 4, /w.s7, p. 1021 cf .'^cq. 
 
 reason was the only true faith whieh laid {v) R. v. Duffy [1840]. (> 8t. Tr. (N. 8.) 
 
 any obligations on the conduct of mankind. 303 ; 9 Ir. L. II. 329 ; 2 t'ox, 45. 
 
 In other respects also it ridiculed and vili- (ic) R. v. Tunbridgc [1822], 1 8t. Tr. 
 
 Kcd the prophets, our Saviour, His dis- (N. 8.) ]3()8, an indictment for publishing 
 
 ciples, antl the Holy Scriptures. ' Palmer's Principles of Nature.' Cooke v. 
 
 {n) [1855] 8 St. tr. (N. S.) 108G ; 7 Cox, Hughes, Ry. & M. 114. 
 
 79. {x) R. V. Davison [1821], 1 St. Tr. (N. S.) 
 
 (o) See R. v. Boulter, 72 J. P. 188, Philli- 13G6. 
 
 more, J. (y) R. v. Richard Carlile [1819], 4 St. 
 
 (p) 2 Starkie on Libel (2nd ed.), 144 ; Tr. (N. 8.) 1243 ; R. r. Mary Carlile [1821], 
 
 Odgors on Libel (4th ed.), 446 P/.SP7. 1 St. Tr. (N. S.) 1033, 1042, 1049. R. v. 
 
 (?) R. V. Boulter, 72 J. P. 188. Tunbridgc. 1 St. Tr. (N. S.) 1369. Cooker. 
 
 (r) 1 St. Tr. (N. 8.^ 1033. R. 7-. Creevey, Hughes, Ry. & M. 114.
 
 400 Of Offences against Religion, &c. [book v. 
 
 The provisions of the Act of 1843, sect. 7 [z], as to exculpatory 
 evidence to displace a prima facie case of publication, apply to 
 blasphemous libels (a). The offence is not cognisable at quarter 
 sessions (b). 
 
 Punishment. — Blasphemy, being a misdemeanor at common law, is 
 punishable by fine or imprisonment, without hard labour, or both (c). 
 The quantum is in the discretion of the Court. As to the punishment 
 under 9 Will. III. c. 35, vide ante, p. 395. Under the Criminal 
 Libel Act, 1820 (60 Geo. III. & 1 Geo. TV.), c. 8, the composing, printing, 
 or publishing of a blasphemous libel is punishable on a second conviction 
 by such punishment as might in 1820 be inflicted in cases of high 
 misdemeanors (sect. 4) (d). By the same Act provision is made for 
 ordering search for, seizure, and disposal of copies of blasphemous libels 
 after conviction (sects. 1, 2). 
 
 (z) Post, p. 1040. was that the jurisdiction was in the Court 
 
 (a) R. V. Bradlaugh, 15 Cox, 227, Cole- of High Commission, 
 
 ridge, C.J. (c) Vide ante, p. 249. 
 
 (6) 5 & 6 Vict. c. 38, s. 1. This seems {d) Ante, p. 249. So much of the Act as 
 
 always to have been the rule. Atwood's prescribed banishment was repealed in 1830 
 
 case, Cro. Jac. 421. The contention there (11 Geo. IV. & 1 Will. IV. c. 73, s. 1).
 
 ( 400a ) 
 
 CANADIAN NOTES. 
 
 OF BLASPHEMY. 
 
 Blasphemous Libel. — Code sec. 198.
 
 ( 401 ) 
 
 1 
 
 CHAPTER THE SECOND. 
 
 OF DISTURBANCES IN CHURCHYARDS OR PLACES OF PUBLIC 
 WORSHIP (a). 
 
 Affrays in a church or churchyard have always been esteemed very 
 Jieinous offences, as being very great indignities to the Divine Majesty, 
 to whose worship and service such places are immediately dedicated ; 
 and upon this consideration all irreverent 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 are criminal which would be 
 commendable if done in another place ; as arrests by virtue of legal 
 process (6). 
 
 It seems to have been recognised that it was a misdemeanor to obstruct 
 divine service in a church, but a criminal information was refused on the 
 ground that the alleged disturbance arose out of the intrusion as preacher 
 by the rector of a methodist who did not hold a licence to preach from 
 the bishop of the diocese (c). 
 
 Several statutes have been passed for the purpose of preventing 
 disturbances in places of worship belonging to the established church, 
 and also in those belonging to congregations of Protestant Dissenters and 
 Roman Catholics. 
 
 By an Act of 1551 (5 & 6 Edw. VI. c. 4), s. 1, 'if any person whatso- 
 ever shall ... by words only, quarrel, chide, or brawl in any church 
 or churchyard . . . tlien it shall be lawful unto the ordinary of the 
 place where the same offence shall be done, and proved by two lawful 
 witnesses, to suspend every person so offending ; that is to say, [if he be 
 a layman, ah itufressu ecclesice, and (d)] if he be a clerk, from the ministra- 
 tion of his office, for so long time as the said ordinary shall by liis discretion 
 think meet and convenient, according to the fault.' 
 
 By sect. 2, ' if any person or persons shall smite or lay violent hands 
 upon any other, either in any church or churchyard, then ipso facto every 
 
 {a) The first Act of Uniformity (.'S & (J Q.B.I). ()71. Marshall r. (iraham [1907], 
 
 Edw. Vl.c. l),s.2,inipo,se.sagen(Mal dutyon 2K.B. 112, 12!), Philliinorc, J. 
 people to go to church, and conferred a (h) 1 Hawk. c. ().'}, .s. 2.'5. 
 
 general right correlatively to go to church. (c) R. v. VVroughton, .3 Buir. 1683. 
 
 These provisions are repealed as to persons (d) By the Ecclesiastical Courts Juria- 
 
 dissenting from the doctrines or worship of diction Act, 18(i0 (2.3 & 24 Vict. c. 32), this 
 
 the Church of England, and as to pecuniary Act is repealed as (o persons not in holy 
 
 penalties for n()n-attendanc(> at church (9 & orders (s. 4), and the jurisdiction of Eccle- 
 
 10 Vict. c. 8!t). Subject to these repeals, tiie siastical Courts to adjudicate on suits for 
 
 Act still applies to members of the Church brawling against persons not in holy orders, 
 
 of England. See Taylor v. Timson, 20 is taken awaj'. 
 
 VOL. I. 2d
 
 402 Of Offences against Religion, &c. [book v. 
 
 person so offending shall be deemed excommunicate, and be excluded 
 from the fellowship and company of Christ's congregation ' (e). 
 
 This statute was passed in aid of the ecclesiastical law for the protec- 
 tion of the sanctity of public worship, and in aid of the common law (e). 
 It deals with three offences : (1) quarrelling by words only ; (2) smiting 
 or laying violent hands on another ; (3) striking with a weapon, or 
 drawing a weapon with intent to strike {f). 
 
 In 1787 (27 Geo. III. c. 31, s. 2) it was enacted that, ' no suit shall be 
 commenced in any Ecclesiastical Court . . . for striking or brawling in 
 any church or churchyard after the expiration of eight months from the 
 time when such offence shall have been committed . . .' 
 
 In the construction of the Act of 1551 it has been held that the Ecclesi- 
 astical Court might proceed ujion the two first sections ; for though the 
 offence mentioned in the second section of smiting in the church or 
 churchyard is an offence at common law, and the offender may be 
 indicted for it, yet, besides this, he may, under the statute, be ipso facto 
 excommunicated (f/). No previous conviction is necessary in this case ; 
 though, if there be one, the ordinary may use it as proof of the fact {h). 
 
 Cathedral churches, and the churchyards which belong to them, are 
 within the statute (f). And it is no excuse for a person who strikes another 
 in a church, &c., to shew that the other assaulted him (/). 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, were never within the meaning of the statute [k). 
 
 By an Act of 1553 (1 Mary, st. 2, c. 3), s. 2, ' if any person or persons, 
 of their own power and authority ... at any time after the 20th day 
 of December next coming (1553), do or 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 authorised 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 authorised 
 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, churchyard, or in any other place or places, used, 
 frequented, or appointed, or that hereafter 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 trouble, 
 any parson, vicar, parish priest, or curate, or any lawful priest, preparing, 
 
 (e) Smiting in a church or churchyard is the Ecclesiastical Court acted pro salute 
 
 a common-law offence. Wilson v. Greaves, animce. Lord Mansfield, C.J. : ' We pro- 
 
 1 Burr. 240, 243, Lord Mansfield. Pen- coed to punish, they to amend.' 
 
 hallo's case, Cro. Eliz. 23L (i) Dethick's case, 1 Leon. 248. 
 
 (/■) Wilson V. Greaves, uhi sup. (j) 1 Hawk. c. 63, s. 28. 
 
 (g) Id. ibid. (k) Id. ibid. s. 29. See notes (o) (p. 401) 
 
 (h) Id. ibid. Proceedings for damages and (e) supra. 
 in either clause would be prohibited, for 
 
 I
 
 CHAP. II.] Of Disturhing Public Worship. 403 
 
 saying, doing, singing, ministering or celebrating the mass, or other 
 such divine service, 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 time hereafter shall be allowed, 
 set forth, or authorised, by the Queen's Majesty ; or, if any person or 
 persons . . . after the said 20th day of December shall contemptuously, 
 unlawfully, or maliciously pull down, deface, spoil, abuse, break, or 
 otherwise unreverently handle or order the most blessed, comfortable, 
 and holy sacrament of the Body and Blood of our Saviour Jesus Christ, 
 commonly called the Sacrament of the Altar, being, or that shall be, in 
 any church or chapel, or in any other decent place, or the pyx or canopy 
 wherein the said sacrament is or shall be ; or 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, that 
 now or hereafter shall be in any church, chapel, or churchyard : that then 
 every such offender, his or their aider, procurer, or abettor, aiders, 
 procurers, or abettors, immediately and forthwith, after any of the said 
 act or acts, or other the said misdemeanors so committed, shall be appre- 
 hended by any constable or constables, churchwarden or churchwardens 
 of the said parish, town, or place where the said offence or offences shall 
 be so committed, made, or done, or by any other, or by any other officer 
 or officers, or by any other person or persons then being present at the 
 time of the said offence or offences so unlawfully committed, made, or 
 done': and being so apprehended, shall be brought before some justice of 
 the 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 con- 
 fession, 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 [1). 
 
 The statute of 1553 merely gave to the common law cognisance of an 
 offence, which was before punishable by the ecclesiastical law. To fall 
 within that statute, the party must maliciously, wilfully, or of purpose, 
 molest the person celebrating divine service. The plaintiff on a Sunday 
 presented a notice to the parish clerk, and desired him to read it. The 
 clerk, after consulting the minister, refused to do so. After the Nicene 
 Creed had been read, and whilst the minister was walking from the com- 
 numion table to the vestry-room, and whilst no part of the service was 
 actually going on, the plaintiff stood up in his pew and read a notice that 
 a vestry would be held to choose churchwardens, whereupon the minister 
 desired a constable to take him out of the church, which the constable 
 did, and detained him an hour after the service was over, and then allowed 
 him to go upon promising to attend before a magistrate the next day. 
 
 {I) 1 Mary, sess. 2, c. 3, s. 1. The Act is to the hook of Common Prayer in use under 
 
 printed in the revised edition of the statutes Acts of subsequent sovereigns. 1 Hawk, 
 
 and is specially saved from repeal by 23 & c. 03, 8. 31 ; Gibs. 372. 
 24 Vict. c. 32, 8. 6. It was held to apply 
 
 2d2
 
 404 Of Offences against Religion, do. [booK V. 
 
 It was held, that although the constable might be justified in removing 
 him from the church, and detaining him until the service was over, he 
 could not detain him afterwards to take him before a magistrate under 
 this statute. Abbott, C.J., said : ' Had the notice been read by the 
 plain tif! whilst any part of the service was actually going on, we might 
 have thought that he had done it on purpose to molest the minister ; but 
 the act having been done during an interval when no part of the service 
 was in the course of being performed, and the party apparently supposing 
 that he had a right to give such a notice, I am not prepared to say tliat the 
 1 Mary, st. 2, c. 3, warranted his detention in order that he might be 
 taken before a justice ' (w). 
 
 The statute further provides, that persons rescuing offenders so appre- 
 hended as aforesaid, or hindering the arrest of offenders, shall suffer 
 like imprisonment, and pay a fine of five pounds for each offence (w). 
 And if any offenders are not apprehended, but escape, the escape is to 
 be presented at the quarter sessions, and the inhabitants of the parish 
 where the escape was suffered are to forfeit five pounds (o). 
 
 Precedents are to be met with of indictments for breaking the windows 
 of a church, by firing a gun against them {p) : but it has been doubted 
 whether such an indictment is sustainable, as being for a mere 
 trespass {q). 
 
 By sect. 3 of the Act of Uniformity of 1558 (1 Eliz. c. 2) (r), ' If any 
 person or persons whatsoever, after the said feast of the Nativity of 
 St. John the Baptist next coming, 24 June, 1559 . . . shall, by open 
 fact, deed, or by open threatenings, compel or cause, or otherwise 
 procure or maintain any parson, vicar, or other minister in any cathedral 
 or parish church, or in chapel, or in any other place to sing or say any 
 common or open prayer, &c. ... or that by any of the said means shall 
 unlawfully interrupt or let any parson, vicar, or other minister in any 
 cathedral, parish church, chapel, or any other place to sing or say common 
 or open prayer, or to minister the sacraments or any of them in such 
 manner and form as is mentioned in the said book (s) : that then every 
 such person being lawfully convicted in form aforesaid ' {i.e., ' according 
 to the laws of this realm, by verdict of twelve men, or his own confession, 
 or by the notorious evidence of the fact ' (sect. 1) ), ' shall forfeit to 
 the Queen . . . for the first offence 100 marks . . .' or in default of 
 payment within six weeks of conviction imprisonment for six months, 
 on a second conviction 400 marks, or in default, &c., imprisonment 
 for twelve months, and, on a third conviction, forfeiture of all his goods 
 and chattels and imprisonment for life. The Act of 1558 was in 1662 
 (14 Car. II. c. 4) applied to the Prayer Book then put into use. 
 
 Methodists and dissenters from the Established Church have a right 
 to protection if interrupted in their decent and quiet devotions (t). 
 
 (m) Williams v. Glenister, 2 B. & C. 099. (r) Specially saved from repeal by 23 & 
 
 It was also held that the case did not come 24 Vict. c. 32, s. 6. 
 
 within the Toleration Act, 1 Will. & M. (s) i.e., The Common Prayer Book autho- 
 
 c. 18, post, p. 405. rised by 5 & 6 Edw. VI. e. 1, as altered by 
 
 (n) 8. 2. 1 Eliz. c. 1, s. 1. 
 
 (o) S. 3. (t) R. V. AVioughtoii, 3 Burr. 1(183, 1()84, 
 
 (p) 2 Chit. Cr. L. 23. Lord MansHeld. This does not refer to 
 
 (q) Id. ibid., and see ante, p. 16. any statute.
 
 CHAP. II.] Of Disturbinrj Public Worship. 405 
 
 The Toleration Act of 1(588 (1 Will.&M. c.l8) (u) provides (.sect. 15) (r), 
 that ' if any person or persons, at any time or times after the 10th day of 
 June ' (1688) ' do and shall, willingly and of purpose, maliciously or con- 
 temptuously, come into any cathedral or parish church, chapel, or other 
 congregation 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 sufficient witnesses, 
 shall find two sureties to be bound by recognisance in the penal sum tf 
 fifty pounds, and in default of such sureties shall be committed to prison, 
 tlierc to remain till tlie next general or quarter sessions ; and upon con- 
 viction of the said offence at the said general or quarter sessions, shall 
 suffer the pain and penalty of twenty pounds, to the use of the King's and 
 Queen's Majesties, their heirs and successors ' (w). 
 
 Before this statute the Court of King's Bench refused to grant a 
 certiorari to remove an indictment found at the sessions against a person 
 not behaving himself modestly and reverently at the church during 
 divine service ; for, although the offence was punishable by ecclesiastical 
 censures, the Court considered it properly came within the cognisance 
 of the justices of the peace (x). An indictment upon the Toleration 
 Act, sect. 15 (18), found at quarter sessions, may be removed by certiorari 
 before verdict, notwithstanding the words of the statute, which seem at 
 the first view to confine the cognisance of the ofTence to the justices in the 
 first instance, and in the next to the quarter sessions (y). 
 
 The oaths taken by a preacher under this Act (z) were matter of record, 
 and could not be proved by parol evidence ; but it was not necessary, 
 upon an indictment for disturbing a dissenting congregation, to prove 
 that the minister had taken the oaths (a). It is no defence to such an 
 indictment that the defendant committed the outrage for the purpose 
 of asserting his right to the situation of clerk (b). And it has been held 
 that a congregation of foreign Lutlierans, conducting the service of their 
 chapel in tlie German language, are witliin the protection of the statute (r). 
 Upon the conviction of several defendants, each of them is liable to a 
 penalty of twenty pounds {d). 
 
 The Toleration Act only applies where the thing is done wilfully, and 
 of purpose to disturb the congregation or misuse the minister (e). 
 
 By the Places of Religious Worship Act, 1812 (52 Geo. 111. c. 155), 
 s. 12, ' If any person or persons, at any time after the passing of this Act 
 (July 29, 1812), do and shall wilfully and maliciously or contemptuously 
 disquiet or disturl) any meeting, assembly, or congregation of persons 
 
 (u) Tliis Act was repealed in 1871 (34 & l)y the enactments next to be mentioned. 
 35 Vict. c. 48), except ,s.s. .'>, 15, and so (.r) Anon., 1 Keb. 491. Burn's Just. tit. 
 
 much of s. 8 as specifies the service and ' Public Worship.' 
 
 offices from which certain persons are (y) 11. v. Hube, 5 T. II. 542. R. r. W'ad- 
 
 oxempt. ley, 4 M. & S. 508. 
 
 (v) Tliis section is described as s. 18 in (2) These oaths were abolished in 1871 
 
 Ruflhead's edition of the statutes and in (34 & 35 Vict. c. 48). 
 23 & 24 Vict. c. 32. s. (i, by which it is (n) R. v. Hube, Peakc, 131. 
 
 specially saved. {b) Id. ibid. 
 
 (if) A similar provision as to Roman (r) Id. ibid. 
 
 Catholic congregations, made by 31 (Jeo. (rf) R. ?-. Hubc, 5 T. R. 542. 
 
 III. c. 32, s. 10, was repealed in 1871 (34 (e) AVilliams v. Glenit=tcr, 2 B. & C. 099, 
 
 & 35 Vict, c, 116, S. L. R.), as superseded Abbott, C.J.
 
 406 Of Offences against Religion, <&c. [book v. 
 
 assembled for religious worship, permitted or authorised by this Act, or 
 any former Act or Acts of Parliament, or shall in any way disturb, molest, 
 or misuse any preacher, teacher, or person officiating at such meeting, 
 assembly, or congregation, or any person or persons there assembled ; 
 such person or persons so offending, upon proof thereof before any justice 
 of the peace by two or more credible witnesses, shall find two sureties 
 to be bound by recognisances 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 
 shall suffer the pain and penalty of forty pounds.' By sect. 14 nothing 
 contained in the Act shall extend to Quakers, nor to any meetings or 
 assemblies for religious worship held or convened by them. 
 
 By the Eoman Catholic Churches Act, 1832 (2 & 3 Will. IV. c. 115), 
 s. 1, British subjects professing the Roman Catholic religion were, as to 
 their places for religious worship in Great Britain, made subject to the 
 same laws as Protestant dissenters in England. 
 
 Sect. 2 of the Religious Disabilities Act, 1846 (9 & 10 Vict. c. 59), makes 
 places for religious worship of His Majesty's subjects professing the 
 Jewish religion subject to the same laws as His Majesty's Protestant 
 subjects dissenting from the Church of England ; and by sect. 4 of the 
 same Act, ' all laws now (August 18, 1846) in force against the wilfully 
 and maliciously or contemptuously disquieting or disturbing any meeting, 
 assembly, or congregation of persons assembled for religious worship 
 permitted or authorised by any former Act or Acts of Parliament, or the 
 disturbing, molesting, or misusing any preacher, teacher, or person 
 officiating at such meeting, assembly, or congregation, or any person or 
 persons there assembled, shall apply respectively to all meetings, assem- 
 blies, or congregations whatsoever of persons lawfully assembled for 
 religious worship, and the preachers, teachers, or persons officiating at such 
 last-mentioned meetings, assemblies, or congregations, and the persons 
 there assembled,' 
 
 By the Liberty of Religious Worship Act, 1855 (18 & 19 Vict. c. 86), 
 s. 1, ' nothing contained ' (in the recited Acts — 1 Will. & M. sess. 1, c. 18, 
 and 52 Geo. III. c. 155, supra) ' shall apply, (1), to any congregation or 
 assembly for religious worship held in any parish or ecclesiastical dis- 
 trict, and conducted by the incumbent, or in case the incumbent is not 
 resident, by the curate of such parish or district, or by any person author- 
 ised by them respectively ; (2), to any congregation or assembly for 
 religious worship meeting in a private dwelling-house or on the premises 
 belonging thereto ; (3), to any congregation or assembly for religious 
 worship meeting occasionally in any building or buildings not usually 
 appropriated to purposes of religious worship. And no person per- 
 mitting any such congregation to meet as herein-mentioned in any place 
 occupied by him shall be liable to any penalty for so doing.' The 
 same Act further provides (sect. 2) that so much of the Acts of 1832 and 
 1846 as {supra) relates to the places of religious worship of Roman Catholics 
 and Jews ' shall be respectively read as applicable to the laws to which 
 Protestant dissenters are subject for the time being after the passing of 
 this Act ' (August 14, 1855).
 
 CHAP. iL] Of Bisiurhing Public Worship. 407 
 
 By the Ecclesiastical Courts Jurisdiction Act, 1860 (23 & 24 Vict. c. 23) , 
 s. 2, ' any person ( /') who shall be guilty of riotous, violent, or indecent be- 
 haviour (r/), in England or Ireland, in any cathedral church, parish ordistrict 
 church or chapel of the Church of England and Ireland, or in any chapel of 
 any religious denomination, or in England in any place of religious worship 
 duly certified under the provisions of The Places of Worship Registra- 
 tion Act, 1855 (h), whether during the celebration of divine service or 
 at any other time, or in any churchyard or burial ground, or who shall 
 molest, disturb, vex, or trouble, or by any other unlawful means disquiet 
 or misuse any preacher duly authorised to preach therein, or any clergy- 
 man in holy orders ministering or celebrating any sacrament, or any 
 divine service, rite, or office {i) in any cathedral, church, or chapel, or 
 in any churchyard or burial ground, shall, on conviction thereof before two 
 justices, for every such offence be liable to a penalty of not more than £5 
 for every such offence, or may, if the justices before whom he shall be 
 convicted think fit, instead of being subjected to any pecuniary penalty, 
 be committed to prison for any time not exceeding two months.' By 
 sect. 3, every offender ' after the said misdemeanor so committed 
 immediately and forthwith may be apprehended by any constable or 
 churchwarden of the parish or place ' where the offence is committed 
 (sect. 3). An appeal lies to quarter sessions from any conviction (sect. 4). 
 By sect. 36 of the Offences against the Person Act, 1861 (24 & 25 Vict, 
 c. 100), ' Whosoever shall, by threats or force, obstruct or prevent, or 
 endeavour to obstruct or ^prevent, any clergyman or other minister in or from 
 celebrating divine service or otherwise officiating in any church, chapel, 
 tneeting house, or other place of divine worship, or in or from the performance 
 of his duty in the lawful burial of the dead in any churchyard or other 
 burial place, or shall strike or offer any violence to, or shall, upon any civil 
 process, or under the pretence of executing any civil process, arrest any 
 clergyman or other fninister who is engaged in, or to the knowledge of the 
 offender is about to engage in, any of the rites or duties in this section 
 aforesaid, or who to the knowledge of the offender shall be going to 
 perform the same or retvirning from the performance thereof, shall be 
 guilty of a misdemeanor, and being convicted thereof shall be liable, at 
 the discretion of the Court, to be imprisoned for any term not exceeding 
 two years, with or without hard labour ' {j). 
 
 (f) This enactment applies to clergy as (j) This section was new in England in 
 
 well as laity. Valiancy r. Fletcher [18!)7|, I8()l, except that part which applies to the 
 
 1 Q.B. 2(55. Persons in holy orders nrv aricst of any clergyman while performing 
 
 also liable to proceedings in Ecclesiastical divine service, or going to perform the 
 
 Courts under 5 & (i Edw. VI. e. 4 (suprn, same, or returning from the performance 
 
 p. 401), or the Cleigy I)isci])line Act, 1892 thereof, which was contained in both 9 
 
 (")-) & ;-)() Viet. e. :52). ({irt v. Fillinghani Oeo. IV. e. 31, ». 23 (E), and 10 (Jeo. IV. 
 
 [1901 1, Prob. 17(). e. 34, s. 27 (I). The rest of the clause was 
 
 ((/) This Act applies even when the be- framed on the Irish Acts of 27 (ieo. III. 
 
 haviour is under claim of right. Ashcr i\ e. 1.5, s. 5 ; 40 Geo. III. e. 9(), s. .5 ; 5 Geo. 
 
 Caleraft, 18 Q.B.D. (SO? IV. c. 25, s. 5 ; and 5 & (i Vict. sess. 2, 
 
 (h) 18 & 19 Vict. c. c. 28, ss. 7, 19. The amendments consist 
 
 (0 Including an ordination service. in including ministers not of the Church of 
 
 Kensit v. Dean and Cha])ter of St. Paid's England and Ireland, and all places of 
 
 [1905], 2 K.B. 249. But not collecting an divine worship, and all burial places, and in 
 
 offertory. Copes v. Barber, L. R. 7 C. P. adding the endeavour to prevent or ob- 
 
 393. struct, the offering any violence to, and the
 
 408 Of Offences against Religion, &c. [book v. 
 
 By the Burial Laws Amendment Act, 1880 (43 & 44 Vict. c. 41), which 
 provides for burials without the rites of the Church of England, sect. 7, 
 * All burials under this Act, whether with or without a religious service, 
 shall be conducted in a decent and orderly manner, and every person 
 guilty of riotous, violent, or indecent behaviour at any burial under this Act, 
 or wilfully obstructing such burial or any such service as aforesaid thereat, 
 or who shall in any such churchyard or graveyard as aforesaid deliver 
 any address not being part of or incidental to a religious service permitted 
 by this Act, and not otherwise permitted by any lawful authority, or 
 who shall, under colour of any religious service or otherwise in any such 
 churchyard or graveyard, wilfully endeavour to bring into contempt or 
 obloquy the C'hristian religion, or the belief or worship of any church 
 o: denomination of C'hristians, or the members or any minister of any 
 such church or denomination, or any other person, shall be guilty of a 
 misdemeanor.' 
 
 By sect. 8, ' All powers and authorities now existing by law for the 
 preservation of order and for the prevention and punishment of dis- 
 orderly behaviour in any churchyard or graveyard may be exercised in 
 any case of burial under this Act in the same manner and by the same 
 persons as if the same had been a burial according to the rites of the 
 Church of England.' 
 
 Where a Protestant lecturer held meetings in public places in Liveipool 
 and used language and gestures highly insulting to the religion of the 
 numerous Roman Catholic inhabitants, it was held that a magistrate 
 had jurisdiction to bind him over to be of good behaviour. It was con- 
 sidered but not directly decided that the power to put under such 
 recognisances attaches where language, though not directly inciting to a 
 breach of the peace, is calculated to cause breaches of the peace by 
 others [k). 
 
 The facts attending disturbances of religious assemblies may some- 
 times justify proceedings at common law for conspiracy or riot {I) : and 
 under sect. 11 of the Malicious Damage Act, 1861 (24 & 25 Vict. c. 97) (m), 
 it is a felony for persons riotously assembled to demolish or pull down 
 any church or chapel, or any chapel for the religious worship of persons 
 dissenting from the worship of the United Church of England and Ireland. 
 
 arrest under pretence of executing any civil minister). R. v. Cheere, 4 B. & C. 902. As 
 
 process of, any clergyman or minister en- to hard labour. &c., see ante, p. 212. 
 gaged in or about to engage in any of the (k) Wise v. Dunning [1902], 1 K.B. 167 
 
 rites or duties mentioned in this clause. (I) See Preced. 2 Chit. Cr. L. 29. 
 
 The indictment should allege that the per- (m) Post, p. 418. 
 
 son obstructed is a clergyman (or other
 
 ( 408a ) 
 
 CANADIAN NOTES. 
 
 OP DISTURBANCES IN CHURCHYARDS OR PLACES OF WORSHIP. 
 
 Ohstructing Officiating Clergymen. — Code sec. 199. 
 
 The offence of unlawfully ohstructing divine service is not made 
 out where the clergyman obstructed had no legal claim to the posses- 
 sion of or use of the church premises and was in point of law himself 
 a trespasser thereon. But an indictment for obstructing a clergyman 
 in celebrating divine service will not be quashed for failure to allege 
 therein that the clergyman was in lawful charge of the church or 
 place of worship. R. v. Wasyl Kapij (1905), 9 Can. Cr. Cas. 186. 
 
 Violence to Officiating Clergyman. — Code sec. 200. 
 
 Distnrhing Meetings for Religions Worship or Special Purposes. — 
 Code sec. 201. 
 
 A person who enters a hall, leased by a religious association or 
 body, while a meeting for religious worship is being held in it under 
 the direction of officers of the association, and addressing himself 
 to the assemblage, says that he is a Catholic and a French Canadian, 
 as most of them are, that they should not stay where they are, and 
 calls upon them to leave, is guilty of the oft'ence of disturbing a reli- 
 gious meeting, under Cr. Code sec. 201. R. v. Gauthier, 11 Can. Cr. 
 Cas. 263. 
 
 A meeting of the electors called by one of the candidates during 
 a municipal election is not included. R. v. Lavoie, 6 Can. Cr. Cas. 39.
 
 ( 409 ) 
 
 BOOK THE SIXTH. 
 
 OF DISTURBANCES OF THE PUBLIC PEACE. 
 
 CHAPTER THE FIRST. 
 
 OF RIOTS, ROUTS, UNLAWFUL ASSEMBLIES AND AFFRAYS. 
 
 Sect. I. — Riots. 
 A. Common Law. 
 
 Riot. — A riot is a tumultuous disturbance of the peace by three persons {a) 
 or more, who assemble together of their own authority, with an intent 
 mutually to assist one another against any who shall oppose them in the 
 execution of some enterprise of a private nature, ami afterioards actually 
 execute the enterprise (aa) , in a violent and turbulent manner, to the terror of 
 the people, whether the act intended were of itself lawful or unlawful (6). 
 That is to say doing the act whether lawful or unlawful in a manner 
 calculated to inspire terror is an essential element in the offence (r). 
 
 This definition was in substance adopted by Charles, J., in the case 
 of the Trafalgar Square Riots [d). According to the latest judicial defini- 
 tion (e), ' There are five necessary elements of a riot: (1) a number of 
 persons, tliree {/) at least ; (2) common purpose ; (3) execution or con 
 ception of the common purpose ; (4) an intent to help one another by 
 
 {a) Women are punishable as rioters, 11 Mod. 110, Holt, C.J., said: 'The books 
 
 l)ut infants under the age of discretion are are obscure in the definition of riots. I 
 
 said not to be punishable. 1 Hawk. c. G.5, take it, it is not necessary to say they asseni- 
 
 s. 14. Vide ante, pp. 01, 98. bled for that jiurpose, but there must be an 
 
 {(ta) Some act must be done. R. v. unlawful assembly ; and as to what act 
 
 Vincent, 9 0. & P. 91; R. ?'. Neale, ibi I. will make a riot, or trespass, such an act as 
 
 431. will make a trespass will make a riot. If a 
 
 {h) 1 Hawk. c. 05, ss. 1-5. See R. v. number of men assemble with arms, in icr- 
 
 Rirt, 5 {'. & P. 154, Patteson, J. Three. rorem populi. though mo act is done, it is ,a 
 
 jKrsons or more is the correct description of riot. If three come out of an alehouse, and 
 
 the number of persons necessary to consti- go armed, it is a riot.' Coke's definition of 
 
 tute a riotous meeting; but in Hawkins riot (.'} Inst. 170) is not now accepted. See 
 
 (c. 05, ss. 2, 5, 7) the words ' more than Fielcl r. Receiver of Metropolitan Police 
 
 three persons ' are three times over inserted [1907J, 2 K.B. 853, 859. 
 
 instead of ' three per.sons or more ' ; which (c) Vide post, p. 410. 
 
 in Burn's Just. tit. ' Riot,' s. 1, is remarked (d) R. r. Cunninghame Graham, 10 Cox, 
 
 as an instance that, in a variety of matter, 420. 
 
 it is impossible for the mind of man to be (e) Field r. Receiver of Metrop. Police 
 
 always equally attentive. The description [1907], 2 K.B. 853, 800, Phillimore and 
 
 of riot stated in the text, and taken from Bray, J.I. In that case (at p. 858) all the 
 
 Hawkins, is submitted as that wliich would earlier authorities are collected and di.s- 
 
 probably be deemed most correct at the cussed. 
 
 present time. It should be observed, how- ( f) See R. v. Scott, 3 Burr. ]2«2. R. v, 
 
 ever, that riot has been described differ- Beach, 2 Cr. App. R. 189, 
 cntly by high authority. In R. v. Soley,
 
 410 Of Disturbances of the Public Peace. [book vi. 
 
 force if necessary against any person who may oppose them in the execu- 
 tion of their common purpose ; (5) force or violence ' used in the execution 
 of the common purpose, ' not merely used in demolishing (17), but displayed 
 in such a manner as to alarm at least one person of reasonable firmness 
 and courage ' (/«). Unless all these elements are present the offence of riot 
 is not committed. 
 
 The definition of riot does not apply to cases in which the law authorises 
 force. In such cases it is not only lawful, but also commendable, to 
 make use of it ; as for a justice of the peace, sheriff or constable, or 
 perhaps even for a private person {i), to assemble a competent number 
 of people in order with force to suppress rebels, or enemies, or rioters ; 
 and afterwards with such force actually to suppress them {j) ; or for 
 a justice of peace, who has a just cause to fear a violent resistance, to 
 raise the fosse comitatus, in order to remove a force in making an entry 
 into, or detaining of, lands {k). The persons gathered to make 
 such resistance constitute an unlawful assembly. And it is the duty 
 of a sheriff who finds any resistance in the execution of a writ to take 
 with him the fosse comitatus, and go in proper person to do execution, 
 and he may arrest the resisters and commit them to prison, and every 
 such resister is guilty of a misdemeanor {I). 
 
 The injury or grievance complained of, and intended to be revenged 
 or remedied by a riotous assembly, must relate to some frivate quarrel 
 only, e.g., pulling down a mill owned by an obnoxious proprietor or 
 procuring the liberation or better treatment of prisoners (m), breaking 
 down inclosures of lands in which the inhabitants of a town claim a 
 right of common, or taking possession of tenements the title whereof 
 h in dispute, or such like matters relating to the interests or disputes of 
 particular persons, in no way concerning the public. The proceedings 
 of a riotous assembly for a public or general purpose, as e.g., to take 
 possession of a town by surprise, terror or force, with the object of carrying 
 out some general political purpose (w), or to pull down all inclosures (o), 
 and also resisting the King's forces, if sent to keep the peace, may amount 
 to overt acts of insurrection, i.e., of high treason by levying war against 
 the King (p). 
 
 Kiot must be in terrorem fopuli {q), i.e., in every riot there must be 
 such actual force or violence, or at least such apparent tendency thereto, 
 as would naturally strike terror into the feople ; as the show of arms, 
 threatening speeches, or turbulent gestures ; but it is not necessary 
 that personal violence should be committed (r). It is enough if sufficient 
 
 (g) See post, p. 418. (w) R. v. Vincent, 9 C. & P. 109. R. v. 
 
 {h) See R. v. Langfonl, C. & M. 602, Frost, 9 C. & R 94n., 129 ; 4 St. Tr. (N. S.) 
 
 post, Tp. ill. 85. R. ('. Hardie, 1 St. Tr. (N. S.)<)23, 765. 
 
 (/) Post, p. 433. (n) R. i'. Frost, 9 C. & P. 94n., 129. See 
 
 (?) See 13 Hen. IV. c. 7, post, p. 433. R. v. Gordon. 21 St. Tr. (514. 
 
 (k) See 15 Rich. II. c. 2, post, p. 432. (o) See Kel. (J.) 76. 
 
 {I) Sheriffs Act, 1887 (50 & 51 Vict. (p) 4 BI. Com. 147 ; 1 Hawk. c. 65, s. 6. 
 
 c. 55), s. 8 (2). The Act of 1887 applies (q) 1 Hawk. c. 65, ss. 5, 6. In R. v. 
 
 primarily to execution of civil process. Soley, 11 Mod. 100, Holt, C.J. , said: ' If I 
 
 The sheriff is now little concerned with the am writing a letter and three or more come 
 
 execution of criminal process. Use of need- hallooing and jogging me, is this a riot ? ' 
 
 less outrage or violence by officers of the No, it ought to be in terrorem populi. 
 
 law is punishable. See 1 Hawk. c. 65, s. 2 ; (r) Clifford v. Brandon, 2 Camp. 369. 
 
 19 Vin. Abr. tit. ' Riots, &c.' (A.) 4. Sir J. Mansfield, C.J.
 
 CHAP. I.] Riots, Routs, and Unlawful Assemblies. 411 
 
 force is used to terrify a single person, though no other persons are 
 near enough to be within reach of the alarm. Four persons went to a 
 cottage, in which was one old man ; one of them began to knock down 
 the end of the cottage with an axe, and knocked part of the woodwork 
 against the old man ; he then caught the old man by the collar, and 
 said, ' Come, you must go out of the house,' and he did go out, and the 
 prisoners pulled the house to the ground, except the chimney ; the jury 
 were told that if such force was used by the four prisoners as to terrify 
 the old man, they might find that there was a riot, and this direction 
 was held right {s). 
 
 From the absence of terror popidi, assemblies at wakes, or other 
 festival times, or meetings for the exercise of common sports or diversions, 
 as wrestling, and such like, are not riotous (t). Three persons or more 
 may assemble together with an intention to execute a wrongful act, 
 and also actually to perform their intended enterprise, without being 
 rioters. Thus, if a man assembles a number of persons to carry away 
 a piece of timber or other thing to which he claims a right, and which 
 cannot be carried away without 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 is therefore 
 wrong and unlawful (u). Where on an indictment for riot it appeared 
 that two men were fighting amidst a great crowd, and that some persons 
 were aiding and assisting ; but on some peace officers appearing the 
 fight ceased, and the fighters quietly yielded to the officers : Alderson, 
 B., held that this was not a riot {v). And of course any person may, m 
 a peaceable manner, assemble a fit number of persons to do any lawful 
 thing ; as to remove a public nuisance, or a nuisance to his own house 
 or land. And he may do this before any prejudice is received from the 
 nuisance, and may also enter into another man's ground for the purpose. 
 Thus, where a man having erected a weir acrass a public navigable 
 river, divers persons assembled with spades and other instruments 
 necessary for removing it, and dug a trencli in the land of the man who 
 made the weir in order to turn the water and the better to remove the weir, 
 and thus removed the nuisance, it was held not to be a forcible entry 
 nor a riot (w). 
 
 (•s) K. V. I'liillips, 2 Mood. 2r)2; s.c.as R. v. ball in the said town. In Sir Antony A.sh- 
 
 Langford, C. & M. (i()2 : followed in Field ley's ease, 1 Rolle Rep. 1(M», f'oke, ('.."). .said 
 
 r. Receiver of Metrojl. I'oliee [1907 J, 2 K.B. that sla^je-plni/crs nii^ht he indieted for a 
 
 853. riot and unlawful assembly. And see Dalt. 
 
 (<) 1 Hawk. c. fi5, .s. 5. Bull baiting. Just. c. 13(5 (eiting Roll.R.), that if .sueh 
 
 referred to in prior editions, has been illegal ])layers by their shows occasion an cxtra- 
 
 sineo 1849(12& 13 Vict.c.92.s.3). In2Chit. ordinary and unusual concourse of people 
 
 Cr. L. 494, will be found an indictment said to see them act their tricks, this is an un 
 
 to have been drawn in the year 1797, by a lawful assembly and riot, for which they 
 
 very eminent pleader, for the purpose of may be indicted and fined. 19 Vin. Abr. 
 
 suppressing an ancient custom of kicking tit. ' Riots, &c.' (A.) 8. 
 
 about foot-balls on Shrove Tuesday, at (h) 1 Hawk. c. (io, s. 5. R. r. Solcy, 11 
 
 Kingston-upon-Thames. The first count Mod. 117; l)alt. c. 137 ; Burn's Just. tit. 
 
 i-s for riotously kicking about a foot-ball in ' Riot,' s. 1. 
 
 the town of Kingston ; and the second, for (v) R. i'. Hunt. 1 Cox, 177. 
 
 a common nuisance in kicking about a foot- (w) Dalt. c. 137 : Burn, tit. ' Riot,' s. 1.
 
 412 Of Disturbances of the Public Peace. [book vi. 
 
 If there be violence and tumult, it makes no difference whether 
 the act intended to be done by the persons assembled is lawful or unlawful. 
 Thus, if three or more persons assist a man to make a forcible entry 
 into lands to 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 lawfully done in a peaceable 
 manner, they are as much rioters as if the act intended to be done 
 by them were absolutely unlawful {x). Aiid if in removing a nuisance 
 the persons assembled use threats (such as, they will do it though they 
 die for it, or the like), or in any other way behave in actual disturbance 
 of the peace, it seems to be a riot (y). If a large body of men assemble 
 themselves together for the purpose of obtaining any particular end. 
 and conduct themselves in a turbulent manner, either accompanied 
 with acts of violence, or with threats and intimidation calculated to 
 excite the terror and alarm of the King's subjects, this is in itself a riot, 
 whether the end and object proposed be a just and legitimate one or 
 not (z). 
 
 The violence and tumult must in some degree be premeditated. If 
 a number of persons, being met together at a fair, market, or any other 
 lawful or innocent occasion, happen on a sudden quarrel to fall together 
 by the ears, they are not guilty of riot, but only of a sudden affray (a), 
 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 (h). But although the audience in a public theatre have a 
 right to express the feelings excited by the performance, and 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 purpose 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 
 riot (c). 
 
 Even though the parties may have assembled in the fu'st instance 
 for an innocent purpose, yet if they afterwards, upon a dispute arising 
 amongst them, form themselves into parties, with promises of mutual 
 assistance, and then make an affray, it is said that they are guilty of a 
 riot, because upon their confederating together witli an intention to 
 break the peace, they may as properly be said to be assembled together 
 for that purpose from the time of such confederacy, as if their first coming 
 had been on such a design ; and if in an assembly of persons met together 
 on any lawful occasion whatsoever, a sudden proposal is started of going 
 together in a body to pull down a house, or inclosure, or to do any other 
 act of violence, to the disturbance of the public peace, and such motion 
 
 (x) 1 Hawk. c. 65, s. 7. Anon., 12 Mod. (b) 1 Hawk. c. 65, s. 3. 
 
 648. R. V. Hughes, M. & M. 178, note (a). (c) Clifford v. Brandon, 2 Camp. 358. 
 
 (y) Dalt. c. 137 ; Burn's Just. tit. ' Riot,' See Gregory v. Duke of Brunswick, 6 M. & 
 
 . 1. G. 953 ; 3 C. B. 481 ; 1 C & K. 24. R. v. 
 
 (z) Tindal, C.J., in charging the grand Leigh, Ann. Reg. for 1775, p. 117, ante, 
 
 jury at Stafford [1842], C. & M, 661. p. 171, 
 
 (a) Poet, p. 427,
 
 CHAP. I.] Riots, Routs, and Vnlawful Assemblies. 413 
 
 is agreed to, and executed accordingly, the persons concerned are guilty 
 of riot ; because their associating themselves together, for the new 
 purpose, is in no way extenuated by their having met at first upon 
 another {d). 
 
 If any person seeing others actually engaged in a riot, joins them 
 and assists them therein, he is as much a rioter as if he had at first 
 assembled with them for the same purpose, inasmuch as he has no pretence 
 that he came innocently into the company, but joined himself to them 
 with an intention of seconding them in the execution of their unlawful 
 enterprise. And it would be -endless, as well as superfluous, to examine 
 wliether every particular person engaged in a riot were in truth one of 
 the first assembly, or actually had a previous knowledge of the design {e). 
 And if any person encourages, or promotes, or takes part in riots, whether 
 by words, signs, or gestures, or by wearing the badge or ensign of the 
 rioters, he becomes a rioter ; for in this case all are principals (/'). But 
 mere presence without encouragement is not enough to establish crimin- 
 ality {(j). If three or more, being lawfully assembled, cjuarrel, and the 
 party fall on one of their own company, this is no riot ; but if it be on a 
 stranger, the very moment the quarrel begins, they begin to be an unlawful 
 assembly, and their concurrence is evidence of an evil intention in those 
 who concur, so that it is a riot in them that act, and in no more {h). 
 Inciting persons to assemble in a riotous manner seems to be an indictable 
 offence {i), and if the riot ensues in consequence of incitement by speeches 
 at a meeting, the inciter is liable as a principal, although absent from 
 the scene of the actual riot (?'?'). 
 
 The law recognises no right of public meeting in thoroughfares, 
 which are dedicated only for pviblic passage and repassage {j). A place 
 of public resort is analogous to a public thoroughfare, and although 
 public meetings may often have been held in a place of public resort, 
 without interruption by those who have the control of such place, yet 
 there is not in law any right of public meeting there for the purpose of 
 discussing any question, whether social, political, or religious. 
 
 A magistrate, being responsible for order in the district over which 
 he has control, and the Commissioner of the Police for the Metropolis 
 being the officer mainly responsible for the preservation of peace and 
 order in the metropolis (k), is fully justified in issuing a public notice to the 
 effect that public meetings will not be permitted to take place in any 
 place of public resort under his control, when he has reasonable grounds for 
 believing that a breach of the public peace is likely to result from holding 
 
 {d) 1 Hawk. c. 05, s. 3. See R. v. Burns, ed.) 420, the first count is for inciting per- 
 
 1(5 Cox, 355, ante, p. 302. sons to assemble, and that in conseciuence 
 
 (e) Id. ibid. of sueli incitement they did so : antl the 
 
 (/) Clifford V. Brandon, 2 Camp. 370, second count states the inciting, and omits 
 
 Mansfield, C.J. And sec 11. v. Koyce, 4 the assembling in consequence of it. See a 
 
 Burr. 2073, and the second and third reso- similar precedent, 2 Chit. Cr. L. 50(). 
 
 lution in the .Sissinghurst house case, 1 ((() R. v. Sharpe, 3 Cox, 288, Wilde, C.J. 
 
 Hale, 4()3. (/) Harrison v. Duke of Rutland [18'J3J, 
 
 (q) R. V. Atkinson, 11 Cox, 330. 1 Q.B. 142. 
 
 [h) li) Vin. Abr. tit. ' Riots, &c.' (A.) 1."). (A) As to punishment for neglect of thia 
 
 R. t\ Ellis, 2 Salk. 595. duty, see R. v. Pinney, 3 8t. Tr. (N. S.) 11, 
 
 (0 See the principles stated ante, p. 203. and post, p. 434. 
 In an indictment in Cro. Circ. Comp. {8th
 
 414 Of Disturbances of the Public Peace. [book vi. 
 
 public meetings in such places. A public meeting held at a place of 
 public resort after the publication of such a notice is not, however, 
 rendered an unlawful assembly merely by reason of such publication {I). 
 
 Where the defendants resisted the police by endeavouring to break 
 through their ranks in order to take part in a public meeting in Trafalgar 
 Square, a place of public resort within the metropolis, which meeting 
 had been prohibited by the Commissioner of Police for the Metropolis, 
 and the holding of which the police had received orders to prevent, it was 
 held that, by the operation of 2 & 3 Vict. c. 47, 7 & 8 Vict. c. 60, and 
 14 & 15 Vict. c. 42, Trafalgar Square is placed under the control and 
 supervision of the police in the same manner as any street, thoroughfare, 
 or public place, and that whether the defendants were guilty of partici- 
 pating in a riotous assembly depended upon whether they, with others 
 who were following them, or who, as they expected, would follow them, 
 approached the square with the intention of holding a meeting, come what 
 might, or merely approached it with the intention of requesting to be 
 allowed to hold a meeting, and of departing if their request was refused. 
 
 It was also held, that if the jury were satisfied that the defendants 
 headed a mob with the intention of getting to a place of public resort 
 if they could, and by doing so endangered the public peace and alarmed 
 reasonable joeople, they would be justified in finding them guilty of 
 riot {m). 
 
 B. Statutes as to Riots. 
 
 Besides the early statutes for the suppression of riots referred to 
 post, p. 431, the following statutory provisions are in force as to riots: 
 
 (i.) The Riot Act.— The Riot Act (1714, 1 Geo. I. st. 2, c. 5), after 
 reciting that many rebellious riots and tumults had been in divers parts 
 of the kingdom, to the disturbance of the public peace and the endanger- 
 ing of His Majesty's person and government (w), and that the punishments 
 provided by the laws then in being were not adequate to such heinous 
 offences ; for the preventing and suppressing such riots and tumults, 
 and for the more speedy and effectual punishing the offenders, enacts 
 (sect. 1), ' that if any j)ersons to the number of twelve or more, being 
 unlawfully, riotously, and tumultuously assembled together, to the dis- 
 turbance of the public peace, and being required or 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, bailiff or 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), unlawfully, 
 riotously, and tumultuously remain or continue together by the space 
 of one hour after such command or request made by ^proclamation, 
 
 (I) R. V. Fursey, 3 St. Tr. (N. S.) 543 ; illegal. 
 
 6 C. & P. 81 ; where a notice by a Secretary (m) R. v. Cunninghame Graham, 16 Cox, 
 
 of State, describing an intended public 420, Charles, J. As to Trafalgar Square, 
 
 meeting as dangerous to the public peace and see Ex parte Lewis, 21 Q.B.D. 191. 
 
 illegal, was held not to make the meeting (w) The Act was aimed at the Jacobites. 
 illegal, nor to be any evidence that it was
 
 CHAP. I.] Riots, Routs, and Unlawful Assemblies. 415 
 
 and then such continuing together to the number of twelve or more, after 
 such command or request made by proclamation, shall be adjudged 
 felony . . .' (o). 
 
 Sect. 2. 'And . . . the order and form of the proclamation that 
 shall be made by the authority of this Act shall be as hereafter followeth 
 (that is to say) : The justice of the peace, or other person authorised by 
 the Act to make the proclamation, shall, among the said rioters, or as 
 near to them as he can safely come, with a loud voice command, or 
 cause to be commanded, silence to be while proclamation is making, and 
 after that shall openly and with 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 CTCorge, for pre- 
 venting tumults and riotous assemblies. 
 God save the King." 
 
 ' And every such justice, and justices of the peace, sheriff, mayor, 
 bailiff, and other head officer aforesaid, within the limits of their respec- 
 tive jurisdictions, are hereby authorised and required, on notice or 
 knowledge of any such unlawful, riotous, and tumultuous assembly, to 
 resort to the place where such unlawful, riotous, and tumultuous 
 assembly shall be of persons to the number of twelve or more, and 
 there to make or cause to be made proclamation in manner aforesaid.' 
 
 Sect. 3. . . . ' If such persons so unlawfully, riotously, and tumultu- 
 ously assembled, or twelve or more of them, after proclamation made in 
 manner aforesaid shall continue together, and not disperse themselves 
 within one hour, it shall be lawful to and for every justice of the peace, 
 sheriff, or under-sheriff of the county where such assembly shall be, and 
 for every high or petty constable or other peace-officer within such 
 county, and also to and for every mayor, justice of the peace, sheriff, 
 bailiff, and other head officer, high or petty constable, and other peace- 
 officer of any city or town corporate where such assembly shall be, 
 and to and for such other persons as shall be commanded to be assisting 
 under any such justice of the peace, sheriff, or under-sheriff, mayor, bailiff, 
 or other head officer (who are hereby authorised to command all His 
 Majesty's subjects of age and ability to be assisting to them therein) 
 to seize and apprehend, and they are hereby recj[uired to seize and appre- 
 hend, such persons so unlawfully, riotously, and tumultuously continu- 
 ing together after proclamation made as aforesaid ; and forthwith to 
 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.' The section also enacts, that if any of the persons so assembled 
 shall happen to be killed, maimed, or hurt, in the dispersing, seizing, 
 
 (o) The rest of the section was repealed in punishment when the circumstances speci- 
 
 1888 (S. L. R.). As to present punishment, tied in the statute are superadded. See 
 
 see /;o.s7, p. 41(5, note (r). This section does R. v. Fursey, (> C. & P. 81. Featherstone 
 
 not affect the common-law olTence of riot. Riots Report, Pari. Pap. 1893, c. 7324. 
 but merely aggravates its quality and
 
 416 Of Disturbances of the Public Peace. [book vi. 
 
 or apprehending them, or in the endeavour to do so, by reason of their 
 resisting, then every such justice, &c., constable, or other peace-officer, 
 and all persons being aiding and assisting to them, shall be free, discharged, 
 and indemnified concerning such killing, maiming, or hurting (p). 
 
 Sect. 5. ' Provided always . . . that if any person or persons do, 
 or shall, with force and arms, wilfully and knowingly oppose, obstruct, or 
 in any manner wilfully and knowingly let, hinder, or hurt, any person or 
 persons that shall begin to proclaim, or go to proclaim, according 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 . . . {q); 
 and that also every such person or persons being so unlawfully, riotously, 
 and tumultuously assembled, to the number of twelve, as aforesaid, or 
 more, to whom proclamation should or ought to have been made, if 
 the same had not been hindered, as aforesaid, shall likewise, in case 
 they or any of them, to the number of twelve or more, shall continue 
 together, and not disperse themselves within one hour after such let 
 or hindrance so made, having knowledge of such let or hindrance so 
 made, shall be adjudged felons . . .' (r). 
 
 Sect. 8. ' Provided always, that no person or persons shall be prose- 
 cuted by virtue of this Act for any offence or offences committed, 
 contrary to the same, unless such prosecution be commenced [s) within 
 twelve months {t) after the offence committed ' [u). 
 
 7 Will. IV. & 1 Vict. c. 91, recites sects. 1 & 5 of the Riot Act, and 
 provides (sect. 1) that , . . any person convicted of any of the said 
 offences shall not suffer death, but be liable to transportation {v) 
 for life . . . {w). 
 
 The Riot Act contains no provisions as to principals in the second 
 degree, or accessories ; there may, however, be such principals and 
 accessories {x). Principals in the second degree and accessories before 
 the fact are punishable as principals in the first degree (y) ; and acces- 
 sories after the fact are punishable with imprisonment for not exceeding 
 two years, with or without hard labour {z). 
 
 If the magistrate omits the words ' God save the King,' the proclamation 
 
 {p) S. 4, |,unishing rioters who unlawfully [l) Strictly speaking, this means lunar 
 
 and with force pull down a church, chapel, or months, vide ante, p. 3. 
 
 a place for religious worship tolerated by (?/,) Ss. 9, 10 relate to Scotland, 
 
 law (s. 10), was repealed as to England in {v) The present punishment is penal 
 
 1827 (7 & 8 Geo. IV. c. 27, s. 1), and as to servitude for life or not less than three 
 
 India in 1828 (9 Geo. IV. c. 74, s. 125). years, or imprisonment with or without 
 
 See the present enactments on the subject, hard labour for not more than two years. 
 
 fost, p. 418. 20 & 21 Vict. c. 3, s. 2 ; 54 & 55 Vict. c. G9, 
 
 (5) Words omitted repealed in 1888 s. 1, ««/e, pp. 211, 212. 
 
 (S. L. R.). For present punishment, see {w) The section made further provisions 
 
 note {v) infra. for the minimum term of transportation 
 
 (r) The words omitted here were re- and for imprisonment, which were super- 
 pealed in 1888 (S. L. R.). As to present seded by s. 1 of the P. S. Act, 1891, and 
 punishment, see note {v) infra. S. 6 was were repealed in 1892 (S. L. R.). 
 repealed as to England in 1827 (7 & 8 {x) See ante, p. lOfi, ' Accessories, &c.' 
 Geo. IV. c. 28, s. 1) ; S. 7 requires that (y) R. v. Royce, 4 Burr. 2073. 24 & 25 
 the Act be openly read at every quarter Vict. c. 94, s. 1, ante, p. 130. 
 sessions and at every leet or law day. {z) 24 & 25 Viet. c. 94, s. 4, ante, p. 131. 
 
 (s) i.e., by arrest, or by information laid. 
 
 I
 
 CHAP. I.] Riots, Routs, and Unlawful Assemblies. 417 
 
 is insufficient (a). Where an indictment upon sect. 1, in setting out 
 the proclamation, omits the words ' of the reign of/ which were con- 
 tained in the proclamation read, this was held a fatal variance (6). But 
 it is submitted that the proclamation may now simply refer to the Act 
 by its short title, ' The Riot Act ' (c). The hour is computed from the 
 first reading of the proclamation. Where, therefore, a magistrate read 
 the proclamation a second and third time before an hour had elapsed 
 from the time of his reading it the first time, and it was objected that 
 the second and third readings must be considered as new warnings, and 
 as if the former readings were abandoned, it was held that the second, 
 or any subsequent reading of the proclamation, did not at all do away 
 with the effect of the first reading, and that the hour was to be com- 
 puted from the time of the first reading of the proclamation (6). 
 
 If there be such an assembly that there would have been a riot, if the 
 parties had carried their purpose into effect, it is within the Act (6), 
 
 Upon an indictment under sect. 1, it was not proved that the prisoner 
 was among the mob during the whole of the hour, but he was proved 
 to have been there at various times during the hour. It was held that 
 it was a question for the jury, upon all the circumstances, whether he 
 did substantially continue making part of the assembly for the hour ; 
 for although he might have occasion to separate himself for a minute 
 or two, yet if in substance he was there during the hour he would not 
 be thereby excused {d). 
 
 A riot is not the less a riot, nor an illegal meeting the less an illegal 
 meeting, because the Riot Act has not been read, the effect of the read- 
 ing being to make the parties guilty of a statutory offence if they do 
 not disperse within an hour ; but if the proclamation be not read, the 
 common law offence remains (e). 
 
 (ii) Riots to prevent Loading or Unloading of Ships. — The Shipping 
 Offences Act, 1793 (33 Geo. III. c. 67), s. 1, recites that seamen, keelmen, 
 &c., had of late assembled themselves in great numbers, and had com- 
 mitted many acts of violence ; and that such practices, if continued, 
 might occasion great loss and damage to individuals, and injure the trade 
 and navigation of the kingdom, and enacts (sect. 1), that ' if any seamen, 
 keelmen, casters, ship-carpenters, or other persons, riotously assembled 
 together to the number of three or more . . . shall unlawfully and with 
 force prevent, hinder, or obstruct the loading or unloading, or the sailing 
 or navigating, of any ship, keel, or other vessel, or shall unlawfully and 
 with force board any ship, keel, or other vessel, with intent to prevent, 
 hinder, or obstruct, the loading or unloading or the sailing or navigating 
 of such ship, keel, or other vessel, every seaman, keelman, caster, ship- 
 carpenter, and other person being lawfully convicted of any of the 
 offences aforesaid upon any indictment to be found against him, her, 
 or them in any Court of Oyer and Terminer, or general or quarter 
 sessions of the peace' for the county, &c., wherein the offence was 
 
 (a) R. V. Child, 4 C. & P. 442, Vaughan, Vict. c. 14, sched. 1. 
 B., and Alderson, .J. [d) R. i'. James, Gloucester Summer 
 
 (6) R. V. Woolcock, .-) C. & P. 516, Patte- Assizes, 1831, Patteson, J. MS. C. S. G. 
 son, J. (e) R. v. Fursey, 6 C. & P. 81, Gaseleo 
 
 (c) 52 & 53 Vict. c. 63, s. 35 ; 59 & 60 and Parke, JJ. 
 
 VOL. I. 2 E
 
 418 Of Disturbances of the Public Peace. [book vi. 
 
 committed, shall be committed either to the common gaol and remain 
 without bail or mainprize ... for the same county, &c., 'there to 
 continue and to be kept to hard labour for any term not exceeding twelve 
 calendar months, nor less than six calendar months' (/). By sect. 3 
 * If any seaman, caster, ship-carpenter, or other person shall be con- 
 victed of any of the offences aforesaid, in pursuance of this Act, and shall 
 afterwards offend again in like manner, every such seaman, &c., so 
 offending again in like manner, and being lawfully convicted thereof . . . 
 shall be adjudged 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 ' (g). 
 By sect. 4, the Act does not extend to any act, deed, &c., done in the 
 service, or by the authority of His Majesty {h). By sect. 7, offences 
 committed on the high seas are triable in any session of Oyer and 
 Terminer, &c., for the trial of offences committed on the high seas 
 within the jurisdiction of the Admiralty of England {i). And by sect. 8, 
 The prosecution for any of the said offences is to be commenced within 
 twelve calendar months after the offence committed (j). 
 
 (iii) Damage by Rioters. — By the Malicious Damage Act, 1861 
 (24 & 25 Vict. c. 97), s. 11 (k), ' If any persons riotously and tumultuously 
 assembled together to the disturbance of the public peace shall unlaw- 
 fully and with force demolish, or pull down or destroy, or begin to 
 demolish, pull down, or destroy, any church, chapel, meeting-house, or 
 other place of divine worship, or any house, stable, coach-house, out- 
 house, warehouse, office, shop, mill, malt-house, hop-oast, barn, granary, 
 shed, hovel, or fold, or any building or erection used in farming land, or 
 in carrying on any trade or manufacture, or any branch thereof, or any 
 building other than such as are in this section before mentioned, belonging 
 to the King, or to any county, riding, division, city, borough, poor-law 
 union, parish, or place, or belonging to any university, or college or hall 
 of any university, or to any inn of court, or devoted or dedicated to public 
 use or ornament, or erected or maintained by public subscription or contribu- 
 tion, or any machinery, whether fixed or moveable, prepared for or 
 employed in any manufacture or in any branch thereof, or any steam- 
 engine or other engine for sinking, working, ventilating, or draining any 
 mine, or any staith, building, or erection used in conducting the business 
 of any mine, or any bridge, waggon-way, or trunk for conveying minerals 
 from any mine, every such offender shall be guilty of felony, and being 
 convicted thereof shall be liable, ... to be kept in penal servitude for 
 life . . . (l). 
 
 if) S. 2 was repealed as to England s. 125). 
 
 and India in 1828 (9 Geo. IV. c. 31, s. 1 ; (i) Vide 39 Geo. III. c. 37, s. 1, ante, 
 
 c. 74, s. 125). As to unlawful and forcible p. 37. 
 
 interference with seamen, &c., see 24 & 25 {j) The Act was originally temporary, 
 
 Vict. c. 100, s. 40. but was made perpetual in 1801 (41 Geo. 
 
 (g) The present punishment is penal ser- III. c. 19). 
 
 vitude from three to fourteen years, or (k) Taken from 7 & 8 Geo. IV. c. 30, s. 8 
 
 imprisonment with or without hard labour (E). There were similar enactments in 23 
 
 for not more than two years. 20 & 21 & 24 Geo. III. c. 20, ss. 7, 8 (I), and 27 
 
 Vict. c. 3, s. 2 ; 54 & 55 Vict. c. 69, s. 1, Geo. III. c. 15, s. 5 (I). 
 
 ante, pp. 211, 212. (1) For minimum term of penal servi- 
 
 (h) Ss. 5, 6 were repealed as to Eng- tude and term of imprisonment, see 54 & 
 
 land in 1827 (7 & 8 Geo. IV. c. 27, s. 1) 65 Vict. c. 69, s. 1, ante, pp. 211, 219. The 
 
 and as to India in 1828 (9 Geo. IV. c. 74, words omitted are repealed.
 
 CHAP. I.] Riots, Routs, and Unlawful Assemblies. 419 
 
 By virtue of the proviso to sect. 12 infra, the jury may, on an indict- 
 ment under sect. 11, find the accused guilty of an ofEence under sect. 12 : 
 or they may, under 14 & 15 Vict. c. 100, s. 9, find him guilty of common- 
 law riot (m). 
 
 By sect. 12, ' If any persons, riotously and tumultuously assembled 
 together to the disturbance of the public peace, shall unlawfully and 
 with force injure or damage any such church, chapel, meeting-house, 
 place of divine worship, house, stable, coach-house, out-house, warehouse, 
 office, shop, mill, malt-house, hop-oast, barn, granary, shed, hovel, fold, 
 building, erection, machinery, engine, staith, bridge, waggon-way, or 
 trunk, as is in the last preceding section mentioned, every such offender 
 shall be guilty of a misdemeanor, and being convicted thereof shall be 
 liable ... to be kept in penal servitude for any term not exceeding 
 seven years . . . (n). 
 
 Provided that if upon the trial of any person for any felony in the 
 last preceding section mentioned the jury shall not be satisfied that such 
 person is guilty thereof, but shall be satisfied that he is guilty of any 
 offence in this section mentioned, then the jury may find him guilty 
 thereof, and he may be punished accordingly ' (o). 
 
 The following decisions on 7 & 8 Geo. IV. c. 30, s. 8 (rep.), are still of 
 value in the interpretation of sects. 11 and 12 of the Act of 1861. In the 
 absence of a definition of riot in sect. 8, the common-law definition of a 
 riot was resorted to, and where any one of His Majesty's subjects was 
 terrified this it was held was a sufficient terror and alarm to substantiate 
 that part of the charge (/?). 
 
 If persons riotously assembled and demolished a house, really believing 
 that it was the property of one of them, and acted bond fide in the asser- 
 tion of a supposed right, this was not a felonious demolition of the house 
 within sect. 8, even though there were a riot (q). It is not necessary 
 that the rioters should have any ill-will against the person whose property 
 is destroyed, &c., demolished (r). 
 
 If rioters, after proceeding a certain length, leave off of their own 
 accord before the act of demolition be completed, a jury may infer that 
 they did not intend to demolish the house. A party of rioters came to 
 a house about midnight, and in a riotous manner burst open the door, 
 broke some of the furniture, all the windows, and one of the window- 
 frames, and then went away, there being nothing to hinder them from 
 doing more damage ; it was held that, although the breaking and damage 
 done was a sufficient beginning to demolish the house, yet unless the jur}'' 
 were satisfied that the ultimate object was to destroy the house, and 
 that if they had carried their intentions into full effect, they would, in 
 
 (m) See Casey v. R., Ir. Rep. 8 C. L. 408 cases where no such intention ever existed, 
 
 (C. C. R.). provided there be a riot, and injury done, 
 
 (n) The words omitted are repealed. For within the terms of ths Fcction. 
 
 minimum term of penal servitude and term (p) R. v. Phillips, 2 Mood. 252; S. C. as R. 
 
 of imprisonment, see 54 & 55 Vict. c. 69, v. Langford, C. & M. 602, approved in Field 
 
 8. 1, ante, pp. 211, 212. v. Receiver of Metropohtan Police [1907], 
 
 (o) This section, which was new in 1861, 1 K.B. 853, 860. 
 
 is intended to provide for cases where there (g) R. v. Howell, 9 C. & P. 437, Little- 
 
 ia not sufficient evidence of an intention to dale, J. 
 
 proceed to the total demolition of the (r) Bristol Special Commission, 3 St. Tr. 
 
 house, &c. (vide infra), and also for (N. S.) 1, Tindal, C.J. 
 
 2 E 2
 
 420 Of Disturbances of the Puhlic Peaee. [book vi. 
 
 point of fact, have demolished it, it was not a beginning to demolish within 
 sect. 8 (s). 
 
 The fact that the rioters' main object was to injure a person did not 
 take a case out of sect. 8 if they also meant to demolish his house. 
 
 A party of coal-whippers having a feeling of ill-will to a coal-lumper, 
 who paid less than the usual wages, created a mob, riotously went to 
 the house where his pay-table was, cried out that they would murder 
 him, threw stones, brick-bats, &c., broke windows and partitions, and 
 threw down part of a wall in a yard, and continued, after his escape, 
 throwing stones at the house, till they were compelled to desist by the 
 threats 'of the police ; it was held that this case was distinguishable from R. 
 V. Thomas (s), because the mob did not leave off voluntarily, but after 
 the threats of the police, and that they might be convicted of beginning 
 to demolish the house, though their principal object was to injure the 
 lumper, provided it was also their object to demolish the house (t). 
 
 Where on an indictment for ' beginning ' to demolish a building used 
 for trade, it appeared that the prisoners began by breaking the windows 
 and doors, and having afterwards entered the house, they set fire to the 
 furniture, biit that no part of the house was burnt. Parke, J., told the 
 jury ' beginning to pull down means not simply a demolition of a part, 
 but a part with an intent to demolish the whole. It is for you to say if 
 the prisoners meant to stop where they did, and do no more ; because if 
 they did, they are not guilty ; but if they intended, when they broke the 
 windows and doors, to go farther, and destroy the house, then they are 
 guilty of a capital offence. If they had the full means of going farther, 
 and were not interrupted, but left off of their own accord, it is evidence 
 from which you may judge that they meant the work of demolition to 
 stop where it did. If you think that they originally came there without 
 intent to demolish, and the setting fire to the furniture was an afterthought 
 but with that intent, then you must acquit, because no part of the house 
 having been burnt, there was no beginning to destroy the house. If 
 they came originally without such intent, but had afterwards set fire to 
 the house, then the offence would be arson. If you have doubts whether 
 they originally came with a purpose to demolish, you may use the setting 
 fire to the furniture under such circumstances, and in such manner, as 
 that the necessary consequence, if not for timely interference, would 
 would have been the burning of the house, as evidence to shew that they 
 had such intent, although they began to demolish in another manner ' (u). 
 Upon an indictment under sect. 8, the jury could not convict unless they 
 were satisfied that the prisoners intended to leave the house no house 
 at all in fact ; for if they intended to leave it still a house, though in a 
 state however dilapidated, they were not guilty of the offence. To have 
 left off the work of devastation without interruption would lead to the 
 inference that the prisoners did not intend to destroy the house ; but 
 even if they were interrupted, the question still remained, what was 
 their ultimate intention ? If they had been some time at their work of 
 
 (s) R. V. Thomas, MS. C. S. G., and 4 outrage only intended to get possession of 
 
 C. & P. 237, Littledale, J. See also R. v. a person who had entered the house. 
 
 Howell, 9 C. & P. 437. R. v. Price, 5 C. & (<) R. v. Batt, 6 C. & P. 329, Gurney, B. 
 
 P. 510, where the persons committing the (u) R. v. Ashton, 1 Lew. 296, Parke, J
 
 CHAP. 1.] Riots, Routs, and Unlawful Assemblies. 421 
 
 ruin before they were interrupted, it was for the jury to say, looking 
 to the nature of the things which they had destroyed, whether their pur- 
 pose was to demolish the house itself {v). 
 
 Although setting fire to a house is a substantive felony, yet if fire is 
 made the means of attempting to destroy a house, it is as much a beginning 
 to demolish as if any other mode of destruction were resorted to, and 
 the indictment may be for that offence {w). 
 
 If a person forms part of a riotous assembly at the time the act of 
 demolition commences, or if he wilfully joins such riotous assembly, 
 so as to co-operate with them whilst the act of demolition is going on, 
 and before it is completed, in either case he comes within the descrip- 
 tion of the offence, although he may not have assisted with his own 
 hand in the demolition of the building {x). On an indictment under 
 7 & 8 Geo. IV. c. 30, s. 8 (rep.), it appeared that a house was demolished 
 by rioters by means of fire, which was lighted before one o'clock in the 
 night, and there was no evidence to shew that the prisoner was present 
 at the time when the house was set on fire, but it was proved that he was 
 there between two and three o'clock whilst the house was burning, and 
 whilst the mob, who set it on fire, were still there ; it was held that the 
 prisoner was properly convicted as a principal. For although it was 
 possible, if this had been an indictment for burning the house, that the 
 prisoner could not have been convicted as a principal, yet this was an 
 offence under an enactment that made it felony if persons riotously and 
 tumultuously assembled together to the disturbance of the public peace, 
 and when so assembled destroyed a house ; therefore it was not simply 
 the fact of destroying a house by fire, but it was the combined fact of 
 riotously assembling together and whilst the riot continued demolishing 
 the house. To make a party guilty of that, he must be shewn to be one 
 of those who were present at the offence, or he could not be aiding or abet- 
 ting. But as it was not only the burning, but also the riotously assembling 
 together, the whole of the prisoner's conduct on that day was left to the 
 jury ; and it was distinctly left to them that unless they were satisfied 
 that the prisoner had by his language excited the mob to the act which 
 was the subject-matter of the inquiry, and afterwards been present at it, 
 he was not guilty (?/). 
 
 Under 7 & 8 Geo. IV. c. 30, s. 8 (rep.), it was a sufficient demolishing 
 of the house by rioters if it were so far destroyed as to be no longer a 
 house ; and the fact that the rioters left the chimney standing made no 
 difference (z). 
 
 In order to prove that there was a beginning to demolish the house, 
 it must be proved that some part of the freehold was destroyed ; it 
 was not therefore sufficient to prove that the window shutters were 
 demolished (a). 
 
 There have been few direct rulings as to the offences created by 
 
 (r) R. V. Adams, C. & M. 299, Coleridge, J. 265n. 
 
 {w) R. V. Simpson, C. & M. 669. R. v. (y) R. v. Simpson, C. & M. 6G9, Tindal, 
 
 Harris, C. & M. 661, Tindal, C.J., Parke, C.J., Parke, B., and Rolfe, B. 
 
 and Rolfe, BB. (z) R. v. Phillips, 2 Mood. 252 : S. C. as R. 
 
 [x) Per Tindal, C.J., Bristol Special 
 Commission, 3 St. Tr. (N. S. ) 1 , 7 ; 5 C. & P. 
 
 V. Langford, C. & M. 602. 
 (a) Ibid.
 
 422 Of Disturbances of the Public Peace. [book vi. 
 
 sects, 11 and 12 of the Act of 1861, but it would seem to be clear 
 that malicious injury to property done by three or more is not in itself a 
 riot (6) : that to constitute an offence within the sections there must 
 be also a riot in the common-law sense of the term (c). It has been held 
 that demolition of boundary-wall of an empty house by a gang of rough 
 youths was not a demolition by persons riotously and tumultuously 
 assembled so as to warrant a claim for compensation under the Riot 
 Damages Act, 1886 {d), there being no evidence of any intention of mem- 
 bers of the gang to help each other, if need arose, in the execution of 
 their common purpose nor of any force or violence (other than that used 
 in demolishing the wall) displayed in such a manner as to alarm any 
 person of reasonable firmness and courage (e) ; and to constitute an 
 offence against sect. 11 there must be an intent totally to demolish the 
 house, &c. (/). 
 
 Sect. II. — Routs. 
 
 In some books the notion of a rout is limited to assemblies occasioned 
 by some grievance common to all the company : as the inclosure of land 
 in which they aU claim a right of common, &c. But, according to the 
 general opinion, it seems to be a disturbance of the peace by three or 
 more persons assembling together with an intention to do a thing, which, 
 if executed, will make them rioters, and actually making a motion to 
 execute their purpose. In fact, it agrees in all particulars with a riot 
 except that it may be complete without the execution of the intended 
 enterprise {g). And it seems, by the recitals in several early statutes, 
 that if people 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 Qi). 
 
 It is usual to insert in indictments for riot the word ' routously ' ; and 
 if a riot is not proved, the jury may in such indictment convict of rout. 
 The offence is an indictable misdemeanor, punishable by fine (or) im- 
 prisonment without hard labour, or both {gg). Indictments for rout 
 alone are rarely, if ever, preferred. 
 
 Sect. III. — Unlawful Assembly and Association. 
 
 A. Common Law. 
 
 An unlawful assembly, according to the common oj)inion, is a dis- 
 turbance of the peace by persons assembling together with an intention 
 to do a thing which, if it were executed, would make them rioters, but 
 neither actually executing it nor making a motion towards its execution. 
 Hawkins, however, thinks this opinion much too narrow ; and that any 
 meeting of great numbers of people with such circumstances of terror as 
 
 (6) Field v. Receiver of Metrop. Police [g) Redford v. Birley, 1 St. Tr. (N. S.^ 
 
 [19071, 2 K.B. 853, 859, rejecting Coke's 1211, 1214, Holroyd, J. 1 Hawk. c. 65. 
 
 definition of riot (3 Inst. 146). ss. 1, 8, 9. Cf. 3 Co. Inst. 176 ; 2 Chit. 
 
 (c) Vide ante, p. 400. Cr. L. 488. 
 
 (d) 49 & 50 Vict. c. 38, s. 2. (gg) Vide ante, p. 249. 
 
 (e) Field r. Receiver of Metrop. Police, {h) 19 Vin. Abr. tit. 'Riots, &c.' (A.), 2, 
 uhi sup. referring to 13 Hen. IV. c. 7 ; 2 Hen. V. 
 
 (/) Drake v. Foottit, 7 Q.B.D. 201. Cf. stat. e. 8, q.v. post, p. 432. 
 R. i\ Howell, 9 C. & P. 437, ante, p. 419.
 
 CHAP. I.] Riots, Routs, and Ufilaivful Assemblies . 423 
 
 cannot but endanger the public peace, and raise fears and jealousies 
 among the King's subjects, seems properly to be called an unlaivful 
 assembly. As where great numbers complaining of a common griev- 
 ance meet together, armed in a warlike manner {i) in order to consult 
 together concerning the most proper means for the recovery of their 
 interests : for no one can foresee what may be the event of such an 
 assembly (j). In substance this means that an assembly is unlawful 
 if it may reasonably be found that it will endanger the public peace : 
 ' if a mutiny from its general appearance and accompanying circum- 
 stances is calculated to excite terror, alarm, and consternation it is 
 generally criminal and unlawful ' (k). And ' any meeting assembled 
 under such circumstances as, according to the opinion of rational and firm 
 men are likely to produce danger to the tranquillity and peace of the 
 neighbourhood, is an unlawful assembly ' (I). In viewing this question, 
 the jury should take into consideration the way in which the meetings 
 were held, the hour at which they met, and the language used by the 
 persons assembled, and by those who addressed them : and then con- 
 sider whether firm and rational men, having their families and property 
 there, would have reasonable ground to fear a breach of the peace, as 
 the alarm must not be merely such as would frighten any foolish or 
 timid person, but must be such as would alarm persons of reasonable 
 firmness and courage {m). All persons who join an assembly of this kind, 
 disregarding its probable effect and the alarm and consternation which 
 are likely to ensue, and all who give countenance and support to it, are 
 criminally responsible as parties to the assembly (n). 
 
 The difference between riot and unlawful assembly is this : if the 
 parties assemble in a tumultuous manner calculated to cause terror, 
 and actually execute their purpose with violence, it is a riot ; but if they 
 merely assemble upon a purpose which, if executed, would make them 
 rioters, but do not execute or make any motions to create such 'purpose and 
 having done nothing, separate without carrying their purpose into effect, 
 it is an unlawful assembly (o). 
 
 An assembly of a man's friends for the defence of his person against 
 those who threaten to beat him if he go to a market, &c., is unlawful ; 
 for he who is in fear of such insults must provide for his safety by swearing 
 the peace against the persons by whom he is threatened, and must not 
 make use of violent methods, which cannot but be attended with the 
 danger of raising tumults and disorders to the disturbance of the public 
 
 (i) Or with sticks. See R. v. Vincent, Spring Assizes, 1820, cited by Alderson, B. 
 
 9 C. & P. 95, Alderson, B. 9 C. & P. 94n ; and per Holroyd, J., in 
 
 {j) 1 Hawk. c. G5, s. 9. There may be Redford v. Birley [1822], 3 Stark. (N. P.) 
 
 an unlawful assembly if the people assemble 76; 1 St. Tr. (N. S.) 1217. 
 themselves together for an ill purpose con- (I) R. v. Vincent, 9 C. & P. 91 ; 3 St. Tr. 
 
 tra paceyn, though they do nothing, Br. tit. (N. S.) 1037, Alderson, B. See R. v. Neale, 
 
 ' Riots,' pi. 4. Coke speaks of an unlawful 9 C. & P. 431, Littledale, J. 
 assembly as being when three or more as- (m) Ibid. 
 
 semble them.selves together to commit a («) Per Holroyd, J., Redford v. Birley, 
 
 riot or rout, and do not do it. 3 Inst. 176. supra. 
 
 R. V. McNaughten, 14 Cox, 576. See also (o) R. r. Birt, 5 C. & P. 154, Patteson, 
 
 R. V. Cunninghame Graham, 16 Cox, 420, J. Lord Thring (Manual of Military Law) 
 
 Charles, J. describes unlawful assembly and riot as 
 
 (A-) Per Bayley, J., in R. v. Hunt, York different stages on the way to insurrection.
 
 424 Of Disturha7ices of the Public Peace. [booK vi. 
 
 peace (p). But an assembly of a man's friends in his own house, for 
 the defence of the possession of it against persons who threaten to make 
 an unlawful entry, or for the defence of his person against persons who 
 threaten to beat him in his house, is indulged by law ; for a man's house 
 is looked upon as his castle (q). It is said, however, that he may not arm 
 himself and assemble his friends in defence of his close (r). 
 
 An assembly of persons to witness a prize fight or bull fight, cock 
 fight, or badger baiting (s), is an unlawful assembly, and every one 
 present and countenancing the fight is guilty of an offence (t). Where 
 sixteen persons, with their faces blackened, and armed with guns and 
 sticks, met at a house at night, intending to go out for the purpose of 
 night poaching, it was held, that it was impossible that a meeting to go 
 out with their faces thus disguised, at night, and under such circum- 
 stances, could be other than an unlawful assembly (u). 
 
 An assembly in a public place for a lawful purpose, and with no inten- 
 tion of carrying out such purj)ose in an unlawful manner, is not rendered 
 Unlawful by the fact that those who compose it meet with the knowledge 
 that it is likely to be attacked or resisted by others (v). 
 
 A conspiracy between several persons to meet together for the purpose of 
 disturbing the peace and tranquillity of the realm, of exciting discontent 
 and disaSection, and of exciting the King's subjects to hatred of the govern- 
 ment and constitution is indictable, but independently of any question of 
 conspiracy, treason, or sedition, such assembly appears to be unlawful {w). 
 
 Unlawful assembly is an indictable misdemeanor punishable at 
 common law by fine and (or) imprisonment without hard labour. 
 
 B. Assemhlies and Associations made Unlawful by Statute. 
 
 Tumultuous Petitioning.— 13 Car. II. st. 1., c. 5 (1662), after reciting 
 the mischiefs of tumultuous petitioning, enacts (sect. 1) that no person shall 
 ' solicit, labour, or procure the getting of hands or other consent of any 
 persons above the number of twenty, to any petition, complaint, 
 remonstrance, declaration or other addresses to the King or both or 
 either houses of Parliament, for alteration of matters established by 
 law in church or state, unless the matter thereof shall have been 
 first consented unto and ordered ' by three or more justices, or by the 
 
 (p) Treason Act, 1351 (25 Edw. III. (s) 12 & 13 Vict. c. 92. 
 
 etat. 2, c. 2), in excepting from the defini- {t) R. t'. Billingham, 2 C. &P. 234, Bur- 
 
 tion of treason the riding of any man armed rough, J. See R. v. Perkins, 4 C. & P. 537, 
 
 overtly or secretly with men of arms, to Patteson, J. R. v. Coney, 8 Q.B.D. 534. 
 
 slay, &c., declares that the offence shall be A sparring match, or an ordinary boxing 
 
 felony or trespass, according to the laws of match with gloves, does not seem to fall 
 
 the land of old time used, and according as within the definition of unlawful assembly, 
 
 the case requireth. See R. v. Young, 10 Cox, 371. R. v. Orton, 
 
 (q) 1 Hawk. c. 65, ss. 9, 10. 19 Vin. 14 Cox, 226 (C. C. R.). 
 
 Abr. tit. ' Riots, &c.' (A.) 5, 6. 3 Co. Inst. (it) R. v. Brodribb, 6 C. & P. 571, 
 
 176. 4 Bl. Com. 146. Holt, C.J., in R. v. Holroyd, J. 
 
 Soley, 11 Mod. 116, says that, though a (v) Beatty v. Qillbanks, 9 Q.B.D. 308. 
 
 man may ride with arms, yet he cannot R. v." Clarkson, 17 Cox, 483 (C. C. R.). 
 
 take two with him to defend himself, even Both cases of meetings of the Salvation 
 
 though his life is threatened: for he is in Army. But see Wise v. Dunning [1902]. 
 
 the protection of the law, which is sufficient 1 K.B. 167, ante. p. 408. 
 
 for his defence. (w) R. v. Hunt, 3 B. & Aid. 560 ; 1 St. 
 
 (r) R. V. Bishop of Bangor, Shrewsbury Tr. (N. S.) 171. R. v. Vincent, 3 St. Tr. 
 
 Summer Assizes, 1790, 20 St. Tr. 523, (N. S.) 1037, vide mite, pp. 152, 423. 
 Heath, J.
 
 GHAP. I.] Riots, Routs, and Untaivful Assemblies. 425 
 
 major part of the grand jury of the county, &c., where the matter shall 
 arise, at the assizes or quarter sessions ; or, in London, by the lord 
 mayor, aldermen, and commons in common council : and that no person 
 shall ' repair to His Majesty or both or either houses of Parliament, 
 upon pretence of presenting or delivering any petition,' &c., ' accom- 
 panied 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' imprisonment for every 
 offence ; ' which offence to be prosecuted in the Court of King's Bench, or 
 at the assizes or general quarter sessions, within six months after the 
 offence committed and j)roved by two credible witnesses. But sect. 2 
 provides 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 there- 
 upon had ; nor extend to any address to HisMajesty by the members of both 
 or either houses of Parliament, during the sitting of Parliament {x). 
 
 The Unlawful DriUing Act, 1820 (60 Geo. III. & 1 Geo. IV. c. 1), s. 1, 
 reciting that ' in some parts of the United Kingdom men clandestinely and 
 unlawfully assembled have practised military training and exercise, to the 
 great terror and alarm of His Majesty's peaceable and loyal subjects, and the 
 imminent danger of the public peace,' enacts (sect. 1) that 'all meetings 
 and assemblies of persons for the purpose of training or drilling them- 
 selves, or of being trained or drilled to the use of arms, or for the purpose 
 of practising military exercise, movements, or evolutions, without any 
 lawful authority from His Majesty, or the lieutenant, or two justices of 
 the peace of any county or riding, or of any stewartry, by commission 
 or otherwise, for so doing shall be, and the same are hereby prohibited 
 as dangerous to the peace and security of His Majesty's liege subjects, 
 and of his government ; and every person who shall be present at, or 
 attend any such meeting or assembly for the purpose of training and 
 drilling any other person or persons, to the use of arms, or the practice 
 of military exercise, movements, or evolutions, or who shall train or 
 drill any other person or persons to the use of arms, or the practice of 
 military exercise, movements, or evolutions, or who shall aid or assist 
 therein, being legally convicted thereof, shall be liable to be transported {y) 
 for any term not exceeding seven (z) years, or to be punished by imprison- 
 ment not exceeding two years (a), at the discretion of the Court in which 
 such conviction shall be had ; and every person who shall attend or be 
 present at any such meeting or assembly as aforesaid, for the purpose 
 of being, or who shall at any such meeting or assembly be trained or 
 drilled to the use of arms, or the practice of miUtary exercise, movements, 
 or evolutions, being legally convicted thereof, shall be liable to be punished 
 
 [x) S. .3. By the Bill of Rights (1 that nor any other Act of Parliament had 
 
 Will. & M. sess. 2, c. 2, s. 1), art. 5, ' It is repealed it, and that it was in full force, 
 
 the right of the subjects to petition the R. v. Lord George Gordon, 2 Dougl. 571. 
 King, and that ail commitments and prose- (y) Now penal servitude. 20 & 21 Vict, 
 
 cutions for such petitioning are illegal.' It c. 3, s. 2, aniv, p. 210. 
 
 was contended, that this article had vir- (z) Nor less than three years. 54 & 55 
 
 tually repealed 13 Car. II. stat. 1, c. 5, but Vict. c. 69, s. 1, anU, p. 211. 
 Lord Mansfield declared it to be the unaui- (a) Apparently with or without hard 
 
 mous opinion of the Court, that neither labour. 54 & 55 Vict. c» G9, s. 1, a;Ue, p. 212.
 
 426 Of Disturbances of the Public Peace. [book vl, 
 
 by fine and imprisonment, not exceeding two years, at the discretion 
 of the Court in which such conviction shall be had ' (6). 
 
 Where an indictment alleged that there was an unlawful meeting 
 of the defendant and of divers other persons unknown, for the purpose 
 of unlawfully practising military exercise, and which persons so met 
 and assembled were there without any lawful authority of the Queen, 
 &c., and that the defendant was present at and unlawfully did attend 
 the said meeting for the purpose of unlawfully training and drilling 
 divers persons unknown to the practice of military exercise ; Maule, J., 
 held that the indictment was not bad for charging two ofiences (c). 
 
 An indictment upon this Act should aver that the meeting was for 
 the purpose of training and drilhng, or of being trained and drilled to 
 the use of arms, or for the purpose of practising military exercises, move- 
 ments, or evolutions, and that the meeting was held without any lawful 
 authority from His Majesty, or the lieutenant, or two justices of the 
 peace, &c., by commission or otherwise (d). 
 
 Meetings within a Mile of Parliament when sitting. — The Seditious 
 Meetings Act, 1817 (57 Geo. III. c. 19), contains certain enactments 
 relating to meetings and assemblies of persons which are still in force (e). 
 
 Sect. 23, after reciting that it is highly inexpedient that public 
 meetings or assemblies should be held near the houses of Parliament, 
 or near the courts of justice in Westminster Hall, on certain days, enacts, 
 that it shall not be lawful for any person to convene or call together, or to 
 give any notice for convening or calling together, any meeting consisting 
 of more than fifty persons, or for any number of persons exceeding fifty 
 to meet in any street, square, or open place, in the city or hberties of West- 
 minster, or county of Middlesex, within the distance of a mile from the 
 gate of Westminster Hall (except such parts of the parish of St. Paul's, 
 Covent Garden, as are within the said distance), for the purpose or on 
 the pretext of considering of or preparing any petition, &c., for alteration 
 of matters in Church or State, on any day on which the two houses, or 
 either house of Parliament, shall meet and sit . . . nor on any day on 
 which the courts shall sit in Westminster HaU {/) : and that if any 
 meeting or assembly for such purposes or on such pretexts shall be 
 assembled or holden on such day, it shall be deemed an unlawful assembly. 
 But there is a proviso that the enactment shall not apply to any meeting 
 for the election of members of Parliament, or to persons attending upon 
 the business of either house of Parliament, or any of the said courts (g). 
 
 (b) S. 2 provides for the dispersion of per- and were repealed in 1820 (60 Geo. 
 sons so assembled by justices of the peace. III. and 1 Geo. IV. c. 6). That Act and 
 constables, or peace officers or persons acting the expired sections of the Act of 1817 
 in their aid and assistance, and for arresting were repealed in 1873 (36 & 37 Vict. c. 91). 
 and detaining or holding to bail such offen- The rest of the Act, so far as unrepealed, 
 ders. By s. 7 prosecutions for ofiences relates to unlawful combinations and con- 
 against the provisions of the Act must be federacies (see p. 335), except s. 35, which 
 commenced within six months after the declares that nothing in the Act shall take 
 offence committed. S. 4 makes the Act away, abridge, or affect any law of the 
 alternative to other criminal remedies {vide realm for the suppression or punishment of 
 ante, pp. 4, 6. Ss. 5, 6 were repealed in 1893 any offence named therein {vide ante, 
 (56 & 57 Vict. c. 61). S. 8 was repealed in pp. 4. 5). 
 
 1873 (36 & 37 Vict. c. 91). (J) It is doubtful whether this appUes to 
 
 (c) R. V. Hunt. 3 Cox, 215. the sittings at the Royal Courts of Justice. 
 {d) Gogarty v. R., 3 Cox, 306 (Ir.). {cj) S. 24 was repealed in 1890 (53 & 54 
 (e) Ss. 1-22 of the Act expired in 1818, Vict. c. 33).
 
 CHAP. I.] Riots, Routs, and Unlawful Assemblies. 42? 
 
 Sect. IV. — Affrays. 
 
 Common Law. — An affray is the fighting of two or more persons in 
 a 'public place, to the terror of His Majesty's subjects, and is a misdemeanor 
 at common law {h). It differs from riot in that it may be committed by 
 two persons {i). By public place seems to be meant a street or highway, 
 or other place where the public may pass or be as of right (/). Where 
 two of the prisoners fought together amidst a great crowd of persons, 
 and the others were present aiding and assisting, at a place far from any 
 highway, and the fight ceased on the appearance of some peace-officers, 
 it was held that this was not an affray, because the scene of action was 
 to all intents and purposes a private place {k). A gathering for such a 
 fight or a prize fight is clearly an unlawful assembly, and where there 
 is resistance to lawful authority exercised for the purpose of putting a 
 stop to it, the offence may amount to an affray, or even a riot {I). An 
 affray may fall short of a riot, though many persons are engaged in it. 
 Thus, if a number of persons met together at a fair or market, or on any 
 other lawful or innocent i)Ccasion, happen on a sudden quarrel to fall 
 together by the ears, they will not be guilty of 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 (m). 
 
 An affray may be aggravated by the circumstances under which it 
 takes place or by its dangerous tendency ; where persons coolly and 
 deliberately engage in a duel which must be attended by the risk of 
 murder, this is not only an open defiance of the law, but carries with 
 it a direct contempt of the justice of the nation, putting men under 
 the necessity of righting themselves {n). And it is an aggravated form 
 of afiray violently to disturb the officers of justice in the due execution 
 of their office, by the rescue of a person legally arrested, or the attempt 
 to make such a rescue (o). An affray is severely punishable when 
 committed in the King's Courts, or even in the palace yard near those 
 Courts ; and it is highly finable even when made in the presence of an 
 inferior Court of justice [p). As to affrays in a church or churchyard, 
 vide ante, p. 401. 
 
 It is said that no quarrelsome or threatening words whatsoever 
 
 [h) 4 Bl. Com. 144 ; 3 Co. Inst.' 158 ; for riot as well as assault, arising out of a 
 
 Burn's Just. tit. 'Affray' (I.). The word prize-fight. 
 
 affray is derived from the French effroi (?) R. v. Billingham, 2 C. & P. 234, Bur- 
 
 (terror). In 3 Co. Inst. 158, it is said that rough, J. Tlie indictment was for riot, 
 
 an affray is a public offence to the terror of arising in a gathering of 1000 persons to 
 
 the King's subjects ; and is an English witness a prize-fight. A magistrate tried 
 
 word, and so called because it affrighteth to stop the fight, which resulted in tumult 
 
 and maketh men afraid ; and that it is in- and the rescue of a man arrested. Vide 
 
 quirable in a leet as a common nuisance. ante, p. 424. 
 
 (i) Vide ante, p. 409. (m) 1 Hawk. c. 65, s. 3. 
 
 (j) R. V. O'Neill [1871], Ir. Rep. 6 C. L. 1. {«) 1 Hawk. c. 63, s. 21. 
 
 (A-) R. V. Hunt, 1 Cox, 177, Alderson, B. (o) 1 Hawk. c. 63, s. 22. And see post. 
 
 See 1 Hawk. c. 63, s. 1. If aU the persons p. 567, ' Rescue.' 
 
 present went to see the fight, they were all {p) 1 Hawk. c. 21, se. 6, 10 ; c. 63, 9. 23. 
 
 guilty of an assault. R. v. Perkins, 4 C. & As to striking in palaces or courts of justice, 
 
 P. 537, Patteson, J. The indictment was see post, p. 891, ' Aggravated Assaults.'
 
 428 Of Disiurhcmces of the Pubtic Peace. [book vi. 
 
 amount to an affray (q), and that no one can justify laying his hands on 
 those who barely quarrel with angry 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, in order to 
 find sureties. And though mere words cannot in law create such terror 
 as to constitute an affray, yet there may be an affray without actual 
 violence ; as where persons arm themselves with dangerous and unusual 
 weapons, in such a manner as will naturally cause terror to the people, 
 which is said to be an offence at common law (r). 
 
 Statute. — The Statute of Northampton (2 Edw. III. c. 3) enacts, 
 that ' no man, great or small, of what condition soever, except the King's 
 servants in his presence, and his ministers in executing of the King's 
 precepts or of their office, and such as be in their company assisting them, 
 and also upon a cry made for arms to keep the peace {armes de pees), and 
 the same in such places where such acts do happen (s), be so hardy to 
 come before the King's justices or other of the King's ministers doing 
 their office, with force and arms, nor bring no force in affray of peace (t), 
 nor to go nor ride armed, by night nor by day^ in fairs or markets, nor in 
 the presence of the King's justices, or other ministers, nor in no part else- 
 where ; upon pain to forfeit their armour to the King, and their bodies 
 to prison at the King's pleasure. And that the King's justices in their 
 presence, sheriffs, and other ministers in their bailiwicks, lords of fran- 
 chises and their bailiffs in the same, and mayors and bailiffs of cities 
 and boroughs within the cities and boroughs, and borough-holders, 
 constables, and wardens of the peace within their wards, shall have power 
 to execute this Act (u). And that the justices assigned at their coming 
 down into the country shall have power to inquire how such officers 
 and lords have exercised their offices, and to punish them whom they 
 find that have not done that which pertained to their office ' (v). 
 
 The wearing of arms is not punishable under this statute unless it be 
 accompanied with such circumstances as are apt to terrify the people ; 
 from whence it seems clearly to follow, that persons of quality are in no 
 danger of offending against the statute by wearing common weapons, 
 or having their usual number of attendants with them for their ornament 
 or defence, in such places, and upon such occasions, in which it is the 
 common fashion to make use of them, without causing the least suspicion 
 of an intention to commit any act of violence, or disturbance of the 
 peace {w). And no person is within the statute who arms himself to 
 
 (q) 1 Hale, 456 ; 1 Hawk. c. 63, s. 2. and reads the latter word as ' j)ays ' in dis- 
 
 (r) 1 Hawk. c. 63, ss. 2, 4 ; Burn's Jus- regard of its gender, 
 
 tice, tit. ' Affray.' (u) Offences within this statute were 
 
 (s) These obscure words may mean specifically mentioned in the old form of 
 
 proclamation of a joust or tournament, or the commission of the peace settled in 
 
 of places where such may be held. See 1 30 Ehz. 
 
 Rev. Stat. (2nd ed.) p. 88n. Tournaments, (v) Two early statutes enforcing this Act 
 
 except by command of the King, seem to have been repealed, viz., 7 Rich. II. c. 13 
 
 have been illegal. R. v. Coney, 8 Q.B.D. (in 1857), and 20 Rich. II. c. 1 (in 1863 as 
 
 534, 549, Stephen, J. to England, and in 1872 as to Ireland). A 
 
 (t) The words of the statute are 'e« a^rat statute of 1313 (7 Edw. II.) requires per- 
 
 de la pees ' [paix]. In another part of the sons to come to Parliament, ' without force 
 
 statute 'armes de pees' clearly means and without armour, well, and peaceably.' 
 
 ' arms to keep the peace.' Coke, 3 Inst. (?t') 1 Hawk. c. 63, s. 9. 
 158, cites the words as 'eneffraierde la pais,'
 
 CHAP, i.i Riots, Routs, and Unlmvful Assemblies. 429 
 
 suppress dangerous rioters, rebels, or enemies, and endeavours to suppress 
 or resist such disturbers of the peace and quiet of the realm (x). But a 
 man cannot excuse wearing such armour in public by alleging that 
 a person threatened him, and that he wears it for the safety of his person 
 from the assault : though no one incurs the penalty of the statue by 
 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 (y). In R. v. Meade (2), a single person who went armed 
 in the streets without lawful occasion, or so acted as to be a nuisance and 
 terror to the public, was convicted under this statute. 
 
 Punishment. — The punishment of affrays at common law or under 
 2 Edw. III. c. 3, is by fine and (or) imprisonment without hard labour. 
 The term of imprisonment and the amount of the fine are in the discretion 
 of the Court (a). 
 
 As to the powers and duties of officials and private persons to stop 
 affrays, see post, p. 431. 
 
 Sect. V. — Indictment, Evidence and Punishment. 
 
 Indictment. — An indictment for riot, rout, or unlawful assembly must 
 shew that there was an unlawful assembly of more than two persons (6). 
 It is not clear whether it is now necessary that an indictment for riot should 
 contain the words ' to the terror of the people ' (c). Where the indictment 
 is aptly drawn the defendants if acquitted of riot may be convicted of rout 
 or of unlawful assembly if the facts so warrant. Where six persons were 
 indicted for a riot, two of them died without being tried, two were 
 acquitted, and the other two were found guilty. The Court refused 
 to arrest the judgment, saying, that as the jury had found two persons to 
 be guilty of a riot, it must have been together with those two who had 
 never been tried, as it could not otherwise have been a riot (d). But two 
 persons only cannot be guilty of a riot (e). Where the offence was specially 
 laid as a riot, the riotose extending to all the facts, and stated a battery of 
 an individual as part of the riot : it was held that an acquittal of the riot 
 was an acquittal on the whole indictment. But it was also held, that if 
 the indictment had been, that the defendants, with divers other disturbers 
 of the peace, had committed this riot and battery, the defendants might 
 have been found guilty of the battery (/). 
 
 (x) 1 Hawk. c. 63, s. 10. down of fences a conviction could be had 
 
 (y) Id. s. 8, and see in ss. 5, 6, 7, as to for unlawful assembly. It is not, however, 
 
 the proceedings of justices, &c., executing clear that the words are in reality a formal 
 
 the Act. conclusion. They may fairly be treated an 
 
 (2) [1903] 19 Times L. R. 540, Wills, J. essential part of the description of the 
 
 (a) 1 Hawk. c. 63, s. 20 ; 4 Bl. Com. 145, offence. See Field v. Receiver of Metrop. 
 
 vide ante, p. 249. Police [1907], 2 K.B. 853. An indictment 
 
 (&) R. V. Soley, 2 SaUc. 593, 594. under s. 1 of the Riot Act never needed this 
 
 (c) 14 & 15 Vict. c. 100, s. 24, makes conclusion. R. v. James [1831], 5 C. & P. 
 
 formal conclusions unnecessary. In R. v. 153, and MS. C. S. G., per Patteson, J. 
 
 Hughes [1830], 4 C. & P. 373 ; 6 St. Tr. {d) R. v. Scott, 3 Burr. 1262. 
 
 (N. S.) 1101, Park, J., held such conclusion (e) R. v. Sadbury, 1 Ld. Raym. 484. 
 
 necessary at common law. But in R. r. And see 19 Vin. Abr. tit. ' Riots (E.) ' 1. 
 
 Cox [1831], 4 C. & P. 538, Patteson, J.. (/) R. r. Sadbury, 1 Ld. Raym. 484. R. 
 
 held that on an indictment for riot without v. Ingram, 2 Salk. 593 ; 12 Mod. 262. 19 
 
 such conclusion, but charging the cutting Vin. Abr. tit. ' Riots (E.) ' 6.
 
 430 Of Disturbances of the Public Peace. [book vi. 
 
 Where several were indicted for a riot, it was moved, that the prose- 
 cutor might name two or three, and try it against them, and that the rest 
 might enter into a rule to plead not guilty {guilty if the others were found 
 guilty) ; and as a rule was made accordingly ; this being to prevent the 
 expense of putting them all to plead (a). 
 
 Evidence. — In substance the rules as to admissibility of evidence in 
 cases of riot, rout, or unlawful assembly are the same as in cases of 
 conspiracy, the offences like that offence involving concerted action (h). 
 Upon an indictment against H. and others, for a conspiracy and unlawful 
 meeting together with persons unknown, for the purpose of exciting 
 discontent and disaffection, at which meeting H. was the chairman, it 
 was held that resolutions passed at a former meeting assembled a short 
 time before, in a distant place, at which H. also presided, and the avowed 
 object of which meeting was the same as that of the meeting mentioned 
 in the indictment, were admissible in evidence, to show the intention of H. 
 in assembling and attending the meeting in question. And it was also 
 held that a copy of these resolutions delivered by H., to the witness at the 
 time of the former meeting, as the resolutions then intended to be proposed 
 and which corresponded with those which the witness heard read from a 
 written paper, was admissible, without producing the original (i). 
 
 In the same case it appeared that large bodies of men had come to 
 the meeting in question from a distance, marching in regular order 
 resembling a military march ; and it was held to be admissible evidence, 
 to shew the character and intention of the meeting, that within two 
 days of the time at which it took place considerable numbers were seen 
 training and drilling before daybreak, at a place from which one of 
 these bodies had come to the meeting, and that, upon their discovering 
 the persons who saw them, they ill-treated them, and forced one of them 
 to take an oath never to be a king's man again. And it was also admitted 
 as evidence for the same purpose, that another body of men in their 
 progress to the meeting, on passing the house of the person who had been 
 so ill-treated, expressed their disapprobation of his conduct by hissing (;'). 
 
 It was decided in the same case that parol evidence of inscriptions and 
 devices on banners and flags displayed at a meeting was admissible 
 without producing the originals {k), but that upon the indictment in 
 question evidence of the supposed misconduct of those who dispersed 
 the meeting was not admissible (?). 
 
 Where the question was, with what intention a great number of 
 persons assembled to drill, declarations made by those assembled and 
 in the act of drilling, and further declarations made by others who were 
 proceeding to the place, and solicitations made by them to others to 
 accompany them declaratory of their object, were held to be admissible 
 in evidence for the purpose of showing their object (m). And in general, 
 evidence is admissible to show that the meeting caused alarm and appre- 
 hension, and to prove information given to the civil authorities, and the 
 measures taken by them in consequence of such information (n). 
 
 ig) R. V. Middlemore, 6 Mod. 212. (k) Id. ibid. 
 
 (h) Vide ante, p. 191 ; post, Bk. xiii. c. ii. (1) Id. ibid. 
 
 (i) R. V. Hunt, 3 B. & Aid. 566; 1 St. (m) Redford v. Birley, 1 St. Tr. (N. S.) 
 
 Tr. (N. S.) 171. 1071 : 3 Stark. (N. P.) 76, Holroyd, J. 
 (;■) Id. ibid. («) Id. ibid.
 
 CHAP. I.] Riots, Routs, and Unlawful Assemblies. 431 
 
 It was held, that the prisoners must first be identified as forming 
 part of the crowd before the riot is proved (o). But this is a very incon- 
 venient course, causing much waste of time by recalling witnesses ; 
 and it has since been held that on an indictment for riot the prosecutor 
 is entitled to prove the acts of any rioters before he connects the others 
 with the riot (p), and this is in conformity with the practice in cases of 
 conspiracy {q). 
 
 Punishment. — (1) Riot. — Riot at common law is an indictable 
 misdemeanor punishable by fine and (or) imprisonment without hard 
 labour (r). 
 
 By the Hard Labour Act, 1822 (3 Geo. IV., c. 114 ) (s), on conviction 
 of riot the Court may impose a sentence of imprisonment with hard 
 labour in addition to or in lieu of any punishment which could be inflicted 
 before 1822 {t). This statute does not apply to felonious riot. The 
 punishment for statutory offences in relation to riot are stated under 
 the statutes {ante, pp. 414-416), Common4aw riot is triable at quarter 
 sessions {u) ; offences under sects. 1-5 of the Riot Act are not so 
 triable {v). 
 
 (2) Routs, Ufilawful Assemblies, and Affrays. — These offences are mis- 
 demeanors punishable at common law by fine or imprisonment without 
 hard labour or both (vide ante, p. 249), and triable at quarter sessions (u). 
 
 Sect. VI. — Suppression of Riots, &c. 
 
 The powers and duties of public officers and private persons with 
 reference to the suppression of unlawful assemblies, affrays, routs, and 
 riots, rest partly on the common law and partly on statutes. 
 
 On the constitution of the office of justices of the peace (34 Edw. III. 
 c. 1) they were given power to restrain rioters and all other barrators, 
 and to pursue, arrest, take, and chastise them according to their trespass 
 and offence, and to cause them to be imprisoned and duly punished 
 according to the law and customs of the realm (w). This statute has 
 been construed as authorising a single justice to arrest, or by parol com- 
 mand to authorise the arrest, of persons riotously assembled. Those 
 early statutes, still unrepealed, were passed for the suppression of riots (x), 
 
 (o) So ruled by Vaughan, Parke and indictments for riot by certiorari, see 21 
 
 Alderson, BB., on the special commission .Jac. I. c. 8, s. 4. 
 
 of 1830 at Salisbury, and approved by all (v) 5 & 6 Vict. c. 38, post, Bk. xii. c. i. 
 
 the judges. Per Alderson, B., in R. v. (w) ' Unlawful assemblings ' and ridings 
 
 Nicholson, 1 Lew. 300, where the same with armed force against the peace are 
 
 course was adopted. specifically mentioned in the old form of 
 
 {p) R. V. Cooper, Stafford Summer Ass. commission of the peace, settled 30 Eliz. 
 
 1850, Williams, J. MSS. C. S. G. and used until 1878. 
 
 (q) Ante, p. 191. {x) Their immediate object is said to 
 
 (r) 1 Hawk. c. 65, s. 12. have been to compel sheriffs and others to 
 
 (5) Ante, p. 212. put the law in force against Lollards and 
 
 (t) One of these punishments was the other organisations of the fourteenth and 
 
 pillory (1 Hawk. c. 65, s. 12), which was fifteenth centuries. Wright's Report on 
 
 partly abolished in 1816 (56 Geo. in. c. 138) Criminal Law (Pari. Pap., 1878, H.L. No. 
 
 and completely abolished in 1837. Vide 178), p. 29. See 1 Hawk. c. 65, s. 14 et seq. 
 
 ante, p. 250. Burn's Justice (30th ed.), tit. 'Riot.' R. 
 
 (m) 34 Edw. III. c. 1 ; 15 Rich. II. c. 2 ; v. Gulston, 2 Ld. Raym. 1210. 
 
 5 & 6 Vict. c. 38, s. 1. As to removal of
 
 432 Of Disturbances of the Public Peace. [book vi. 
 
 17 Rich. II. c. 8 (1393) (y), 13 Hen. IV. c. 7 (1411) (z), and 2 Hen. V. st. 1 
 c. 8 (1414) (a). The first two require the use of the posse comitatus (6) 
 by the sheriff, &c., in cases of riot, rout, and unlawful assembly, and 
 authorise the arrest of offenders and the recording of offences committed 
 in the presence of the justices. The third provides for the case of default 
 by justices in enforcing the Act of 1411, and prescribes punishments 
 for great and petty riots and for neglecting to aid in suppressing riot. 
 And it has been held to be an indictable misdemeanor to refuse to aid 
 a constable in suppressing a riot or affray (c). The duties of private 
 persons in such cases were thus expounded by Tindal, C.J., in his charge 
 to the grand jury in the case of the Bristol Riots [d), as follows : ' By 
 the common law every private person may lawfully endeavour of his 
 own authority, and without any warrant or sanction of the magistrate, 
 to suppress a riot by every means in his power. He may disperse, or 
 assist in dispersing, those who are assembled ; he may stay those who 
 are engaged in it from executing their purpose (e) ; he may stop and 
 prevent others whom he shall see coming up from joining the rest ; and 
 not only has he the authority, but it is his hounden duty as a good subject 
 of the King to perform this to the utmost of his ability. If the riot be 
 general and dangerous, he may arm himself against the evil doers to 
 keep the peace (/). Such was the opinion of the judges of England in 
 the time of Queen Elizabeth, '' the case of Arms" {g), although the judges 
 add that it would "be more discreet for everyone in such a case to attend 
 and be assistant to the justices, sheriffs, and other ministers of the King 
 in the doing of it." It would undoubtedly be more advisable so to do ; 
 for the presence and authority of the magistrate would restrain the 
 proceeding to such extremities until the danger were sufficiently immediate, 
 or until some felony was either committed, or could not be prevented 
 without recourse to arms ; and at all events the assistance given by men 
 who act in subordination and concert with the civil magistrate will be 
 more effectual to attain the object proposed than any efforts, however 
 well intended, of separated and disunited individuals. But if the occasion 
 demands immediate action, and no opportunity is given for procuring 
 the advice or sanction of the magistrate, it is the duty of every subject 
 to act for himself, and upon his own responsibility in suppressing a 
 riotous and tumultuous assembly ; and he may be assured that what- 
 ever is honestly done by him in the execution of that object will be sup- 
 ported and justified by the common law.' This charge was approved 
 in Phillips v. Eyre {h). 
 
 The duties of officers as to the suppression of rioters are thus laid 
 
 (y) 1 Rev. Stat. (2nd ed.) 180. (/) From this it would seem that they 
 
 (z) Ibid. 189. See Bristol Special Com- may use arms to suppress the riot in case 
 
 mission [1832], 3 St. Tr. (N. S.) 5 ; 5 C. & P. of necessity, where the riots savour of 
 
 264, Tindal, C.J. • rebellion (1 Hawk. c. 65, s. 11), or where a 
 
 (a) Ibid. 197. felony is about to be committed. Hand- 
 
 (6) ».e., the general levy of all able-bodied cock v. Baker, 2 B. & P. 265, Chambre, J. 
 
 men in the county. See Man. Mil. Law As to military intervention, see fost, p. 434. 
 
 (ed. 1907), 146. [g) Poph. 121. Cf. Kel. (.J.) 76. 
 
 (c) And see R. i'. Brown, C. & M. 314. [h) L. R. 6 Q.B. 15. WUles, J., deliver- 
 
 (,d) 3 St. Tr. (N. S.) 1, 4 ; 5 C. & P. 252, ing the judgment of the Exchequer 
 
 261. Chamber, 
 (e) See 1 Hawk. c. 65, s. 11.
 
 CHAP. I.] Riots, Routs, and Unlawful Assemblies. 433 
 
 down by Tindal, C.J., in the Bristol Riots case {i). ' Still further, by the 
 common law, not only is each private subject bound to exert himself to 
 the utmost, but every sheriff, constable, and other peace-officer, is called 
 upon to do all that in them lies for the suppression of riot, and each has 
 authority to command all other subjects of the King to assist him in 
 that undertaking. By an early statute, which is still in force (13 Hen. 
 IV. c. 7) (/), any two justices, with the sheriff or under-sheriff of the county, 
 may come with the power of the county, if need be, to arrest any rioters, 
 and shall arrest them ; and they have power to record that which they 
 see done in their presence against the law ; by which record the offenders 
 shall be convicted {k), and may afterwards be brought to punishment. 
 And here I must distinctly observe, that it is not left to the choice or will 
 of the subject, as some have erroneously supposed, to attend or not to the 
 call of the magistrate, as they think proper, but every man is hound when 
 called upon, under pain of fine and imprisonment, to yield a ready and 
 implicit obedience to the call of the magistrate and to do his utmost in 
 assisting him to suppress any tumultous assembly ' (l). For in the suc- 
 ceeding reign another statute (2 Hen. V., st. 1, c. 8) was passed which 
 enacts that the King's liege people being sufficient to travel in the counties 
 where such routs, assemblies, or riots shall be, shall be assistant to the 
 justices, commissioners, and sheriffs, and other officers upon reasonable 
 warning {m), to ride with them in aid to resist such riots, routs, and 
 assemblies on pain of imprisonment and to make fine and ransom to the 
 King (w). In later times the course has been for the magistrate on 
 occasions of actual riot and confusion, to call in the aid of such persons 
 as he thought necessary, and to swear them in as special constables ; 
 and in order to prevent any doubt, if doubt could exist, the statute 
 1 Geo. IV. c, 37, and (since that has been repealed by the statute 1 & 2 
 Will. IV. c. 41) (o) the statute last referred to has invested the magis- 
 trate with that power in direct and express terms when tumult, riot, or 
 felony was only likely to take place or might reasonably be apprehended.' 
 The magistrates may also call in the aid of the local militia {p), the yeo- 
 manry (q), and the reserve forces (f), and the territorial army (s), and 
 may obtain on requisition the aid of the regular army (t). Members of the 
 
 (i) 3 St. Tr. (N. S.) 1, 5 ; 5 C. & P. 262. rioters which may happen in suppressing 
 
 (j) Ante, p. 432. the riot is justifiable. Dalton, c. 82. 1 
 
 (k) In the same manner as is contained Hale, 495. 4 Bl. Com. 146, 147. Bristol 
 
 in the Statute of Forcible Entries. 5 Rich. Riots Charge, 3 St. Tr. (N. S.) 1, 6, Tindal, 
 
 II. Stat. 1, 0. 7, post, p. 442. C.J. R. v. Pinney, 3 St. Tr. (N. S.) 11. 
 
 (I) See R. V. Neale, 9 C. & P. 431 ; 3 St. (o) Special Constables Act, 1831. By 
 
 Tr. (N. S.) 1312, Littledale, J. s. 8, disobedience to the summons is specifi- 
 
 (m) The duty attaches even though pre- cally punishable. As to Ireland, see 2 & 3 
 
 cepts for the posse comitatus have not been Will. IV. c. 108. The powers of the Act 
 
 made out or signed. R. v. Pinney, 3 St. of 1831 were used during the Trafalgar 
 
 Tr. (N. S.) 11. Square disturbances in 1886. 
 
 (n) Under this Act it has been held that (p) 52 Geo. III. c. 38, ss. 42, 92, 94. 
 
 knights, gentlemen, yeomen, husbandmen, [q) 44 Geo. III. c. 54, s. 23 ; 66 Geo. III. 
 
 labourers, tradesmen, servants, apprcn- c. 39 ; 1 Edw. VII. c. 14, s. 1. See the 
 
 tices and aU others, except women, clergy- Peterloo riots, 1 St. Tr. (N. S.) 1071. 
 
 men, decrepit persons and infants under (r) 45 & 46 Vict. c. 48, s. 5. 
 
 fifteen, are bound to attend the justices on (s) See 7 Edw. VII. c. 9. 
 
 pain of fine and imprisonment, and that [t) See King's Regulations, ss. 948-968. 
 
 any battery, wounding, or killing of the Man. Mil. Law, c. xiii., ss. 34, 35. 
 
 VOL. I. 2 F
 
 434 Of Disturbances of the Fuhlic Peace. [booK vl. 
 
 militia and reserve and territorial forces, when called out in aid of the 
 civil power, are subject to military law (w). 
 
 The powers and duties of magistrates and police to disperse riots, &c., 
 do not depend on the making of the proclamation to disperse, the provisions 
 of the Riot Act being in aid, and not in supersession, of the common law [v), 
 and where the Riot Act has been read it does not interrupt or suspend 
 such powers and duties during the following hour {w). 
 
 In R. V. Kennett {x), the Lord Mayor of London was tried in 1780 
 for neglect of duty during the Gordon Riots by not reading the Riot Act 
 and releasing prisoners. 
 
 Upon an information against the Mayor of Bristol for neglect of 
 duty in not suppressing the Bristol riots in 1831, which was tried at bar, 
 it was laid down that the general rules of law require of magistrates 
 that at the time of riots they should keep the peace, restrain the rioters, 
 and pursue and take them ; and to enable them to do this, they may 
 call on all the King's subjects to assist them, which they are bound to 
 do upon reasonable warning ; and in point of law, a magistrate would be 
 justified in giving firearms to those who thus came to assist him, but it 
 would be imprudent in him to give them to those who might not know 
 their use, and who might be under no control, and who, not being used 
 to act together, might be cut off from the rest of the force, and the arms, 
 by those means, get into the hands of the rioters {y). 
 
 It is no part of the duty of a magistrate to go out and head the con- 
 stables, or to marshal and arrange them ; neither is it any part of his 
 duty to hire men to assist him in putting down a riot ; nor to keep a 
 body of men, as a reserve, to act as occasion may require ; nor is it any 
 part of his duty to give any orders respecting the firearms in gunsmiths' 
 shops. Nor is a magistrate bound to ride with the military : if he gives 
 the military officer orders to act, that is all that is required of him {z). 
 
 The justices have also powers, if a riot is apprehended or is proceeding, 
 to adjourn elections {a), or to close theatres (6), or public houses (c). 
 
 Military Forces of the Crown. — With respect to the powers, duties, 
 and responsibilities of soldiers in the suppression of riots, Tindal, C.J., 
 in the Bristol Riots case {d) thus stated the law : ' The law acknowledges 
 no distinction in this respect between the soldier and the private individual. 
 The soldier is stiU a citizen, lying under the same obligation, and invested 
 with the same authority to preserve the peace of the King as any other 
 subject (e). If the one is bound to attend the call of the civil magistrate, 
 so is the other ; if the one may interfere for that purpose when the 
 occasion demands it, without the requisition of the magistrate, so may 
 the other too ; if the one may employ arms for that-pvirpose, when arms 
 
 • 
 
 (w) 44 & 45 Vict. c. 58, s. 176 (5) ; 7 Parke, and Taunton, JJ. 
 
 Edw. VII. c. 9, s. 28. {z) R. v. Pinney, ibid. 
 
 [v) R. V. Fursey, 6 C. & P. 81 ; 3 St. Tr. (a) 2 & 3 Will. IV. c. 45, s. 30 ; 5"& fl 
 
 (N. S.) 543. Will. IV. c. 36, s. 8 ; 16 & 17 Vict. c. 15, 
 
 {w) R. V. Gordon, 21 St. Tr. 493. And s. 3 ; 35 & 36 Vict. c. 33, ss. 10, 15, 17. 
 
 see 2 St. Tr. (N. S.) 1029. (6) 6 & 7 Vict. c. 68, s. 9. 
 
 (x) 5 C. & P. 282 : 3 St. Tr. (N. S.) 506, (c) 35 & 36 Vict. c. 93, s. 23. 
 
 cit. And see Lord Advocate v. Stewart, [d) 3 St. Tr. (N. S.) 1. 
 
 18 St. Tr. 875. (e) See Burdett v. Abbot, 4 Taunt. 402. 
 
 (y) R. V. Pinney, 3 St. Tr. (N. S.) 11 ; 5 C. Redford v. Birley, 1 St. Tr. (N. S.) II 76. 
 & P. 254; 3 B. & Ad. 946, Littledale,
 
 CHAP. I.] Riots, Routs, and Unlawful Assemblies. 435 
 
 are necessary, the soldier may do the same. Undoubtedly the same 
 exercise of discretion which requires the private subject to act in subordin- 
 ation to and in aid of the magistrate, rather than upon his own authority, 
 before recourse is had to arms, ought to operate in a stronger degree 
 with a military force. But where the danger is pressing and immediate, 
 where a felony has actually been committed, or cannot otherwise be 
 prevented, and from the circumstances of the case no opportunity is 
 offered of obtaining a requisition from the proper authorities (/'), the 
 military subjects of the King not only may, but are bound to do their 
 utmost, of their own authority, to prevent the perpetration of outrage, 
 to put down riot and tumult, and to preserve the lives and property of 
 the people.' 
 
 The law as laid down in this charge was adopted in the Report on 
 the Featherstone Riots {g), where it is said that ' a soldier for the purpose 
 of establishing civil order is only a citizen armed in a particular manner. 
 He cannot, because he is a soldier, excuse himself if, without necessity, 
 he takes human life. A soldier can only act by using his arms. The 
 weapons he carries are deadly. They cannot be employed at all without 
 danger to life, and in these days of improved rifles and perfected ammuni- 
 tion, without some risk of injuring distant and possibly innocent 
 bystanders. . . . The whole action of the military when called in ought 
 to be based on the principle of doing, and doing without fear, that which 
 is absolutely necessary to prevent serious crime, and of exercising all 
 care and skill with regard to what is done ; and the presence of a magistrate, 
 while expedient, is not in the least necessary to entitle the military to 
 act, even by firing, to prevent felonious outrage or dangerous riot' (A). 
 From the right to suppress riots flows the right to use such force 
 as is reasonably necessary to disperse the rioters assembled (i). The 
 degree of force which may be used depends on the nature of the riot, 
 and must always be moderated and proportioned to the circumstances 
 of the case, and to the end to be obtained. The taking of life can only 
 be justified by the necessity of protecting persons or property against 
 various forms of violent crime, or by the necessity of dispersing a riotous 
 crowd which is dangerous unless dispersed, or in the case of persons 
 whose conduct has been felonious, through disobedience to the provisions 
 of the Riot Act {j), and who resist by force the attempt to disperse 
 and apprehend them {k). 
 
 Unlawful Assemblies. — What has been above stated as to riots is 
 also applicable to unlawful assemblies, even when no act of violence has 
 been committed (^), subject to the qualification that unless such assembly 
 is calculated to cause a serious breach of the peace, the action of officers 
 of the law or private persons towards its suppression must be limited 
 
 (/) Vide ante, p. 433. Regulations, §§ 948-968. 
 
 (g) Pari. Pap. 1893, c. 7234. The report (i) See R. v. Neale, 9 C. & P. 435. R. v. 
 
 was mainly the work of Lord Bowen. See Vincent, ubi sup. 
 
 the further report of 1908 (Pari. Pap. 1908, (j) Ante, p. 412. 
 
 c. 236), as to the employment of the mili- (k) Featherstone Riots Report (Pari, 
 
 tary to suppress riots. Pap. 1893, c. 7234), Lord Bowen. 
 
 (h) Cf. R. V. Pinney, 3 St. Tr. (N. S.) 11. (I) R. v. Vincent, 9 C. & P. 94, Alderson, 
 
 The duties of the military in aid of the B. 
 civil power are laid down in the King's 
 
 2f2
 
 436 Of Disturbances of the Public Peace. [booK: vi. 
 
 to what is reasonably needed to prevent a disturbance. The officers 
 of the law may order such assembly to disperse, arrest those who refuse 
 to disperse, stop others from joining them, and if resisted, use force to 
 compel obedience (m). Such resistance, if concerted, might amount 
 to riot {n). 
 
 Affrays. — Any person who sees others engaged in a fight or affray 
 may arrest them while still engaged in the fight, and detain them till 
 their passion has cooled and their desire to break the peace has ceased, 
 and then deliver them to a peace-officer ; and so any person may arrest 
 an affrayer after the actual violence is over, but whilst he shews a 
 disposition to renew it (o). The principle is that for the sake of the 
 preservation of the peace, any individual who sees it broken may restrain 
 the liberty of him whom he sees breaking it, so long as his conduct shews 
 that the public peace is likely to be endangered by his acts. Whilst 
 persons are assembled who have committed acts of violence, and the 
 danger of their renewal continues, the affray itself may be said to continue : 
 and during the affray a constable may, not merely on his own view, 
 but on the information and complaint of another, arrest the offenders, 
 and of course the person so complaining is justified in giving the charge 
 to the constable {jj). If either party is dangerously wounded in an 
 affray, and a bystander, endeavouring to arrest the other, is not able 
 to arrest him without hurting or even wounding him, he is in no way 
 liable to be punished, inasmuch as he is bound, under pain of fine and 
 imprisonment, to arrest such an offender, and either to detain him till 
 it appears whether the party will live or die, or to carry him before a 
 justice of peace {q). A constable is not only empowered, but bound 
 to do his best to stop an affray which occurs in his presence (r), and is 
 also bound, in case of need, to call for the assistance of others, who, on 
 refusal, are guilty of misdemeanor and liable to fine and imprisonment. 
 To support an indictment against a person for refusing to aid and assist 
 a constable in the execution of his duty in quelling a riot, it is necessary 
 to prove : (1) that the constable actually saw a breach of the peace 
 committed by two or more persons ; (2) that there was a reasonable 
 necessity for the constable calling upon other persons for their assistance 
 and support ; and (3) that the defendant was duly called upon to render 
 his assistance, and that, without any physical impossibility or lawful 
 excuse, he refused to give it. It is immaterial whether the aid of the 
 defendant, if given, would have proved sufficient or useful (s). In the 
 case of a violent quarrel in a house, the constable may break open the 
 
 (m) 1 Hawk. c. 65, s. 11. See particularly party, in thus doing what the law both 
 
 the charge of Tindal, C.J., to the Bristol allows and commends, he may well justify 
 
 grand jury, 3 St. Tr. (N. S.) 1, ante, p. 432. it ; inasmuch as he is no way in fault, and 
 
 (w) See R. v. Cunninghame Graham, 16 the damage done to the other was occa- 
 
 Cox, 420, ante, p. 412, 414. sioned by a laudable intention to do him a 
 
 (o) 1 Hawk. c. 63, s. 11, where it is kindness. 
 
 said that it seems clearly to follow, that if (p) See Timothy v. Simpson, 1 Cr. M. & 
 
 a man receive a hurt from either party, in R. 757. 
 
 thus endeavouring to preserve the peace, (q) 1 Hawk. c. 63, s. 12. 3 Co. Inst. 158. 
 
 he shall have his remedy by an action (r) See the charge of Tindal, C.J., ante, 
 
 against him ; and that upon the same p. 433. 
 
 ground it seems equally reasonable that if (s) R. t\ Brown, C. & M. 314. See R. 
 
 he unavoidably happen to hurt either r. Sherlock, L. R. 1 C. C. R. 20.
 
 CHAP. I.] Riots, Routs, mid Unlawful Assemblies. 
 
 437 
 
 doors to preserve the peace ; and if affrayers fly to a house, and he follow 
 with fresh suit, he may break open the doors to take them {t). And so 
 far is the constable entrusted with a power over all actual affrays, that 
 though 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 ; 
 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 
 in no way a party (u). If a constable sees persons either actually engaged 
 in an affray, as by striking, or offering to strike, by drawing their weapons, 
 &c., or upon the very point of entering upon an affray, as where one 
 threatens to kill, wound, or beat another, he may carry the offender 
 before a justice of the peace, to be dealt with according to law for his 
 offence. It is said that he ought not to arrest persons who are quarrelling 
 by words only, without any threats of personal hurt : and that he may 
 only in such a case command them to avoid fighting (v). At common 
 law (w), where the affray is over before the constable arrives, he cannot 
 without a justice's warrant arrest the affrayers (x), unless a felony has 
 been committed. But it would seem that where the affray has been 
 stopped by private enterprise before his arrival he may take over affrayers 
 arrested by private persons and carry them before a justice (y). 
 
 A justice of peace may and must do all such things for the suppression 
 
 (t) 1 Hawk. c. 63, ss. 13, 16. But, qu., 
 if a constable can safely break open the 
 doors of a dwelling house in such case, 
 without a magistrate's warrant. At least, 
 it would seem, there must be some circum- 
 stances of extraordinary violence in the 
 affray to justify him in so doing. 
 (u) Id. ibid. s. 15. 
 (v) Vide 1 Hawk. c. 63, s. 14. 
 (?<•) Cook ('. Nethercote, 6 C. & P. 741, 
 Alderson, B. See the Metropolitan Police 
 Act, 1839 (2 & 3 Vict. c. 47), s. 65, as to the 
 apprehension of persons on a charge of 
 aggravated assault committed out of sight 
 of a police officer. 
 
 (x) Cook V. Nethercote, supra. Fox v. 
 Gaunt, 3 B. & Ad. 798. R. v. Curvan, 1 
 Mood. 132. R. V. Bright, 4 C. & P. 387. 
 R. V. Light, D. & B. 332. R. v. Walker, 
 Dears. 358. See these cases, post, and 
 Cohen v. Huskisson, 2 M. & W. 477. 
 Baynes v. Brewster, 2 Q.B. 375. Webster 
 V. Watts, 11 Q.B. 311. In Timothy v. 
 Simpson, 1 Cr. M. & R. 757, the Court said : 
 ' the power of a constable to take into his 
 custody, upon a reasonable information of a 
 private person under such circumstances, 
 and of that person to give in charge, must 
 be correlative. Now, as to the authority 
 of a constable, it is perfectly clear that he 
 is not entitled to arrest in order himself to 
 take sureties of the peace, for he cannot 
 administer an oath. Sharrock v. Hanne- 
 raer, Cro. Eliz. 375, S.C. nom. Scarrett v. 
 Tanner, Owen, 105. But whether he has 
 that power in order to take before a magis- 
 trate, that ho may take sureties of the 
 peace, is a question on which the authori- 
 
 ties differ. Hale seems to have been of 
 opinion that a constable has this power (2 
 H. P. C. 89), and the same rule was laid 
 down at Nisi Prius by Lord Mansfield, in a 
 case referred to in 2 East, 306, and by 
 Buller, J., in two others, one quoted in the 
 same place, and another cited in 3 Camp. 
 421. On the other hand, there is a dictum 
 to the contrary in Brooke's Abridgment, 
 tit. ' Faux Imprisonment,' which is referred 
 to and adopted by Coke in 2 Inst. 52 ; and 
 in R. V. Tooley, 2 Ld. Raym. 1301, Holt, 
 C.J., expressed the same opinion. Eyre, 
 C.J., in Coupey v. Henley, 1 Esp. 540, does 
 the same, and many of the text-books state 
 that to be the law. Burn's Just. 258, tit. 
 'Arrest' (30th ed.) ; Bac. Abr. (D.) tit. 
 ' Trespass,' 53. 2 East, P. C. 506. 2 Hawk, 
 c. 13, s. 8. 
 
 (y) 1 Hawk. c. 63, s. 17, citing Lamb. 
 131, and Dalt. c. 8. Dalton says : 'every 
 private man, being present, may stay the 
 affrayers till their heat be over, and then 
 deliver them to the constables to imprison 
 them till they find surety for the peace ' : 
 which seems to imply that they may take 
 them before a justice, in order that they 
 may find such sureties : and as it seems 
 that the private individual might take 
 thera for that purpose before a justice, it is 
 but reasonable that the constables should 
 have the authority to take them likewise. 
 See atite, p. 433 ; and see Griffin v. Coleman, 
 4 H. & N. 265, as to a constable taking 
 before a magistrate, without due inquiry, a 
 man arrested and locked up by another 
 constable on a false charge of assault.
 
 438 Of Disturbances of the Public Peace. [book vi. 
 
 of an affray, which private men or constables are either enabled or 
 required by law to do. It would seem that he cannot, without a warrant, 
 authorise the arrest of any person for an affray out of his view, but 
 may issue his warrant to bring the offender before him, in order to compel 
 him to find sureties for the peace (z). 
 
 (2) 1 Hawk. c. 63, s. 19. Vide ante, p. 433, as to powers and duties of justices with 
 
 reference to riots.
 
 ( 438a ) 
 
 CANADIAN NOTES. 
 
 DISTURBANCES OF THE PUBLIC PEACE. 
 
 Biots, Bouts, Unlawful Assemblies, and Affrays. 
 Sec. 1. — Biots. 
 
 Definition. — Code sec. 88. 
 
 A procession having been attacked by rioters, the prisoner, one 
 of the processionists, and in no way connected with the rioters, w^s 
 proved during the course of the attack to have fired off a pistol on 
 two occasions, first in the air, and then at the rioters. So far as 
 appeared from the evidence the prisoner acted alone and not in con- 
 nection with any one else. It Avas held that a conviction for riot could 
 not be sustained. R. v. Corcoran (1876), 26 U.C.C.P. 134. 
 
 Where before the Code a person was indicted for a riot and assault, 
 and the jury found him guilty of a riot, but not of the assault 
 charged; it was held that the conviction for riot could not be sus- 
 tained, the assault, the object of the riotous assembly, not having 
 been executed; although the defendant might have been guilty of 
 joining in an unlawful assembly. R. v. Kelly (1857), 6 U.C.C.P. 372. 
 The present section makes it unnecessary that the object of the dis- 
 turbance should have been actually carried out if there has been a 
 tumultuous disturbance of the peace. 
 
 Inciting Indians to Biotous Conduct. — Code sec. 109. 
 
 Biotous Destruction of Property. — Code sec. 96. 
 
 Biotous Damage to Property. — Code sec. 97. 
 
 Sec. 3. — Unlawful Assemblies. 
 
 Definition. — Code sec. 87. 
 
 Punishment. — Code sec. 89. 
 
 It has been held in New Brunswick that it is not a ground for 
 quashing a conviction for unlawful assembly on .a certain day that 
 evidence of an unlawful assembly on another day has been improperly 
 received, if the latter charge was abandoned by the prosecuting coun- 
 sel at the close of the case, and there was .ample evidence to sustain 
 the conviction. R. v. Mailloux, 3 Pug. 493. 
 
 Evidence of the conduct of the accused persons on the day pre- 
 vious to their alleged unlawful assembly is not admissible on their 
 behalf to explain or qualify their conduct at the time of the alleged 
 offence. Ibid.
 
 438& Riots, Etc. [book vi. 
 
 Unlatvful Drillings. — Code sec. 98. 
 
 Attendance at Unlawful Drilling. — Code sec. 99. 
 
 Sec. 4. — Affrays. 
 
 Definition. — Code sec. 100. 
 Punishment. — Code sec. 100(2). 
 
 Sec. 6. — Suppression of Riots. 
 
 Suppression of Riots hy Magistrate. — Code sec. 48. 
 
 Suppression of Riot hy Persons Commissioned Thereto. — Code 
 sec. 49. 
 
 Suppression of Riot hy Persons Apprehending Serious Mischief. — 
 Code see. 50. 
 
 Obedience to Superior Officer in Suppression of Riot. — Code 
 sec. 51. 
 
 Punishment of Rioters. — Code sec. 90. 
 
 Reading of Riot Act. — Code sec. 91. 
 
 Penalty for Preventing Proclamation and for not Dispersing. — 
 Code sec. 92. 
 
 Duty of Officers, and Indemnification if Rioters do not disperse. — 
 Code sec. 93. 
 
 Neglect of Peace Officers to Suppress Riot. — Code sec. 94. 
 
 Punishment for neglecting to aid Peace Officers. — Code sec. 95. 
 
 Limitation of Prosecution. — Code sec. 1140. 
 
 Military Force of the Crown. — Code sec. 167. 
 
 The procedure governing the calling out of the militia in aid of 
 the civil power is contained in the Militia Act, R.S.C. (1906) ch. 41, 
 sees. 80-90, inclusive.
 
 ( 439 ) 
 
 CHAPTER THE SECOND. 
 
 OF CHALLENGING TO FIGHT. 
 
 The law does not recognise the right of two persons to agree to fight 
 or strike each other in a hostile manner with intent to wound or subdue 
 each other, consequently duels and prize fights are wholly illegal (a). 
 
 It is an indictable misdemeanor to challenge another, either by speech 
 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 letters for that purpose, full of reflections, and 
 insinuating a desire to fight [b). A duel in a public place is an affray (c) ; 
 and even in a private place it would seem if with seconds to be an un- 
 lawful assembly (d). It is no defence, though it may be a ground for 
 lighter punishment, to prove that the party challenging 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, and, even 
 mere incitement to fight, though under provocation, is in itself a mis- 
 demeanor, though no actual breach of the peace ensue from the 
 challenge (e). Where, after a prisoner had been convicted, his brother 
 went to the house of the foreman of the jury, and challenged him to 
 mortal combat, it was held that this was a high contempt of the 
 Court before which the trial was held, and punishable as such (/'). 
 
 The offence of endeavouring to provoke another to send a challenge 
 to fight is an indictable misdemeanor (g). In the case in which this was 
 decided the provocation was given in a letter containing libellous matter, 
 and the prefatory part of the indictment alleged that the defendant 
 intended to do the party bodily harm, and to break the King's peace. The 
 sending such letter was held to be an act done towards the procuring the 
 commission of the misdemeanor meant to be accompKshed (h). In such 
 a case where an evil intent accompanying an act is necessary to con- 
 stitute such act a crime, the intent must be alleged in the prefatory 
 or in some other part of the indictment ; but where the act is in itself 
 unlawful, the law infers an evil intent, and the allegation of such intent is 
 
 (a) R. V. Coney, 8 Q.B.D. 534, 553, 554, {h) The letter was : ' Sir,— It will, I con- 
 55(5, Hawkins, J. ; 563, rollock, B. elude, from the description you give of your 
 
 (b) 1 Hawk. c. 63, s. 3. 3 Co. Inst. 158. feelings and ideas with respect to insult, in 
 4 Bl. Com. 150. Hick's case, Hob. 215. a letter to Mr. Jones, of last Monday's date, 
 
 (f) Aiite, p. 427. bo sufficient for me to tell you, that in the 
 
 (d) Ante, p. 422. whole of the Carmarthenshire election busi- 
 
 (e) R. V. Rice, 3 East, 581. ness, as far as it relates to me, you have 
 (/) R. V. Martin, 5 Cox, 356 (Ir.), Pigot, behaved like a blackguard. I shaU e.xpect 
 
 C.B., and Pennefather, B. to hear from you on this subject, and will 
 
 (g) R. V. Philipps, G East, 4(i4. See also punctually attend to any appointment you 
 R. v. O'Brien, Smith & Batty (Ir. K.B.) 79 ; may think proper to make.' See ante, 
 3 Chit. Cr. L. 848. For punishment, vide pp." 140, 203. 
 
 (inte, p. 249.
 
 440 Of Disturbances of the Public Peace. [book vi. 
 
 merely matter of form, and need not be proved by extrinsic evidence on 
 the part of the prosecution [i). 
 
 In substance the offences above stated are mere examples of the 
 general rule of law that it is a misdemeanor to incite another to commit a 
 criminal offence {j). 
 
 Mere words of provocation, as ' liar ' and ' knave,' though motives 
 and mediate provocation for a breach of the peace, yet do not tend imme- 
 diately to the breach of the peace, like a challenge to fight, or a threat 
 to commit a battery (k). But words directly tending to a breach of the 
 peace may be indictable ; as if one man challenge another by words ; [l) 
 and if it can be proved that the words used were intended to provoke 
 the party to whom they were addressed to give a challenge, the case 
 would seem to fall within the same rule (m). 
 
 Where a person wrote a letter with intent to provoke a challenge, 
 sealed it up, and posted it in Westminster, addressed to the prosecutor in 
 the city of London, by whom it was there received ; Ellenborough, C.J.. 
 held that the defendant might be indicted in Middlesex, as there was a 
 sufficient publication in that county by putting the letter into the post- 
 office there with the 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 [n). 
 
 Criminal informations for sending challenges have often been granted 
 in the High Court (o) ; but where it appeared, upon the affidavits, that the 
 party applying for an information had himself given the first challenge, 
 the Court refused to proceed against the other party by way of information 
 and left the prosecutor to his ordinary remedy by action or indictment (p). 
 A rule to show 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 sufficiently verified (q). 
 
 The punishment for this misdemeanor is fine and (or) imprisonment 
 without hard labour, at the discretion of the Court, which will be guided 
 by such circumstances of aggravation or mitigation as are to be found in 
 each particular case (r). 
 
 (i) E. V. Philipps, 6 East, 464, 470-475. (r) R. v. Rice, 3 East, 584. In that case 
 
 (i) Steph. Dig. Cr. L. (6th ed.) p. 54n. the defendant (though he had undergone 
 
 ante, Bk; i. c. vi. p. 203. some imprisonment, and though there were 
 
 (k) William King's case, 4 Co. Inst. 181. several circumstances tending materially to 
 
 (I) R. V. Langley, 6 Mod. 125 ; 2 Ld. mitigate his offence) was sentenced to pay a 
 
 Raym. 1031. fine of £100, and to be imprisoned for one 
 
 (m) The rule given in 3 Co. Inst. 158, is calendar month, and at the expiration of 
 
 —Quando aliquid prohibetur, prohibetur et that time to give security to keep the peace 
 
 omne per quod devenitur ad illud. for three years, himseM in £1000 and two 
 
 (n) R. V. Williams, 2 Camp. 506. West- sureties in £250 each, and to be further im- 
 
 minster, then a liberty of Middlesex, is now prisoned till such fine was paid and such 
 
 an integral part of the county of London, securities given. Hawkins (1 P. C. c. 63, 
 
 which is stiU, for judicial purposes, distinct s. 21), speaking of the pernicious conse- 
 
 from the City of London. quence of duelling, says : ' L'pon which 
 
 (o) The procedure is regulated by the considerations persons convicted of barely 
 
 Crown Office Rules, 1906. See r. 37. sending a challenge have been adjudged to 
 
 (p) R. V. Hankey, 1 Burr. 316, where it pay a fine of £100, and to be imprisoned 
 
 is said that the Court held that it might for one month without bail, and also to 
 
 have been right to have granted cross in- make a public acknowledgment of their 
 
 formations, in case each party had appUed offence, and to be bound to their good 
 
 for an information against the other. behaviour.' 
 
 (?) R. V. Chappel, 1 Burr. 402.
 
 ( 440« ) 
 
 CANADIAN NOTES. 
 
 OF CHALLENGING TO FIGHT. 
 
 Duels. — Code sec. 101. 
 
 Prize Fights. — Code sec. 104. 
 
 Principal in Prize Fight. — Code sec. 105. 
 
 Attending or Promoting. — Code sec. 106. 
 
 Leaving Canada to Engage in Prize Fight. — Code sec. 107. 
 
 When Fight is not Prize Fight. — Code sec. 108. 
 
 Discharge of Person after Failure to Give Sureties not to Engage 
 in Prize Fight.- — Code sec. 1059. 
 
 A sparring match with gloves, under Queensberry or similar rules 
 given merely as an exhibition of skiU .and without any intention to 
 fight until one is incapacitated by injury or exhaustion is not a "prize 
 fight" under Code sees. 105 and 2(31) ; to constitute a "prize fight" 
 there must have been a previous arrangement for a "fight" in the 
 ordinary sense of the term, and that involves an intention to continue 
 the encounter until one or the other of the combatants gives in from 
 exhaustion or from injury received. R. v. Littlejolm, 8 Can. Cr. Cas. 
 212. 
 
 The defendants advertised a boxing exhibition which was effec- 
 tively held in a public hall, and was accompanied by all the particu- 
 lars and circumstances of a prize fight. Complainant submitted that 
 the accused came within the provision of the statute ; and on behalf of 
 the defendants it was contended that the encounter was merely a 
 scientific boxing match, and, moreover, only a sham fight, not forbid- 
 den by law. Held, that as the proof adduced established that the en- 
 counter in question was accompanied by all the circumstances and 
 elements which constitute a prize fight, the defendants committed an 
 infraction of the law, for which they must be found guilty. Steele 
 V. Maber, 6 Can. Cr. Cas. 445..
 
 ( 441 ) 
 
 CHAPTER THE THIRD. 
 
 OF FORCIBLE ENTRY AND DETAINER. 
 
 Sect. I. — Common Law. 
 
 A FORCIBLE entry or detainer is committed by violently taking or keeping 
 jDossession of lands and tenements with menaces, force, and arms, and 
 without the authority of the law {a). At common law, and before the 
 2)assing 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 retain possession by force, where his entry was lawful (6). 
 And a person wrongfully dispossessed of his goods may justify the retaking 
 of them by force from the wrong-doer, if he refuses to redeliver them (c). 
 In many cases, however, an indictment will lie at common law for a 
 forcible entry if it contains not merely the common technical words, 
 ' with force and arms,' but also if the facts charged shew actual force, 
 violence, unlawful assembly, riot, or other circumstances amounting 
 to something more than a bare trespass [d). In R, v. Wilson (e), Kenyon, 
 C. J., laid it down that no one may with force and violence assert his own 
 title. But on a subsequent day of the same term he said that the Court 
 wished that the grounds of their opinion in that case might be understood, 
 and 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 here- 
 after arise respecting what Mr. Serjeant 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 disproved whenever that question 
 
 (a) 4 Bl. Com. 148. 7 T. R. 431, the entry made was by the 
 
 (6) 13 Vin. Abr. 379. Dalt. Just. 297. landlord's putting his cattle on the ground 
 
 Lamb. 135. Crom. 70 a, b. 2 Hawk. o. 64, after the expiration of the tenant's term, 
 
 ss. 1, 2, 3. Bae. Abr. tit. ' Forcible Entry and was entirely peaceable ; but Kenyon. 
 
 and Detainer.' C.J., said : ' If the landlord had entered 
 
 (c) 1 Hawk. c. 64, s. 1. Blades v. Higgs, with a strong hand to dispossess the tenant 
 
 10 C. B. (N. 8.) 713, 721, where the servants by force, he might have been indicted for a 
 
 of the owner of land were held justified in forcible entry.' In Turner v. Meymott, 
 
 taking from a stranger game unlawfully 1 Bing. 158; 7 Moore (C. P.), 574, where 
 
 killed on the land. the landlord had broken into an empty 
 
 {d) R. V. Bake. 3 Burr. 1731. R. i\ house after the expiration of the tenant's 
 
 Bathurst, Say. 225, referred to in R. v. term, but before the tenant had delivered 
 
 Storr, 3 Burr. 1699, 1702. In R. v. Wilson, up possession, it was held that as against 
 
 8 T. R. 357, an indictment charging the the tenant he had a right to enter ; but 
 
 defendants (twelve in number) with having Dallas, C.J., said : ' If he has used force, 
 
 unlawfully and with a strong hand, entered, that is an offence of itself, but an offence 
 
 &c., was held good. Vide ante, Bk. i. c. ii, against the public for which, if he had done 
 
 p. 16, as to mere trespass not being in- wrong, he may be indicted.' 
 
 dictable. (^f) 1 Hawk. c. 64, s. 1. 
 
 (e) 8 T. R. 361. In Taunton v. Costar,
 
 442 Of Disturbances of the Public Peace. [book vi. 
 
 shall 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 ' (g). There is now no doubt that a party may 
 be guilty of a forcible entry by violently, and with force, entering into that 
 to which he has a legal title (h). But where a breach of the peace is com- 
 mitted by a freeholder, who, in order to get into possession of his land, 
 assaults a person wrongfully holding possession of it against his will, 
 although the freeholder may be liable to indictment for a forcible entry, 
 he is not civilly liable to the person wrongfully holding possession (i). 
 
 Sect. II. — Undek the Statutes of Forcible Entry. 
 
 Whatever may be the true doctrine upon this subject at common law, 
 the statutes which have been passed respecting forcible entries and 
 detainers are clearly intended to restrain all persons from having re- 
 course to violent methods of doing themselves justice ; and it is the 
 more usual and effectual method to proceed upon these statutes, which 
 give restitution and damages to the party aggrieved. 
 
 By a statute of 1381 (5 Rich. 11. stat. i, c. 7) (j), ' The King def endeth 
 that none from henceforth make any entry into any lands and tenements, 
 but in case where entry is given by the law, and in such case not with 
 strong hand, nor with multitude of people, but only in peaceable and 
 easy manner. And if any man from henceforth do to the contrary, 
 and thereof be duly convict, he shall be punished by imprisonment of 
 his body, and thereof ransomed {k) at the King's will.' This statute 
 gave no speedy remedy, leaving the party injured to proceed by indict- 
 ment (l) ; and made no provision at all against forcible detainers. By a 
 statute of 1391 (15 Rich. II. c. 2), it is enacted, that if complaint of forcible 
 entry into lands and tenements, or other possessions whatsoever, ' cometh 
 to the justices of peace or to any of them, the same justices or justice take 
 sufficient power of the county, and go to the place where such force is 
 made ; and if they find any that hold such place forcibly after such entry 
 made, they shall be taken and put in the next gaol, there to abide convict 
 by the record of the same justices or justice, imtil they have made fine 
 
 ig) 8 T. R. 364. further, Lows v.' TeKord, 1 A.C. 414. 
 
 (h) In Newton v. Harland, 1 M. & Gr. Butcher r. Butcher, 7 B. & C. 399. Hillary 
 
 fi44, Court of Common Pleas seems to have v. Gay, 6 C. & P. 284. Davison v. Wilson, 
 
 been of opinion that a landlord who entered 11 Q.B. 890. Burling v. Read, 11 Q.B. 
 
 forcibly into the house of a tenant after the 904. Pollen v. Brewer, 7 C. B. (N. S.) 371. 
 
 expiration of his term, would be guilty of R, v. Studd, 14 L. T. (N. S.) 633. Taylor 
 
 a forcible entry, both at common law and v. Cole, 3 T. R. 295. 
 
 under the statutes ; and the only doubt [i) Harvey v. Bridges, supra, Parke, B. 
 
 was whether, supposing there was such a (j) C. viii. in Ruffhead's edition, 
 
 forcible entry upon a tenant after the ex- (k) i.e., fine at the discretion of the 
 
 piration of the term, the possession thereby Court. 
 
 obtained was legal. There has been con- (?) There is no civil remedy given by the 
 
 siderable discussion as to whether Newton statute for the forcible entry (Beddall v. 
 
 V. Harland is good law on the question Maitland, 17 Ch. D. 174, Fry, J.), although 
 
 whether an action lay for the forcible entry. such a remedy is available for independent 
 
 This is denied in Harvey v. Bridges, 14 M. wrongful acts, e.g., assault (Newton v. Har- 
 
 & W. 437 ; Blades v. Higgs, 10 C. B. (N. S.) land, 1 M. & G. 644), or damage to furni- 
 
 713; Beddall v. Maitland, 17 Ch. D. 174; ture (Beddall v. Maitland, iibi sup.). But 
 
 and in Smith, L.O. (11th ed.) 138, 139, See see Jones v. Foley [1891], 1 Q.B. 730.
 
 CHAP. III.] Of Forcible Entry and Detainer. 443 
 
 and ransom to the King (m) : and that all the people of the county, as well 
 the sheriffs as other, shall be attendant upon the same justices to go and 
 assist the same justices to arrest such offenders upon pain of imprison- 
 ment, and to make fine to the King. And in the same manner it shall be 
 done of them that make such forcible entries in benefices or offices of holy 
 church.' This statute gave no remedy against those who were guilty of 
 a forcible detainer after a peaceful entry (n), 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 (o), and it gave no power to the 
 justices to restore the party injured to his possession, and did not impose 
 any penalty on the sheriff for disobeying the precepts of the justices in 
 the execution of the statute (p). 
 
 It was, therefore, found necessary to provide by a statute of 1429 
 (8 Hen. VI. c. 9), after reciting the above defects of the Act of 1391, that 
 it should be confirmed and extended to forcible detainers, and it was 
 enacted as follows : — 
 
 ' Though that such persons making such entry be present or else 
 departed before the coming of the justices or justice, notwithstanding 
 the same justices or justice, in some good town next to the tenements so 
 entered, or in some other convenient place, according to their discretion, 
 shall have or either of them shall have authority and power to inquire, 
 by the people of the same county, as well of them that make such forcible 
 entries into lands and tenements as of them which the same hold with 
 force ; and if it be found before any of them that any doth contrary to this 
 statute, then the said justices or justice shall cause to re-seise the lands 
 and tenements so entered or holden as afore, and shall put the party 
 so put out in fuU possession of the same lands and tenements so entered 
 or holden as before.' After making provision concerning the precepts of 
 the justices to the sheriff to return a jury to inquire of forcible entries, the 
 qualification of the jurors {q), and the remedy by action against those who 
 obtain forcible possession of lands, &c., the statute enacts, that 'mayors, 
 justices or justice of peace, sheriffs and bailiffs of cities, towns, and bor- 
 oughs (r), having franchise, have in such cities, &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.' The statute concludes with a 
 proviso that ' they which keep their possessions with force in any lands 
 and tenements, whereof they or their ancestors, or they whose estate they 
 have in such lands and tenements, have continued their possessions in the 
 same by three years or more, be not endamaged by force of this statute.' 
 This proviso is further confirmed by an Act of 1588 (31 Eliz. c. 11), which 
 enacts that ' no restitution, upon any indictment of forcible entry, or 
 holding with force, be made to any person or persons, if the person or 
 persons so indicted hath had the occupation, or hath been in quiet pos- 
 session, by the space of three whole years together, next before the day 
 
 [m) As to imposing and levying fines (p) Ibid, 
 
 under this statute, see 1 Hawk. c. 64, s. 8, and (7) These qualifications arc abolished by 
 
 the cases collected in Bac. Abr. tit. 'Forcible the Juries Act, 1825 (6 Geo. IV. c. 50). 
 Entry and Detainer' (A.) in the notes. (r) This gives borough quarter sessions 
 
 (n) See recital of 8 Hen. VI. c. 9. jurisdiction over forcible entry and de- 
 
 (o) Ibid. tainer.
 
 444 Of Disturbances of the Public Peace. [book vi. 
 
 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 allege 
 for stay of restitution, and restitution to stay until that be tried, if the 
 other will deny or traverse the same ; and if the same 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.' 
 Summary Jurisdiction. — The Act of 1391 (15 Kich. II., c. 2), gives 
 magistrates jurisdiction to convict summarily on their own view in cases 
 of forcible detainer only where there had been a previous forcible entry, 
 so that, notwithstanding that statute, a party who had acquired the 
 possession of lands peaceably but unlawfully, could detain them forcibly 
 without incurring any criminal liability (5). 8 Hen. VI. c. 9 gives justices 
 summary jurisdiction only in cases of forcible detainer, ineceded by an 
 unlawful entry, and therefore a conviction by justices on that statute 
 merely stating an entry and a forcible detainer is insufficient {t). 
 
 Summary convictions under the statutes were at all times rare, and 
 the parties usually sought restitution by indictment (w). On these statutes 
 it has been held, that if a lessee for years or a copyholder is ousted, and 
 the lessor or lord disseised, and such ouster, as well as disseisin, is found 
 in an indictment of forcible entry, the Court may, in their discretion, 
 award restitution of the possession to the lessee or copyholder ; which 
 was, by necessary consequence, a re-seisin of the freehold also, whether 
 the lessor or lord had desired or opposed it. But it was disputed whether 
 a lessee for years or a copyholder, ousted by the lessor or lord, could have 
 a restitution of their possession within the equity of 8 Hen. VI., c. 9, the 
 words of which are, that the justice ' shall cause to re-seise the lands,' &c., 
 by which it seems to be implied that the party must be ousted of an 
 estate whereof he may be said to be seised, which must at least be a 
 freehold. To remove this doubt, 21 Jac. I. c. 15 enacted that such 
 judges, justices, or justice of the peace as by reason of any Act of 
 Parliament then in force were authorised and enabled upon inquiry 
 to give restitution of possession to tenants of any estate of freehold 
 of their lands, &c., entered upon by force or withhold en by force, shall 
 have the like authority (upon indictment of such forcible entry or 
 forcible withholding before then duly found) to give like restitution of 
 possession to ' tenants for term of years, tenants by copy of Court roll, 
 guardians by knight's service, tenants by elegit, statute merchant and 
 staple.' A tenant by the verge has been held not to be within this statute : 
 but this decision has been questioned ; as such person, having no other 
 evidence of his title than the copy of Court roll, seems at least to be 
 within the meaning, if not within the words, of the statute {v). 
 
 If a lessor ejects his lessee for years, and is afterwards forcibly put 
 out of possession again by such lessee, he cannot obtain a restitutiou 
 
 («) R. V. Oakley, 4 B. & Ad. 307. v. Joliffe, 3 Sess. Cas. 116. 
 
 (t) Id. ibid. See R. v. Wilson, 1 A. & E. {u) R. v. Wilson, 3 A. & E. 817, 829, 
 
 627. R. V. Wilson, 3 A. & E. 817 ; and as Denman, C.J. 
 to the form of such a conviction, Attwood {v) 1 Hawk. c. 64, s. 17,
 
 CHAP, ill.] Of Forcible Entry and Detamer. 445 
 
 under the statutes : but a justice of peace, it would seem, may remove 
 the force, and commit the offender (iv). 
 
 The law upon these statutes may be further considered with reference — 
 I. To the persons who may commit the offence, infra. 
 II. To the nature of the possessions in respect of which it may be 
 committed, p. 446. 
 
 III. To the acts which will amount to a forcible entry, p. 446. 
 
 IV. To the acts which amount to a forcible detainer, p. 448. 
 
 The principle of the statutes is to require resort to the Courts by 
 persons seeking to enforce a right of entry on land, unless they are in 
 a position to enter in a peaceable and easy manner (x). 
 
 Where the person who has the legal title to land is in actual possession, 
 any attempt to eject him by force falls within the statutes of forcible 
 entry. This rule applies even if the possession has only just begun, or 
 has been acquired by forcing open a lock, and even where the ejector 
 sets up a claim to possession (y). 
 
 And a licence by tenant to landlord to eject him without legal 
 process has been held void, as in effect or licence to break the statutes 
 (5 Rich. II. St. 1, c. 7) (2). 
 
 I. A man who forcibly enters into a tenement of which he is the sole 
 and lawful possessor, e.g., who breaks open the doors of his own dwelling- 
 house, or of a castle, which is his own inheritance, but forcibly detained from 
 him by one who claims the bare custody of it, is not guilty of a forcible 
 entry or detainer within the statutes (a). A wife was indicted with 
 others for a forcible entry into a house, which she had taken for herself, 
 but of which her husband had afterwards, with the landlord's consent, 
 obtained possession, and it was objected that a wife could not be guilty 
 of a forcible entry into the house of her husband. Tenterden, C.J., 
 said : ' although a wife certainly cannot commit a trespass on the property 
 of her husband, I am by no means satisfied that, if she comes with strong 
 hand, she may not be indictable for a forcible entry, which proceeds on 
 the breach of the public peace . . . ' ' As at present advised I think 
 she may be guilty of a forcible entry, if her entry was made under cir- 
 cumstances of violence amounting to a breach of the public peace ' (6). 
 A joint tenant or tenant in common may offend against the statutes 
 either by forcibly ejecting or forcibly keeping out his co-tenant ; for 
 though the entry of such a tenant is lawful -per my et per tout, so that he 
 is not liable to an action of trespass at common law, yet the lawfulness of 
 his entry does not excuse the violence, or lessen the injury, done to his 
 co-tenant ; and, consequently, an indictment of forcible entry into a 
 moiety of a manor, &c., is good (c). Where a man has been long in posses- 
 sion of land under a defeasible title, and a claim is made by him who has 
 
 (w) 1 Hawk. c. 64, ss. 17, 18. the possession of hLs own tenant at will. 
 
 (z) Lows V. Telford [187G], 1 A.C. 414, It would seem that forcible entry, even 
 
 426. And cf. Harvey v. Bridges, 14 M. & against a tenant at will, is indictable within 
 
 W. 442. the statutes. See R. v. Wilson, 8 T. R. 
 
 (y) Edwick v. Hawkes, 18 Ch. D. 199, 357, 364. Taunton v. Costar, 7 T. R. 431. 
 
 212, Fry, J. Turner v. Meymott, 1 Bing. 158. Lows i-. 
 
 (z) Edwick V. Hawkes, 18 Ch. D. 199. Telford [1876], 1 App. Cas. 414. BeddaU 
 
 (a) Bac. Abr. tit. ' Forcible Entry, &c., r. Maitland, 17 Ch.D. 174. 
 
 (D). 1 Hawk. c. 64, s. 32, where it is (b) R. v. Smyth, 1 M. & Rob. 155 ; 5 C. 
 
 queried whether a man will be within the & P. 201. And see Doe v. Daly, 8 Q.B. 934. 
 
 statutes who forcibly enters into land in (c) 1 Hawk. c. 64, s. 33.
 
 446 Of Disturbances of the Public Peace. tBooK VI. 
 
 a right of entry, if the wrongful possessor continues his occupation, he 
 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 (d). It does not follow 
 from the decision in R. v. Oakley (e) that 8 Hen. VI. c. 9, does not apply 
 to the case of a tenant at will or for years, holding over after the will 
 is determined or term expired, because the continuance in possession 
 afterwards may amount in judgment of law to a new entry ( /'). 
 
 II. A person may be guilty of forcible entry into ecclesiastical 
 possessions, as churches, vicarage houses, &c. {g). And as a general rule, 
 a person may be indicted for forcible entry into any incorporeal here- 
 ditament for which a writ of entry would lie, either by the common law, as 
 for rent, or by statute, as for tithes, &c. It is, however, questioned 
 whether there is any good authority that such an indictment will lie 
 for a common or office ; though it seems agreed that an indictment of 
 forcible detainer lies against any one, whether he be the tenant or a 
 stranger, who forcibly disturbs the lawful jDroprietor in the enjoyment of 
 such possessions ; as by violently resisting a lord in his distress for a rent, 
 or by menacing a commoner with bodily hurt, if he dares to put in his beasts 
 into the common, &c. No one comes within the statutes by violence offered 
 to another in respect of a way, or other easement which is no possession. 
 And it seems that a man cannot be convicted, upon view, under 15 Rich. 
 IT. c. 2, of a forcible detainer of any incorporeal hereditaments wherein 
 he cannot be said to have made a precedent forcible entry (h) . 
 
 L. was mortgagee in fee of a dwelling-house, the possession being 
 left in the mortgagor. The mortgagor while in possession let the house 
 to T. for a goods store. It was otherwise unoccupied. Early one morning, 
 during the continuance of T.'s tenancy, L., without giving any notice 
 to the mortgagor or to T., went to the house, in company with a carpenter 
 and another man. The carpenter opened the front door, and the other 
 man entered the house. L. and the carpenter remained on the doorstep, 
 the latter being employed in putting on a new lock. While this was 
 happening, T., and his brother-in-law, W., with several other persons 
 came up, and T. and W. climbed into the house through a window, 
 and after a slight struggle expelled L. and his men from the premises. 
 L. indicted T. and W. and others for a forcible entry, riot, affray, and 
 assault. T. and W. were tried and acquitted. They defended them- 
 selves by the same solicitor, and incurred joint costs. T. and W. then 
 brought an action against L. for malicious prosecution, and obtained a 
 verdict. It was held in the House of Lords that there was reasonable 
 and probable cause for the prosecution, inasmuch as the facts shewed 
 that T. and W. were, at the time of the expulsion of L., disturbing a 
 possession which had been lawfully acquired by him {i). 
 
 (d) 1 Hawk. c. 64, s. 34 ; Q-om. 69 ; but vide ante, p. 445, note («). 
 
 Co. Lit. 256. (g) See the terms of 15 Rich. II. c. 2, 
 
 (e) 4 B. & Ad. 307, ante, p. 444. ante, p. 442, and Baude's case, Cro. Jac. 41. 
 (/) 4 B. & Ad. 307, 312, Parke, J. In {h) 1 Hawk. c. 64, s. 31. Bac. Abr. tit. 
 
 R. V. Bathurst, Say. 225, it is said that ' Forcible Entry, &c.' (C). But see 13 Vin. 
 
 forcible entry on lands in possession of a Abr. 381. 
 
 tenant at will is not within the statute : (<) Lows v, Telford, 1 App. Cas. 414.
 
 CHAP. III.] Of Forcible Entry and Detainer. 447 
 
 III. A forcible eyitry must be with a strong hand, coming with a 
 multitude of people or any excessive number of persons, or with unusual 
 weapons, or with menace of life or limb ; it must 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 the statutes (/). 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 
 refuses to relinquish his possession ; but also in respect of any other 
 violence in the manner of the entry, as by breaking open the doors of a 
 house, whether any person be in at the time of not, especially if it be a 
 dwelling-house (k), and perhaps also by any act of outrage after the entry, 
 as by carrying away the party's goods, &c., which if found in an assize of 
 novel disseisin, made the defendant a disseisor with force, and liable to 
 fine and (or) imprisonment (/). It is a forcible entry for a man to enter by 
 force to distrain for arrears of rent, because, though he does not claim 
 the land itself, yet he claims a right and title out of it, which by the statutes 
 he is forbidden to exert by force. But if a man who has a rent is 
 resisted from his distress with force, this is a forcible disseisin of the 
 rent, for which he may recover treble damages in an assize, or may fine 
 and imprison the party ; but he cannot have a writ of restitution ; for 
 the statutes do not give the justices power to reseise the rent, but only 
 the lands and tenements themselves im). If one finds a man out of his 
 house, and forcibly keeps him out of it, and sends persons to take peace- 
 able possession of it in the party's absence, this seems to be a forcible 
 entry {n). And there may be a forcible entry where any person's wife, 
 children, or servants, are upon the lands to preserve the possession ; 
 because whatever a man does by his agents is his own act ; his posses- 
 sion is not preserved by having his cattle on the ground, because they 
 are not capable of being substituted as agents (o). 
 
 Whenever a man, either by speech or conduct, at the time of entry, 
 gives those in possession of the tenements, which he claims, just cause 
 to fear that he will do them some bodily hurt, if they will not give way to 
 liim, his entry is deemed forcible ; whether he causes such a terror by 
 carrying with him an unusual number of servants, or by arming himself 
 in such a manner as plainly indicates a design to back his pretensions 
 by force, or by actually threatening to kiU, maim, or beat those who 
 shall continue in possession, or by giving out such speeches as plainly 
 imply a purpose of using force against those who shall make any resist- 
 ance (2^). It is not necessary that any one should be assaulted ; for it is 
 sufficient if the entry is with such number of persons and show of force 
 as is calculated to deter the rightful owner from sending them away, and 
 resuming his own possession {q). But forcible entry is not proved by 
 
 (;') Bac. Abr. tit. ' Forcible Entry, &c.' ground that no violence was done to the 
 
 (D.) 1 Dalt. 29.3 ; 1 Hawk. c. (54. s. 25. house, but only to the person of the party. 
 
 (k) R. V. Bathurst, Sayer, 225. (o) Bac. Abr. tit. ' Forcible Entry, &e.' 
 
 [l] 1 Hawk. c. 64, s. 26. R. r. Jopson, (B.). Taunton r. Costar, 7 T. R. 431, ante, 
 
 3 Burr. 1702 cit. p. 441 note (e). Turner v. Meyniott, 1 Bing. 
 
 (m) Bac. Abr. tit.' Forcible Entry,&c.'(B.). 158. 
 
 (n) 1 Hawk. c. 64, s. 26, where it is given (p) 1 Hawk. c. 64, s. 27. 
 
 as the author's opinion ; and conti-ary {q) Milner v. Maclean, 2 V. & P. 17, 
 
 opinions are noticed proceeding on the Abbott, C.J.
 
 448 Of Disturbances of the Public Peace. [book vi. 
 
 evidence of a mere trespass, there must be proof of such force, or at 
 least such a show of force, as is calculated to prevent any resistance (r). 
 ' If one enters peaceably, and when he is come in useth violence, this is 
 a forcible entry' {s). Thus, if a man enters peaceably, yet if he turns 
 the party out of possession by force, or frightens him out of possession 
 by threats, it is a forcible entry {t). But threatening to spoil the party's 
 goods, or destroy his cattle, or to do him any like damage, which is not 
 personal, if he will not quit the possession, seems not to amount to a 
 forcible entry (w). 
 
 If a person who pretends a title to lands, merely goes over them, 
 either with or without a great number of attendants, armed or unarmed, 
 in> his way to the church, or market, or for a like purpose, without doing 
 any act which either expressly or impliedly amounts to a claim of the 
 lands, he does not ' enter ' within the meaning of the statutes ; otherwise 
 if he make an actual claim with any circumstances of force or terror [v). 
 Drawing a latch and entering a house seems not to be a forcible entry [w), 
 e.g., if a man opens the door with a key, or enters by an open window, 
 or if the entry is without the semblance of force, as by coming in peace- 
 ably, enticing the owner out of possession, and afterwards excluding him 
 by shutting the door, without other force {x). 
 
 A single person may commit a forcible entry as well as a number {y). 
 But all who accompany a man when he makes a forcible entry are deemed 
 to enter with him, whether they actually come upon the lands or not (2). 
 So, if several come in company where their entry is not lawful, and all, 
 except one, enter in a peaceable manner, and that one only uses force, 
 it is a forcible entry in them all, because they came in company to do 
 an unlawful act ; but it is otherwise where one had a right of entry, for 
 there they only come to do a lawful act, and therefore it is the force 
 of him only who used it (a). And a person who barely agrees to a forcible 
 entry made for his benefit, but without his knowledge or privity, is not 
 within the statutes, because he did not concur in or promote the force (6). 
 
 IV. Forcible detainer is where a man, who enters peaceably, after- 
 wards detains his possession by force ; and the same circumstances of 
 violence or terror which will make an entry forcible, will also make a 
 detainer forcible. It seems to follow that whoever keeps in his house an 
 unusual number of people, or unusual weapons, or_threatens to do some 
 bodily hurt to the former possessor, if he dare return, is guilty of a forcible 
 detainer, though no attempt is made to re-enter ; and it has been said 
 that he also will come under the like construction who places men at a 
 distance from the house in order to assault anyone who shall attempt 
 to make an entry into it ; and that he is in like manner guilty who shuts 
 
 (r) R. V. Smyth, 5 C. & P. 201, Tenter- upon this point. Beade v. Orme, Noy, 
 
 den, C.J. 136 ; Bae. Abr. tit. ' Forcible Entry, &c.' 
 
 (5) Vin. Abr. xiii. 380, approved by (B.) ; 1 Hawk. c. 64, s. 26. 
 Fry, J., in Edwick v. Hawkes, 18 Ch.D. [x) Com. Dig. tit. ' Forcible Entry, &c.' 
 
 199,211. (A.) 3. 
 
 (<) Bac. Abr. tit. ' Forcible Entry, &c.' {y) Id. (A.) 2. 1 Hawk. c. 64, s. 29. 
 
 (B.) ; Dalt. 299. (z) 1 Hawk. c. 64, s. 22. 
 
 (w) 1 Co. Inst. 257 ; Bro. tit. ' Duress,' (a) Bac. Abr. tit. ' Forcible Entry, &c.' 
 
 12, 16 ; 1 Hawk. c. 64, s. 28. (B.). 
 
 (v) 1 Hawk. c. 64, ss. 20, 21. (6) 1 Hawk. c. 64, s. 24. 
 
 {w) There have been different opinions 
 
 1
 
 CHAP. III.] Of Forcible Eyitry and Detainer. 449 
 
 his doors against a justice of peace coming to view the force, and obstin- 
 ately refuses to let him come in (c). This doctrine will apply to a lessee 
 who, after the end of his term, keeps arms in his house to oppose the 
 entry of the lessor, though no one attempt an entry ; or to a tenant at 
 will detaining with force after the will is determined {d) : and it will 
 apply in like manner to a detaining with force by a mortgagor after the 
 mortgage is foreclosed. And a lessee who resists with force a distress 
 for rent, or forestalling or rescuing the distress, is also guilty of this 
 offence (e). 
 
 But a man is not guilty of the offence of forcible detainer if he merely 
 refuses to go out of a house, and continues therein in despite of another (/'). 
 So that it is not a forcible detainer if a lessee at will, after the determina- 
 tion of the will, denies possession to the lessor when he demands it ; 
 or shuts the door against the lessor when he would enter ; or if he keeps 
 out, by force, a commoner upon his own land {g). And 8 Hen. VI. c. 9, 
 and 31 Eliz. c. 11 {h), do not apply to a person who has been in possession for 
 three years by himself, or any other under whom he claims. But a 
 person in quiet possession for three years, and then disseised by force, 
 and restored, cannot afterwards detain with force within three years 
 after his restitution ; for his possession was interrupted {i). 
 
 The criminal remedies against persons guilty of forcible entries or 
 detainers are either by complaint to justices of the j)eace (who may proceed 
 upon view), or by indictment at quarter sessions [j). And if a forcible 
 entry or detainer is made by three persons or more, it is also a riot ; and 
 may be proceeded against as such, if no inquiry has before been made 
 of the force {k). Some of the points which have been determined with 
 respect to an indictment for these offences, and also concerning the 
 award of restitution, may be shortly noticed {I), 
 
 Indictment. — -The statutes seem to require that the entry should 
 be laid in the indictment to be with a strong hand {manu forti), or cum 
 muUitudine gentium (m) : but some have held that equivalent words 
 would be sufficient, especially if the indictment concluded contra formam 
 statuti ; but it was held not sufficient to say only that the party entered 
 vi et armis since that was the common allegation in every trespass (n). 
 No particular technical words are necessary in an indictment at common 
 law ; all that is required is, that it should appear by the indictment that 
 such force and violence have been used as constitute a public breach of 
 the peace (o). 
 
 (c) 1 Hawk. 0. 64, s. 30. Entry, &c.' III., IV., V. 
 
 (d) See R. v. Oakley, 4 B. & Ad. 307, (k) Burn's Just. tit. ' Forcible Entry and 
 312, Parke, J. Detainer,' VII. Ante, p. 409 et scq. 
 
 (e) Com. Dig. tit. ' Forcible Detainer ' (/) As to the proceedings by justices of 
 (B.) 1. peace, see Burn's Just. tit. ' Forcible Entry, 
 
 (/) 1 Hawk. c. 64, s. 30. &c.,' V. Com. Dig. tit. ' Forcible Entry ' 
 
 (g) Com. Dig. tit. 'Forcible Detainer' (D.). 
 
 (B.) 2. (m) See R. v. Bathurst, Say. 225. 
 
 (h) Ante, p. 443. (r?) Baude's case, Cro. Jac. 41 ; 79 E. R. 
 
 (i) Com. Dig. tit. ' Forcible Detainer ' 34. Rast. Ent. 354. Bac. Abr. tit. ' Forc- 
 
 (B.) 2. ible Entry, &c.' (E.). 
 
 (;') See the statutes, ante, pp. 442-444. (o) R. v. Wilson, 8 T. R. 362, Lawrence, 
 
 Com. Dig. tit. ' Forcible Entry ' (C.) 4 Bl. J. R. v. Bathurst, Say. 225. 
 Com. 148. Burn's Just. tit. ' Forcible 
 
 VOL. I. 2 G
 
 450 Of Disturbances of the Public Peace. [book vi. 
 
 The tenement in which the force was committed must be described 
 with such certainty as to inform the defendant of the particular charge 
 against him, and to enable the justices or sheriff to know how to restore 
 the injured party to his possession. Thus an indictment has been held 
 insufficient where it charged forcible entry into a ' tenement ' (p), which 
 may signify anything whatsoever wherein a man may have an estate of 
 freehold {q), or into a ' house or tenement' (r), or into ' two closes of meadow 
 or pasture ' (s), or into ' a rood or half a rood of land ' {t), or ' into certain 
 lands belonging to such a house ' {u), or into such a house without shewing 
 in what town it lies {v), or into a tenement, with the appurtenances, called 
 Truepenny in D. {iv). But an indictment for a forcible entry iyi unum 
 messuagium sive dommn mansionalem, &c., is good, for these are words 
 equipollent (x). And an indictment for an entry into a close called H.'s 
 close, without adding the number of acres, is good ; for here is as much 
 certainty as is required in ejectment (y). And an indictment may be void as 
 to such part of it only as is uncertain, and good for so much as is certain : 
 thus an indictment for a forcible entry into a house and certain acres of 
 land may be quashed as to the land, and stand good as to the house (z). 
 Upon an indictment against a wife for a forcible entry into a house, which 
 she had originally taken in her own name, but into which her husband 
 had afterwards entered for the purpose of giving up possession to the 
 owner, the house is well described as the house of the husband (a). 
 
 An indictment on 8 Hen. VI. c. 9 (6), must state that the place was 
 the freehold of the party aggrieved at the time of the force (c) ; and if 
 founded on 21 Jac. I. c. 15 {ante, p. 444), it should state that he was at 
 such time a tenant for a term of years or otherwise entitled as mentioned 
 in that statute (d). An inquisition under 8 Hen. VI. c. 9, will not warrant 
 a justice in restoring possession, unless it sets forth the estate possessed 
 by the party in the property (e). But an indictment which charges that 
 the defendants forcibly entered into a messuage of one W. P., he the 
 said W. P. then and there being seised thereof, sufficiently avers the present 
 seisin of W. P. to warrant the Court in awarding restitution (/). But 
 in an indictment at common law, where the breach of the public peace 
 is the gist of the offence, and the prosecutor is not entitled to restitution 
 and damages, it appears to be sufficient to state only that the prosecutor 
 was in possession of the premises (g). 
 
 (p) 2 RoUe Rep. 46. 2 Rolle Abr. 80, (E.). 1 Hawk. c. 64, s. 37. 
 pi. 8. Wroth & Capell's case, 3 Leon. 102, (a) R. v. Smyth, 1 M. & Rob. 155. 
 
 4 Leon. 197. (6) A7ite, p. 443. 
 
 (q) Co. Litt. 6a. (c) R. v. Dorny, 1 Ld. Raym. 210 ; 
 
 (r) 2 Rolle Abr. 80, pi. 4, 5. Rolle R. 334. 1 Salk. 260. Anon. 1 Vent. 89; 2 Keb. 
 
 Ellis's case, Cro. Jac. 634 ; 79 E. R. 546. 493. Hetl. 73. Latch. 109. 
 
 (s) 2 RoUe Abr. 81, pi. 4. (d) See R. v. Lloyd, Cald. 415. R. v. 
 
 (t) Bulst. 201. Wannop, Say. 142. It is difficult to under- 
 
 (m) Farnam's case, 2 Leon. 186. Wroth stand what is meant by some of these cases. 
 & Capell's case, M6t sup. Broke tit. ' Fore- (e) R. v. Bowser, Dowl. D. Pr. R. 128, 
 
 ible Entry,' 23. Coleridge, J. ; Bac. Abr. tit. ' Forcible 
 
 {v) Farnam's case, 2 Leon. 186. Entry, &c.' (E.), where, and in 1 Hawk. 
 
 (w) 2 Rolle Abr. 80, pi. 7. c. 64, s. 38, see the cases on this subject 
 
 {x) Ellis's case, Cro. Jac. 634 ; Palm. collected. And see also R. v. Griffith, 3 
 
 277. Salk. 169. 
 
 (y) Bac. Abr. tit. ' Forcible Entry, &c.' (f) R. v. Hoare, 6 M. & S. 267. R. v. 
 
 (E.). 1 Hawk. c. 64, s. 37. DiUon, 2 Chit. (K.B.) 314. 
 
 {z) Bac. Abr. tit. ' Forcible Entry, &c.' (g) R. v. Wilson, 8 T. R. 357.
 
 CHAP. III.] Of Forcible Entry and Detainer. 451 
 
 A repugnancy in setting forth the offence in an indictment on the 
 statutes is incurable : as where it is alleged that the party was possessed 
 'of a term of years, or of a copyhold estate,' and that the defendants dis- 
 seised him ; or that the defendants disseised J. S. of land then and yet 
 being his freehold, for such statement implies that he always continued in 
 possession ; and if so, it is impossible he could be disseised at all (h). An 
 indictment on 8 Hen. VI. c. 9, setting forth an entry and forcible detainer, 
 seems to be good, without shewing whether the entry was forcible or 
 peaceable : but it must set forth an entry ; for otherwise it does not 
 appear but that the party has been always in possession, in which case 
 he may lawfully detain it by force (i). It appears to be sufficient to state, 
 that the defendant on such a day entered, &c., and disseised, &c., with- 
 out adding the words then and there ; for it is the natural intendment 
 that the entry and disseisin both happened together (;'). A disseisin is 
 sufficiently set forth by alleging that the defendant entered, &c., into 
 such a tenement, and disseised the party, without using the words ' unlaw- 
 fully,' or ' expelled,' for they are implied (k). But no indictment can 
 warrant restitution, unless it finds that the wrong-doer ousted the party 
 aggrieved, and also continues his possession at the time of the finding of 
 the indictment ; for it is a repugnancy to award restitution of possession 
 to one who never was in possession, and it is in vain to award it to one 
 who does not appear to have lost it (/). 
 
 It is said that if a bill, both for forcible entry and forcible detainer, 
 is preferred to a grand jury, and found ' not a true bill ' as to the entry 
 with force, and ' a true bill ' as to the detainer, it will not warrant an 
 award of restitution ; but is void, because the grand jury cannot find 
 a bill, true for part, and false for part, as a petit jury may (m). 
 
 Upon an indictment on 21 Jac. L c. 15, or 8 Hen. VI. c. 9, whereby 
 restitution of the possession of lands entered upon by force, or holden by 
 force, may be awarded to the respective tenants thereof ; the tenant whose 
 land has been entered upon, or withheld by force, is a competent witness 
 for the prosecution (n). 
 
 On an indictment at common law, the prosecutor need only prove 
 peaceable possession at the time of the ouster (o). On an indictment 
 upon 8 Hen. VI. c. 9, seisin in fee must be shewn ; and on an indictment 
 founded on 21 Jac. I. c. 15, a tenancy for years or other term within 
 that statute must be shewn {p) ; but it seems that proof that the prose- 
 cutor held colourably as a freeholder or leaseholder will suffice ; and 
 that the Court will not, on the trial, enter into the validity of an adverse 
 
 (h) 1 Hawk. c. G4, s. 39. Bac. Abr. not a ' true bill ' upon diflerent parts of one 
 
 ' Forcible Entry, &c.' (E.). and the same charge. See R. v. Fieldhouse, 
 
 (t) 1 Hawk. c. 64, 8. 40. Bac. Abr. ibid. Cowp. 325. 
 See the statute, ante, p. 443. (n) 6 & 7 Vict. c. 85, and 14 & 15 Vict. 
 
 (j) Baude's case, Cro. Jac. 41 ; 79 E. R. c. 99. Before these Acts he was incom- 
 
 34. 1 Hawk. c. 04, s. 42. petent. R. v. Williams, 9 B. & C. 549. 
 
 (k) Bac. Abr. ' Forcible Entry, &c.' (E.). R. v. Beavan, Ry. & M. 242. 
 
 (I) 1 Hawk. c. (54, s. 41. (o) Talf. Dick. Q. S. 377. 
 
 (m) 1 Hawk. c. 64, s. 40. But this, it (p) R. r. Child, 2 Cox, 102. In this case 
 
 seems, does not apply to the case of differ- it is stated that the indictment was under 
 
 ent counts in the same indictment, but only 5 Rich. II. stat. 1, c. 7. It is a very loose 
 
 where the grand jury find ' a true bill ' and report. 
 
 2g2
 
 452 Of Disturbances of the Public Peace. [book vi. 
 
 claim made by the defendant, which he ought to assert, not by force, 
 but by action (q). 
 
 Restitution may be awarded by the justice or justices before whom 
 an indictment of forcible entry or detainer is found : but by no other 
 justices, unless the indictment be removed by certiorari into the High 
 Court (King's Bench Division) ; and that Court, by the plenitude of 
 its power, can restore, because that is supposed to be implied by the 
 statute ; on the ground that whenever an inferior jurisdiction is erected, 
 the superior jurisdiction must have authority to put it in execution. So, 
 if an indictment be found before the justices of the peace at their quarter 
 sessions, they have authority to award a writ of restitution, because 
 the statute having given power to the justices or justice to reseise, it 
 may as well be done by them in court as out of it (r). It is laid down 
 in some books that the justices of Oyer and Terminer or General Gaol 
 Delivery, though they may inquire of forcible entries, and fine the parties, 
 cannot award a writ of restitution (s). 
 
 Restitution ought only to be awarded for the possession of tenements 
 visible and corporeal ; for a man who has a right to such as are invisible 
 and incorporeal, as rents or commons, cannot be put out of possession 
 of them, but only at his own election, by a fiction of law, to enable him 
 to recover damages against the person that disturbs him in the enjoy- 
 ment of them ; and all the remedy that can be desired against a force 
 in respect to such possessions is to have the force removed, and those 
 who are guilty of it punished, which may be done by 15 Rich. II. c. 2 {t). 
 And restitution is to be awarded only to the person found by the indict- 
 ment to have been put out of actual possession, and not to one who was 
 only seised in law (u). Upon the removal of the proceedings into the 
 High Court by certiorari, that Court may award a restitution discre- 
 tionally (v). And the same principle applies to a judge of assize upon 
 the finding of an indictment for forcible entry ; namely, that the pro- 
 ceedings being ex parte, a discretion may be exercised. Where, therefore, 
 an indictment for a forcible entry and detainer is found at the assizes, 
 it is in the discretion of the judge whether he will grant restitution or 
 
 {q) Per Vaughan, B., in R. v. Williams, as are specially limited to justices of peace. 
 
 Monmouth, 1828, and confirmed on a But in Com. Dig. tit. ' Fore. Entr.' (D. 5), it 
 
 motion for a new trial. Talf. Dickenson, is said that justices of gaol delivery may 
 
 377 ; and see Jayne v. Price, 5 Taunt, 326. award restitution upon an indictment 
 
 (r) Bac. Abr. tit. ' Forcible Entry,' (F.). before them : and Sav. 78 is cited : and 
 
 See Short and Mellor, Cr. Pr. (2nd ed.) afterwards id. (D. 7), it is said that restitu- 
 
 420, and for form of writ, ibid. 560. tion shall not be by justices of assize, gaol 
 
 (s) Id. ibid, and 1 Hawk. c. 64, s, 51, delivery, or justices of peace, if the indict- 
 where it is said that justices of oyer and ment was not found be/ore them ; and 1 Hale, 
 terminer have no power either to inquire of 140, Dalt. c. 44, 131, are cited ; assuming 
 a forcible entry or detainer, or to award here, as it should seem, that if the indict- 
 restitution on an indictment on the statutes, ment were found before justices of assize 
 because when a new power is created by and gaol delivery, they might award resti- 
 statute, and certain justices are assigned to tution : and see R. v. Harland, 8 A. & E. 
 execute it, it cannot regularly be executed 826, and R. v. Hake, note (a), to R. v. 
 by any other ; and inasmuch as justices of Williams, 4 Man. & Ry. 483, where a judge 
 oyer and terminer have a commission en- at the assizes granted a writ of restitution, 
 tirely distinct from that of justices of peace, (t) 1 Hawk. c. 64, s. 45. Lamb. Just, 
 theyshallnotfromthegeneral words of their 153. Co. Lit. 323. 
 commission ad inquirendum de omnibus, (m) Lamb. Just. 153. Dalt. 304. 
 (be, be construed to have any such powers (v) R. v. Marrow, cas. temp. Hardw. 174.
 
 CHAP. III.] Of Forcible Entry and Detainer. 453 
 
 not ; and if he refuse to grant it, the High Court will not inquire whether 
 he has exercised his discretion rightly, or grant a mandamus to the judge 
 to grant restitution (w). But in the case of local justices, who are to 
 go to the sj^ot, and make inquiry by the inquisition of the jury, and 
 examination of witnesses ; if the jury find the facts, it is imperative on 
 the justices to grant restitution ; and the reason is that there has been 
 a fair inquiry (x). 
 
 It appears by the proviso in 8 Hen. VI. c. 9, and also by 31 Eliz. c. 11, 
 that any one indicted upon those statutes may allege quiet possession 
 for three whole years to stay the award of restitution : and it has been 
 held that such possession must have continued without interruption 
 during three whole years next before the indictment (y). And it must be 
 of a lawful estate, so that a disseisor can in no case justify a forcible entry 
 or detainer against the disseisee having a right of entry, as it seems that 
 he may against a stranger, or even against the disseisee having, by his 
 laches, lost his right of entry (z). Wherever such possession is pleaded 
 in bar of a restitution, either in the High Court or before justices of the 
 peace, no restitution ought to be awarded till the truth of the plea has 
 been tried. The plea need not shew under what title, or of what estate, 
 such possession was ; because not the title, but the possession only, is 
 material (a). If the defendant tenders a traverse of the force (which 
 must be in writing), no restitution ought to be till the traverse is tried ; 
 and the justice, before whom the indictment is found, ought to award a 
 venire for a jury : but if such jury find so much of the indictment to be 
 true as will warrant restitution, it will be sufficient, though they find 
 the other part of it to be false (b). Where the defendant pleads three 
 years' possession in stay of restitution, under 31 Eliz. c. 11, and it is 
 found against him, he must pay costs (c). 
 
 The 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 insufficiency in the indictment appearing unto 
 them : but no other justices or Court whatsoever have such power, 
 except the High Court ; a certiorari from whence wholly 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 {d). 
 
 On an equitable construction of the statutes, but on their express 
 words, it is considered that the High Court has discretionary power, if a 
 restitution shall appear to have been illegally awarded or executed, to 
 set it aside, and grant a re-restitution to the defendant. But a defendant 
 cannot in any case whatsoever, ex rigor e juris, demand restitution, 
 
 (w) R. V. Harland, 8 A. & E. 826 ; 1 P. (G.). 1 Hawk. c. G4, s. 54. 
 
 & D. 93: 2 Man. & Ry. 141. See R. v. (a) 1 Hawk. e. (54, s. 56. 
 
 Hake, note {n) to R. i\ Williams, 4 Man. [b) Bac. Abr. tit. ' Forcible Entry, &c.' 
 
 & Ry. 483, where a judge, upon such an (G.). 1 Hawk. c. 64, ss. 58, 59. R. r. 
 
 inquisition, granted a writ of restitution, Winter, 2 Salk. 588. 
 
 not as a matter of right, but in the exercise (c) R. v. Goodenough, 2 Ld. Rayni. 1036. 
 
 of his discretion. And see the words of the statute, ante, 
 
 (x) Ibid. Patteson, J. p. 443. 
 
 (y) Bac. Abr. tit. 'Forcible Entry, &c.' (d) Bac. Abr. Id. ibid. 1 Hawk. c. 64, 
 
 (0.). 1 Hawk. c. 64. s. 53. ss. 61, 62. 
 
 {z) Bac. Abr. tit. ' Forcible Entry, &c.'
 
 454 Of Disturhances of the Public Peace. [Book vi. 
 
 either upon the quashing of the indictment, or on a verdict found for 
 him on a traverse thereof, &c. ; for the power is never made use of by 
 the High Court except when, upon consideration of the whole circum- 
 stances of the case, the defendant appears to have some right to the 
 tenements, the possession whereof he lost by the restitution granted to 
 the prosecutor (e). 
 
 Where a conviction for a forcible entry or detainer is quashed by 
 the High Court after restitution ordered, the Court is bound to award 
 re-restitution, although the conviction be quashed for a merely technical 
 error, and the lease of the dispossessed person has expired during the 
 litigation (/). 
 
 Where on a traverse of an indictment under the statutes, a man has 
 been found to have been unjustly put out of possession, the Court of 
 King's Bench has awarded re-restitution, notwithstanding proof that, 
 since the restitution granted upon the indictment, a stranger has recovered 
 the possession of the same land in a Manorial Court (g). 
 
 The justices or justice may execute the writ of restitution in person, 
 or may make their precept to the sheriff to do it (h). The sheriff, if 
 need be, may raise the power of the county to assist him in the execution 
 of the precept ; and therefore, if he makes a return thereto that he 
 could not make a restitution by reason of resistance, he is liable to amerce- 
 ment (i). It is said, that a justice of peace or sheriff may break open a 
 house to make restitution (j). 
 
 If possession under a writ of restitution is avoided immediately 
 after execution by a fresh force, the party shall have a second writ of 
 restitution without a new inquisition ; but the second writ must be 
 applied for within a reasonable time {k). And an order of restitution 
 made three years after the inquisition, was quashed (l). 
 
 {e) Bao. Abr. Id. ibid. 1 Hawk. c. 64, s. 66. 
 
 ss. 03, 64, 65. Dalt. 309. (h) 1 Hawk. c. 64, s. 59. 
 
 if) R. ?'. Jones, 1 Str. 474. R. v. Wilson, («") Id. ibid. s. 52. And see 50 & 51 
 
 3 A. & E. 817, 837. But in R. v. Harris. Vict. c. 55, ss. 8, 29. 
 
 1 Ld. Rayai, 482, it was said by Holt, C.J., (j) Com. Dig. tit. ' Forcible Entry, &c." 
 
 that restitution is of right where the resti- (D.) 6. 
 
 tution was tortious, discretionary if the (k) R. v. Harris, 1 Ld. Raym. 440, 482, 
 
 restitution was just. a case of forcible entry into a rectory. 
 
 (q) Bac. Abr. Id. ibid. 1 Hawk. c. 64, {I) R. v. Harris, 3 Salk. 313.
 
 ( 454« ) 
 
 CANADIAN NOTES. 
 
 OF FORCIBLE ENTRY AND DETAINER. 
 
 Sec. 2. — Under the Statutes. 
 
 Definition of Forcible Entry. — Code sec. 102. 
 
 Definition of Forcible Detainer.- — Code sec. 102(2). 
 
 Punishment of.- — Code sec. 103. 
 
 "Entering" means not merely going upon land or trespassing 
 upon it ; there must accompany the act of going upon the land some 
 intent to take possession of the land itself and deprive the possessor 
 of the land. Such an interference with the possession as trespassing 
 upon it for the purpose of taking away chattels upon the land is not 
 an "entering" within the Code. R. v. Pike (1898), 2 Can. Cr. Cas. 
 314, 12 Man. R. 314. 
 
 Forcible entry of a dwelling house may consist of an entry made 
 with such threats and shew of force as would, if resisted, cause a 
 breach of the peace, although no actual force was used. R. v. Walker 
 (1906), 12 Can. Cr. Cas. 197, 4 O.L.R. 288. 
 
 Where, from thirty to forty employees of the G. W. Railway Co. 
 went upon land then in possession of the S. & H. Railway Co., and those 
 resisting had good reason to apprehend violence in the event of further 
 resistance, and yielded possession in the apprehension of such violence, 
 it was held that the entry was a forcible one. R. v. Smith, 43 U.C.Q.B. 
 369. 
 
 The gist of the offence is the forcible depriving of the other's actual 
 and peaceable possession in a manner likely to cause a breach of the 
 peace. R. v. Cokely, 13 U.C.Q.B. 521. Even if the defendant had a 
 right of entry, the assertion of that right "with strong hand or with 
 multitude of people" is equally an offence as if he had no right. 
 
 It is within the discretion of the Judge who tries the cause either 
 to grant or refuse restitution. R. v. Wightman (1869), 29 U.C.Q.B. 
 211; R. V. Smith (1878), 43 U.C.Q.B. 369; R. v. Jackson, Draper's 
 Rep. Upper Canada 53.
 
 ( 455 ) 
 
 BOOK THE SEVENTH. 
 
 OF OFFENCES AGAINST THE DUE ADMINISTRATION OF JUSTICE. 
 
 CHAPTER THE FIRST. 
 
 OF PERJURY AND COGNATE OFFENCES. 
 
 Sect. I. — Perjury in General. 
 
 Perjury is a misdemeanor indictable at common law (a). It consists 
 in giving upon oath, in {or for the purposes of) a judicial proceeding, before a 
 competent tribunal, whether it be a Court of the common law or acting 
 under a statute (aa) , evidence which is material to some question depending 
 on the proceeding and is false to the knowledge of the deponent, or is not 
 believed by him to be true (6). The oath taken must be to swear the truth, 
 and the offence does not include breaches of the oath of a juror, or of 
 promissory oaths (c). ' Oath ' in this chapter includes affirmation and 
 declaration in cases where a witness is by law empowered or required to 
 affirm or declare instead of taking the witness's oath (d). 
 
 Perjury is not committed when the false evidence is given by a person 
 who is not a competent witness. Thus, before the Criminal Evidence 
 Act, 1898 (61 & 62 Vict. c. 36), if a defendant in a criminal case was 
 sworn, perjury could not be assigned on his evidence (e). Incompetence 
 may arise from a disqualification imposed by common law, e.g., of calling 
 a wife as a witness against her husband in a criminal case ; or by statute ; 
 or may, as in the case of young children, arise from inability to under- 
 stand the nature of the witness's oath. The witness must be sworn or 
 affirmed. The old averment w^as that he was ' sworn in due course of law, 
 and did then take his corporal oath upon the Holy Gospel of God' (/). 
 But a witness may be convicted of perjury on an oath administered to him 
 in such form and with such ceremonies as he may d'^clare to be binding (7), 
 
 (n) lie Rowland ap Eliza, 3 Co. Inst. 1(54. in civil cases. As to promissorv oaths, see 
 
 (na) R. V. Castro, 4 L.R.Q.B. 3.")0, 357, 31 & 32 Vict. c. 72. 
 Blackburn, J. (d) See .52 & 53 Vict. c. G3, s. 3, ante, 
 
 (b) R. V. Aylett [1785], 1 T. R. ()4, ()9, p. 3 ; 52 & 53 Vict. c. 10, past, p. 4(il. 
 Lord Mansfield. Cf. 1 Hawk. e. (iO, s. 1. (e) R. v. Clegg [18()8J. 19 L. T.-(N. S.)47, 
 
 Com. Dig. tit. ' Justice of Peace ' (B.) 102. Hanncn, J. Since that Act. the prisoner is 
 
 Bac. Abr. tit. ' Perjury.' indictable for perjury in evidence given by 
 
 (f) 1 Hawk. c. t>n, s. 5. In 8 Hen. VIII. liim for the defence. R. v. Baker [1895], 
 
 e. 9, s. 3, post, p. 525, reference is made to 1 Q.B. 797. 
 
 perjury by false verdict. As to the old (/) The words after 'law' were always 
 
 remedies in such a case, see Bushell's case superfluous. R. v. McCarther, Peake {3rd 
 
 [l<i70], G St. Tr. 999; Vaugh. 135 ; Selden ed.). 311. 
 
 Soe. Publ, Vol. It), p. cxxxii. The present (g) 1 & 2 Vict. c. 108, .s. 1, qwst. p. 456. 
 
 remedy is by appeal in criminal as well as Sells v. Hoare, 3 B. & B. 232.
 
 456 Of Offences against tlie Administration of Justice, [book vii. 
 
 or upon solemn affirmation where he has no religious belief {h), or the 
 taking of an oath is contrary to his religious belief {i). 
 
 It does not matter whether the false evidence is given orally or on 
 affidavit, or in answer to interrogatories in an action, or concerning 
 a contempt, nor whether the oath was in the deponent's own cause, or in 
 that of another person, nor whether the evidence was given for the Crown 
 or for the defence in a criminal case {j). Nor does it matter whether the 
 false oath was believed or disbelieved, nor whether it caused any injury to 
 the person against whom it was given ; for the gist of the offence at common 
 law (k) is the abuse of public justice, and not the injury to an individual (il). 
 
 By the Oaths Act, 1838 (1 & 2 Vict. c. 105), ' in all cases in which an 
 oath may lawfully be and shall have been administered to any person either 
 as a juryman or a witness, or a deponent in any proceeding, civil or 
 criminal, in any Court of law or equity in the United Kingdom, or on 
 appointment to any office or employment, or on any occasion whatever, 
 such person is bound by the oath administered : provided the same shall 
 have been administered in such form and with such ceremonies as such 
 person may declare to be binding ; and every such person, in case of wilful 
 false swearing, may be convicted of the crime of perjury in the same 
 manner as if the oath had been administered in the form and with the 
 ceremonies most commonly adopted.' 
 
 This Act does not apply to affirmations or declarations in lieu of the 
 witness's oath. But such affirmations are permitted in the case of 
 Quakers and Moravians, and persons who have no religious belief, or a 
 religious belief which precludes their taking the witness's oath. The 
 statutes substituting affirmation for oath provide that a false affirmation 
 shall be punishable as perjury {m). 
 
 Unsworn Evidence. — By the Criminal Law Amendment Act, 1885 
 (48 & 49 Vict. c. 69), s. 4, ' upon the hearing of a charge under the section, 
 a child of tender years, who is tendered as a witness, does not, in the 
 opinion of the Court, understand the nature of an oath, but is possessed 
 of sufficient intelligence to justify the reception of the evidence, and 
 understands the duty of speaking the truth ; the evidence of such child 
 may be received, though not given upon oath. [Provided that any witness, 
 whose evidence has been admitted under this section, shall be liable, 
 in all respects, to indictment and punishment for perjury as if he or she 
 had been sworn] ' {mm). 
 
 Similar provision was made by sect. 15 of the Prevention of Cruelty 
 
 [h) 51 & 52 Vict. c. 46, s. 1. defence in treason and felony could not be 
 
 [i) 3 & 4 Will. IV. c. 49, s. 1 ; 1 & 2 sworn until 1 Anne, st. 2, c. 9, s. 3, which 
 
 Vict. c. 77, s. 1 (relating to persons who are also made their false swearing perjury, 
 
 or have been Quakers or Moravians) ; 51 [Ic] As to the Act of Elizabeth, vide post, 
 
 & 52 Vict. c. 46, s. 1 (general). 3 & 4 p. 525. 
 
 Will. IV. c. 82 (Separatists), was repealed in (Z) 1 Hawk. c. 69, .s. 9. Bac. Abr. tit. 
 
 1890 (53 & 54 Vict. c. 33). As to the mode ' Perjury ' (A.). In R. v. Nicholls, Glouces- 
 
 of ascertaining whether a witness is entitled ter Sum. Ass. 1838, cor. Patteson, J., the 
 
 to affirm, see R. v. Moore. Each of these prisoner had on the trial of one for larceny 
 
 Acts specifically puts false affirmations in sworn that he had not given the stolen 
 
 the same position as false oaths with property to P., but the jury disbelieved 
 
 respect to the penalties for perjury. liim, and acquitted P., and he was convicted 
 
 ij) Perjury by a witness for the Crown of perjury. C. S. G. 
 
 was held to be criminal at common law {m) See the Acts post, Bk. xiii. c. v. 
 
 (3 Co. Inst. 164), but not under the Act of {mm) Words in brackets repealed as from 
 
 Elizabeth (post, p. 525). Witnesses for the April 1, 1909. by 8 Edw. VII. c. 67, s. 134.
 
 CHAP, i.i Of Perjury. 45? 
 
 to Children Act, 1904 (4 Edw. VII. c. 15), as to offences under that Act 
 and offences named in the first schedule thereto. This continues in force 
 as to offences within sects. 2, 3 of the Act, but as to other offences is 
 superseded by sect. 30 of the Children Act, 1908 (8 Edw. VII. c. 67). 
 That section applies to offences against Part II. of the Act and named 
 in Schedule 1 (w), and provides, ' (6) Any child whose evidence is received 
 as aforesaid and who wilfully gives false evidence under such circum- 
 stances that, if the evidence had been given on oath, he would have 
 been guilty of perjury, shall, subject to the provisions of this Act, be 
 liable on summary conviction to be adjudged such punishment as might 
 have been awarded had he been charged with perjury and the case 
 dealt with summarily under section ten of the Summary Jurisdiction 
 Act, 1879' (42 & 43 Vict. c. 49) (nw). 
 
 Judicial Proceeding. — The oath must be taken either in a judicial 
 proceeding, or in some other public proceeding of the like nature, before 
 persons authorised by the King to examine witnesses on any matter 
 whatsoever (o). It is not material whether the Court, in which the oath 
 is taken, is a Court of record or not, or whether it is a Court of common 
 law, of equity, or of the civil law, or an ecclesiastical court (p), &c., nor 
 whether the oath is taken in the face of the Court, or out of it before 
 persons authorised to examine a matter depending in it, as before the 
 sheriff or his lawful deputy or under-sheriff, on a writ of inquiry, &c., 
 or whether it is taken in relation to the merits of a cause, or in a collateral 
 matter, as, where one who offers himself to be bail for another, swears 
 that his substance is greater than it is (</). 
 
 There must be something in the nature of a judicial proceeding, e.g., 
 an existing cause [r). But the oath may be the first step for initiating 
 the proceeding, e.g., swearing an information, or swearing an affidavit 
 in support of an ex 'parte motion, or swearing a petition in a divorce cause, 
 or an affidavit to support a summons to hold to bail [s). In the case of 
 perjury in an affidavit or the like, the offence is committed when the 
 deponent takes oath to the truth of the affidavit, and it is unnecessary 
 to aver or prove that the affidavit was filed or in any way used {t). 
 
 It is no defence that the affidavit, through defects in the jurat, cannot 
 be received in the Court for which it is sworn. Upon an indictment for 
 perjury, in an affidavit, it appeared that the affidavit was signed with 
 the mark of the defendant, and the jurat did not state either where it 
 
 (n) i.e. cruelty and offences against {p) See Plaice v. Howe, Cio. Eliz. 185. 
 
 persons under 16, ?KX<Bk ix. PI). 907 e« 5fg. {q) 1 Hawk. c. 09, s. .'{. Bac. Abr. tit. 
 
 [nn) There is no authoritative decision as ' Perjury ' (A.). R. ?'. Crossley, 7 T. R. 315. 
 
 to the examination of a child on the voire, (r) R. v. Pearcc, 3 B. & S. 531, post, 
 
 dire before determining whether it may be p. 459. Before the Common Law Proce- 
 
 allowed to give unsworn evidence. But dure Act, 1852 (15 & 16 Vict. c. 76, s. 152), 
 
 semhle, that the child need not understand where an action had abated by the death of 
 
 the legal consequences of giving false evi- a co-plaintifT, and no suggestion had been 
 
 dence. R. v. Dent L1907], 71 J. P. 511, entered under 8 & 9 Will. III. c. 11, s. 6, a 
 
 Rentoul, Commissioner. trial was held extra-judicial, and perjury 
 
 (o) 1 Hawk. c. 69, s. 3. The old books could not be assigned on false evidence given 
 
 speak of the proceedings as those wherein therein. R. v. Cohen, 1 Stark. (N. P.) 511. 
 
 tire King's honour or interest are concerned, {$) King v. R., 14 Q.B. 31, which turned 
 
 e.g., before commissioners appointed to on the Judgments Act, 1838 (1 & 2 Vict, 
 
 inquire of the forfeitures of his tenants, or c. 1 10). 
 
 of defective titles waiting the supply of the (/) R. v. Crossley, 7 T. R. 315. R. r. 
 
 King's patents. Phillpott8[1851],2ben.302, po^f, pp. 467-9.
 
 458 Of Offences against the Administration of Justice, [book vil. 
 
 was sworn, or that the affidavit was read over to the party, and it was 
 proved by a clerk in the Master's office that where the party swearing an 
 affidavit cannot write, the jurat ought, after stating the place where it 
 was sworn, to state that the witness to the mark of the deponent had 
 been first duly sworn, that the person administering the oath had read 
 over the affidavit to the deponent, and saw the mark affixed ; and that 
 no affidavit would be received which did not contain this form of jurat 
 when the party could not write. Littledale, J., said : ' The omission 
 of the form directed by this and other Courts to be used in the jurat of 
 affidavits may be an objection to their being received in the Court, whose 
 rules and regulations the party has neglected to comply with ; but I am 
 of opinion that the perjury is complete at the time the affidavit is sworn, 
 and although it cannot be used in the Court for which it is prepared, that 
 nevertheless perjury may be assigned upon it ' (u). So where an affidavit 
 when sworn had been marked by the judge's clerk with his initials, but 
 through mistake had not been then presented to the judge for his signature, 
 but some days afterwards it was signed by the judge ; Alderson, B., in 
 the presence of the other Barons of the Exchequer, expressed a clear 
 opinion that perjury might be assigned upon the affidavit, although the 
 judge's signature was omitted (v). 
 
 Upon an indictment for perjury, it appeared that the defendant had 
 filed a bill in chancery for an injunction, and had made the affidavit, on 
 which the perjury was assigned, in support of the allegations in that 
 bill. The indictment averred the bill to have been filed, and the affidavit 
 exhibited in support of it ; and stated the matters assigned as perjury to 
 be material to the questions arising on the bill ; but did not contain any 
 statement that a motion had been made for an injunction, nor did it 
 appear by the evidence that any such motion had in fact been made. 
 It was submitted that the defendant was entitled to an acquittal (w). 
 Tenterden, C. J., said : ' I do not think the averment or proof, the absence 
 of which is objected to, can be necessary. The statements in the affidavit 
 are material to the matters contained in the bill, which is for an injunction ; 
 and it may well have been filed in anticipation of a contemplated motion 
 for an injunction, on which it might have been used. Can it make any 
 difference that it afterwards turns out that the motion is not made ? The 
 crime, if any, is the same, morally, in each case ; and I certainly shall not, 
 where the objection is oj)en hereafter, hold it necessary to give proof of 
 a fact which does not vary the conduct of the party in taking the oath in 
 question ' (x). An affidavit sworn for the purpose of being u'sed in a cause, 
 but which is neither used nor filed, is nevertheless the subject of perjury (y). 
 
 (u) R. V. Hailey, Ry. & M. 9i- ; 1 C. & P. averment, therefore, that the perjury was 
 
 258. assigned on the matter material to the bill 
 
 (v) Bill V. Eament, 8 M. & W. 317. was not true ; it could only be material to 
 
 (w) By the practice of the Court of an application of a peculiar nature, and it 
 
 Chancery, an injunction could not be ob- did not appear, and was not alleged, that 
 
 tained, except for want of an answer, or on such an application was ever made. It 
 
 the insufficiency of the answer, or on evi- was answered that the objection, if tenable 
 
 dence disproving the answer, in none of at all, amounted to this, that perjury could 
 
 wtiich cases was the affidavit of the plaintiff not be assigned upon an affidavit which 
 
 admissible ; or else ex parte before the time had not been used, 
 
 allowed to the defendant for answering has {x) R. v. White, M. & M. 271. 
 
 elapsed. In the last case, and in that only, {y) Hammond v. Chitty, Q.B., E. T. 
 
 could the plaintiff's affidavit be used. The 1840, M8S. C. S. G.
 
 CHAP. I.J Of Perjury. 459 
 
 An indictment for perjury alleged that the defendant produced before 
 a Master in Chancery an affidavit, ' entitled, in the said Court of Chancery, 
 and in the said suit therein at the suit of the said E. J. C, and also in the 
 said suit therein at the suit of the said Commissioners of Charitable Dona- 
 tions and Bequests in Ireland/ The affidavit, when produced, appeared 
 to be entitled ' between the Com7nissioner (sic) of Charitable Donations 
 and Bequests in Ireland, against J. E. D., &c. (naming the other defend- 
 ants), and between E. J. C. and J. E. D., the Commissioners of Charitable 
 Donations and Bequests in Ireland, and others.' It was objected that 
 this affidavit was not one on which perjury could be assigned, as there 
 was no such suit as that in which the Commissioner of Charitable Bequests 
 was plaintiff ; and the affidavit was improperly entitled, as the names 
 of all the defendants were not stated, and therefore the affidavit was 
 not admissible in the Court of Chancery. Denman, C.J., said : ' The 
 Courts are quite right in not receiving affidavits which are not properly 
 entitled ; but I do not think the cpiestion whether there be perjury or 
 not depends on the rule as to entitling being strictly complied with ' (z). 
 
 In Amended Proceedings. — Where the powers of amendment of its 
 proceedings possessed by a Court are limited, after an amendment has 
 been made without jurisdiction the cause may be described as non- 
 existent (a), or subsequent proceedings as coram non judice : and perjury 
 cannot be assigned on a false oath taken therein (6). In the statutes 
 empowering the amendment of criminal proceedings it is expressly 
 provided that witnesses shall be indictable for perjury committed after 
 the amendments have been made (c). A proceeding is not the less 
 judicial because of some defect, falling short of absolute want of juris- 
 diction. Thus perjury may be assigned on evidence given in support 
 of an indictment for perjury, even though that indictment was subse- 
 quently held bad on the ground that it did not contain a sufficient 
 assignment of perjury {d). 
 
 Competent Jurisdiction. — The oath must be taken before a competent 
 jurisdiction, that is, before some person or persons authorised by English 
 law to take cognisance of tlie proceeding in or for which the oath is 
 
 (2) R. V. Christian, C. & M. 388, 393. In the name of her husband, having no juris- 
 
 R. V. Hudson, 1 F. & F. 56, where perjury was diction to make the amendment, 
 charged to have been committed in an affi- (c) 11 & 12 Vict, c. 4(i. s. 4; 12 & 13 
 
 davit of service of notice of an application Vict. c. 45, s. 10 ; 14 & 15 Vict. c. 100, s. 1, 
 
 for leave to issue execution against a share- jK>st, Bk. xii. c. ii. 
 
 liolder in a joint stock company, and the (d) 11. v. Meek, 9 C. & P. 513, Williams, 
 
 affidavit was produced, but the notice was J. The former indictment, also for per- 
 
 not annexed to it ; Cockburn, C. J., held jury, had been lield bad on a writ of error, 
 
 the affidavit inadmissible. Sed qumre. because the assit^nment of perjury was in- 
 
 {u) K. r. Hugiies, 4 Q.B.D. 014, (128, sufficient. See R. i\ Burraston, 4 Jur. 697, 
 
 Hawkins, J. post, p. 497. Mullett v. Hunt, 1 Cr. & M. 
 
 {(>) R. V. Pearce, 3 B. & S. 531 ; 9 Cox, 752, was cited in support of the objection 
 
 258. Approved by Hawkins, J., in R. r. in R. i\ Meek. See also Davis v. Lovell, 
 
 Hughes, 4 Q.B.D. 614, 628. In R. v. 4 "SI. & W. 678. ' If judgment be arrested 
 
 Pearce, an unmarried woman having ob- in a civil action for a defect in the declara- 
 
 tained a judgment in a county court, tion, it has never been said that that eir- 
 
 sought to enforce it in the City of London cumstance would prevent a witness, who 
 
 Court, and it appearing that she had mar- had been guilty of false swearing at the 
 
 ried since judgment, that Court (consti- previous trial, from being indicted for per- 
 
 tuted under 15 & 16 Vict. c. Ixxvii.) had jury.' R. v. Cooke, 2 Den. 462, 463, 
 
 amended the judgment summons by adding Pollock, C.B.
 
 460 Of Offences against the Administration of Justice, [book vtl. 
 
 taken, and to administer the oath. Thus a false oath taken in a court 
 of requests, in a matter concerning lands, was held not to be indictable, 
 that Court having no jurisdiction in such cases (e). And perjury cannot 
 be assigned on an oath taken before persons acting merely in a private 
 capacity (/), or before those who take upon them to administer oaths 
 of a public nature, without legal authority for their so doing, or before 
 those who are legally authorised to administer some kinds of oaths, 
 but not those which happen to be taken before them, or even before 
 those who take upon them to administer justice by virtue of an authority 
 seemingly colourable, but in truth unwarrantable and merely void. 
 But a false oath taken before commissioners, whose commission at the 
 time was determined by the demise of the Crown, would be perjury, if 
 taken before the commissioners had notice of the demise (g). 
 
 Coke (h) seems to have considered that the authority to administer 
 the oath must be derived from a commission recognised by the common 
 law, and doubts have often arisen as to the power of particular persons 
 to administer an oath on which perjury could be assigned. By sect. 16 
 of the Evidence Act, 1851 (14 & 15 Vict. c. 99), ' every Court, judge, 
 justice, officer, commissioner, arbitrator (i), or other person now or 
 hereafter having by law or hy consent of parties, authority to hear, receive, 
 and examine evidence, is hereby empowered to administer an oath to 
 all such witnesses as are legally called before them respectively.' 
 
 False evidence before the following tribunals is perjury : the superior 
 courts of law, including courts of assize, and courts of quarter sessions, 
 and of summary jurisdiction (;'), county courts (A:), local marine boards (l), 
 naval courts-martial {m), revising barristers (n), grand juries (o), the 
 judicial committee of the Privy Council (p), registrars of the Admiralty 
 
 (e) Buxton v. Gouch, 3 Salk. 209. These tribunals were formerly regulated by 
 
 (/) 1 Hawk. c. 69, s. 4, and authorities 17 & 18 Vict. c. 104, and 25 & 26 Vict. c. 63, 
 
 there cited. 4 Bl. Com. 137. This must s. 23. They are now governed by ss. 244, 
 
 be read subject to 14 & 15 Vict. c. 99, s. 16, 245 of the Merchant Shipping Act, 1894 
 
 infra. (57 & 58 Vict. c. 60), and by the Merchant 
 
 (gr) Ibid. 4 Bac. Abr. tit. ' Perjury.' Shipping Act, 1906 (6 Edw. VII. c. 48). 
 
 The demise of the Crown does not deter- See s. 85. 
 
 mine any appointment or office (1 Edw. VII. (m) Common law. R. v. Heane, 4 B. & 
 
 c. 5). By 4 Will. & M. c. 18, s. 6, pleas to S. 947. By the Naval Discipline Act (29 
 
 information in the Court of King's Bench & 30 Vict. c. 109), s. 67, ' every person 
 
 are not affected by the demise of the Crown. who, upon any examination upon oath or 
 
 By 1 Anne, c. 2, commissions of assize, oyer upon affirmation before any court-martial 
 
 and terminer, and gaol delivery, and of the held in pursuance of this Act, shall wilfully 
 
 peace, continue in fuU force for six months and corruptly give false evidence, shall be 
 
 after the demise of the Crown, unless sooner deemed guilty of wilful and corrupt per- 
 
 superseded. Cf. 1 Edw. VII. c. 5, s. 1. jury, and every such offence, icheresoever 
 
 (h) 3 Co. Inst. 165. committed, shall be triable and punishable in 
 
 {i) See R. v. HaUett, 2 Den. 237, which England ; and where any such offence 
 
 related to an arbitration under the County committed out of England is tried in 
 
 Courts Act, 1846 (9 & 10 Vict. c. 95), s. 77 England, all statutes and laws, applicable 
 
 (rep.). It is perjury to give false evidence in to cases of perjury, shall apply to the case.' 
 
 an arbitration within the Arbitration Act, (n) 6 & 7 Vict' c. 18, s. 41 (E) ; 13 & 14 
 
 1889 (52 & 53 Vict. c. 49), s. 22, or under Vict. c. 69, s. 56 (I). The offence is in R. 
 
 the Agricultural Holdings Act, 1908 (8 v. Thornhill, 8 C. & R 575, treated as per- 
 
 Edw. VII. c. 28), s. 13 (5). jury at common law. 
 
 {)) Common law and the commissions of (o) 19 & 20 Vict. c. 54, s. 1 (E) ; and 
 
 the judges and justices. common law (see R. v. Hughes, 1 C. & K. 
 
 (*) R. V. Morgan, 6 Cox, 107, Martin, B. 519) ; 56 Geo. III. c. 87, s. 2 ; and 1 & 2 
 
 And see R. v. Cro'=sley [1909], 1 K.B. 411. Vict. o. 37, s. 2 (I). 
 
 (0 R. r. Tomlinson, L. R. 1 C. C. R. 49. (p) 3 & 4 Will. IV. c. 41, s. 9. 
 
 I
 
 CHAP. I.] Of Perjury. 461 
 
 Court {q), of vice-admiralty courts (r), and of county courts in admir- 
 alty (s), matrimonial courts {t), probate courts (w), proceedings to wind- 
 up companies {v), commissioners to inquire into corrupt practices at 
 elections {w), committees of either House of Parliament (x), and the 
 court of referees on private bills (y), judges on Irish and Scotch private 
 estate bills {z), and the taxing officers in either House (a), and ecclesias- 
 tical courts (ft), including the statutory church discipline courts (c). 
 
 There are numerous other enactments making false swearing before 
 particular tribunals and in particular cases perjury or punishable as 
 perjury {d). The only one of sufficient importance to be here set out is 
 the Commissioners for Oaths Act, 1889 (52 & 53 Vict. c. 10), which by 
 sect. 7 enacts that, ' Whoever wilfully and corruptly swears falsely in 
 any oath or affidavit (e) taken or made in accordance with the pro- 
 visions of this Act, shall be guilty of perjury in every case where if 
 he had so sworn in a judicial proceeding before a Court of competent 
 jurisdiction he would be guilty of perjury.' 
 
 This enactment extends to all affidavits taken in England for use 
 in Courts in England (/), and also to oaths taken abroad for the purpose 
 of a cause or matter in England, or the registration of a document in 
 England, if taken before a British diplomatic or consular officer acting 
 there, or a person having power to administer an oath there {(j). 
 
 By sect. 9, any offence under this Act, whether committed within or 
 without His Majesty's dominions, may be tried in any county in the 
 United Kingdom in which the person .charged was apprehended, or is 
 in custody. 
 
 Provision is also made for punishing as perjury oaths taken before 
 commissioners or tribunals appointed to take evidence for proceedings 
 in other Courts, whether of the United Kingdom {h), British dominions (i), 
 (Jr foreign states (/). 
 
 Bankruptcy Courts. — In R. v. Lloyd {k), a conviction of perjury in 
 
 (q) 24 & 25 Vict. c. 10, s. 26. in this Act includes statutory declarations, 
 
 (r) 26 & 27 Vict. c. 24, s. 20. and is framed so as to put sworn evidence 
 
 (•') 31 & 32 Vict. 0. 71, s. 19. taken before a commissioner in the same 
 
 (0 20 & 21 Vict. c. 85, s. 50 (E) ; 33 & position as it had been given in Court. 
 
 34 Vict. 0. 110, 8. 25 (I). [f) As to County Courts, see 51 & 52 
 
 (u) 20 & 21 Vict. c. 79, s. 32 (I). Vict. c. 43, s. 83 ; 53 & 54 Vict. c. 7, s. 1. 
 
 (v) 8 Edw. VII. 0. 69, s. 218. (7) 52 & 53 Vict. c. 10, ss. 3, 6. 
 
 (w) 31 & 32 Vict. c. 12.5, s. 31 ; 45 & 46 (h) 55 Geo. III. c. 157, ss. 8, 9, taking 
 
 Vict. c. 50. s. 94. affidavits, &c., in England or Scotland for 
 
 (x) 21 & 22 Vict. c. 78, s. 3 (Lords) ; Irish Courts. 
 
 34 & 35 Vict. c. 83, s. 1 (Commons). The {i) 42 Geo. III. c. 85, s. 5 (evidence for 
 
 latter Act applies also to witnesses sworn prosecutions in England of public officials 
 
 at the bar of the House. for offences abroad). 1 Will. IV. c. 22, s. 7 
 
 (y) 30 & 31 Vict. c. 136, s. 2. (examinations of witnesses in Colonies for 
 
 (2) 41 Geo. III. c. 105, s. 1 (S," I). proceedings in superior Courts in England). 
 
 {a) 10 & 11 Vict. c. 69, s. 5 (Commons) ; 22 Vict. c. 20, s. 2 (evidence for British 
 
 12 & 13 Vict. c. 78, s. 5 (Lords). tribunals). 44 & 45 Vict. c. 69, s. 32 
 
 [h) Vide Plaice v. Howe, Cro. Eliz. 185 ; (evidence for British tribunals in criminal 
 
 78 E. R. 441. cases). 
 
 (c) 3 & 4 Vict. c. 86, s. 18 (discipline) ; (/) See 19 & 20 Vict. c. 113, s. 3 (for civil 
 48 & 49 Vict. e. 54, s. 7 (pluralities) ; 55 or commercial causes in foreign tribunals). 
 & 56 Vict. c. 32. s. 10 and Schcd. 36 & 37 Vict. c. 60, s. 5 (for criminal pro- 
 
 (d) See Chronological Index to Statutes, ccedings in foreign tribunals), 
 tit. ' Perjury.' (it) 19 Q.B.D. 213. 
 
 (e) The definition of oath and affidavit
 
 462 Of Offences against the Admmistration of Justice, [book vii. 
 
 an examination ' by the Court,' under sect. 27 of the Bankruptcy Act, 
 1883, was quashed on the ground that there had been no valid examination 
 by the Court, inasmuch as the registrar in bankruptcy, before whom 
 the examination was to be held, after administering the oath, had left 
 the room [1). 
 
 Deputy Judges. — The question whether perjury can be assigned on 
 evidence taken before the deputy of a judicial officer, depends on whether 
 the deputy is lawfully appointed and acting. In the case of false 
 swearing before a deputy coroner, acting in the absence of the coroner, 
 it appears to be for the judge who tries an indictment for perjury to 
 determine whether the occasion which entitled the coroner to appoint a 
 deputy had arisen (m). 
 
 Justices of the Peace. — Where perjury is assigned on an oath taken 
 before a justice of the peace it must be shewn that he had jurisdiction 
 to deal with the matter in which the oath was taken. When he has 
 jurisdiction to take evidence he can take it on oath (n). Where a charge 
 is made in the presence of the accused (o), as to a matter in which the 
 justices have jurisdiction, who is then and there called upon to answer 
 it, as he lawfully may be according to the dictum of Lord Holt {p) . . . 
 ' it is . . . altogether immaterial, so far as the jurisdiction of the justices 
 to hear the charge is concerned, whether the accused was before them 
 voluntarily or otherwise, or on legal or illegal process ' {q). The Indictable 
 Offences Act, 1848, and the Summary Jurisdiction Acts regulate the 
 formalities to be observed when a charge is made against an absent 
 person whose presence before the justices it is desired to procure (r) : 
 but unless a statute specifically requires it, the laying of an information in 
 writing, or on oath, is not a condition precedent to his exercise of juris- 
 diction (s), and statutes providing for informations on oath, unless in very 
 
 (I) In R. V. Westley, Bell. 193, and R. v. (p) That a conviction upon an informa- 
 
 Dunn, 12 Q.B. 1026, questions were raised tion instanter is legal. R. v. Fuller, 1 Ld. 
 
 as to the jurisdiction to administer the oath Raym. 509. 
 
 under insolvency Acts now repealed, viz. (q) R. v. Hughes, 4 Q.B.D. 614, 629, 
 
 1 & 2 Vict. c. 110, s. 8; 5 & 6 Vict. Hawkins, J. 
 cc. 116 & 122; and 7 & 8 Vict. c. 96. (r) At common law, warrants to arrest 
 
 (m) R. V. Johnson, L. R. 2 C. C. R. 15, appear to be illegal unless obtained on 
 
 decided on 6 & 7 Vict. c. 83, s. 1 (rep.). R. sworn information. R. v. Heber, 2 Bar- 
 
 V. Schlesinger, 10 Q.B. 670. The appoint- nard (K.B.) 101. 
 
 ment and jurisdiction of deputy-coroners (s) R. v. Millard, Dears. 166 ; 22 L. J. 
 
 is regulated by the Coroners Act, 1892 M. C. 108, Parke, B., decided on 7 & 8 
 
 (55 & 56 Vict. c. 56) ; of deputy county Geo. IV. c. 30, s. 80, repealed in 1861, and 
 
 court judges by 51 & 52 Vict. c. 43, s. 18 re-enacted as s. 62 of the Malicious Damage 
 
 (see R. V. Roberts, 14 Cox, 101 (C. C. R.) : Act, 1861. See also R. v. Shaw, 34 L. J. 
 
 R. V. Lloyd [1906], 1 K.B. 552) ; of deputy M. C. 169, Erie, C.J. Turner v. Postmaster 
 
 recorders by 45 & 46 Vict. c. 50, s. 75, General, 5 B. & S. 756. R. v. Hughes, 4 
 
 and 6 Edw. VII. c. 46 ; and of deputy Q.B.D. 614, where the subject is exhaus- 
 
 stipendiary magistrates by 6 Edw. VII. tively discussed, and the contrary dictum 
 
 0. 46. As to perjury before a deputy or of Lord Mansfield (R. v. Fearshire, 1 Leach 
 
 under-sheriff, see R. v. Dunn, 2 Mood. 202) is rejected. R. u. Scotton, 5 Q.B. 493,is 
 
 297 ; 1 C. & K. 730, 732n. explained in R. v. Hughes, uhi supra, as 
 
 (n) At common law and under 14 & 15 turning on the special language of 6 & 7 
 
 Vict. c. 99, s. 16, rtwie, p. 460. As to extra- Will. IV. c. 65 (rep.), which required the 
 
 judicial matters, his power of administering charge to be deposed to on oath before any 
 
 oaths is limited by 5 & 6 Will. IV. c. 62, proceedings were taken, &c. In Blake v. 
 
 8. 13. Vide ' Voluntary Oaths,' ante, p. Beech, 1 Ex. D. 320, the conviction seems 
 
 325. to have been quashed for irregularity, not 
 
 (o) See R. v. Stone, 1 East, 649, Kenyon, for want of jurisdiction. 
 C.J.
 
 CHAP. L] Of Perjury. 463 
 
 special terms, are read as merely giving cumulative powers in order to 
 compel the attendance of an absent person, or to enable a case to proceed 
 ex parte if he does not appear. 
 
 ' There is a marked distinction between the jurisdiction to take 
 cognisance of an offence and the jurisdiction to issue particular process 
 to compel the accused to answer it ' {t). 
 
 This is recognised by sect. 17 of the Indictable Offences Act, 1848 
 (11 & 12 Vict. c. 42), which provides for conducting a preliminary 
 inquiry, even in cases where a prisoner is brought before a justice 
 without warrant on a charge of an indictable offence. And even where 
 a man is illegally brought before justices upon a charge as to which 
 they have jurisdiction {u), if he does not demand his release (whether 
 from ignorance of the illegality or other cause), but proceeds with his 
 defence, he is treated as having waived his objections, and witnesses 
 who swear falsely at the hearing are liable to indictment for perjury {v). 
 
 H., a constable, was indicted for perjury, committed on the hearing of a 
 charge against S. for assault upon H., and for obstructing him in the 
 discharge of his duty. The first charge made was for an offence against 
 24 & 25 Vict. c. 100; s. 38, and on that charge the evidence was given, 
 but the justices summarily convicted under 34 & 35 Vict. c. 112, s. 12. 
 On the trial of H. it was objected that he could not be convicted because 
 the magistrates had no jurisdiction to hear the charge of assault, and 
 therefore perjury could not be committed on the hearing. No written 
 information or oath had been made before the issue of the warrant 
 upon which S. had been brought before the justices; but H. took no 
 objection to this although he defended himself on the merits, and called 
 a witness on the facts. It was held that, although the warrant was 
 illegal, the false oath taken by H. was perjury, because it was 
 taken before justices who were competent to entertain the charge of 
 assault, and had jurisdiction in respect of time and place over 
 the offence. On a case reserved the conviction was affirmed [ic). 
 Hawkins, J., said : ' I am of opinion that the conviction was 
 right, and ought to be affirmed. In arriving at this opinion I have 
 assumed as a fact, from the case as stated, that S. was arrested and 
 brought before the justices upon as illegal a warrant as ever was issued, — 
 a warrant signed by a magistrate not only without any written information 
 or oath to justify it, but without any information at all. . . . Wrongful, 
 however, as were the proceedings by which S. was brought into the 
 presence of the magistrates to answer a charge which up to that moment 
 had never been legally preferred against him ; before those magistrates 
 and in his presence a charge was made over which, if duly made, they 
 had jurisdiction. Upon that charge it was that the hearing proceeded ; 
 and in support of that charge it was that tlie defendant was sworn, and 
 
 (0 R. V. Hughes, 4 Q.B.D. 614, 024, 1848. There seems to have been no infor- 
 Hawkins, J. mation, but K. had appeared, heard and 
 (w) Ibid. I p. 622. 623. answered the charge, and the perjury 
 (v) R. V. Shaw, 34 L. J. M. C. 169, Black- assigned was committed by a witness 
 burn, J. In that case there had been a called for the defence. See also R. v. Mil- 
 conviction of perjury on proceedings lard, 22 L. J. M. C. 108 ; R. v. Smith, L. R. 
 against K., under 18 "& 19 Vict. c. 118, 1 C. C. R. 110. 
 which were regulated by the S. J. Act, \w) R. v. Hughes, 4 Q.B.D. 614.
 
 464 Of Offences against the Adyninistration of Justice, [book vii. 
 
 in giving his evidence swore corruptly and falsely.' In the view of the 
 Court it was immaterial to the charge of perjury whether the judgment 
 given by the justices on the evidence was legal or illegal, so long as they 
 had jurisdiction to hear evidence on the charge made. 
 
 Under 7 & 8 Vict. c. 101, s. 2 {x), an application for an order in 
 bastardy must be made to the justices acting for the petty sessional division 
 in which the mother ' may reside ' ; and they had no jurisdiction to 
 entertain such an application, unless she did reside within their division, 
 and consequently, if she did not so reside, perjury could not be committed 
 on such an application (?/). 
 
 Upon an indictment for perjury upon the hearing of an application by 
 M. H. for an order upon the prisoner for the maintenance of her bastard 
 child, it appeared that the summons was issued by a magistrate on the 
 application of M. H., who stated, but not on oath, that she had been 
 delivered of a bastard child more than twelve months previous, and 
 that money had been paid by the prisoner for its maintenance within 
 twelve months of its birth. The summons alleged that the prisoner had 
 * paid money for its maintenance within twelve months after its birth,' 
 instead of stating that proof thereof had been made. The prisoner 
 appeared personally in answer to the summons, and was assisted by an 
 attorney. No objection was made to any of the proceedings on which 
 the summons was founded, and the case was gone into on the merits 
 before the stipendiary magistrate, before whom M. H. swore to the payment 
 of money as alleged, and the prisoner swore that he had never paid M. H. 
 any money. It was objected that, as there had been no proof on oath 
 of money having been paid for the maintenance of the child within twelve 
 months from its birth before the summons was issued, the magistrate 
 had no jurisdiction to hear the case ; but, upon a case reserved, it was 
 held that the prisoner had waived the objection. Proceedings to obtain 
 an afl&liation order are not criminal but civil in character, taken 
 to impose a pecuniary obligation, and the summons is mere process to 
 bring the defendant into Court (2) . Before the summons issued there ought 
 to have been evidence on oath of the payment of the money, although 
 it was not expressly required by the statute to be on oath, as in the case 
 of a complaint made before the birth of the child. Further, the summons 
 should have been in the form given by the statute ; but even assuming 
 that, if the prisoner had not appeared, the magistrate could not have 
 lawfully proceeded to hear evidence of the paternity ; or that, if he had 
 appeared, and objected to the regularity of the summons, the objection 
 
 (z) Repealed, but in substance re- her parents' house to the justices' meeting 
 
 enacted in 1872 (35 & 36 Vict. c. 65, ss. 2, of the division in which her parents resided. 
 
 3). After the order she went into service with- 
 
 [y) R. r. Hughes, D. & B. 188. The out returning home. The jury found that 
 mother of the child was delivered in March, she had no other home than D., and that 
 and resided with her parents till November. she was residing at D., if in point of law she 
 She then went and lodged at D. in another could under the circumstances be con- 
 petty sessional division for three weeks, and sidered to be so. It was held that the 
 then applied to the justices of that division. justices had jurisdiction to make the order, 
 Her lodging there was not for any improper as her residence was at D. 
 or fraudulent purpose, but because the jus- (2) The proceedings to enforce a bas- 
 tices met in the town, and it was more con- tardy order when default is made, are quasi 
 venient for her than to go a distance from criminal. 42 & 43 Vict. 0. 49, s. 54.
 
 CHAP, i.j Of Perjury. 465 
 
 ought to have prevailed ; yet when he actually appeared, and instead 
 of objecting to the regularity of the summons, asked the Court to give 
 judgment in his favour on the merits, and tendered evidence to absolve 
 himself from liability, he waived any irregularity in the process, and 
 when he had thus submitted himself to the jurisdiction of the Court, the 
 Court had jurisdiction to hear and decide the case (a). 
 
 The same principle has been adopted in the case of a bastardy summons 
 issued before the birth of the child w^ithout the deposition required by 
 7 & 8 Vict. c. 101 (6). Where a bastardy summons is applied for within 
 the statutory period, twelve months, but not issued till after it has 
 elapsed, the justices have jurisdiction to hear the proceedings (c). 
 
 Upon an indictment for perjury, it appeared that the perjury had 
 been committed upon the hearing of a second application for a bastardy 
 order, a former application having been heard by the magistrates and 
 dismissed upon the merits. It was contended that the magistrates 
 were fundi officio after the fu'st application had been dismissed on the 
 merits, and had no jurisdiction to entertain the second application. But 
 it was held that the magistrates had jurisdiction to hear the second 
 application and administer an oath, even if the previous dismissal were 
 a defence {d). 
 
 On a trial for perjury alleged to have been committed on the hearing 
 of an information for refusing to quit licensed premises, it was held that 
 proof of the existence of the licence was necessary to shew that the 
 justices had jurisdiction (e). 
 
 An indictment alleged that Home was duly licensed to keep a beer- 
 house, and that an information had been laid against him for that he, 
 being duly licensed to keep a beer-house, had it open unlawfully on the 
 morning of Sunday, February 6, 1853, and charged the defendant with 
 falsely swearing that he had not been supplied with beer in the house 
 on that morning. Home's licence was for a year, commencing on May 11, 
 1853, but Home was keeping the beerhouse on the February 6 
 previously. It was objected that the averment that Home was duly 
 licensed on February 6 was not proved, and that if he was not so licensed, 
 the justices had no jurisdiction to hear the information. But Crorapton, 
 J., held that the justices had jurisdiction generally over the subject of 
 keeping houses for the sale of beer and other liquors open on Sunday ; 
 and that as, in order to establish an offence, it was not necessary to prove 
 that the keeper of the house was licensed, what was sworn on the subject 
 of Home's keeping the house open brought the case within the jurisdic- 
 tion of the justices, even if it turned out that he was not licensed at the 
 time (/■). 
 
 By 4 Geo. IV. c. 34, s. 2 (rep.), all complaints arising between masters 
 or mistresses and their apprentices, as to wages, &c., might be heard 
 and determined before a justice of the peace. After an apprenticeship 
 
 (a) R. V. Berry, Bell. 40, Martin, B., diss. Lewis, 12 Cox, 16.3. R. v. Willis, 12 Cox, 
 Cf. R. V. Simmonds, Bell. 168. 164. These decisions seem to have been 
 
 (b) R. V. Fletcher, L. R. 1 C. C. R. 320. doubted in R. i-. Lakin, March 10, 1900, 
 (f) R. V. Chugg, 11 Cox, 558 (C. C. R.). noted in 35 L. J. (newsp.) 101. 
 
 {d) R. V. Cooke, 2 Den. 462. See R. v. ( f) R. v. Kirton, G Cox, 393, Cronipton, 
 
 Brisbv, 1 Den. 416. J. 
 
 (e) R. V. Evans, 17 Cox, 37. Cf. R. v. 
 
 VOL. I. 2 H
 
 466 Of Offences against the Adyyiinistration of Justice, [book vli. 
 
 was over, tlie former apprentice summoned his late master under this Act 
 for wages alleged to be unpaid, and on the hearing swore falsely. It 
 was held that this was perjury, inasmuch as the magistrate had jurisdiction 
 to determine whether the relation of apprenticeship continued or not {g). 
 
 Justices have no jurisdiction to inquire into the truth of a charge of 
 libel preferred before them, or to hear any other justification (h), except 
 in cases within sect. 4 of the Newspaper Libel and Registration Act, 
 1881 (44 & 45 Vict. c. 60). If publication is proved, they are bound to 
 commit for trial. Where, therefore, an indictment was preferred for 
 perjury alleged to have been committed in the course of the cross-examina- 
 tion of a witness for the defendant on a charge of libel before magistrates, 
 the object of which was to prove the truth of the libel, the Court directed 
 an acquittal (^). 
 
 Materiality. — The essence of perjury is its tendency to mislead a 
 Court in proceedings relative to a matter judicially before the Court {j). 
 Consequently the false evidence must be relevant to a question already 
 raised, or to be raised, in the proceeding ; for if it is wholly foreign 
 from the purpose, or altogether immaterial, and neither in any way 
 pertinent to the matter in question, nor tending to aggravate or extenuate 
 the damages, nor likely to induce the jury to give the readier credit to 
 the substantial part of the evidence, it cannot amount to perjury, because 
 it is wholly idle and insignificant ; as, where a witness introduces his 
 evidence, with an impertinent preamble of a story concerning previous 
 facts, not at all relating to what is material, and is guilty of a falsity as to 
 such facts [k). 
 
 If it appears plainly that the scope of the question to a witness was 
 to sift him as to his knowledge of the substance, by examining him strictly 
 concerning the circumstances, and he gave a particular and distinct, 
 but wilfully false, account of the circumstances, he is guilty of perjury, 
 inasmuch as nothing can be more apt to incline a jury to give credit to the 
 substantial part of a man's evidence, than his appearing to have an 
 exact and particular knowledge of all the circumstances relating to it [1). 
 And a witness may be guilty of perjury in respect of a false oath concern- 
 ing a mere circumstance, if such oath have a plain tendency to corroborate 
 the more material part of the evidence ; as if, in an action of trespass for 
 spoiling the plaintiff's close with the defendant's sheep, a witness swears 
 
 {g) R. V. Sanders, L. R. 1 C. C. R. 75. that time, but in answer to the judge said, 
 
 [h) R. V. Garden, 5 Q.B.D. 1. that the prisoner had lived in the same 
 
 (t) R. V. Townsend, 10 Cox, 356, Monta- house for the two years previous, and that 
 
 gue Smith, J. The judge held that the during the whole of that time he had not 
 
 cross-examination was not upon a matter been absent from the same house for more 
 
 material to the crime. But the decision than three nights together. The last two 
 
 can be better justified on the ground that statements were proved to be false, as the 
 
 the justices had no power to enter on the prisoner for a whole year of the period 
 
 inquiry at all. spoken to had been in prison. Held, that 
 
 [j) 1 Hawk. c. 69, s. 3. the evidence so last given was material to 
 
 [k) R. V. Griepe, 1 Ld. Raym. 256. Allen the inquiry, and the proper subject of as- 
 
 V. Westley, Hetley, 97. Bac. Abr. tit. signments of perjury, inasmuch as those 
 
 'Perjury' (A.). See 2 Rolle, 41, 42, 369. latter statements tended to render more 
 
 1 Hawk. c. 69, s. 8. probable the previous statements made, 
 
 {I) Upon an indictment for robbery com- that the prisoner was at home on the night 
 
 mitted on April 13, between eight and ten of Api-il 13. R. v. Tyson, L. R. 1 C. C. R. 
 
 o'clock at night, a witness for the prisoner 107. See R. v. Naylor, 11 Cox, 13 ; R. v. 
 
 swore, not only was the prisoner at home at Alsop, 1 1 Cox, 264.
 
 CHAP. I.] Of Perjunj. 467 
 
 that he saw such a number of the defendant's sheep in the close ; and 
 being asked how he knew them to be the defendant's, swears that he knew 
 them by such a mark, which he knew to be the defendant's mark, whereas, 
 in truth, the defendant never used any such mark {m). And it is not 
 necessary to shew to what degree the false evidence was material to the 
 issue, but it is enough that the point was circumstantially material {n). 
 And still less is it necessary that the evidence should be sufficient for 
 the plaintiff to recover upon, since evidence may be very material, and 
 yet not conclusive upon, nor even directly probative of the point in 
 question (o). Where A. advanced money to B. on two distinct mort- 
 gages, upon one of which the security was insufficient, and B. assigned the 
 equity of redemption in both to C, who assigned the insufficient estate 
 to an insolvent, and filed a bill against A. to redeem the other, to which 
 bill A. put in his answer, and therein denied having had notice of the 
 assignment to the insolvent ; it was held that the notice was a material 
 fact uj)on which perjury might be assigned (2^). 
 
 Materiality is not limited to direct relevance to the issues raised, or to 
 be raised (q), in the proceeding for the determination of the tribunal, or 
 to the principal judgment to be given (r). Thus, perjury may be assigned 
 on evidence given to enable a judge to decide whether a document is 
 admissible (s), or by a person who offers himself as bail for another, as 
 to his possessing the necessary qualifications (t). Whether false swearing 
 in a judicial proceeding with intent to mislead is not punishable, when it 
 is wholly irrelevant and immaterial to the issue that is being tried, has 
 not been judicially determined (m). 
 
 Upon the trial of Doe d. Richard v. Griffiths, a copy of the will of 
 W. J. was tendered, and on objection to its admissibility. P., who was then 
 attorney for the lessor of the plaintiff, swore that he had examined the 
 copy produced with the original will in the registry at Llandaff. Upon 
 further objection that the original will was inoperative in respect of a 
 chattel interest, and that, therefore, either the probate ought to be pro- 
 duced or the Act Book be proved, P. further deposed that he had examined 
 the memorandum at the foot of the copy of the will, with the entry in 
 the Act Book at the same registry. Upon this evidence the judge offered 
 to receive the document in evidence, but the plaintiff's counsel withdrew 
 it. P. was indicted for perjury. It was proved that he had not made 
 either of the examinations to which he had deposed, and he was con- 
 victed. Erie, J., reserved the question, whether the false oath was relevant 
 
 (m) Bac. Abr. tit. ' Perjury ' (A.). 1 case arose on an application to rescind a 
 
 Hawk. 0. 69, s. 8. See R. v. Gardiner, pos/, commission to examine witnesses' issue 
 
 P- 501. after writ but before the defendant's 
 
 (n) R. I'. Griepe, 1 Ld. Raym. 256. R. appearance. It had been ur^ed that a 
 
 V. Muscot, 10 Mod. 195. commission should not go (ill issue was 
 
 (o) R. V. Rhodes, 2 Ld. Raym. 886. joined in the cause, as till this, perjury 
 
 (p) R. r. Pepys, Peake, 138 {3rd edit. could not be assigned in the depositions. 
 
 187). Kenyon, C.J. (r) 1 Hawk. c. 69, s. 3. R. v. Mullany, 
 
 (7) In Finney v. Becsley [1851], 17 Q.B. L. & C. 593. 
 
 86 ; 20 L. J. Q.B. 96, Campbell, C.J., said : (s) R. v. Phillpotts, 2 Den. 302. 
 
 1 1 do not agree that there could be no (t) R. v. Royson, Cro. Car. 146. 
 
 indictment for perjury where the examina- (m) Sec R. v. Mullany, L. & C. 593, 596, 
 
 tion of the witness has taken place before Erie, C.J. ; and per Maule, J., in R. v. Phill- 
 
 issue joined, if his evidence would be ma- potts, 2 Den. 302, 306. 
 terial to the issue afterwards joined.' The 
 
 2h2
 
 468 Of Offences against the Administration of Justice, [book vil. 
 
 and material to the issue then being tried, so as to amount to perjury ; 
 as to which the following were the facts : — On the trial of an action of 
 ejectment (Doe d. Richard v. Griffiths), the lessor of the plaintiff claimed 
 to be entitled to a term, which had been granted to W. J. and R. M, 
 jointly. The will of J. was irrelevant to this title ; but the time of his 
 death was a material fact, and proof of the probate of the will of J. would 
 thus have been relevant evidence towards estabhshing the plaintiff's 
 title, A copy of this will was tendered in evidence. The purpose of 
 the plaintiff's counsel in tendering the evidence, was to clear a doubt 
 respecting the interest of J. in the term, which was expected to be raised 
 by the defendant, and after the document was withdrawn the survivorship 
 of R, M. was proved by other evidence. The examination of the 
 document tendered with the entry in the book called ' The Act Book ' 
 at Llandaff, did not render the document legally admissible as an 
 examined copy of the act of probate. 
 
 For the prisoner, it was contended before the judges, that the 
 question was simply whether if a witness swears that he has 
 examined a document, not receivable in evidence, with a certain 
 book, can that be said to be material to the issue ? The time of 
 J.'s death was in issue ; how could the fact that the witness swore 
 that he had examined a paper, not receivable in evidence, with a 
 certain book, be material to the issue then being tried ? It is not enough 
 that the evidence has relation to the matter in issue ; it must be material 
 to the issue. It was contended, when the defendant was tried, that 
 what he had sworn was material for the jury, who were to act on the 
 evidence before them ; and, secondly, that it was material for the judge, 
 who was to say whether it was to be put to the jury or not. But it could 
 not be material for the jury ; for it was withdrawn from their considera- 
 tion, and they could not legitimately act upon it ; and here the judge 
 was not a judge of fact. This evidence was not on any issue of fact 
 which the judge had to try. It was merely evidence to be given to the 
 jury through the judge. Campbell, C.J., said : ' I am of opinion that 
 the conviction was right. There was false swearing in a judicial 
 proceeding. How can it be said not to have been material ? It was 
 necessary to prove that J. died before M. Although the fact of J.'s 
 death had been proved by parol testimony, if evidence was given to shew 
 that probate had been granted of J.'s will while M. was still living, it 
 would have been material in corroboration. With a view to have the 
 copy of the will received in evidence, the defendant swore falsely that he 
 had examined the paper produced with the original will at Llandaff, 
 and the entry on it with the entry in the Act Book ; and thereupon the 
 judge said, I will admit it, and if it had been read, it would have gone to 
 the jury with the rest of the evidence in the case. Afterwards the docu- 
 ment is withdrawn, but that cannot purge the false swearing committed 
 by the defendant. It has been said that if the judge were wrong in admit- 
 ting the document in evidence, the defendant could not be convicted, 
 making the offence of perjury depend upon whether a judge were right 
 or wrong in his decision on a question of law, and upon the decision of 
 some nice point in a bill of exceptions, which might ultimately go to the 
 House of Lords. We are all of opinion, as the evidence was given in
 
 CHAP. I.] Of Perjury. 469 
 
 a judicial proceeding, with a view to the reception in evidence of a docu- 
 ment, which was material, and as that evidence was false, that all the 
 ingredients necessary to constitute the crime of perjury are present ' {v). 
 
 The prisoner was indicted for perjury before a Court of Requests, in 
 a proceeding under the interpleader section of the Act establishing the 
 Court, to ascertain whether a certain pig, which had been seized under 
 an execution issued against him on September 26, had been sold by 
 him on August 5 to his brother. The prisoner had sworn that he had sold 
 the pig to his brother on August 5, and the allegation of perjury was, 
 that the pig was not sold by the prisoner to his brother on the said 5th 
 day of August. It was contended that whether the pig was sold or not 
 on August 5 was not the material question ; the material question was 
 whether or not, at any time before the issuing of execution, there had 
 been a sale of the pig by the prisoner to his brother. It was quite im- 
 material whether the sale took place on a particular day, if it took place 
 at some time prior to the execution. Maule, J., said : ' I think that the 
 ultimate question to be decided is one thing, and yet that a material 
 question may be raised upon a matter collateral to that question. I 
 do not at all think that I can confine the law of perjury by making that 
 only perjury which is material to the only question to be tried, other- 
 wise persons might perjure themselves with impunity. It might be a 
 material question in a case of murder what coloured coat a man had 
 on : the colour of the pig, as I put it, might be most material ; for suppose 
 a person swore that this was a black pig, and another witness swore it 
 was white, it would have been a material question whether the pig was 
 black or white, although the ultimate question would have been whether 
 it was sold at the time when it was alleged to have been sold ' {iv). 
 
 On the hearing of an information against R., under sect. 30 of the 
 
 Game Act, 1831 (1 & 2 Will. IV. c. 32), for committing a trespass in pursuit 
 
 of game on a close in the occupation of W., a witness having proved that 
 
 he saw R. in W.'s field, and saw him commit the offence there, the 
 
 prisoner swore, on behalf of R., that he went with R. into a lane adjoining 
 
 the field, and that R. shot into the field, but did not enter it, and that 
 
 he himself went into the field and fetched off what R. killed. On an 
 
 indictment for perjury in respect of this evidence, it was contended that 
 
 the evidence was not material ; because R. was equally guilty of an 
 
 offence within sect. 30, whether he went into the field and shot there, 
 
 or whether he shot from the lane, and the prisoner in his company went 
 
 in and brought away the game. But Williams, J., held that the evidence 
 
 was material {x). 
 
 [v) R. V. PhiUpotts [1851], 2 Den. 302. lany, L. & C. 593, ;jo.v/, p. 470. 
 
 In the course of the argument, Maule, J., {w) R. v. Altass [1843], 1 Cox, 17. A 
 
 said : ' Here the defendant by means of a case once occurred at Gloucester where on 
 
 false oath endeavours to have a document an indictment for stealing a rabbit the ques- 
 
 received in evidence ; it is, therefore, a tion turned on whether a rabbit found in 
 
 false oath in a judicial proceeding ; it is the prisoner's possession was a buck or doe 
 
 material to that judicial proceeding ; and rabbit, and numerous witnesses were called 
 
 it is not necessary that it should have been on each side, and the verdict was, ' We find 
 
 relevant and material to the issue being it was a buck rabbit ' — a case well illus- 
 
 tried.' In R. v. Gibbon, Pollock, C.B., trating Maule, J.'s remarks, 
 
 said that there was a great deal of very (;r) R. v. Scotton [1844], 5 Q.B. 493. 
 
 good sense in Lord Campbell's judgment The ease was not argued on this point in 
 
 in this case. Cf. on this point, R. v. Mul- the Queen's Bench.
 
 i70 Of Offences against the Administration of Justice, [book vii. 
 
 In R. V. Mullany (//), the perjury assigned was that the defendant, 
 on the trial of a cause in a County Court, wilfully, corruptly, and falsely 
 swore that his name was Edward and not Bernard Edward. On this 
 evidence the County Court judge had refused an amendment and struck 
 out the cause. On his conviction it was contended that the inquiry 
 as to the prisoner's name was immaterial. But Erie, C.J., said : ' The 
 question was put in the course of a judicial inquiry, and was so put by the 
 judge in the course of forming his judgment on the case, and for his own 
 guidance in forming such judgment. The prisoner thereupon swore 
 that which was false. He swore it in a judicial proceeding for the purpose 
 of affecting the decision ; and the statement he made was material because 
 on the strength of it the judge altered his judgment for the petitioner into 
 one for the defendant. The case therefore clearly comes within the 
 rule laid down in R. v. Phillpotts [z) and R. v. Gibbon ' (a). 
 
 Upon an indictment for perjury alleged to have been committed 
 in an answer to a bill filed in Chancery, it appeared that the bill was filed 
 against the defendant and R., stating an agreement to purchase certain 
 wheat, to be paid for by draft at three months, which agreement was not 
 reduced into writing, and that afterwards a bought note was delivered 
 to the defendant, which note did not contain fully the terms of the agree- 
 ment ; that the defendant brought an action and recovered a verdict ; 
 and that he was enabled to obtain such verdict by reason of his fraudu- 
 lently concealing the true terms of the agreement, and the bill prayed 
 that one of the terms of the contract might be declared to be that the 
 purchase-money should be paid by a bill of exchange, payable three 
 months after date ; and the defendant by his answer denied the parol 
 agreement stated in the bill. The bill was dismissed, and the denial by 
 the defendant was the subject of the indictment for perjury. It was 
 contended that the indictment could not be sustained on the ground that 
 the only proper evidence of the contract was the bought and sold notes : 
 that the contract by parol was void by the Statute of Frauds : and that a 
 false answer to a bill for the discovery of such a contract would not subject 
 a person to the indictment for perjury ; and R. v. Dunston {h) was relied 
 upon. Coleridge, J., said : ' In that case the bill in Chancery was to enforce 
 the performance of a parol contract, which could not be enforced by 
 reason of the Statute of Frauds ; and the case of R. v. Benesech (c) pro- 
 ceeded on the same ground. Though it is true that a party cannot vary 
 
 {y) L. & C. 593. pleaded to relate to the sale of lands, and 
 
 (z) 2 Den. 302. not enforceable by reason of s. 4 of the 
 
 (a) L. & C. 109, post, p. 473. In R. v. Statute of Frauds on the ground that the 
 
 Worley, 3 Cox, 535, the indictment was oath was irrelevant and immaterial, 
 
 for perjury in a matrimonial cause before (r) Peake, Add. Cas. 93. Kenyon, C.J., 
 
 an Ecclesiastical Court, and the perjury held that perjury could not be assigned on 
 
 was assigned on an oath that W. had never denial of a promise to pay a marriage por- 
 
 passed by the assumed names A. or J. tion, it being pleaded in the suit that the 
 
 Denman, C.J., held the evidence of materi- agreement to give the jiortion was not in 
 
 ality insufficient, but as none of the writing, and was void under the Statute of 
 
 evidence is stated, except the single Frauds. See Bartlett v. Pickersgill, 4 
 
 question and answer on which perjury Burr. 2255 ; 4 East, 577n. ; where a case of 
 
 was assigned, it is difficult to see where indictment for perjury for denial of a part 
 
 this decision assists. agreement to buy land, which a Court of 
 
 (6) Ry. & M. 109. Tenterden, C.J., held Equity had refused to enforce. The 
 
 that perjury could not be assigned on the Statute of Frauds does not seem to have 
 
 denial of the making of an agreement been pleaded. 
 
 I 
 i
 
 CHAP, i.j Of Perjury. 471 
 
 the terms of a written contract by parol evidence, he may shew by such 
 evidence that he was induced to sign the WTitten contract inadvertently 
 and by fraud. In this case the object of setting up the parol terms of 
 the contract is for the purpose of avoiding the contract on the ground of 
 fraud.' ' I think that the principle, that parol evidence is inadmissible 
 to contradict or vary the terms of a written contract, does not apply 
 where the object of that evidence, as in this case, is to impeach the trans- 
 action on the ground of fraud. I think that the assignment of perjury 
 on the denial in the answer of the parol terms, which the bill prayed to 
 have established, is material and relevant ; and I think therefore that 
 the objection cannot be sustained ' [d). 
 
 In R. V. Courtney (e), an indictment for perjury before a coroner 
 while holding an inquest, alleged that it was a material question whether 
 the deceased, the prisoner, or another person had drunk any intoxicating 
 liquor during a certain interval, and that the prisoner falsely swore that 
 none of them had tasted any intoxicating liquor during that interval. 
 This statement was shewn to be false, but there were no grounds for 
 supposing that the deceased came to his death from anything except 
 from the effects of having been exposed to the night air. It was objected 
 that the matter so falsely sworn was not material, but Monahan, C.J., 
 left the question of materiality to the jury, and they convicted ; and, 
 upon a case reserved, it was held that the evidence was material. It was 
 the duty of the coroner to inquire into all the circumstances attending, or 
 which might have caused, the death of the person upon whom the inquiry 
 was held. That being so, it at once became material to ascertain whether 
 or not death had not been caused to some extent by the deceased having 
 been tippling in a public-house, and therefore in a state to render it more 
 probable that he should have lost his way. It was material for the 
 coroner to ascertain, not only the actual cause of death, as murder, 
 felo de se, or otherwise, but also all the circumstances attending it, and 
 therefore it was a necessary part of his duty to ascertain the way in which 
 the deceased spent the evening before his death ( /). 
 
 In R. V. Berry (r/), the prisoner was indicted for perjury alleged to 
 have been committed by him on the hearing of an application of M. H., 
 the mother of a bastard child, for an order in bastardy to be made upon the 
 prisoner. Upon the hearing M. H. swore that on the day after the 
 birth of the child the prisoner paid her £1 7s. 6r/., and that he paid her 
 
 (d) R. V. Yates, C. & M. 132. whether the answer related to matters in 
 
 (c) fl856] 7 Cox, 111 (Jr.). the cause or to other matters in difference. 
 
 (/) In R. V. Ball [1854], 6 Cox, 3G0, On this report, Mr. Greaves says :' Gurnej', 
 
 Russell Gurney, Recorder, is reported to R., is far too good a criminal lawyer to 
 
 have said: ' In all these cases it is necessary have made such a decision as this, and I 
 
 to shew that the matter alleged to be have the best authority for saying that he 
 
 falsely sworn was material. That cannot be never did so decide. Probably the evi- 
 
 done in this case without proof that it was dcnce failed to shew that the evidence was 
 
 material either to the action or to the other material in any respect upon the hearing of 
 
 matters in difference. The evidence faihng the matters referred. It is obvious that 
 
 to shew this distinctly, the defendant must the paper in this case might have been 
 
 be acquitted.' The indictment was for material both to the matter in issue in the 
 
 perjury in an arbitration of a cause and all cause, and to the other matters referred, 
 
 matters in difference. The perjury was and yet according to this report the evi- 
 
 assigned as to the signature of a paper. dcnce would not have been material.' 
 The arbitrator was unable to .say definitely (g) [1859] Bell. 46.
 
 472 Of Offences against the Admiyiistration of Justice, [book vii. 
 
 a weekly sum for several weeks after ; in answer thereto the prisoner 
 swore that he never paid M. H. any money at all iijjon any account 
 whatsoever, and on this statement perjury was assigned. The statement 
 was held material ; as it was necessary to prove at the hearing the payment 
 of the money ; and as the payment of the money for the maintenance of 
 the child was corroborative evidence of the paternity Qi). 
 
 Where a count stated that it was a material question whether a 
 bond was obtained by the fraud of the prisoner, and that the prisoner 
 falsely swore that he read over and explained it to the obligor ; Erie, J., 
 ruled that the reading over the bond was material as being strong evidence 
 to negative fraud (?'). 
 
 On an indictment of B. for falsely swearing on a trial for rape that she 
 had never got one W. to write a letter for her, which was shewn to her, 
 it was proved that B. had got W. to write a letter to the person she had 
 charged with the rape, saying, ' I will do all I can to clear you.' ' I should 
 not have went to the police about the matter at al], if I had not been 
 persuaded by ' two persons whom she named, &c. The evidence relating 
 to the writing of this letter was held material {j). 
 
 On an indictment for having falsely sworn before justices, on a charge 
 against the prosecutor for stealing three account books, that the 
 defendant saw him destroy another account book, the prosecutor being 
 also charged with embezzlement; it was held that the evidence was not 
 material on the charge of larceny, as it would be merely bad con- 
 duct in one instance, inducing a probability of bad conduct in 
 another (k). 
 
 The prisoner was indicted for perjury on the hearing of a summons, 
 which he had taken out against the prosecutor for using language 
 calculated to incite him to commit a breach of the peace. The language 
 used by the prosecutor was in consequence of H. having, as the prose- 
 cutor alleged, kicked and struck a horse, and several witnesses were 
 called who proved this. H. was asked on cross-examination whether 
 it was true that he had ever kicked or struck the horse, and denied 
 that he had. Held, that the statement by the prisoner that he had 
 never kicked or struck the horse was merely collateral (/). 
 
 All false statements wilfully and corruptly made by a witness as to 
 matters which affect his credit are material, and he is liable to be con- 
 victed of perjury in respect of them. So where a person charged before 
 a magistrate with selling beer without a licence, falsely swore that, when 
 previously convicted of a similar offence, he had not authorised his 
 solicitor to plead guilty, it was held that such a statement was material, 
 as it affected his character as a witness, and that he was rightly con- 
 
 {h) In R. V. Owen [1852], 6 Cox, 105, (/) R. v. Bennett [1851], 2 Den. 240, 
 
 perjury was assigned on the oath of 0. on Talfourd, J., on the trial : approved by 
 
 a bastardy summons, that R. was the the judges on a case reserved on other 
 
 father of her child, and that R.'s uncle had points. 
 
 offered to raise her wages if she would {k) R. v. Southwood [1858], 1 F. & F. 
 
 swear the child to another man than R. It 356, Watson, B. It would have been 
 
 does not appear how this evidence came to material on the charge of embezzlement, 
 be admitted by the justices. Martin, B., {I) R. v. Holden, 12 Cox, 166. Should it 
 
 doubted its materiality, but left the case to not have been said ' quite irrelevant ' ? 
 
 the jury, who acquitted. As to perjury on collateral matters, vide 
 
 (t) R. V. Smith [1858], 1 F. & F. wo. ante, p. 467.
 
 CHAP. I.] Of Perjury. 473 
 
 victed of perjury (m). The Court came to this conclusion on the authority 
 of the three cases next to be cited, and considered that the fact and 
 circumstances of the previous conviction were material not merely to 
 the quantum of punishment, but to the formation of the decision of 
 the magistrate on the case. 
 
 An indictment for perjury before commissioners of taxes on an appeal 
 of H. against a surcharge for a greyhound used by him on November 24, 
 averred that it was a material question whether a certain receipt produced 
 by the prisoner on the hearing of the appeal was given to him before 
 September 12, and that the defendant falsely swore that the receipt was 
 given to him before September 12. At the commissioners' meeting, evi- 
 dence was given that H. and the prisoner were coursing, on November 24, 
 with two greyhounds, one of which had been H.'s, who had no certificate. 
 H., in support of his appeal against a surcharge for this dog, said that 
 the dog had been sold to the defendant long before, and called him as 
 a witness. The prisoner swore that he bought the dog on September 6, 
 and produced a receipt for the purchase-money bearing that date. The 
 surveyor asked him whether the receipt was given at the time of the 
 sale, and he said it was not, but a few days after. On being pressed, he 
 swore positively that it was given him before September 12. It was 
 objected that the materiality of the question as stated in the indictment 
 had not been shewn ; that the material question was, whether the dog 
 was the defendant's or H.'s on November 24, the day of the coursing. 
 It had not been disproved that there had been a sale of the dog on Sep- 
 tember 6, and if there was, the time of giving the receipt, or even the fact 
 of any receipt having been given, was immaterial. The objection was 
 overruled, and on a case reserved, Abinger, C.B., said : ' The whole 
 matter turned on the credit of the witness, and he tries to support his 
 credit by false evidence. The receipt is to confirm his evidence, and 
 he swears it was given before the 12th. If that were true, the proof would 
 be decisive.' Williams, J. : ' The time when this receipt was given is a 
 step in the proof.' Denman, C.J. : ' Everything is material which affects 
 the credit of the witness.' Abinger, C.B. : ' Every question in cross- 
 examination which goes to the credit of the witness is material. If a 
 witness were asked, in cross-examination, whether he was in such a 
 place at such a time, and he denied it, that would be material if it went 
 to his credit. In the present case, if they could not have contradicted 
 the prisoner by the date of the stamp, the receipt confirming his evidence 
 would have made out the case before the commissioners' (w). 
 
 In R. V. Gibbon (o), the prisoner was indicted for falsely swearing on 
 the hearing of an application in bastardy, that he had had connection 
 with the mother of the child. The mother in support of the application 
 had made a deposition before the magistrates, and she was then cross- 
 examined as to whether she had not had connection with the prisoner, 
 and she denied it. The prisoner swore that he had had connection with 
 her as imputed by the question put to her. It was objected that the 
 
 (m) R. V. Baker [1895], 1 Q.B. 797. (o) L. & C. 109; 31 L. J. M. C. 98. a. 
 
 (n) R. V. Overton [1842], C. & M. 655. R. v. Tyson, L. R. 1 C. C. R. 107. As to 
 
 See also R. v. Lavey [1850], 3 C. & K. 20, statements tending to render more credible 
 
 "post, p. 474. a material allegation.
 
 474 Of Offences against the Administration of Justice, [book vii. 
 
 evidence given by the prisoner was not material to the issue raised on 
 the application for the affiliation order, as the question put to the mother w 
 as to her having had connection with the prisoner merely went to affect fli 
 her credit, and her answer to it ought to have been regarded as conclusive, ^ 
 and the evidence given by the prisoner was inadmissible. But, on a ' 
 
 case reserved, it was held that the prisoner was liable to be convicted. 
 ' It is now clearly established that a cross-examination going to a witness's 
 credit is material, and that perjury may be assigned upon it ' (p). Here, 
 therefore, the mother might have been indicted if she had sworn falsely 
 on cross-examination upon this matter. ' Although it did not refer to 
 the main issue, which was the paternity of the child, it had a bearing 
 upon what was indirectly in issue ; namely, how far the complainant 
 was deserving of credit ' (q). ' Then, as the question only affected her 
 credit, as soon as she had answered it, all should have been bound by 
 her answer. This is an established rule of our law. Notwithstanding 
 that, the magistrates admitted the evidence of the prisoner, which legally 
 was inadmissible. Then, although not legally admissible, yet, being 
 admitted, it had a reference to what was indirectly in issue, — the credi- 
 bility of the complainant. The evidence having been admitted, although 
 wrongly, R. v. Phillpotts (r) is an authority directly in point that perjury 
 may be assigned upon it. Although the evidence was open to objection, 
 yet it does not lie in the witness's mouth to say that it was not a question 
 on which he was bound to speak the truth ' (s). 
 
 Is Materiality for Judge or Jury ? — There are conflicting decisions 
 on the question whether materiality is for the judge or for the jury. 
 
 In E. V. Lavey [t), the indictment alleged that the defendant, as 
 
 (77) L. & C. 109, Crompton, J. and Sum. Ass., 1843, the mother on the first 
 (7) Ibid. Cockburn, C.J. trial swore to connection with the defend- 
 (r) Ante, pp. 467-9. ant on one occasion only; and on the 
 (s) By eleven judges, Crompton, J., and second trial, before WiUiams, J., evidence 
 Martin, B., doubting. It was stated in the of an alihi was given, and also evidence that 
 argument that the child was a full grown the mother had had connection with others 
 child. The cases where it has b?cn held on at such a time that one of them might have 
 a trial for rape that the woman may be been the father of the child ; and this evi- 
 proved to have had connection with other dence was given only with a view to the 
 men, were distinguished by Williams, J., on paternity of the child. The new trial had 
 the ground that ' the character of the been obtained on the affidavit (amongst 
 prosecutrix in those cases may be so mixed others) of the defendant expressly nega- 
 up with the facts as to be material, not only tiving any connection witli the mother, 
 to her credit, but to the cause.' By coun- C. S. G. In R. v. Murray [1858], 1 F. & F. 
 sel for the prosecution they were distin- 80, B. had been charged before justices 
 guished on the ground that voluntary inter- with robbery in a railway carriage. He 
 course with others was very material on the had cross-examined the prosecutor as to 
 question whether she consented ; and this whether he had been in company with B. 
 distinction was not denied by any judge. and M. in Manchester on the previous day, 
 The cases where in an action for seduction and then called M., who swore that the 
 such evidence has been held admissible, prosecutor had accosted him while in corn- 
 were distinguished on the ground that such pany with B., and proposed that he should 
 evidence affected the damages. But al- assist him in breaking into his uncle's 
 though Alderson, B., in Verry v. AVatkins, house. Martin, B.,after consulting Byles,. J., 
 7 C. & P. 308, left such evidence to the jury held this to be evidence. On this case being 
 in mitigation of damages, he first left the cited in R. v. Gibbon, Martin, B., said, 
 question to them whether the defendant ' that case should not be looked upon as 
 was the father of the child, and my recol- any authority. It was only my impression 
 lection of the case (in which I was counsel of what was material formed hastily on 
 for the defendant) is that the evidence was circuit.' 
 given chiefly with a view to that question. it) [1850] 3 C. & K. 26, 
 And in Grinnell v. Welb, Gloucester Spr.
 
 CHAP. L] Of Perjury. 475 
 
 executrix of her husband, was plaintiff in a County Court action, and 
 that she falsely swore that she had never been tried at the Central Criminal 
 Court for any offence, and had never been in custody at the Thames 
 police station. It was proved that she had been in custody at the station, 
 and had been tried at the Central Criminal Court, and acquitted by the 
 direction of the judge. The County Court action was for goods sold by 
 the testator, and was heard by the judge without a jury, and the evidence 
 in question was given by the plaintiff during her cross-examination. 
 It was objected that the evidence given by the defendant was not material 
 on the question whether the testator in his lifetime sold the goods for 
 which the action was brought ; and as the trial in the County Court was 
 before a judge, and not before a jury, it did not weigh as to the result of 
 that trial whether she had been tried or not ; and since giving a true 
 answer that she had been acquitted by the direction of the judge would 
 have equally cleared her character, it could not have been material that 
 she denied having been taken into custody and tried on that charge. 
 Campbell, C.J., said : ' I think that there is evidence of materiality,' 
 and left that question to the jury, directing them to consider whether 
 her evidence on the two points in question might not influence the mind 
 of the County Court judge in believing or disbelieving the other state- 
 ments she made in giving her evidence {u). 
 
 In R. V. Courtney {v), where on an indictment for perjury before a 
 coroner a question was raised as to the materiality of the matter sworn, 
 and that question was left to the jury, who convicted ; it was held, in 
 Ireland, that the matter was material : and all the judges except one {w), 
 after fully considering the preceding case, expressed a very strong opinion 
 that it was for the judge to determine whether the matter was material 
 or not. 
 
 In R. V. Goddard [x), the indictment alleged that on the hearing of 
 an application for an order in bastardy, it became material to inquire 
 whether the prisoner had ever kissed the prosecutrix or had familiarity 
 with her. The prisoner, being examined in answer to the evidence given 
 by the prosecutrix, swore that he never had any connection or familiarity 
 with her, and never kissed her. It was objected that the evidence was 
 not material, as it was far too wide in the form in which it was given. 
 Wightman, J., consulted Erie, C.J., and declined to stop the case, and 
 after pointing out the necessity for two witnesses to prove the falsehood 
 of the prisoner's evidence, told the jury : ' Then the question arises whether 
 the parts of his evidence which are assigned as perjury were material to 
 the investigation. It seems to me that they were so, but that is for you. 
 Were they material and wilfully false ? ' These decisions appear to be 
 
 (h) In every previous case materiality the evidence to be material ; tliey did, 
 
 1ms been treated as a question of law, and therefore, treat the question as a matter of 
 
 it is submitted that it is clearly .so ; other- law. If they had held it to be a question 
 
 wise all the cases in wliich it has been held for the jury, the question would have been 
 
 that an averment of materiality is Tuineces- whether the evidence warranted the ver- 
 
 sary where the materiality appears on the diet. Bee this case more fully stated, ante, 
 
 face of the indictment, are erroneous. p. 471. 
 
 (v) 7 Cox, 11] ; 5 Ir. C. L. Rep. 434. (.r) [1861] 2 F. & F. 361. No authorities 
 
 (jf) Ball, J., doubted. It is to be ob- were cited, 
 served that in this case all the judges held
 
 476 Of Offences against the Administration of Justice, [book vii. 
 
 in conflict with R. v. Gibbon {y). Channell, B., on that case said he never 
 could understand R. v. Lavey, ' unless on the ground that there was a 
 question whether the defendant in the County Court action meant to 
 plead or admit the claim. That point having been ascertained, the 
 question of materiality was no longer for the jury/ 
 
 Deliberation. — The false evidence must be given ivilfully, i.e., with 
 some degree of deliberation. It cannot be regarded as wilful or corrupt 
 perjury if given through surprise or inattention or mistake (z). And 
 upon a trial for perjury it is necessary to shew that the prisoner's 
 attention has been sufficiently drawn to the exact question put to him (a), 
 and that the matter deposed to was then known to be false, or not known 
 to be true. 
 
 It does not matter whether the fact deposed to is in itself true or false ; 
 even if the thing sworn may happen to be true, yet, if it were not known to 
 be so by him who swears to it, his offence is as great as if it had been false, 
 inasmuch as he wilfully swears that he knows a thing to be true which 
 at the same time he knows nothing of, and impudently endeavours to 
 induce those before whom he swears to proceed upon the credit of a 
 deposition which any stranger might make as well as he (6). 
 
 Nor does it matter whether the falsity relates to something which 
 the witness swore he saw or heard or did, or to what he swore he thought, 
 or knew or remembered, or believed. It is certainly true that a man 
 may be indicted for swearing that he believes a fact to be true which he 
 must know to be false (c). In R. v. Sclilesinger {d), an indictment for 
 perjury alleged that the defendant swore that he thought that certain 
 words written in red ink were not his writing ; whereas the defendant, 
 when he so deposed, thought that the said words were his writing ; and 
 it was held that the assignment was sufficient. If a witness swears that 
 he thought a certain fact took place, it may be difficult indeed to shew 
 that he committed wilful perjury. But it is certainly possible, and the 
 averment is as properly a subject of perjury as any other. 
 
 In R. V. Stolady (c), the prisoner was indicted for perjury on the hearing 
 of an information against B. for trespassing in pursuit of game. The 
 occupier of the land and two of his men swore that they saw B. on the 
 land on a particular Sunday morning. The prisoner was called by B. as 
 a witness, and swore that B. lodged with him, and that he never was 
 absent from his lodgings on any Sunday morning during the whole 
 time that they lodged together, which included the Sunday on which 
 
 (y) L. & C. 109, ante, p. 473. expressed a like opinion in Anon. [1780], 
 (2) 1 Hawk. c. 69, s. 2. 1 Hawk. c. 69, s. 7, note (a) ; and De Grey, 
 (a) See R. v. Mawbey, 6 T. R. 619. C.J., so ruled in R. v. Miller, 3 WUs. K.B. 
 {h) 1 Hawk. c. 69, s. 6. R. v. Edwards, 427 ; 2 W. Bl. 881. The opinion expressed 
 cor. Adams, B., Shrewsbury Lent Ass. 1764; by Coke that perjury cannot be assigned 
 and subsequently considered by the judges, on an oath as to opinion, recollection or 
 MS. And see R. v. Mawbey, 6 T. R. 619. belief (3 Inst. 166) must, therefore, be re- 
 Lawrence, J. 2 Rolle Abr. ' Indictment ' garded as erroneous. But perjury could 
 (E.) pi. 5, p. 77. Allen v. Westley, Hetley, hardly be assigned on an opinion on such a 
 97. Gurney's case, 3 Co. Inst. 166. See matter as the construction of a deed. See 
 R. V. Newton, 1 C. &. K. 469, for a count R. v. Crespigny, 1 Esp. 280, Kenyon, C.J. 
 framed to meet such a case. {d) 10 Q.B. 670. 17 L. J. M. C. 29. 
 
 (c) R. V. Pedley, 1 Leach, 325, Lord (e) 1 F. & F. 518. 
 Mansfield. AlHhe judges are said to have
 
 CHAP. I.] Of Perjury. 477 
 
 the alleged offence was committed. Pollock, C.B., was of opinion that 
 the attention of the prisoner ought to have been called to the particular 
 day on which the transaction took place as to which he was asked to 
 speak ; and that a general allegation, such as had been made in this case, 
 including all Sundays between two fixed dates, was not sufficiently 
 precise upon which to found an indictment for perjury, and directed an 
 acquittal (/). 
 
 In R. V. London (g), the indictment charged that prisoner (on the trial 
 of a plaint in the County Court for the price of coals obtained on credit at 
 different times, in which it was a material Cjuestion whether or not the 
 prisoner had received any coals on credit from P., either on account 
 of himself or A.), swore ' that he had never received any coals on credit 
 from P., either on account of himself or A.' Held, that the allegation in 
 the indictment was not too general, although no specific instance was 
 averred in which the prisoner had received coals on credit from P. At 
 the trial the prisoner was asked three or four times by the advocate 
 and judge whether he did at any time, either on his own account or 
 that of A., have any coals on credit from P., to which the prisoner always 
 answered, ' I did not.' It was held, that the prisoner's attention was 
 sufficiently called to the subject so as to found a charge of perjury upon 
 the answer, although no distinct transactions on credit were suggested 
 to him during his examination (/?) . 
 
 Corrupt Motive. — Perjury is always charged as having been committed 
 ' corruptly,' as well as ' wilfully.' The word ' corruptly,' even if it be 
 not essential at common law (M), is inserted in indictments to justify 
 the statutory punishments provided for wilful and corrupt perjury (?'). 
 
 The corrupt motive may be inferred by the jury from the circumstances 
 
 (/■) ' This case is very unsatisfactorily re- on a similar information, the evidence wa^ 
 
 ported ; no date is given, or anything more that the defendant did, within such a time 
 
 than is above stated. As the proof of the and such a time, steal a deer, so that the 
 
 offence was on " a particular Sunday morn- time was left as uncertain in the evidence 
 
 ing," the prisoner, if present, musthsLve had as in the information, it was held sufficient, 
 
 his attention drawn to that particular date ; R. v. Simpson, 10 Mod. 248.' C. S. G. 
 
 and, if absent, still the date would have (g) 12 Cox, 50 (C. C. R.). 
 
 been known to B. from the summons, and, (h) Bovill, C.J., said : ' We are all of 
 
 as he called the prisoner as his witness, he opinion that this conviction was good, 
 
 no doubt had communicated the day to The first question is upon the form of the 
 
 him, so that the ground of the decision indictment, that is sufficient in our opinion, 
 
 really did not exist. But supposing the The second point is whether the attention 
 
 decision to be as reported, it is very confi- of the prisoner was sufficientl}'^ called to the 
 
 dcntly submitted that it is erroneous. transaction he was being questioned about, 
 
 Suppose a man called to prove an alibi and we are all of opinion it was amply 
 
 swears that he and the prisoner were in called to it, even if the second point had 
 
 Paris during all the month in which the been reserved for us.' Willes, J., said : 
 
 offence was committed, can it be the law ' We do not intend to overrule what Pol- 
 
 that he is not guilty of perjury because he lock, C.B., said, " that the attention of a 
 
 is not asked as to the particular day ? If witness ought to be called to the pomt upon 
 
 a man sweai's that he was not absent from which his answer is supposed to be erro- 
 
 church on any Sunday in January, is not neous, before a charge for perjury can be 
 
 that as precise a swearing as to each founded upon it." Mr. Greaves in the 
 
 and every Sunday as if he were asked 4th edition of Russell on Crimes, makes 
 
 as to each in succession ? An information, some observations on R. v. Stolad}-, which 
 
 which charges the defendant with killing are in accordance with the judgment of the 
 
 ten deer between July 1 and Sept. 10. Lord Chief Justice.' 
 
 without shewing the particular days on (hh) It is used in 32 Hen. VIII. c. 9, s. 3 ; 
 
 which they were killed, is good. R. v. 5 Eliz. c. 9, a. 2, post, p. 52;>. 
 
 Chandler, 1 Ld. Raym. 581. And where, (t) See post, p. 479.
 
 478 Of Offences against the Admmistration of Justice, [book vii. 
 
 of the case (/), and in order to shew that the accused swore wilfully and 
 corruptly what was not true, evidence may be given of expressions of 
 malice used by the defendant towards the person against whom he gave 
 the false evidence {h). 
 
 Where an indictment for perjury alleged that the prisoner 'feloni- 
 ously ' swore to the matter on which the perjury was assigned instead 
 of ' falsely,' it was held that the indictment was bad in substance, and 
 that the words ' corruptly, knowingly, wilfully, and maliciously,' did 
 not supply the defect : a man might swear ' corruptly ' under some 
 corrupt influence, and yet swear the truth ; so with respect to the word 
 * knowingly ' ; and he might swear ' wilfully and maliciously ' to gratify 
 some malicious feeling, but yet it might not be ' falsely.' Nor did the 
 conclusion that the prisoner ' in manner and form aforesaid did commit 
 wilful and corrupt perjury ' cure the defect ; for the meaning of that 
 Avas, that the prisoner committed the offence in the manner stated, 
 and, that statement being defective, the indictment was bad (/). 
 
 Trial. 
 
 Perjury is now tried only on indictment or criminal information, 
 except in those cases in which a child of tender years allowed to give 
 unsworn evidence may be summarily convicted {vide ante, p. 457). 
 
 In one old case, where a person made an affidavit in the Court of Common 
 Pleas, and afterwards, being summoned to appear in Court, came there, 
 and confessed it to be false, the Court recorded his confession, and ordered 
 that he should be taken into custody, and put in the pillory. In answer 
 to the objections of the defendant's counsel to this proceeding, it was 
 argued that it was fully justified under 5 Eliz. c. 9, and that even if the 
 Court could not punish the defendant by virtue of that statute, he might 
 be punished at common law, on the ground that any Court might punish 
 such a criminal for an offence committed in facie curiae (m). This ruling 
 appears to treat perjury or prevarication as a form of contempt of Court (n). 
 
 Courts of Quarter Sessions had no jurisdiction to try common law per- 
 jury (o). They were given jurisdiction by 5 Eliz. c. 9 {post, p. 525). But by 
 the Quarter Sessions Act, 1842 (5 & 6 Vict. c. 38), s. 1, Courts of Quarter 
 Sessions have no jurisdiction to try ' any person or persons for . . . 
 perjury or subornation of perjury ' ; or ' making or suborning any other 
 person to make a false oath, affirmation, or declaration punishable as 
 perjury, or as a misdemeanor ' {p). 
 
 (j) E. V. Knill, 5 B. & Aid. 929n. 
 
 (k) R. V. Munton, 3 C. & P. 498, Tenter- 
 den, C.J. In this case the evidence seemti 
 to have been admitted without objection. 
 See also 1 Hawk. c. 69, s. 2. R. v. Melling, 
 5 Mod. 349. R. v. Muscot, 10 Mod. 192. 
 
 (I) R. V. Oxley, 3 C. & K. 317, Cress well, 
 J., after consulting Alderson, B. 
 
 (m) R. V. Thorogood, 8 Mod. 179. Bush- 
 ell's case, Vaughan, 152, was cited. 
 
 (n) See Oswald on Contempts (2nd ed.). 
 Chang HancjKiu r. Piggott [1909], A. C. 313. 
 
 (o) R. V.' Bainton, '~2 Str. 1088. R. v. 
 Westiness, id. ibid. 1 Chit. Cr. L. 301. In 
 R. V. Haynes, Ry. & M. 298, Gaselee, J., 
 
 refused to try an indictment for perjury 
 found at quarter sessions, and removed bj' 
 certiorari into the King's Bench for trial at 
 nisi prills, on the ground that the indict- 
 ment was void, having been found before a 
 Court which had no jurisdiction over per- 
 jury at common law. See also R. v. Rigby, 
 8 C. & P. 770. 
 
 (p) It is to be observed that the word ' try ' 
 is used, and under this Act it would seem 
 possible for the grand jury at quarter ses- 
 sions to find an indictment for perjury but 
 for the provisions of the Vexatious Indict- 
 ments Act, which in effect ensure commit- 
 tal of charges of perjury to a court of assize
 
 CHAP, i.] Of Perjury. 479 
 
 It is the practice of the Central Criminal Court not to try an indictment 
 for perjury arising out of a civil suit while that suit is in any wav un- 
 determined, except in cases in which the Court, where the suit is pending, 
 postpones the decision of it in order that the criminal charge might first 
 be disposed of (q). 
 
 Where two justices refused to hold a preliminary inquiry into a charge 
 of jDcrjury alleged to have been committed in a suit in the Ecclesiastical 
 Court, on the ground that that suit was still pending, a mandamus to 
 compel them to hear the charge was refused, and it seems to have been 
 considered that the course the justices had taken was the most likely to 
 answer the ends of justice (r). 
 
 Punishment. 
 
 The punishment of wilful perjury by a witness is at common law (6-) 
 fine and (or) imprisonment without hard labour. The amount of the 
 fine and the term of imprisonment are in the discretion of the Court (t). 
 By the Hard Labour Act, 1822 (3 Geo. TV. c. 114) (u), the imprisonment 
 may be with hard labour. The Court may also adjudge the defendant 
 to give surety to keep the peace and be of good behaviour for a reasonable 
 time, to be computed from and after the expiration of the term of his im- 
 prisonment, himself in a sum named in such judgment, with two sufficient 
 sureties, each in a sum therein also mentioned, and may adjudge the 
 defendant to be further imprisoned until such security be given ; and 
 such sentence does not amount to perpetual imprisonment, as in default 
 of sureties being given the defendant would be entitled to be discharged 
 at the expiration of the term during which the sureties were required (v). 
 
 By the Perjury Act, 1728 (2 Geo. II. c. 25), s. 2, in order the more 
 effectually to deter persons from committing wilful and corrupt perjury, 
 or subornation of perjury, it is enacted, ' that besides the punishment 
 already to be inflicted by law for so great crimes, it shall and may be 
 lawful for the Court or judge, before whom any person shall be con- 
 victed of wilful and corrupt perjury, or subornation of perjury, according 
 to the laws now in being, to order such person to be sent to some house 
 of correction within the same county for a time not exceeding seven 
 years {w), there to be kept to hard labour {x) during all the said time, 
 or otherwise to be transported to some of His Majesty's jjlantations 
 
 (q) See R. v. Ashburn and R. v. Simmons, remanded to the custody of the marshal, 
 
 8 C. & P. 50. to be kept by him in safe custody, in exe- 
 
 (>■) R. V. Ingham, 14 Q.B. 396. cution of the judgment aforesaid, and until 
 
 (s) As to the punishment under the he shall be transported as aforesaid.' The 
 
 Statute of Elizabeth, see post, p. 520. As pillory is abolished, vide ante, p. 250. 
 
 to former punishments, see 4 Bl. Com. 138. (?t) Ante, p. 212. 
 
 (t) 4 Bl. Com. 138. R. v. Nueys and (c) R. v. Dunn, 12 Q.B. 1026, decided on 
 
 (ialey, 1 W. Bl. 416. R. v. Lookup, 3 the authority of R. r. Hart, 30 St. Tr. 1131, 
 
 Burr. 1901. In this last case the form of 1194, 1344, where the judges, in answer (o 
 
 the sentence was that the defendant a question from the House of Lords, de- 
 
 ' should be set in and upon the pillory at livered their unanimous opinion that in all 
 
 Charing Cross, for an hour between the cases of misdemeanor the Court might give 
 
 hours of twelve and two ; and that he sentence in that form. 
 
 should afterwards be transported to some {w) It is submitted that this term is re- 
 ef His Majesty's colonies or plantations in duced to two years by 54 & 55 Vict. c. 69, 
 America, for the space of seven years (2 s. 1, ante, p. 212. 
 Geo. II. c. 25,8. 2, infra); and "be now (x) See 3 Geo. IV. c. 114, a?i/e, p. 212.
 
 480 Of Ojfences against the Administration of Justice, [book vii. 
 
 beyond the seas, for a term not exceeding seven years {;y), as the Court 
 shall think most proper ; and thereupon judgment shall be given, that 
 the person convicted shall be committed or transported accordingly, 
 over and beside such punishment as shall be adjudged to be inflicted on 
 such person, agreeable to the laws now in being {z) ; and if transportation 
 be directed, the same shall be executed in such manner as is or shall be 
 provided by law for the transportation of felons.' The section goes on 
 to provide that ' if any person so committed or transported shall vol- 
 untarily escape or break prison, or return from transportation before 
 the expiration of the time for which he shall be ordered to be transported 
 as aforesaid, such person, being thereof lawfully convicted, shall suffer 
 death as a felon {a), without benefit of clergy, and shall be tried for such 
 felony in the county where he so escaped, or where he shall be appre- 
 hended.' 
 
 The old law {b) disqualifying a person convicted of perjury from 
 giving evidence was abrogated by the Evidence Act, 1843 (6 & 7 Vict, 
 c. 85, s. 1). 2 Geo. II. c. 25, s. 2, applies to false oaths punishable as perjury 
 taken in a manner authorised by subsequent statutes (c), and under it 
 successive sentences of seven years penal servitude may be imposed on 
 conviction on two or more counts charging perjury by the defendant 
 on different occasions, although in each case with the same object {d). 
 
 The first count of an indictment assigned perjury on an affidavit of 
 the defendant, which alleged that the defendant did not retain or employ 
 W. U. to act as attorney for him and J. L, or for either of them, in and 
 about the business mentioned in the said W. U.'s bill of costs ; and that 
 he, the defendant, never retained or employed the said W. U. to act as 
 attorney or agent for him in any cause or manner whatever. The second 
 count assigned perjury on the statement in the affidavit as follows : 
 * that he the said defendant did not retain or employ (meaning that he 
 the defendant did not alone, or jointly with the said J. I., retain or employ) 
 W. U. to act as attorney for him and J. I.' The third count was the same 
 as the first, and the fourth as the second. The plea was, not guilty of 
 the premises in the indictment specified. The venire was ' to recognise 
 whether the defendant be guilty of the perjury and misdemeanor afore- 
 said, or not guilty.' The verdict was that the defendant ' is guilty of 
 the perjury and misdemeanor aforesaid,' and the judgment that the 
 defendant ' be imprisoned and kept to hard labour for ten calendar 
 months.' It was urged that the venire, the verdict and judgment, were 
 uncertain for not shewing to which of the counts they referred : that 
 they were in the singular number, speaking of * the perjury and 
 
 {y) Now penal servitude from three to transportation, the clause seems to be 
 
 seven years (54 & 55 Vict. c. 69, s. 1, ante, superseded by 5 Geo. IV. c. 84, s. 22, and 
 
 p. 211). As to the proper form of a judg- the death penalty under that section was 
 
 ment of transportation while it was in repealed in 1834 (5 & 6 Will. IV. c. 67), in 
 
 force, see R. v. Kenworthy, 1 B. & C. 711, terms which seem wide enough to cover the 
 
 R. V. Lookup, 3 Burr. 1901. above clause. 
 
 (2) It is not imperative upon the Court (6) Gilb. Ev. 126. Bull. (N. P.) 291. 4 
 
 to award any punishment previous to, or Bl. Com. 138. 2 Hawk. c. 46, s. 101. And 
 
 additional to, that of penal servitude. see 5 Eliz. c. 9, a. 2, post, p. 526. 
 
 Castro V. R., 6 A.C. 229. (c) R. v. Castro, L. R. 9 Q.B. 350. 
 
 («) This death penalty has not been ex- [d) Castro v. R., 6 A.C. 229. 
 pressly repealed. But so far as concerns
 
 CHAP. I.J Of Perjury. 481 
 
 misdemeanor aforesaid/ and that this could only mean one perjury and 
 misdemeanor ; and that as four were alleged in the indictment, it was 
 uncertain which of them the jury was summoned to try, and of which of 
 them the defendant was found guilty ; but the Courts of Queen's Bench 
 and Exchequer Chamber held that ' misdemeanor ' was nomen collectivum, 
 and meant ' the misconduct aforesaid,' and that consequently the venire 
 applied to all the counts of the indictment, and the defendant had been 
 found guilty by the verdict on all the counts (e). 
 
 Where on an indictment for perjury containing several counts the 
 judgment was ' that the prisoner for the offence charged upon him in and 
 by each and every count be imprisoned for the space of eight calendar 
 months now next ensuing '; it was held by the Court of Exchequer Chamber 
 that the judgment was good, on the ground that it meant that the prisoner 
 was to be imprisoned for the same period of eight months for each offence (/). 
 
 Ordering Prosecution. — By the Criminal Procedure Act, 1851 (14 & 15 
 Vict. c. 100), s. 19, ' it shall and maybe lawful for the judges or judge of 
 any of the superior courts of common law or equity, or for any of His 
 Majesty's justices or commissioners of assize, nisi prius, oyer and terminer, 
 or gaol delivery, or for any justices of the peace, recorder, or deputy 
 recorder, chairman, or other judge holding any general or quarter sessions 
 of the peace, or for any commissioner of bankruptcy or insolvency, or 
 for any judge or deputy judge of any county court, or any court of record, 
 or for any justices of the peace in special or petty sessions, or for any 
 sheriff or his lawful depvity before whom any writ of inquiry or writ of 
 trial from any of the superior courts shall be executed, in case it shall 
 appear to him or them that any person has been guilty of wilful and 
 corrupt perjury in any evidence given, or in any affidavit, deposition, 
 examination, answer, or other proceeding made or taken before him or 
 them, to direct such person to be prosecuted for such perjury, in case 
 there shall appear to him or them a reasonable cause for such prosecution, 
 and to commit (g) such person so directed to be prosecuted until the 
 next session of oyer and terminer or gaol delivery for the county or 
 other district within which such perjury was committed, unless such 
 person shall enter into a recognisance, with one or more sufficient surety 
 or sureties, conditioned for the appearance of such person at such next 
 session of oyer and terminer or gaol delivery, and that he will then 
 surrender and take his trial, and not depart the court without leave, and to 
 require any person he or they may think fit to enter into a recognisance, 
 conditioned to prosecute or give evidence against such person so directed' 
 to be prosecuted as aforesaid, and to give to the party so bound to prose- 
 cute a certificate of the same being directed, which certificate shall be 
 given without any fee or charge, and shall be deemed sufficient proof of 
 such prosecution having been directed as aforesaid ; and upon the produc- 
 tion thereof the costs of such prosecution shall and are hereby required 
 to be allowed by the court before which any person shall be prosecuted 
 or tried in pursuance of such direction as aforesaid, unless such last- 
 
 (e) Ryalls v. R., 11 Q.B. 781, approving thi.s section is not used, and its exercise is 
 
 R. I'. Powell, 2 B. & Ad. 75. obviously inconvenient. See 44 Sol. Jo. 
 
 {/) King V. R., 14 Q.B. 'M. 525; 64 J. P. 370. The section extends to 
 
 (<j) The power of direct committal under Ireland: and see 14 & 15 Vict. c. 57, s. 157 (I). 
 
 VOL. I. 2 I
 
 482 Of Offences against the Adnmiistration of Justice, [book vii. 
 
 mentioned court shall specially otherwise direct ; and when allowed 
 by any such court in Ireland such sum as shall be so allowed shall be 
 ordered by the said court to be paid to the prosecutor by the treasurer of 
 the county in which such offence shall be alleged to have been committed, 
 and the same shall be presented for, raised, and levied in the same manner 
 as the expenses of prosecutions for felonies are now presented for, raised, 
 and levied in Ireland : provided always, that no such direction or certifi- 
 cate shall be given in evidence upon any trial to be had against any 
 person upon a prosecution so directed as aforesaid ' (A). 
 
 Form of Indictment. — Besides the general rules of the common and 
 statute law as to criminal pleading, indictments for perjury and cognate 
 offences are subject to the following enactments : — 
 
 14 & 15 Vict. c. 100, s. 20. ' In every indictment for perjury, or for 
 unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or 
 corruptly taking, making, signing, or subscribing any oath, affirmation, 
 declaration, affidavit, deposition, bill, answer, notice, certificate, or other 
 writing, it shall be sufficient to set forth the substance of the offence 
 charged upon the defendant, and by what Court or before whom the 
 oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, 
 certificate, or other writing, was taken, made, signed, or subscribed, 
 without setting forth the bill, answer, information, indictment, declara- 
 tion, or any part of any proceeding, either in law or in equity, and 
 without setting forth the commission or authority of the Court or person 
 before whom such offence was committed ' {i). 
 
 Sect. 21. 'In every indictment for subornation of perjury, or for 
 corrupt bargaining or contracting with any person to commit wilful 
 and corrupt perjury, or for inciting, causing, or procuring any person 
 unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or 
 corruptly to take, make, sign, or subscribe any oath, affirmation, declara- 
 tion, affidavit, deposition, bill, answer, notice, certificate, or other writing, 
 it shall be sufficient, wherever such perjury or other offence aforesaid 
 shall have been actually committed, to allege the offence of the person 
 who actually committed such perjury or other offence in the manner 
 hereinbefore mentioned, and then to allege that the defendant unlawfully, 
 wilfully, and corruptly did cause and procure the said person the said 
 offence, in manner and form aforesaid, to do and commit ; and wherever 
 such perjury or other offence aforesaid shall not have been actually 
 committed, it shall be sufficient to set forth the substance of the offence 
 charged upon the defendant, without setting forth or averring any of 
 the matters or things hereinbefore rendered unnecessary to be set forth or 
 averred in the case of wilful and corrupt perjury.' 
 
 Sect. 22. ' A certificate containing the substance and effect only 
 (omitting the formal part) of the indictment and trial for any felony or 
 
 {h) As to costs in England, see 8 Edw. Court or persons to have a competent 
 
 VII. c. 1.^, vost, Bk. xii. c. v. Subject to this authority to administer the same.' 23 
 
 enactment perjury and subornation are Geo. II. c. 11 was repealed in 1867 (S.L.R.). 
 
 within the Vexatious Indictments Act, R. v. Dunning, L. R. 1 C. C. R. 290, 292 ; 
 
 post, Bk. xii. c. i. 40 L. J. M. C. 58, Channell, B. As to the 
 
 [i) This section is almost identical in inadequate use made of that enactment, 
 
 terms with 23 Geo. II. c. 11, s. 1, except see R. v. Dowlin, 5 T. R. 311. 
 that it omits the words ' averring such
 
 CHAP. I.] Of Perjury. 483 
 
 misdemeanor, purporting to be signed by the clerk of the Court or other 
 officer having the custody of the records of the Court where such indict- 
 ment was tried, or by the deputy of such clerk or other officer (for which 
 certificate a fee of six shillings and eightpence and no more shall be 
 demanded or taken), shall upon the trial of any indictment for perjury 
 or subornation of perjury be sufficient evidence of the trial of such indict- 
 ment for felony or misdemeanor, without proof of the signature or official 
 character of the person appearing to have signed the same ' (/). 
 
 Several persons cannot be joined in one indictment for perjury, the 
 crime being in its nature several (k). 
 
 Venue.^ — In an indictment for perjury the marginal venue is 
 sufficient [l) and it is enough to shew the offence committed any- 
 where within the county, without naming the parish or place wliere 
 the false oath was taken. Where perjury had been committed in 
 the booth-hall within the limits of the city of Gloucester, which is a 
 county of itself, on the trial of a cause before a jury of the county 
 at large, it was held that the indictment might be found and tried 
 by juries of the county at large {m). And where perjury had been 
 committed on the trial of an indictment at the Worcester quarter 
 sessions, which were held in the Guildhall at Worcester, which is 
 situate in the county of the city of Worcester, it was held that 
 the indictment, which was found by the grand jury of the county 
 of the city of Worcester, was good, as it was preferred in the 
 county where the oath was actually taken (w). Where perjury was 
 assigned on an affidavit of an attorney of the Court made in answer to 
 a summary application against him, it was objected that it was not 
 stated where the Court was held when the original application was made, 
 or when the rule was made, calling upon the defendant to answer the 
 charge. But the venue was held to have been sufficiently stated, it being 
 expressly averred that the defendant ' then and there before the said 
 Court was duly sworn ' (o). In the case of an affidavit sworn in the country 
 the party at common law could not be indicted where the affidavit is 
 used, but only where the offence was completed by making the false 
 oath {f). But in the case of affidavits sworn under the Commissioners of 
 Oaths Act, 1889, the deponent may be indicted in any county or place in 
 the United Kingdom in which he was apprehended or is in custody {q). 
 
 ()) The complete record would be equally I Mood. 323. Allegations of place should 
 
 good evidence ; but production of the in- be made when they are material. R. v. 
 
 dictment alone has been held insufficient. Aylett, 1 T. R. 64, 69, Lord Mansfield. 
 
 R. V. Coles, 16 Cox, 16,5, Stephen, J. (m) R. v. Gough, 2 Dougl. 791. In this 
 
 (k) R. r. Philips, 2 Str. 921. 'In R. v. case a charter had made Gloucester a 
 
 Goodfellow, C. & M. 569, one defendant county of itself, reserving only the trial of 
 
 was indicted for perjury, and tlie other for matters arising in the county at large within 
 
 suborninghim to commit (he perjury, and no Gloucester as before. The judges inti- 
 
 nhjection was taken to botli l)oing included mated their opinions that (ho indictment 
 
 in the same indictment ; and it would seem might be in either county, but they were 
 
 none could have been successfully taken on clear it might be in the county at large, 
 
 that ground, as it is hke the case of principal (n) R. v. Jones, 6 C. & P. 137, Tindal, 
 
 and accessory before the fact, included in C.J. See the Counties of Cities Acts, atite, 
 
 the same indictment.' C. S. G. Vide post, p. 25. 
 
 p. 527. (o) R. V. Crosslev, 7 T. R. 315. 
 
 (I) 14 & 15 Vict. c. 100, s. 23. See R. r. {p) Same case, Kenyon, C.J. 
 
 Harris, 2 Leach, 800. R. v. Woodward, (q) 52 & 53 Vict. c. 10, s. 9. 
 
 2 I 2
 
 484 Of Offences agaiyist the Administration of Justice, [book vii. 
 
 Time. — The indictment need not state the time at which the offence 
 was committed miless the time is of the essence of the offence (r), and 
 if averred where it is not material, it may be rejected (s). Where an indict- 
 ment for perjury, charged to have been committed in the defendant's 
 answer to a bill of discovery filed in the Court of Exchequer, alleged that 
 the bill was fUed on a day specified, it was held that the day was not 
 material, as it was not alleged as part of the record {t). Where perjury 
 was assigned on an answer to a bill alleged to have been filed in a par- 
 ticular term, and a copy produced was of a bill amended in a subsequent 
 term, by order of the Court, it was held that the amended bill was 
 part of the original bill {u). On an indictment for perjury committed 
 on the trial of a cause at nid prius which contained no express reference 
 to the record, it was held immaterial that the nisi prius record stated 
 the trial to have been on a day different from that stated in the 
 indictment (v). 
 
 Description of Court. — It is necessary to aver by what Court or 
 before whom the oath was taken, but unnecessary to set forth the 
 commission or authority of the Court or person (w). The description of 
 the Court should, of course, be accurate, especially if it is a Court of 
 limited jurisdiction ; but may be amended if there is a variance between 
 the statement and the evidence as to something not material to the 
 merits of the case (x). The enactments mentioned above have lessened, 
 if not destroyed, the authority of the cases in which certain variances 
 have been held fatal, e.g., where the indictment charged perjury before 
 justices assigned to take the assizes (?/), and the evidence shewed that the 
 judge was sitting under the Commission of Oyer and Terminer, and 
 Gaol Delivery (z), or where the indictment charged perjury at the assizes 
 and general sessions of Oyer and Terminer, and the evidence proved 
 the oath to have been taken on the Crown side, and not on the civil 
 side (a). 
 
 (r) 14 & 15 Vict. c. 100, s. 24. In R. v. In R. v. Western, L. R. 1 C. C. R. 122, the 
 
 Aylett, T. R. 64, 69, Lord Mansfield said : Court held that the indictment could be 
 
 ' There must be an allegation of time and amended by substituting the description of 
 
 place, which are sometimes material and the court of justices for a borough instead 
 
 necessary, sometimes not.' of justices for a county. The justices were 
 
 is) R. V. Aylett, 1 T. R. 70, 71. named in the indictment. 
 
 it) R. V. Hucks, 1 8tark. (N.P.) 521, Ellen- (y) As to present definition of ' assizes,' 
 
 borough, C.J. And see Rastall v. Straton, vide ante, p. 3. 
 
 1 H. Bl. 49. Woodford v. Ashley, 2 Camp. (z) R. v. Lincoki, R. & R. 421, MS. 
 
 193, and 1 Stark. Cr. PL 122. Bayley, J. 
 
 (m) R. v. Waller [1719], 3 Stark. Evid. (a) See the precedents, 2 Chit. Cr. L. 
 
 856. 366, 367 (a), of indictments for perjury on 
 
 (r) R. V. Coppard, M. & M. 118. 3 C. & the trial of causes at the assizes, which are 
 P. 59, Tenterden, C. J., on the authority of in the form of this indictment ; though, 
 Purcell V. Macnamara, 9 East, 157. It is according to 3 Bl. Com. 60, the commission of 
 no longer necessary, and is not now the assize is to take the verdict of a peculiar 
 practice, to use the words 'as appears by the species of jury, called an assize. Black- 
 record.' 14 & 15 Vict. c. 100, s. 24. stone also speaks of a commission of assize 
 
 {iv) 14 & 15 Vict. c. 100, s. 20, ante, p. 482. being issued each circuit ; but no such 
 
 (x) 14 & 15 Vict. c. 100, s. 1. In R. v. commission is now issued, and the cases 
 Child [1851], 5 Cox, 197, the indictment tried on the civil side are tried under the 
 alleged pei'jury at [the assizes and] general commission of assize. And this is accord- 
 sessions of the delivery of the gaol. Tal- ing to what Lord Holt said (Bullock v. Par- 
 fourd, J., ordered the words in brackets to sons, 2 Salk. 454): 'The authority of the 
 be struck out to make the indictment corre- judge of nisi prizis is not by the distringas, 
 spond with the record of the former trial. but by the commission of assize ; for it is 

 
 CHAP. I.] Of Perjury. 485 
 
 An indictment for perjury may state the trial to have taken place 
 before the judge, who in fact tried the case, or before the judges before 
 whom it is considered in point of law to have taken place (6). 
 
 An indictment alleged that an issue was tried before the sheriff of the 
 county of Durham, by virtue of a writ to him directed, and that upon 
 the trial of that issue the prisoner was duly sworn before the said sheriff. 
 By the writ of trial, return, and the record, the issue did appear to 
 have been tried before the sheriff ; but by the parol evidence it appeared 
 that the issue was not tried before the sheriff or under-sheriff, and that 
 neither of them was present, but that it was in fact tried before S., who 
 was stated to be the deputy of the high-sheriff ; but no appointment of 
 S. was put in, nor was his office more particularly described. Wightman, 
 J., upon being informed that it was the invariable practice wlien writs of 
 trial were directed to the sheriff, to make up the record as if the trial had 
 been before him, though in fact it was before some deputy, allowed 
 the trial to proceed, and the prisoner was convicted ; and, upon a 
 case reserved, the majority of the judges held that the conviction 
 was right (c). 
 
 Description of the Proceedings. — It is not necessary to set forth 
 in detail any part of the proceedings in whicli the false oath is said to have 
 been taken {d). It is enough to aver that there was a certain cause, &c., 
 and that it came, on to be tried in due form of law (e) ; and even before 
 1851 it was sufficient to recite the substance and not the tenor of the 
 record of the former proceeding (/). 
 
 An indictment for perjury, alleged to have been committed before a 
 Court of Quarter Sessions, averred in substance that a certain indictment 
 
 13 Edw. I. c. 30 which gives the trial by indictment was for perjury at the assizes 
 
 nisi prills, and by that statute the trial by (civil side). Two judges were named in the 
 
 nisi prius is given before justices of assize.' commission and in the caption of the indict- 
 
 It is clear, therefore, that where perjury is ment. The point was reserved and decided 
 
 committed either on a civil or criminal trial as stated in the text. Cf. R. v. Copparc-!, 
 
 at nisi prius on circuit the trial ought to be M. & M. 148, which turned on the now 
 
 alleged to have taken place before the jus- obsolete practice as to trials in sittings after 
 
 tices assigned to take the assizes. C. S. G. term in London ; and R. v. Ueman, 2 Ld. 
 
 In R. V. Fairburn (Stafford Summer As- Raym. 1221. 
 
 sizes, 1850, MSS. C. 'S. G.) the indictment (c) R. v. Dunn, 2 Mood. 297, followed in 
 
 charged perjury before justices assigned to R. v. Schlesinger, 10 Q.B. 670. In R. i'. 
 
 take the assizes. The record proved that Child, 5 Cox, 197, the indictment alleged a 
 
 the former trial had taken place at the trial for felony before the judges natncd in 
 
 assizes and general sessions of oyer and ter- a commission of oyer and terminer, &c. It 
 
 miner. Greaves, Q.C., ruled that this was had, in fact, taken place before Greaves, 
 
 not a fatal variance, as the indictment for Q.C., in the grand jury room. Mr. Greaves 
 
 rape might have been removed by ceriforarj was a J. P. for the county in which the 
 
 and tried on the civil side. But the record assizes were held. Talfourd, J., expressed 
 
 went on to say that the trial was in the a doubt whether his authority to try the 
 
 Crown Court, which was held fatal, and not case sufficiently appeared in the indictment, 
 
 amendable under 9 Geo. IV. c. 15, now (d) 14 & 15 Vict. c. 100, s. 20, o«/e, p. 482. 
 
 superseded and extended by 14 & 15 Vict. (e) R. v. Dowhn. 5 T. R. 311, 320. R. r. 
 
 0. 100, s. 1. As to the proper mode of Dunning, L. R. 1 C. C. R. 290, 293. 
 
 describing the tribunal on indictments for (/) May's case, Bullcr, J., 1799. He 
 
 perjury in a county court or before a com- cited R. v. Beech, 1 Leach, 133 (a case of 
 
 mittee of Parliament, see Lavey v. R., 2 mis-spelling). See R. v. Spencer, 1 C. & P. 
 
 Den. 504 : 3 C. & K. 26. R. v Dunn, 260 ; Ry. & M. 97. Doubts on words in a 
 
 12 Q.B. 1026. As to describing a common- record are for the Court to settle. R. v. 
 
 law county court, see Jones v. Jones, 5 M. Hucks, 1 Stark. (N. P.) 521, EUcnborough, 
 
 & W. 523. R. V. Fellows, 1 C. & K. 115. L.C.J. 
 (b) R. V. Alford, 1 Leach, 150. The
 
 486 Of Offences against the Adynmistration of Justice, [book vil. 
 
 for misdemeanor (</), &c., came on to be tried in due form of law, and was 
 tried by a jury duly sworn, and the prisoner, as a witness on the trial, 
 was duly sworn, and contained the other usual averments and conclusion. 
 It did not state the nature of the misdemeanor, or aver that the Court 
 of Quarter Sessions had authority to try the same or administer an oath 
 on the trial. It was held, that the substance of the offence charged 
 against the defendant was sufficiently stated under this enactment, and 
 that the indictment was good on motion in arrest of judgment {h). 
 
 But enough should be stated to shew that the proceeding in or for 
 which the oath was sworn was judicial, and the oath not a voluntary 
 oath {i). Most of the older authorities {j) on this subject may be 
 disregarded, as superseded by the provisions of the Criminal Procedure 
 Act, 1851, and the power of amendment by that Act given. 
 
 Where an indictment for perjury alleged that a certain issue in a 
 plea of debt came on to be tried, and that upon the trial of the said issue 
 so joined between the parties, certain questions became material, &c., 
 but by the record it appeared that three issues had been joined on three 
 pleas ; it was objected that it was impossible to know to which of them 
 the averment of materiality referred : but Erie, J., held that ' issue ' 
 was nomen coUedivum, and overruled the objection (k). 
 
 In R. V. Pearson (l), it was held insufficient to aver that P, went before 
 two justices and deposed to assault on him and the taking of a £5 note 
 from him by M., without stating that there was any proceeding pending 
 before the justices, or that the deposition was taken in support of a charge 
 of crime, on the ground that the statement made was consistent with P. 
 having merely made a voluntary affidavit, where there was no charge 
 and no prosecution and no cause in hand (m). But in R. v. Bradley (n), 
 Coleridge, J., said that considerable doubts had been raised in R. v. 
 Gardiner (o) whether R. v. Pearson was rightly decided. 
 
 Jurisdiction of the Court. — Before 1851 it was necessary expressly to 
 allege, or clearly to indicate in the indictment, that the Court or person 
 before whom the oath was taken had authority to administer the oath for 
 the purpose of the j^roceeding in which it was taken. Under 14 & 15 Vict. 
 
 {g) It is expedient to specify the nature equity proceeding. R. v. Bailey, 7 C. & P. 
 
 of the offence to which the first trial related. 204 (misdescription of the parties in pro- 
 
 Where the indictment charged perjury on ceedings in an Ecclesiastical Coui-t). Cf. R. 
 
 the hearing of a charge of feloniously re- v. Peace, 2 B. & Aid. 579. 
 ceiving stolen silk, aiid the evidence shewed {k) R. v. Smith, 1 F. & F. 98. 
 
 that the charge was for having possession {I) 8 C & P. 119, Coleridge. J. 
 
 of silk suspected to have been purloined or (m) By 5 & 6 Will. IV. c. 62, s. 13, ante, 
 
 embezzled (17 Geo. III. c. 56), Patteson, p. 325, justices are prohibited from taking 
 
 J., held that the indictment was not proved. affidavits under such circumstances. 
 R. V. Goodfellow, C. & M. 569. (n) [1844] Stafford Spring Assizes, MSS. 
 
 (h) R. V. Dunning, L. R. 1 C. C. R. 290. C. S. G. 
 As to curing by proof defects in statement (o) 2 Mood. 95 ; 8 C. & P. 737. In that 
 
 of the adjournment of a Court of Quarter case an indictment was held good, which 
 
 Sessions, see R. v. Bellamy, Ry. & M. 171, averred ' upon an information and exami- 
 
 Abbott, C.J. nation, &c.' but did not state directly that 
 
 (i) R. V. Bishop, C. & M. 302. R. v. a charge was pending. In R. v. Crawley, 
 
 Pearson, 8 C. & P. 119, Coleridge, J., infra. 12 Cox, 163, an indictment for perjury on 
 
 (j) See R. 1'. Roper, 6 M. & S. 327 ; 1 proceedings before justices in petty ses- 
 
 Stark. (N. P.) 518. R. v. Benson, 2 Camp. sions, for stealing suet, was held defective 
 
 508. R. ?'. I*owell, Ry. & M. 101 : where because it did not allege felonious taking, 
 
 the indictments erroneously stated the Sed quaere. 
 names of one or more of the parties to an
 
 CHAP. 1.1 Of Perjury. 487 
 
 c. 100, s. 20, this strictness is relaxed, and the competence of the Court 
 is matter of proof {-p). It is not necessary to set out the commission or 
 authority of the Court or person {q). But where the Court, &c., is of 
 limited jurisdiction (r) enough should be stated to shew that its jurisdic- 
 tion attached {s). In the case of an oath taken before justices of the peace, 
 the indictment should specify the justices before whom it was sworn, 
 and for what place and purpose they were acting {t). 
 
 On an indictment charging the commission of perjury on the hearing of 
 an appeal, before commissioners of assessed taxes, that a notice of appeal 
 had been given to the ' assessors,' whereas, under the relevant statute 
 (43 Geo. III. c. 99), the notice of appeal was to be to the surveyor or com- 
 missioners, and the commissioners were to dismiss the appeal unless 
 such notice had been given (s. 25), it was held, that the indictment on the 
 face of it shewed want of jurisdiction to hear the appeal (w). In cases of 
 perjury on affidavits before commissioners of oaths, the circumstances 
 under which the oath came to be administered should be stated (y). 
 
 In R. V. Callanan {w), an indictment for perjury in an affidavit alleged 
 that the defendant did take his corporal oath before P. J. C. (he the said 
 F. J. C. then and there having sufficient and competent power and 
 authority to administer the said oath to the defendant in that behalf), 
 and that the defendant did before the said F. J. C, as such commissioner 
 as aforesaid, depose, &c. The indictment did not state the cause for or 
 in respect of which the affidavit was made {lo). It was contended (in 
 arrest of judgment) that the indictment was bad, as it did not describe 
 the official station of the person before whom the defendant was sworn. 
 It was, indeed, stated that he made affidavit of certain matters before 
 F. J. C, as such commissioner as aforesaid ; but he had not been before 
 mentioned as a commissioner, and therefore that averment could not 
 cure the defect. Abbott, C.J. : ' Looking at the Act of Parliament, 
 23 Geo. II. c. 11 [x), we find that all that is required to be set out in 
 indictments for perjury is the substance of the offence charged, and by 
 what Court or before whom the oath was taken, averring such Court or 
 
 (p) R. V. Dunning, L. R. 1 C. C. R. 290, an allegation that G. came before named 
 
 295. justices, and exhibited to them an infor- 
 
 iq) 14 & 15 Vict. 0. 100, s. 20, ante, p. 482. mation oath, was held not sufficiently to 
 
 (r) Where a judge has general jurisdic- shew that the oath was sworn before the 
 
 tion, he nuist be taken to have had juris- named justices. 
 
 diction in the particular case, unless tlie {u) Anon., I Cox, 50, Patteson, J. 
 
 contrary appears. Ryalls v. R. [1851], 11 (v) R. r. Macdonald, 21 Cox, 70, Darling, 
 
 Q.B. 178. The contrary rulings in R. i\ J. 
 
 Lewis, 12 Cox, 163, and R. v. Willis, 12 (it) (5 P. & C. 102 ; 9 D. & Ry. 97. In 
 
 Cox, 164, seem to be erroneous. In Ryalls R. v. Macdonald, 21 Cox, 70, Darling, J., 
 
 V. R. the argument turned on the use of the held tliat in the case of perjury assigned on 
 
 word ' montli ' in the indictment, in refer- an affidavit before a commissioner of oaths, 
 
 ring to proceedings luider s. 37 of the Solici- the circumstances under whicli the oath 
 
 tors Act, 1843, in which the words ' calen- was administered should be set out. This 
 
 dar month ' are used. At common law ruling seems inconsistent with R. v. Calla- 
 
 month is ^Dresumed to mean lunar month. nan and R. v. Dunning, L. R. 1 C. C. R. 
 
 Vide ante, p. 3. 290, ante, p. 486. 
 
 («) e.g., that justices were acting for a {x) Superseded by the provisions of 14 & 
 
 particular division of a county, when the 15 Vict. c. 100, s. 20, ante, p. 482, and 
 
 act in question must be done in that divi- repealed in 1867 (S. L. R.). As to the 
 
 sion in petty sessions. R. v. Rawlings, general authority to administer oaths, see 
 
 8 C. & P. 439, Parke and Patteson, JJ. 14 & 15 Vict. c. 99, s. 16, ante, p. 460. 
 
 (0 R. V. Goodfellow, C. & M. 569, where
 
 488 Of Offences against the Administration of Justice. [BooK vil. 
 
 person to have competent authority to administer the same, without 
 setting forth the commission or authority of the Court or person before 
 whom the perjury was committed. It is, tlierefore, to be considered 
 whether the present indictment has set forth all that is required by the 
 statute. It sets forth the substance of the matter sworn, the person before 
 whom the oath was taken, and avers that he had authority to administer 
 it. The indictment does, therefore, contain all that is required by the 
 words of tlie statute; and taking into consideration the object of the 
 Act, which was framed to remove the difficulties before felt by reason of 
 the averments and matters which were usually set out in indictments 
 for ]3erjury, we ought not to require more than the words of the legislature 
 have made necessary. When a case of this sort comes on for trial, the 
 prosecutor must prove the situation of the person before whom the oath 
 was taken, and the nature of his authority, I am, therefore, of opinion, 
 that the indictment is sufficient if it contains the name of the person, if 
 the defendant was sw^orn before a person, or of the Court, if he was 
 sworn before a Court, There is not, then, any reason for granting this 
 application ' (y). 
 
 In Overton v. R. (z), the indictment stated that at the time of the 
 taking of the false oath by J, 0. thereinafter mentioned, R, L., F. D. P., and 
 H, S. G. were commissioners of assessed taxes in and for the district of 
 the hundred of K., in the county of W,, and thereupon heretofore, to wit, 
 on, &c., at, &c., in the district and county aforesaid (at a meeting then 
 and there held by the commissioners aforesaid for the purpose of hearing 
 and determining appeals against the certificate of supplementary charges 
 made by one J, L., crown surveyor, in pursuance of the said Acts), a certain 
 appeal of one W, H, of C, in the district and county aforesaid, in due 
 form of law came on to be heard. The indictment then averred that 
 the defendant on, &c., at, &c., appeared before the said commissioners 
 as a witness for and on the behalf of the said W. H., on the hearing of the 
 said appeal, and was then and there sworn, &c., before the said R. L., 
 F, D. P., and H. S. G., so being such commissioners as aforesaid, that the 
 evidence which he the defendant should give upon the hearing of the 
 
 (y) This case having been much reUed county of Middlesex, came in his proper 
 upon in Overton i;. R., »(/?•«, and the record person, &c., on, &c., at, &c., before F. J. 
 examined, I have thought it right to insert Chell, gentleman, and the said defendant 
 the following statement of the first coinit, then and there, to wit, on, &c., at, &c., was 
 which I took from the record. The indict- duly sworn, F. J. Chell (he the said F. J. 
 ment stated that C. C, contriving and in- Chell then and there having sufficient and 
 tending to injure one T. S., and in order to competent power and authority to admin- 
 obtain a rule of the Court of B. R., whereby ister the said oath to the said C. C. in that 
 it might be ordered by the said Court that behalf), and the said C. C. being so sworn as 
 the said T. H. should shew cause why a aforesaid, falsely, &c., did then and there 
 certain judgment signed on a warrant of before the said F. J. Chell, as such corn- 
 attorney in a cause in the said Court of S. missioner as aforesaid, depose, swear, and 
 against C, and the execution issued there- make affidavit in writing, amongst other 
 on, should not be set aside, and the said things, in substance, &c. The indictment 
 warrant of attorney be delivered up to be then set out the affidavit : ' all which said 
 cancelled, and why the proceeds of the said several matters and things so deposed and 
 execution should not be restored to the said sworn by the said C. C. as aforesaid were, 
 C. C, and why the said T. 8. should not pay and each of them was material for the 
 the costs of that ai^plication, and that in obtaining and supporting the said rule.' 
 the meantime the said proceeds should C. S. G, 
 remain in the hands of the sheriff of the (2) 4 Q.B. 83 : 12 L. J. M. C. 61.
 
 CHAP. I.] Of Perjury. 489 
 
 said appeal should be the truth and nothing but the truth (they the 
 said commissioners then and there having authority to administer the said 
 oath, &c.). The indictment then proceeded to aver the materiality, 
 the giving the evidence, &c. The defendant having been convicted, 
 a writ of error was brought, and one of the errors assigned was, that it 
 did not appear that the said appeal was an appeal against such a certifi- 
 cate as in the said indictment mentioned, or that the same appeal was 
 such an ajjpeal as the said commissioners or any of them had power, 
 authority, or jurisdiction to determine, and if they had no such power, 
 &c., they had no jurisdiction to administer the said oath. The indict- 
 ment was held bad upon this ground, and the judgment reversed (a). 
 
 In R. V. Lavey {h), it was said that in Overton v. R. the Court con- 
 sidered that there was no averment that the oath was administered in 
 the course of a judicial proceeding. 
 
 In R. V. Lavey (6), the indictment alleged tliat ' a certain action of 
 contract ' was pending in a County Court, and that the defendant was 
 duly sworn before the judge of tlie said Court, ' then and there having 
 sufficient and competent authority to administer the said oath to her 
 in that behalf.' It was objected that there was no averment that the 
 action was one over which the County Court had jurisdiction, and that 
 no intendment could be made that an action pending in an inferior Court 
 was one over which the Court had jurisdiction. But the Court of Ex- 
 chequer Chamber held that the alleged defect, in the averment of the 
 substance of the charge was supplied by necessary implication by the 
 averment of the competency of authority in the judge to administer 
 the oath, which necessarily implied that he had jurisdiction over the 
 action (ft). 
 
 This decision was followed in the Irish case of R. v. Lawlor (e), where 
 an indictment for perjury at quarter sessions in Ireland alleged that a 
 certain civil bill came on to be tried in due form of law before an assistant 
 barrister, and alleged the oath to have been taken before the said assistant 
 barrister, he having sufficient and competent authority to administer 
 the said oath ; an objection that the indictment ought to have stated 
 that the civil bill was for a cause of action within the jurisdiction of the 
 Court was overruled. 
 
 In Walker v. R. {d), the indictment alleged that a petition for protec- 
 tion from process was. under and in pursuance of 5 & G Vict. c. 116, 7 & 8 
 Vict. c. 93, and 10 & 11 Vict. c. 102, filed and presented in the County 
 Court of Staffordshire at W. b}^ the prisoner ; and that the prisoner 
 afterwards duly received an order for protection from process, and that 
 afterwards, wliilst the proceedings upon and in respect of the said insolvency 
 were pending in the said County Court, to wit, at the time of filing the 
 said petition and schedule, the prisoner came before H. K,, at the Court 
 at W., and within the jurisdiction aforesaid, for tlie purpose of making 
 
 (a) Many other errors were assigned, but necessary for us to say how we should de- 
 
 not determined by the Court. cide the present case if it were not distin- 
 
 (6) Ex. Ch. 17 Q.B. 49(). See the indict- guishable from that, we .should require 
 
 ment, 3 C. & K. 2<). Overton v. R., supra, further time for consideration.' 
 
 was mainly relied on, in support of the ob- (c) G Cox, 187 (C. C. R. Ir.). 
 
 jection, and the Court observed ; ' If it were id) 8 E. & B. 439.
 
 490 Of Offences against the Administration of Justice. [booK vii. 
 
 an affidavit and verifying on oath his said petition and schedule (H. K. 
 being a commissioner to administer oaths in chancery, and duly em- 
 powered to act in the matter of the said insolvency, and to take the oath 
 of the prisoner), and was duly sworn and took his oath that the affidavit 
 he then made was true (H. K. having competent authority to administer 
 the said oath). The indictment then alleged the materiality of certain 
 matter, and that the prisoner falsely swore, &c. It was objected on 
 error that the indictment did not shew that there was jurisdiction to 
 administer the oath, as it did not allege that the prisoner had resided 
 within the jurisdiction of the Court for six calendar months next pre- 
 ceding the filing of the petition as required by 10 & 11 Vict. c. 102, s. 6 
 (rep.). But it was held that the indictment was good (e). 
 
 In R. V. Dunning ( /), R. v. Callanan and Lavey v. R., were accepted 
 as laying down the correct rule as to describing the offence. 
 
 The Mode of Taking the Oath. — Every count should expressly state 
 that the defendant was sworn (g). It is enough to say that he was duly 
 sworn (h). Where it was averred that he was sworn on the Gospels, and 
 he appeared to have been sworn in the Scotch form, without kissing the 
 book, the variance was considered fatal, but the averment was held 
 to be proved by its appearing that he was previously sworn in the 
 ordinary mode (i). 
 
 The indictment should aver that the defendant ' wilfully and corruptly ' 
 swore (/). In R. v. Stevens (/.:) the first count of the indictment stated 
 that the defendant on the trial of an indictment against J. H., intending 
 to injure J. H., and to cause him to be wrongly convicted, appeared as a 
 witness and was sworn, and ' then and there falsely and malicinusly gave 
 false testimony against J. H., by then and there deposing and giving 
 evidence,' &c. The fifth count, the only one that differed materially 
 from the first, alleged that by means of the false testimony in the first 
 count mentioned, J. H. was found guilty ; that a rule nisi for a new 
 trial was granted ; that the defendant, intending to hinder the said 
 rule from being made absolute, came before a commissioner and was 
 sworn, and being so sworn, wickedly, wilfully, and corruptly did depose, 
 swear, and make affidavit in writing, in substance that the evidence 
 which he, J. S., had given on the said trial was true ; whereas the evidence 
 which the said J. S. had given on the said trial was not true, but was 
 false in the particulars in the said first count of this inquisition assigned 
 and set forth. The defendant having been convicted, a rule was obtained 
 for arresting the judgment, and after argument, Abbott, C.J., delivered 
 the judgment of the Court as follows : ' I am of opinion that this rule 
 must be made absolute. As to the first class of counts, the objection 
 is that they do not charge that the defendant swore wilfully or corruptly. 
 Every definition of perjury is swearing ivilfuUy and corruptly that which 
 
 (e) Wight man, J., said: ' Suppose the (/) L. R. 1 C. C. R. 290, cmte, p. 486. 
 
 petitioner, not so residing, had sworn in his {(/) R. v. Stevens, 5 B. & C. 246. 
 
 petition that he did ; would that be per- {h) R. v. MX'arthur. Peake (3rd ed.) 211, 
 jury ? ' It was admitted that it would. Kenyon, C.J. 
 
 Lord Campbell, C.J. : ' Then such a petition {i) Id. ibid, 
 
 would give the Court jurisdiction to inquire (/) Vide ante, p. 477. 
 
 into the truth of the petition in that respect.' (k) 5 B. & C. 246.
 
 CHAP. I.] Of Perjury. 491 
 
 is false. Whether the word maliciously might supply the place of either 
 wilfully or corruptly, it is not necessary to determine, for neither of those 
 words is found in the counts in question, and Cox's case (l), which has 
 been referred to, proves at all events that such counts are insufficient. 
 I now come to the consideration of the last count. It is in a form per- 
 fectly novel ; it was intended to allege perjury in an affidavit made in 
 this Court. In the ordinary course of pleading, the first step would 
 have been to charge that there had been a trial, and that the defendant 
 was sworn as a witness ; the second, that he swore such and such things ; 
 the third, that the matter was false, and so on. Here there is no distinct 
 averment that the defendant was sworn as a witness, or of what he swore. 
 But it is said that the fact of his having been sworn must be taken by 
 intendment. Were we to do that, as we are desired to do, in support of 
 this indictment, we should furnish a precedent for a very loose and 
 insufficient mode of charging a very serious offence, which has always 
 hitherto been required to be charged with great certainty and parti- 
 cularity. I think that these novel attempts in pleading are not to be 
 encouraged, and that the judgment must be arrested.'' 
 
 The False Evidence. — It has never been necessary in indictments for 
 perjury (as it is in libel) (m) to set out the tenor of what the defendant 
 is alleged to have sworn. In indictments for perjury ' whether in an 
 affidavit (m) or in oral evidence (n) it is sufficient to state the substance 
 and effect of the false oath ' {m). But where such evidence is not con- 
 tinuous the indictment should not set it out as continuous, but should 
 indicate that the statements alleged to be false were separated by other 
 intervening evidence. Even where it is set out as continuous without 
 shewing that it was not so in fact, the variance between the indictment and 
 evidence has been held not to be fatal, unless the intervening matter 
 varies the effect of the matter set out (m). An indictment for perjury 
 committed on the trial of an action for assault and battery, charged 
 the defendant with having sworn that the plaintiff spat in the defendant's 
 face before the defendant struck him, and that he, the defendant in the 
 indictment, had not said certain words, and assigned perjury on both 
 statements. The evidence given by the defendant on the former trial 
 contained all the matter charged as j)erjury, but other matter intervened 
 between the statement as to the spitting, and that as to the words. 
 Abbott, C.J., held that what intervened did not vary the effect of 
 wliat was stated (n). 
 
 Where a count in an indictment for perjury set out continuously 
 the substance and eflect of what the defendant swore when examined 
 as a witness, Ellenborough, L.C.J. , held it necessary in support of this 
 count, to prove that in substance and effect he swore the whole of that 
 which is thus set out as his evidence, although the count contains several 
 distinct assignments of perjury. It was urged in support of the prosecu- 
 tion that reddendo singula simjulis, the defendant was charged with 
 swearing separately in answer to all the questions that were mentioned 
 
 (0 1 Leach, 71. where 'falsely, mali- (m) R. t-. Callanan, 6 B. & C. 102, Abbott, 
 
 ciously, wickedly, and corruptly ' were C.J. 
 held to imply ' wilfully." ' (n) R. v. Solomon, Ry. & iL 252.
 
 492 Of Offences against the Administration of Justice. [BOOK vil. 
 
 in the indictment. But Ellenborough, C.J., said: 'Suppose you had 
 undertaken to set out the tenor of what the defendant swore, and it 
 should appear by the evidence that he had not sworn a material part 
 of that which was set out, would not this have been fatal 1 Having 
 taken upon you to state the substance and effect of what he swore, you 
 are not bound down to precise words ; but must you not prove that 
 he swore in substance and effect the whole that you have stated ? You 
 aver that part of the defendant's evidence concerning the assurance 
 given by Lord H. to be material, and you have not proved that he swore 
 to any such assurance. Did you ever know the rule reddendo singula 
 singulis applied to a misrecital ? Is there any authority to shew that 
 under secundum suhstantiam you are not bound to prove the substance 
 of what you state, as under secmidum tenorem you are bound to prove 
 the terior ? To hold otherwise would be to introduce a most dangerous 
 latitude into criminal proceedings. I am decidedly of opinion that you 
 have failed in the proof of a substantial allegation. It is essential to the 
 security of innocence that words set out in the record should be either 
 literally or substantially proved. A person giving his assurance generally 
 and giving his assurance for the performance of a particular stipulation, 
 are allowed to be entirely different. If a man swears falsely to several 
 material questions, these may be included in distinct counts ' (p). But 
 this decision is questionable [q). 
 
 An indictment for perjury alleged that the prisoner falsely swore to 
 'in substance and to the effect following,' and then set out in totidem 
 verbis and in the first person a deposition of the prisoner in the English 
 language. It appeared that the prisoner was examined in Welsh through 
 an interpreter, and that his examination was translated into English, 
 taken down in writing, and signed by the prisoner ; and this written 
 
 (p) R. V. Leefe, 2 Camp. 134. The the defendant upon his return to the corn- 
 learned reporter says : ' I find no decision or mittee of the said J. L. communicated to 
 dictum in the books as to the evidence of them what had so passed between the said 
 the words sworn which is necessary to sup- Lord H. and him ; and that the said com- 
 port an indictment for perjury. For the mittee disj^ersed to carry the said agree- 
 general principles upon tliis subject, vide ment into effect ; and that the said J. L. 
 2 Hawk. c. 46, ss. 34, 35, 36. Compagnon asked the defendant if the expenses were 
 V. Martin, 2 W. Bl. 790.' secured ; and that the defendant told the 
 
 (g) The count upon which the question said J. L. his lordship had given his assu- 
 in R. V. Leefe turned, alleged that a com- ranee that it should he so. The assignments 
 mittee was appointed and met to try the of perjury negatived each of these state- 
 merits of a petition complaining of an undue ments, and it was proved that everything 
 election, that certain questions were mate- alleged was sworn, except the last words 
 rial, and that the defendant swore ' touch- ' that it should be so.' As it is clearly 
 ing the said material questions, and the settled that a defendant may be convicted 
 merits of the said petition,' in substance of any one distinct assignment of perjury, 
 and effect as follows : that he, by the direc- though acquitted of all the rest (see p. 502), 
 tions of J. L., waited upon Lord H. and there seems no reason why proof of having 
 proposed to the said Lord H. that the said sworn the matter negatived by one assign- 
 J. L. would decline upon the expenses being ment should not be sufficient. In the case 
 paid him, including the previous expenses of obtaining goods by false pretences, it is 
 of the day before ; that Lord H. agreed clearly settled that proof of any one false 
 that the said expenses should be paid, in- pretence, is sufficient, vide poH, Vol. ii. p. 
 eluding the expenses that had been incurred 1575 et scq. ; and that h a stronger case, 
 at different inns in the town ; that J. L.'s because there the indictment in fact avers 
 voters were to be applied to in consequence that all the pretences operated towards the 
 of that arrangement for the purpose of obtaining the goods. C. S. G. See R. v. 
 voting for the said Lord H., and that the Rhodes, 2 Ld. Raym. 886, post, p. 502, 
 defendant enumerated the expenses ; that note (z).
 
 CHAP. I.J Of Perjury. 493 
 
 deposition was set out in the indictment. It was submitted that the 
 evidence ought to have been set out in Welsh with a translation in English. 
 Williams, J., said : ' In perjury it is only necessary to prove " the substance 
 and effect." The indictment charges that the prisoner deposed and 
 swore in substance and to the effect there stated. It was not necessary 
 in this indictment to have set forth the deposition in totidem verbis ; 
 still the substance and effect of what the prisoner swore in the Welsh 
 language may be proved ; and if that is in substance and to the effect 
 the same as is stated in this indictment, that will be sufficient ' (r). 
 
 An indictment stated that upon a certain information upon oath, 
 entitled ' the information,' &c., the defendant wilfully deposed in sub- 
 stance and to the effect following : ' the defendant (meaning C. D.) I 
 am certain is one of the persons that assaulted and ill-treated my wife,' 
 &c. The information began, ' The information and complaint of J,, 
 the wife of C. E. G., and of the said C. E. G., made on oath,' &c. ' And 
 first, the said J. G. for herself saith that the defendant is one of the persons 
 who assisted W. J. S. and others in handcuffing and otherwise assaulting 
 me on,' &c. (Signed) ' J. G.' ' And the said C. E. G. sworn says, " the 
 defendant, I am sure, is one of the persons that assaulted and ill-treated 
 my wife," ' &c. It was held that, as what the defendant swore was set 
 out in substance, it was sufficient (s). 
 
 Where an indictment for perjury alleged that an officer of excise 
 went before two justices of the peace, and gave the said justices to under- 
 stand and be informed that ' W. S., victualler, heincj a brewer of beer or 
 ale for sale,' did neglect to make a declaration of the quantity of beer 
 brewed ; and the words in italics were not found in the information 
 when produced ; the variance was held fatal, as the meaning of the 
 indictment was that ' S. being a brewer neglected ' (t). 
 
 Ambiguity. — If an indictment uses a word of equivocal meaning 
 the meaning in which it is used must be collected from the context of 
 the sentence in which it occurs. An indictment for perjury alleged that 
 a commission of bankruptcy was issued against the defendant, under 
 which he was duly declared bankrupt, and that afterwards he preferred 
 a petition to the chancellor, stating (amongst other things) that a com- 
 mission had issued, that the petitioner, on March 1, 1821, was declared 
 bankrupt, and that at the several meetings before the commission the 
 petitioner declared that the bill of exchange (on which the commission 
 had issued) was not due, &c. But the allegation in the petition was that 
 at the several meetings before the commissioners the petitioner declared 
 that the bill was not due. It was contended that the words ' commis- 
 sion ' and ' commissioners ' were not convertible terms ; that the word 
 ' commission ' denoted the authority under which the parties acted, and 
 therefore the variance was fatal. Abbott, C. J., said : ' The objection 
 is that there is a variance between the petition set forth in the indictment 
 and that which is given in evidence at the trial. Now, in a proceed- 
 ing of this kind it is not necessary to set out in the indictment verbatim 
 the tenor of the petition ; it is sufficient if it be set out truly in substance 
 
 (r) R. V. Thomas, 2 C. & K. 80t). C.J. 
 
 («) R. V. Grindall, 2 C. & T. 5G3, Abbott, (<) R. v. Leech, 2 Man. & Ry. 119.
 
 494 Of Offences against the Administration of Justice, [book vii. 
 
 and effect. The petition, as set out in tlie indictment, purports that at 
 the several meetings before the commission, the petitioner declared in 
 the hearing of the said assignee that the bill of exchange given to G. D. 
 for the debt was not due at the time when he struck the docket. Now 
 the allegation in the petition, which was proved in evidence, was that 
 at the several meetings before the commissioners the petitioner declared 
 so and so, and the question is whether that is a fatal variance. The 
 word " commission " is one of equivocal meaning ; it is used either to 
 denote a trust or authority exercised, or the instrument by which the 
 authority is exercised, or the persons by whom the trust or authority is 
 exercised. And if it may denote the persons exercising the authority, 
 we must collect from the context of the sentence in which the words 
 " before the commission " occur, and of the other parts of the petition, 
 whether it was used in that sense or not.' After stating the indictment 
 the chief justice proceeded : ' Now, if the word commission as there used 
 was intended to denote the commission itself, it would follow that the 
 several meetings took place before any commission issued ; but that 
 is impossible, because in that case the petitioner could not have made 
 his declaration in the hearing of the said assignee. Then, if that cannot 
 be the meaning of the word commission, we must construe it in the 
 other sense which it is capable of bearing, namely, as denoting the 
 persons to whom the authority was given ; and if it be so construed, 
 there was no variance between the petition set forth in the indictment 
 and that w^hich was given in evidence; the consequence is, that there 
 must be judgment for the Crown ' {u). 
 
 In an indictment for perjury the averment stated that the prisoner 
 swore he saw W. ' about fifteen minutes after the hour of 11 o'clock m 
 the forenoon,' whereas it was proved that he had sworn that he saw W. 
 about a quarter past eleven on the day in question, without stating 
 whether it was the forenoon or the afternoon. Day, J., held that the 
 averment in the indictment was not proved, and directed an acquittal (v). 
 
 Where a complaint having been made ore tenus by a solicitor in the 
 Court of Chancery, of an arrest in returning home after the hearing of a 
 cause, the indictment stated that, ' at and upon the hearing of the said 
 complaint,' the defendant deposed, &c. This was held a sufficient aver- 
 ment that the complaint was heard (v:). 
 
 Materiality. — Averments of materiality are not rendered unnecessary 
 by 14 & 15 Vict. c. 100, s. 20 {ante, p. 482) {x), and an omission of such 
 an averment, when it is needed, appears to be a matter of substance 
 not curable by amendment (y). Either it must clearly appear on the 
 face of the indictment (2), or it must be therein expressly alleged that 
 the matter, in respect whereof perjury is assigned, was material, not 
 merely might be material (a). It is, however, enough to allege that the 
 
 (m) R. v. Dudman, 4 B. & C. 850. assigned, or documents from wliich it is 
 
 (v) R. V. Bird, 17 Cox, 387. evident that the false evidence was impor- 
 
 {w) R. V. Aylett, 1 T. R. 70. tant, the express allegation may be dis- 
 
 (.r) R. V. Harvey, 8 Cox, 99. pensed with. See 2 Chit. Cr. L. 307, citing 
 
 (y) 14 & 15 Vict. c. 100, s. 25. R. v. Tremayne, 139, &c. R. v. Crossley, 7 T. R. 
 
 Harvey, vbi sup. 315. Ryalls v. R., 11 Q.B. 781. R. v. 
 
 (z) R. V. Aylett, 1 T. R. 69. If the false- Harvey, 8 Cox, 99, Byles, J. 
 
 hoods affect the very circumstance of (a) R. v. Bird, post, p. 500. 
 
 innocence or guilt, or where the perjury is
 
 CHAP. I.] Of Perjury. 495 
 
 particular question became a material question without setting forth in 
 the indictment so much of the proceedings of the former trial as will 
 shew the materiality of the question on which the perjury is assigned [h). 
 Thus statements, that, at a Court of Admiralty Sessions, J. K. was ' in 
 due form of law tried upon a certain indictment then and there depend- 
 ing against him ' for murder, and that ' at and upon the said trial it 
 then and there became and was made a material question,' whether, &c., 
 were held sufficient averments that the perjury was committed upon the 
 trial of J. K. for the murder, and that the question on which the perjury 
 was assigned was material on that trial (c). 
 
 In R. 1). Nicholl {d), Parke, J., said : ' It is part of the definition of 
 perjury that the false swearing is on some point material to the question 
 in issue. In an indictment this may appear either from the matter of the 
 suit, as shewn on the record, or by direct averment.' And in R. v. 
 Cutts (e), Campbell, C.J., said : ' An indictment for perjury must either 
 shew tliat the evidence alleged to be false was necessarily material to the 
 issue, or there must be a positive averment that it is material.' Where, 
 upon an indictment for perjury on a trial for felony, it was not alleged, 
 and did not appear that the matter sworn was material, it was held, 
 that if the original indictment had been set out, and it could plainly 
 have been collected that the matter was material, the indictment would 
 have been sufficient without an averment of materiality, but that as this 
 was not the case the indictment was bad (/'). Where an indictment 
 assigned perjury on defendant's denial (in an answer in Chancery) 
 that he had agreed, upon forming an insurance company of which he 
 was a director, &c., to advance £10,000 for three years to answer any 
 immediate calls, and there was no averment that this was material, 
 nor did it appear for what purpose the bill was filed, to which the answer 
 had been sworn, nor what was the prayer, judgment was arrested {g). 
 
 An indictment for perjury alleged that on the trial of a certain issue 
 the defendant was sworn as a witness, and that on such trial certain 
 questions became material, that is to say, ' whether one J. K. had been 
 arrested by one J. L. ; whether the said J. L. had on the occasion of the 
 said alleged arrest touched the person of the said J. K. ; and whether the 
 said J. L. had on the occasion of the said alleged arrest put his arms 
 round the said J. K. and embraced him.' The indictment then charged 
 that the defendant swore falsely to the following effect : ' L. (meaning 
 the said J. L.) put his arms round him (meaning the said J. K.) and 
 embraced him (meaning the said J. K., and meaning thereby that the said 
 J. L. had on the occasion to u-Jiich the said evidence applied, touched the 
 person of the said J. K. ).' A writ of error was brought by the defendant 
 
 (6) R. I'. Dowlin 5 T. R. 311. Lavcy v. Baj-lcv, J. The indict niciit was shewn to 
 
 R., 2 Den. 504 ; 17 Q.B. 4n(). R. v. Dun- Lord GifToid, M.R., and Ur. Bell, K.C., who 
 
 ning, L. R. 1 C. C. R. 290. both thought that upon the face of the in- 
 
 (c) Id. ibid. dictment it could not be said whether the 
 
 (d) I B. & Ad. 21. question was material or not ; and the 
 
 (e) 4 Cox, 435. See also R. v. Scott, 13 materiaUty of all questions in a chancery 
 Cox, 594. suit depending upon the purpose for which 
 
 (/) R. V. M'Keron [1792], 5 T. R. 31G, the suit is instituted, the Court held that 
 and MS. Bayley, J. the indictment could not be supported. 
 
 (g) R. V. Bignold [Trin. T. 1824J, MS. MS. Bayley, J.
 
 496 Of Offences against the Administration of Justice, [book vii. 
 
 on conviction, and the error specially assigned was that the materiality 
 of the evidence alleged to have been false was not sufficiently averred 
 in the indictment ; and it was contended that in the evidence, on which 
 the perjury was assigned, there appeared neither time, place, nor circum- 
 stance to connect the statement with the alleged arrest. The whole 
 might have turned upon some former and entirely different transaction. 
 And the innuendoes did not remove the difficulty ; for there was no 
 averment in them that it was on the occasion of the alleged arrest ; it 
 merely imported that the evidence was given concerning an occasion, 
 which was not identified with that in question. Bayley, J., said : ' An 
 indictment must be good without the help of argument or inference. 
 In the case of perjury the indictment must shew either by a statement 
 of the proceedings or by other averments, that the question to which 
 the offence related was material. That is not shewn here in either way. 
 The words on which perjury is assigned, if taken without the innuendoes, 
 have no necessary reference to the occasion of an alleged arrest; nor is 
 there anything in the indictment to connect them with it. It is contended 
 that the inquiry, to which part of the evidence was an answer, would not 
 have been relevant if applicable to any other matter and occasion than 
 those now in question ; but we know nothing of the merits of the case 
 except from the indictment. The innuendoes rather introduce greater 
 doubt than greater certainty, and lessen the force of the argument that 
 only one occasion could have been contemplated. I am, therefore, of 
 opinion that the indictment is defective, and the judgment ought to be 
 reversed ' {h). 
 
 Where an indictment stated that a suit was pending in the Court 
 of Chancery, and that a commission was issued to certain commissioners 
 to examine witnesses upon interrogatories, and then set out the ninth 
 interrogatory, and averred that ' upon the examination of the defendant 
 upon the said interrogatories, it became, and was, material to ascertain 
 the truth of the matters hereinafter alleged to have been sworn to and 
 deposed by the defendant, upon his oath, in answer to the said ninth 
 interrogatory'; it was objected that the averment of materiality was 
 insufficient, there being no statement of the alleged perjury being material 
 to the chancery suit, or to any question in that suit. Coleridge, J., 
 expressed some doubt whether the averment of materiality was sufficient, 
 and would have reserved the point if it had become necessary (^). And 
 where an indictment for perjury, after alleging that an information was 
 exhibited before two magistrates, and that the same information came 
 on to be heard before M. G. and J. S., two justices, and that ' upon the 
 hearing of the said information before the said M. G. and J. S., so being 
 such justices as aforesaid, it became and was material to ascertain the 
 truth of the matter hereinafter alleged to have been sworn to and stated 
 by the said J. S. upon his oath ' ; it was held that this averment of 
 materiality was insufficient (;"). 
 
 (h) R. V. Nicholl, 1 B. & Ad. 21. cases suffice.' 
 
 (i) R. V. Hewins, 9 C. & P. 786. The (j) R. v. GoodfeUow, C. & M. 569, Patte- 
 
 form of the averment in this and the follow- son, J., after consulting Cress well, J. See 
 
 ing case was taken from 2 Chit. Cr. L. the averment of materiality in R. v. Calla- 
 
 p. 307 a ; where it is said that this ' concise nan, ante, p. 488, note ( f ). 
 statement would, it should seem, in all
 
 CHAP. I.] Of Perjury. 497 
 
 Ai\ indictment stated that, on the trial of an action of Meek v. Knight, 
 ' it became and was a material question, whether a certain bill of exchange, 
 bearing date, &c.' (here the bill was described) ' was accepted by the 
 said J. M,, for the accommodation of the said W. K., and without valuable 
 consideration to the said J. M. from the said W. K. ; and whether a certain 
 paper writing or memorandum, fAen and there produced, by and in the hand- 
 writing of tlie defendant, J. B., was really and truly executed by the said 
 W. K., by affixing his mark thereto at the time of the making of the said 
 hill of exchange ; ' (the indictment then set out the memorandum) ' and 
 whether the said memorandum was read over by the said J. B. to the 
 said W. K., at the time of making the said bill of exchange as aforesaid.' 
 The indictment then alleged that the defendant swore that the said paper 
 writing or memorandum was duly executed by the said W. K., by affixing 
 his mark to the same, in the presence of the said J. B., on the day on 
 ivhich the same hears date and at the time of the making of the said hill of 
 exchange, and that the said memorandum was then and there read over 
 by the said J. B. to the said W. K. ' Whereas, in truth and in fact, 
 the said W. K. did not execute the said paj)er writing or memorandum 
 by affixing his mark thereto, in the presence of the said J. B., on the day 
 on which the same hears date, nor was the said memorandum read over 
 by the said J. B. to the said W. K. at the time of the making of the said 
 bill of exchange, nor was the said memorandum produced or shewn to the 
 said W. K. by the said J. B., at the time of making the said bill of ex- 
 change.' Upon a writ of error, brought after a general verdict of guilty, 
 the errors assigned were, that no perjury was assigned upon the question 
 alleged to have been a material question upon the trial, and that no perjury 
 was assigned upon any question alleged to have been a material question 
 upon the trial ; and the Court of Queen's Bench held that the indictment 
 was bad. The assignment of perjury, that the bill was not executed on 
 the day on which the same bore date, departed from the statement of the 
 evidence, and the allegation of its materiality. And the assignment 
 of perjury, that the paper was not executed at the time of the making of 
 the bill, bore no relation to the allegations of the evidence of the defendant. 
 The statement of the evidence of the defendant, as well as the allegation 
 of the falsehood, were uncertain, as the words ' then and there ' might 
 refer to the two dates, the date of the memorandum and the day of the 
 making of the bill, and it might be consistent with the fact that it 
 never was read over on both days, or the defendant might never have 
 intended to say that it was (k). 
 
 An indictment alleged that E. S. filed his bill in chancery against the 
 prisoner, J. S. S,, and J. S., whereby he prayed that a purchase by the 
 prisoner might be declared fraudulent and void, and that he might be 
 decreed to deliver up the contract to be cancelled, and then averred 
 
 {k) R. V. Burraston, 4 Jurist, 697. The stated to be a material question the prose- 
 Court expressed strong doubts whether it cutor could abstain from stating any swear- 
 was possible to separate the three proposi- ing as to sucli matter, or assigning any 
 tions, which were said to have formed one perjury upon it. But it became unneces- 
 question ; and Littledale, J., said that if it sary for the Court to decide either of these 
 was one assignment of perjury, and part points, as the indictment was held bad on 
 was bad, the whole was vitiated. It was the grounds stated in the text, 
 also doubted whether where a matter was 
 
 VOL. I. 2 K
 
 498 Of Offences against the Administration of Justice. [BooK vil. 
 
 that it then mid there became a material question whether the prisoner 
 did advise the said J. S., E. S., and J. S. S., that certain real estate, 
 including the premises described in the said bill, should be sold. It was 
 held that the averment of materiality was insufficient. There might 
 be very good reasons for setting aside the sale as fraudulent, quite inde- 
 pendently of any advice given by the prisoner ; and that being so, the 
 question was whether there was a sufficient averment of materiality, 
 and the words ' then and there ' were not sufficient to supply the omis- 
 sion of the words ' in the said suit,' or words to the same effect {I). 
 
 An indictment for perjury alleged that H. L. stood charged before 
 T. S., a justice of the peace, with having on August 12 committed a trespass 
 by entering in the daytime on certain land in pursuit of game, and that 
 upon the hearing of the said charge, the prisoner appeared as a witness 
 for the said H. L., and was duly sworn to speak the truth touching the 
 said charge ; and that the prisoner upon the hearing of the said charge, 
 falsely swore that he did not see the said H. L., during the whole day of 
 August 12, and that ' at the time he the said 'prisoner swore as aforesaid it 
 was material and necessary for the said T. S., so being such justice as 
 aforesaid, to inquire of and be informed by the said prisoner whether he 
 did see the said H. L. at all during the said 12th day of August,' and it was 
 held that the indictment was bad ; for ' it is not stated that it was a material 
 and necessary question in the inquiry before the said T. »S., to which the 
 false and corrupt answer was given. It may have been, therefore, con- 
 sistently with the averments in the indictment, material and important 
 for T. iS. in some other matter, and not in the matter stated to be in issue 
 before him, to have put this question and received this answer. Now 
 as the offence of perjury consists in taking a false oath in a matter stated 
 to be in judgment before a Court or person having competent authority 
 to decide it, and as this indictment does not clearly and distinctly charge 
 that, it does not charge the offence of perjury ' (m). 
 
 An indictment for perjury said to have been committed on a trial for 
 rape alleged that it was a material question whether the prisoner ever got 
 one M. W. to write a letter for her, and whether or not she saw the said M. W. 
 at the house of S. L.'s father when the said letter was written ; and that the 
 prisoner falsely swore that she never got a M. W. to write a letter for her, 
 and that she did not see the said M. W. at the house of the said S. L.'s 
 father. Whereas the prisoner did get the said M. W. to write a letter 
 for her, &c. At the trial for ra^^e, the prisoner was asked whether she 
 ever got M. W. (who was pointed out to her in court) to write a letter 
 for her. She replied: 'No, I did not.' And repeated her denial, after 
 being shewn the letter, and also denied ever having seen M. W. at S. L.'s 
 father's house. The falsity of what she so swore was clearly proved and 
 the letter produced. It was objected, 1st, that the materiality of the 
 matters assigned as perjury was not sufficiently alleged ; 2nd, that the 
 reference to the letter was too vague and general, and not properly pointed 
 to the particular letter ; 3rd, that the references to M. W. and to S. L.'s 
 father's house were not properly introduced by an averment ; 4th, 
 
 {I) R. V. Cutts, 4 Cox, 435. 
 
 {m) R. V. Bartholomew, 1 C. & K. 366. (All the judges.)
 
 CHAP. I.J Of Perjury. 499 
 
 that the letter produced was not sufficiently identified with the state- 
 ments on the record to support them. The objections were overruled 
 at the trial, and, on a case reserved, it was urged that all the assignments 
 of perjury were defective in not identifying the M. W. spoken of in them 
 with the M. W. spoken of in the allegation of materiality ; but it was 
 held that the indictment was sufficient : it averred that it was a material 
 question whether the prisoner got any M. W. to write a letter. That 
 averment comprehended every person of the name of M. W. The de- 
 scription therefore in this averment was larger than the description in the 
 assignments of perjury, and comprehended the M. W. there spoken of. 
 As to the objection relating to the letter, it was contended that it could 
 not possibly be material that the prisoner got Williams to write a letter. 
 But it was held that, as there was an express averment that it was materia], 
 that averment let in evidence to prove its materiality, and when the 
 evidence was looked at it was clear that the letter was material {n). 
 
 An indictment for giving false evidence before a commissioner of 
 bankruptcy alleged that upon the examination of the prisoner it was 
 material to inquire what was the extent of the dealings of the prisoner 
 with ' one M., and how long he had known the said M.,' &c., and then 
 alleged that the prisoner solemnly declared that ' M. is the landlord of 
 No. 4, York-terrace,' &c. ' I have known M. two or three years,' &c., 
 whereas the said person so described was the same person as one S. M. Legge, 
 and was the father of the prisoner, &c. It was objected, in arrest of 
 judgment, that there was nothing to connect the allegation of materiality 
 with the assignment of perjury, as there was no innuendo that M. meant 
 S. Legge ; and the judgment was arrested as the averment of materiality 
 was insufficient to connect it with the other parts of the indictment (o). 
 
 An indictment for perjury alleged that a cause came on to be tried 
 before a County Court judge, and that it became a material question 
 on the trial whether J. H. B. had, in the presence of the prisoner, signed 
 at the foot of a certain bill of account, purporting to be a bill of account 
 between a certain firm called ' B. and Co.' and J. W., a receipt for the 
 payment of the said bill, and that the prisoner falsely swore that J. H. B, 
 did in her presence sign the said receipt. It was proved that on the trial 
 tiie prisoner produced an invoice of goods, at the foot of which was a 
 receipt, which purported to bear the signature of B., and swore that B. in 
 her presence wrote and signed that receipt. B. had on other occasions 
 signed receipts in the presence of the prisoner at the foot of invoices. 
 It was objected that the indictment did not sufficiently specify the 
 account and receipt to which the evidence related on which the perjury 
 was assigned ; but, it was held that the indictment was sufficient, as it 
 was only necessary to refer to the receipt as introductory to making out 
 the materiality of the perjury (;;). 
 
 Where an indictment for perjury alleged that the defendant swore 
 that he had not written certain words in the presence of one D., and 
 
 (n) R. V. Bennett, 2 Den. 240 ; 3 C. & K. express notice was taken of tlie oilier 
 
 124 ; 6 Cox, 207. It is trusted tliat the points. 
 
 text represents substantially the grounds of (o) R. v. Legge, 6 Cox, 220. The Re- 
 
 the decision on the two points ; but all corder, after consulting Parke, B. 
 
 three reports arc verv unsatisfactory. No (/>) R. v. Web«ter, Bell, 154. 
 
 2k2
 
 500 Of Offences against the Ad^ninist ration of Justice, [book vii. 
 
 alleged that it was a material question whetlier the defendant had so written 
 such words in the presence of D. ; it was held that the indictment was 
 sufficient ; for the question whether the words were written in the presence 
 of D. might have been material ; and it was impossible to assume the 
 contrary against the record (q). 
 
 Where an indictment for perjury on the taking of an inquisition before 
 a coroner alleged that it ' was, upon the taking of the said inquisition, a 
 material question whether,' &c., it was held that the statement suffi- 
 ciently imported that the question was material to the subject-matter 
 of the inquisition (r). 
 
 An indictment alleged that it was a material question whether, before 
 the execution of a bond, it was agreed between certain persons that the 
 prisoner should lend W. £1500 before the title to certain premises was 
 investigated by the prisoner, and before any mortgage thereof was exe- 
 cuted to secure repayment thereof, and that they should execute the 
 bond to secure the j)risoner the repayment of the said sum and interest 
 in case the title should turn out to be defective, or the mortgage should 
 not be duly executed ; but if the title turned out to be good, and the 
 mortgage was executed, they were not to be liable on the bond ; and 
 then alleged that the prisoner falsely swore that nothing was said by 
 him or in his hearing about the bond being a temporary security, or a 
 security until the mortgage was prepared, ' or any thing of the kind.'' 
 It was objected that, according to the agreement as stated, the bond 
 would be binding until the title turned out to be good, which would not 
 necessarily be when the mortgage was executed, so that the bond would 
 not necessarily be a temporary security. But it was held that the exact 
 terms of the alleged agreement were not material ; for the prisoner swore 
 that there was no agreement ' of the kind ' {s). 
 
 An indictment for perjury alleged that, on the trial of an indictment 
 for an assault, with intent to commit a rape, and for a common assault, 
 upon one A. B., the said A. B. swore that she was the wife of one J. B., 
 and had been married to him at such a time and such a place, whereas 
 she was not the wife of the said J. B. and had never been married to him. 
 The indictment contained an allegation of materiality, which was insen- 
 sible in consequence of an error in copying it from the draft ; it was, 
 nevertheless, contended that it sufficiently appeared on the face of the 
 indictment, that the evidence on which the perjury was assigned was 
 material on two grounds. First, that on any indictment for an assault, 
 with intent to commit a rape, it was most material, not only as affecting 
 the credit of the witness, but as going to the very gist of the charge itself, 
 whether the party assaulted had falsel}^ sworn that she was a married 
 woman. Secondly, that by swearing that she was the wife of J. B., 
 the prosecutrix supported the allegation that the assault was upon 
 ' A. B.,' which woidd have failed if she had admitted that she was not 
 married to J. B. But it was held that it did not sufl&ciently appear that 
 the evidence was material ; it might or might not be material, and that was 
 not sufficient {t). 
 
 (q) R. V. Schlesinger, 10 Q.B. 670. {t) R. v. Ann Bird, Gloucester Spr. Ass. 
 
 (r) R. V. Kimpton, 2 Cox, 296, Parke, B. 1842, Cresswell, J. The indictment for the 
 (s) R. V. Smith, 1 F. & F. 98, Erie, J. assault simply stated the assault to be upon
 
 CHAP. I.] Of Perjury. 501 
 
 Where an indictment stated that a cause was set down for trial, 
 and appointed for a particular day, and that the defendant in that cause, 
 before that day, made an affidavit before a judge, in which he stated 
 that he had a good defence to the action, wliich he would be able to 
 prove at the trial, and that some of the bills on which it was brought 
 were void for usury, and then assigned perjury on these allegations ; it 
 was objected that the indictment was clearly bad : the only manner in 
 which such an affidavit could be in a judicial proceeding, or the matters 
 contained in it become material, would be upon an application to post- 
 pone the trial of the cause ; but the indictment did not shew that any 
 such application was made or intended. Tenterden, C.J., however, held 
 that the occasion, on which the affidavit was intended to be used, might 
 be sufficiently collected from the indictment, and refused to stop the trial, 
 as the defendant, if there was any weight in the objection, might have the 
 benefit of it after he was convicted {u). 
 
 In R. V. Gardiner {v), the seventh count of the indictment charged 
 that the defendant, intending to aggrieve C. F. E., came before a certain 
 magistrate (having authority, &c.), falsely, &c., did depose, swear, and 
 charge, and gave the said magistrate to be informed that the said C. F. E. 
 had been guilty of an abominable crime, then capital, the details of 
 which charge were then set forth as deposed to. It was objected that 
 this count did not distinctly shew any proceeding pending before the 
 magistrate ; that they ought to have averred directly that a charge was 
 pending, and R. v. Pearson [w] was cited. But Patteson, J., thought 
 that case distinguishable, because of the words ' upon an information 
 and examination,' &c. {x). It was also argued that, although the state 
 of C. F. E.'s dress was averred in the count to be material, yet by such 
 averment was meant, not whether the flap of his trousers was unbuttoned, 
 but the trousers generally ; and that the count alleged that the prisoner 
 charged the capital offence, whereas, by his information, he appeared 
 to have charged only an attempt. The last two objections were taken 
 before verdict, and did not apply in arrest of judgment, as was also an 
 
 Ann B., without any further description. v. Fovvle, 4 C. & P. 592, Tenterden, O.J. 
 
 The learned judge expressed an opinion In R. v. Purchase, C. & M. 617, Patte.son, 
 
 that the indictment was insufficient before J., after consulting Cresswell, J., refused to 
 
 the case went to the jury, but he left it to allow any objection to be taken to an in- 
 
 them, and after they had found the priso- dictment for embezzlement, except upon 
 
 ner guilty, arrested judgment, in order that demurrer or in arrest of judgment, and it 
 
 the prosecutor might bring a writ of error seems most in accordance with the regular 
 
 if he thought fit. 'It sometimes happens course of proceeding tiiat such a course 
 
 that upon an objection taken to an indict- should be adopted in all cases.' C 8. G. 
 
 ment before verdict, the judge who tries the Writs of error in England have been abol- 
 
 case, if he considers the objection valid, ished by the Criminal Appeal Act, 1907. 
 
 directs an acquittal ; but the eoui'se and the prosecutor has no means of iclief 
 
 adopted by the learned judge in this case if an indictment is wrongly quashed, 
 
 is certainly the better course, as, if the de- (m) R. v. Abraham, 1 M. & R. 7. The 
 
 cision be incorrect where the judgment is defendant was convicted, but did not 
 
 arrested, it may be reversed upon error ; appear to receive judgment when called 
 
 whereas it the prisoner is acquitted, and the upon, and no motion in arrest of judgment 
 
 decision is incorrect, there is no menns of was made. 
 
 correcting the error, and as the verdict of (r) 2 Mood. 05 ; 8 C. & P. 137. 
 
 the jury has been taken, it may be very (u-) 8 C. & P. 119, ante, p. 486. 
 
 questionable w liether if a fresh indictment (.r) The count is in the same form as thai 
 
 were preferred a plea of autrefois acquit in 4 Wentw. 242 ; 2 Chit. Cr. L. 443. 
 might not be successfully pleaded. fcJee R.
 
 502 Of Offences acjamst the Administration of Justice, [book vii. 
 
 objection whether the evidence of J. H. E. did not go to any material 
 fact sufficient to satisfy the rule as to two witnesses in cases of perjury. 
 On all these questions, Patteson, J., requested the opinion of the judges, 
 and all the judges present held the conviction good on the seventh count (?/). 
 Falsity : Assignments of Perjury. — The indictment should expressly 
 contradict, and without any ambiguity, the matter falsely sworn to by 
 the defendant. An assignment in general terms seems to be demurr- 
 able. Possibly it might be supplemented by ordering particulars where 
 it is not demurred to or thus supplemented. General averment that 
 the defendant falsely swore, &c., upon the whole matter, is not enough : 
 the indictment must proceed by particular averments (or, as they are 
 technically termed, by assignments of perjury), to negative that which 
 is false. More than one assignment of perjury, in the same evidence, 
 may be included in the same count (2). It may be necessary to set forth 
 the whole matter to which the defendant swore, in order to make the rest 
 intelligible, though some of the circumstances had a real existence : but 
 the word ' falsely ' does not import that the whole is false ; and it is not 
 necessary to negative the whole, but only such parts as the prosecutor 
 can falsify, admitting the truth of the rest (a). In negativing the defend- 
 ant's oath where he has sworn only to his belief (b), it is proper to aver that 
 ' he well kneiv ' the contrary of what he swore (c). An assignment of 
 perjury may, in some instances, be more full than the statement of the 
 defendant, which it is intended to contradict. Thus, where the fact in 
 the affidavit, in which the defendant was charged to have perjured him- 
 self, was, that he never did, at any time during his transactions with the 
 commissioners of the victualling office, charge more than the usual sum 
 of sixpence per quarter beyond the price he actually paid /or any malt or 
 grain purchased by him for the said commissioners as their corn-factor ; 
 and the assignment in the indictment, to falsify this, alleged that the 
 defendant did charge more than sixpence per quarter /or and in respect of 
 such malt and grain so purchased ; it was objected that the words in 
 respect of might include lighterage, freight, and many collateral and 
 incidental expenses attending the corn and grain jointly with the charge 
 for the corn or grain, and, that bearing such sense, the defendant was 
 not guilty of perjury ; but the objection was overruled (d). 
 
 {y) Most of the judges seem to have held contained many distinct assignments on 
 
 good other comits of the indictment which the going to the house, and the conversa- 
 
 had been challenged on similar grounds. tion, upon all of which evidence was given ; 
 
 iz) In R. V. Rhodes, 2 Ld. Raym. 886, and Patteson, J., directed the jury simply 
 
 887, the indictment contained several as- to consider whether the defendant had 
 
 signments in one count, all bad, except one been to the house, and if they were satisfied 
 
 on which a conviction took place. The that he had, to convict him, which they did. 
 
 Court refused to arrest judgment. Cf. R. MSS. C. S. G. R. v. Leefe, 2 Camp. 134, 
 
 V. Virrier, 12 A. & E. 317. R. v. Gardinei', seems to be wrong, in so far as it suggests 
 
 2 Mood. 95 ; 8 C & P. 737. Compagnon that distinct assignments of perjury must 
 
 V. Martin, 2 W. Bl. 790. In R. v. Nicholls, be in different counts. 
 
 Gloucester Sum. Ass. 1838, perjury was (a) R. v. Perrott, 2 M. & S. 385, 390. 
 
 alleged to have been committed by the de- See hereon White v. R. [1906], 4 Australian 
 
 fendant in evidence given on a trial for Commonwealth L. R. 152, 163. 
 
 larceny, in which he denied having been at (b) Ante, p. 476. 
 
 a particular house on a particular occasion, (c) 2 Chit. Cr. L. 312. 
 
 and denied having had a conversation with (d) R. v. Atkinson, Dom. Proc. 1785. 
 
 certain persons there. The indictment Bac. Abr. tit. ' Perjury ' (C).
 
 CHAP. I.] Of Perjury. 503 
 
 An indictment alleged that it was material, on the hearing of an in- 
 formation before justices of the peace, to prove that cards were played 
 in the bar of a publichouse between the hours of six o'clock and eight 
 o'clock on a certain evening, and that the prisoner falsely swore that 
 he was in the bar of the said house from between the hours of six o'clock 
 and seven o'clock until nine o'clock in the said evening, and that he did 
 not play at any game at all, and that no cards or game of cards at all 
 were or was during all tlie said last-mentioned time or between the hours 
 aforesaid played therein ; whereas the prisoner did between the hours of 
 six o'clock and eight o'clock in the said evening play at a certain game 
 of cards. It was held that the indictment was bad. The prisoner might 
 have played at five minutes past six, and yet not have played from be- 
 tween six and seven until nine ; the words ' from between six and seven ' 
 might be any time short of seven, five minutes or five seconds to that hour. 
 The indictment could not be read as averring that the prisoner swore that 
 he did not play at any time during that evening, but merely that he did 
 not play at a particular j^eriod of that evening, namely, from some period 
 before seven until nine. That might be perfectly true, and yet he might 
 have played between six and seven, and so may have played, as is 
 assigned in the indictment, between six and eight (e). 
 
 The averments introduced to negative the matter sworn ought to 
 be so distinct and definite as to inform the defendant of the particular 
 and precise charges which are intended to be proved against him. An 
 indictment for perjury committed in the Insolvent Debtors Court alleged, 
 that the defendant swore in substance that his schedule contained a full, 
 true, and perfect account of all debts owing to him at the time of present- 
 ing his petition ; whereas the said schedule did not contain a full, true, and 
 perfect account of all debts owing to him at that time. It was held that 
 the indictment was insufficient, as it was quite impossible that the defend- 
 ant could know, from allegations so vague and indistinct, what was to 
 be proved against him ; the allegations conveyed no information what- 
 ever of the particular charges against which the defendant ought to be 
 prepared to defend himself (/). 
 
 AVhere an indictment for perjury, alleged to have been committed 
 in the Insolvent Debtors Court, stated that the defendant gave in his 
 schedule on oath that the same and all its contents were true, and con- 
 tained a full, true, and perfect account of all his just debts, credits, &c., 
 and then went on to state that the said schedule and its contents were 
 not true, and that certain persons whose names were set out were debtors 
 to the defendant at the time of giving in his schedule ; Tenterden, C.J., 
 held that the evidence must be confined to the cases specified in the 
 indictment, as the defendant could only come prepared to answer those 
 cases, and that evidence that other persons, whose names were not set 
 out in the indictment, were also debtors to the defendant and were 
 omitted in the schedule, was inadmissible (g). 
 
 An indictment charged the prisoner with the offence of making a 
 
 (e) R. V. Whitchouse, 3 Cox, 80, Rolfc, of the K.B. Sec R. v. Lomlon, 12 Cox, 50. 
 B. ((,) R. V. Mudie, 1 M. & Rob. 128. R. v. 
 
 if) R. V. HepptM-, Ry. & M. 210. Tenter- Moody, 5 C. & P. 23. The indictment is 
 
 den, C. J., after consulting the other judges set out in the note to the latter report.
 
 504 Of Offences against the Administration of Justice, [book vii. 
 
 false declaration before a justice, that he had lost a pawnbroker's ticket, 
 ' whereas in truth and in fact he had not lost the said ticket, but had 
 sold, lent, or deposited it, as a security to one S. C, &c.' It was held 
 that the allegation ' but liad sold, lent, or deposited it, &c.,' did not 
 render the indictment ambiguous or uncertain, but was pure surplusage, 
 which might be rejected, and need not be proved (A). 
 
 An indictment for perjury alleged that the defendant made an affidavit, 
 which stated that the creditors of the defendant "were all, with two excep- 
 tions (which were explained), paid in full ; whereas the said creditors 
 were not all, with two exceptions only, paid in full ; and whereas divers 
 creditors of the defendant exceeding the number of two, naming several 
 creditors, were not paid in full ; and evidence was being tendered of debts 
 to other persons than those named being unpaid. It was objected that 
 the first assignment was bad as too general, and that evidence as to debts 
 due to others than those named ought not to be admitted. Tindal, C.J., 
 said : ' You might have demurred to this assignment only, if it be too 
 general ; and as you have not done so, I do not see how I can exclude the 
 evidence.' But he added : ' I think that omitting the names in one 
 assignment of perjury and inserting them in the next is likely to mislead 
 the defendant ; as he would be very likely to suppose that the debts, 
 mentioned in general terms in one assignment, were those particularised 
 in the other ' ; whereon the evidence was not pressed {i). 
 
 Contrary Depositions. — An information stated that H. before a com- 
 mittee of the House of Commons being duly sworn deliberately and know 
 ingly and of his own act and consent did say and give in evidence, &c., 
 setting out the evidence so given. The count then averred that the said 
 defendant at the bar of the House of Lords being duly sworn deliberately 
 and knowingly and of his own act and consent did say, swear, and give in 
 evidence, &c. : setting out in like manner the latter evidence, which was 
 directly contrary to that given before the House of Commons ; and 
 concluded (after averments as to the identity of the persons and places 
 referred to in the evidence on both occasions), ' and so the jurors aforesaid 
 do say that the said H. did not commit wilful and corrupt perjury.' The 
 information was held bad for not shewing and averring in which of the 
 two depositions the falsehood consisted (/). 
 
 Innuendoes. — If there be any doubt on the words of the oath, which can 
 be made more clear and precise by a reference to some former matter, it 
 may be supplied by an innuendo ; the proper office of which is to fix and 
 point the meaning of something previously averred {h), or to explain 
 the insertion in the indictment of a word omitted in the document, e.g'., in 
 an affidavit in which the false oath was contained (J). Where an objection 
 
 (7i) R. V. Parker, L. R. 1 C. C. R. 225. borough, C. J., where the indictment stated 
 
 [i) R. V. Parker, C. & M. 639. that the defendant went before a justice of 
 
 {j) R. V. Harris, 5 B. & Aid. 926. the peace, and swore in substance to the 
 
 {k) R. V. Home, 2 Cowp. 672. R. v. effect following, that is to say, &c., and part 
 
 Aylett, 1 T. R. 70. R. v. Taylor, 1 Camp. of the deposition so set forth was that a 
 
 404. See R. v, Griepe, 1. Ld. Raym. 256. person therein named assaulted the depo- 
 
 And see as to the use of an innuendo, 1 nent with an umbrella, and, at the same 
 
 Wms. Saund. 243, note (4). 1 Chit. Plead. time, threatened to shoot her with a pistol ; 
 
 406. 1 Stark. Crim. Plead. 118 et seq. but when the deposition was produced it 
 
 {I) See R. V. Taylor, 1 Camp. 404, Ellen- appeared that, after stating the assault
 
 CHAP. I.] Of Perjury. 505 
 
 was taken to an indictment, that it added, by way of innuendo to the 
 defendant's oath, ' his house situate in the Haymarket in 8t. Martin in 
 the Fields,' without stating by any averment, recital, or introductory 
 matter, that he had a house in the Haymarket, or (even admitting him to 
 have such a house) that Ms oath ivas of and concerning the said house, so 
 situated, the objection was overruled, on the ground that the innuendo was 
 only a more particular description of the same house which had been 
 previously mentioned [m). In the same case, the oath of the defendant 
 being that he was arrested upon the steps of his own door, an innuendo 
 that it was the outer door was held good (n). If the innuendo, and the 
 matter introduced by it, are altogether impertinent and immater'al, 
 and can have no effect in enlarging the sense, they may be rejected as 
 superfluous (o). 
 
 An indictment stated the presenting of a petition to the House of Com- 
 mons concerning the election of B., and setting out the petition, which 
 stated the said B. before and at the election was guilty of bribery, and that 
 certain agents of the said B., being trustees of divers public charities, 
 before and at the said election were guilty of various corrupt acts, &c., 
 in order to procure the return of the said B. The indictment then averred 
 that one C, was a trustee of divers of the said public charities, and ' that 
 shortly before the said election (to wit), on, &c., the said C, the said B., and 
 other persons, went to the house of one W. V. for the purpose of soliciting 
 the said W. V. to vote for the said B. at the said election.' The indict- 
 ment then stated that certain members of the House of Commons were 
 chosen to try and determine the merits of the said election, and that the 
 said persons so chosen met to try and determine the matter of the said 
 petition. The indictment then averred that S. V. appeared ' as a witness 
 before the said select committee touching the matter of the said petition,' 
 and that the said S. V. was duly sworn, &c. ' And it then and there 
 became and was a material question, whether at the time aforesaid, when 
 the said C, the said B., and the said other persons, so went to the house 
 of the said W. V., the said C. said that he would give the said W. V. £6 
 out of the funds of one of the aforesaid charities at Christmas, whereof the 
 said C. was trustee as aforesaid, or that he would give him £6 at Cliiist- 
 mas ' (p). And that the said S. V. falsely, &c., did depose, &c., to the 
 select committee ' touching tlie matters and merits of the said election 
 and the matter of the said petition, that before the said election a canvassing 
 party came to her husband's house, and B. and C. came into the house 
 of the said W. V., and that C. said he would act like a sensible man, and 
 "I will give him the £6 at Christmas'" {q). 'Whereas in truth and in 
 fact the said C. did not at the said time when the said B., the said C, and 
 other persons went to the said house of the said AV. V. to solicit him to 
 vote as aforesaid, or during the time when, on that occasion, they were 
 
 with the umbrella, it proceeded thus, ' and introduced and used in the indictment. 
 
 at the same threatened to shoot,' &c., could not be rejected as surplusage, and 
 
 omitting the word time. vitiated the indictment even after verdict. 
 
 (m) R. V. Aylett, 1 T. R. 70. (p) The indictment here stated other 
 
 (n) Id. ibid. questions to be material in a similar 
 
 (o) Roberts v. Camden, East, !»3. 2 manner. 
 
 Chit. Cr. L. 311. In R. v. Griepe, uhi sup. (q) The indictment here set out more of 
 
 it was held that an innuendo improperly the evidence. See the case, post, p. 511.
 
 506 Of Offences against the Administration of Justice, [book vii. 
 
 in or at the said house, say to the said S. V. that the said C. would give 
 to the said W. V. the £6 at Christmas, or any sum of money from or out 
 of any of the said public charities, or any sum of money whatsoever 
 at Christmas or at any other time ' (r). A motion on arrest of judgment 
 on conviction of perjury was dismissed and the considered judgment of 
 the Court was : ' Upon this indictment a motion has been made to arrest 
 the judgment upon two objections : First, that the allegation of the oath 
 having been taken " touching the matter of the said election, and the 
 matter of the said petition," did not sufficiently point to the matter 
 whereupon the defendant was alleged to have given evidence ; and, 
 secondly, that there was nothing to fix the alleged gift and promise of 
 money to the said visit on the 6th of July. We think, however, that 
 neither objection is sustainable. As to the first, it does sufficiently 
 appear that a competent trial was had, that a material question arose 
 as to the existence of certain facts, to which the defendant deposed, and 
 was therein guilty of perjury. Now although it is certainly true that the 
 averment stating the oath to have been " touching and concerning the 
 matters and merits of the said election, and the matter of the said petition," 
 does not directly refer to what are alleged to be the material questions 
 which arose, yet, where it does sufficiently appear, both by averment and 
 otherwise, that the oath was upon a material point, the allegation " touch- 
 ing and concerning," &c., is wholly superfluous and unnecessary, and the 
 indictment would have been sufficient if it had omitted that part alto- 
 gether, and had merely stated that the defendant deposed and swore 
 '■ as follows," &c. The second objection is, that the evidence, upon which 
 the perjury is alleged to have been committed, is not referred with suffi- 
 cient distinctness to the said canvassing visit, and that the innuendo 
 by which it is attempted so to apply it, introduces new matter, and is 
 therefore bad. We, however, think otherwise ; for an introductory 
 averment expressly states that there was, in fact, such canvassing visit, 
 and the innuendo directly refers thereto. It is plain, therefore, that 
 this case comes within the rule laid down by De Grey, C.J., in R. v. 
 Home {s), which has always been recognised as the true one ; and that the 
 innuendo does only point and fix the meaning of something previously 
 averred, which is the proper office of an innuendo, and that it does in no 
 respect enlarge it. We think, therefore, that there is no ground for 
 arresting the judgment ' {t). 
 
 Conclusion. — Since 1851 (w), it has been unnecessary for an indictment 
 for perjury to have a formal conclusion whether it be perjury at common 
 law {v), or under statute. In some cases a count is concluded in a 
 
 (r) The indictment here set out other under 4 &5 Will. IV. c. 45, s. 50 (rep.), his 
 
 assignments of perjury to the other parts of sittings were a court, and the false swearing 
 
 the evidence, which was set out in the in- in it perjury at common law, and need 
 
 dictment. not be described as against the form, &c., 
 
 (s) Supra, p. 504. though punishable under s. 52. See 6 & 7 
 
 («) R. V. Virrier, 12 A. & E. 317, per Vict. c. 18, s. 41. In R. w. De Beauvoir, 
 
 Denraan, C.J. 7 C. & P. 17, the indictment seems not 
 
 {u) 14 & 15 Vict. c. 100, s. 24. to have concluded ' against the form,' &c. 
 
 (r) In R. V. Thornhill, Salop Summer See the note at the end of the case. In R. 
 
 Assizes, 1838 (reported on another point, v. Morgan, 6 Cox, 107, Martin, B., held that 
 
 8 C. & P. 575), on an indictment for perjury perjury before a coimty court judge need 
 
 before a revising barrister, it was held that not exclude contra formam statuti.
 
 CHAP. I.] Of Perjury. 507 
 
 syllogistic form, being and so the jurors on their oath aforesaid say that 
 the defendant on &c., at &c., before &c., did commit wilful and corrupt 
 perjury. Perjury is not a word of art like murder, and such a conclusion 
 is unnecessary if the false oath was sufficiently alleged in the earlier part of 
 the indictment, and where it is superfluous mistakes in it are immaterial (w). 
 
 Defects. — If the indictment is defective it may be amended in matters 
 within 14 & 15 Vict. c. 100, and if bad may be quashed {x) on motion to 
 quash or demurrer, or judgment may be arrested if the defects have not 
 been cured by verdict. None of these modes of challenging an indictment 
 is specifically abolished by the Criminal Appeal Act, 1907 (pos^. Book XII. 
 Chapter IV.). 
 
 Judges at nisi jyrius have sometimes refused to try indictments for 
 perjury which were clearly bad on the face of them. An indictment 
 for perjury charged that one A. B. had been convicted of certain offences, 
 and that A. B. afterwards obtained a rule to shew cause why a new trial 
 should not be granted, and that the defendant, in order to prevent the 
 said rule from being made absolute, made the affidavit whereon the 
 perjury was assigned, but there was no averment that the matters falsely 
 sworn were material, nor could it be collected from the indictment that 
 they were so ; and Garrow, B., having consulted Abbott, C.J., who con- 
 curred with him in opinion that the indictment was clearly bad, held 
 that it was the duty of the judge not to proceed to try the case (y). So 
 where in an indictment for perjury the allegations negativing the matter 
 sworn, were so vague and indistinct as to convey no information of the 
 particular charges against the defendant ; Abbott, C.J., after consulting 
 the other judges of the Court of King's Bench, ordered the case to be 
 struck out of the list (z). A judge will not allow counsel to argue at length 
 at nisi prius the invalidity of an indictment, for the purpose of inducing 
 the Court to refuse to try it, as that is not the time or place to discuss 
 such disputed questions (a). 
 
 These rulings all relate to the very rare cases in which an indictment 
 for perjury was removed by certiorari and tried at nisi jmus, and seem to 
 depend on the limitations of the nisi jprius commission, for in ordinary cases 
 such indictments would simply be quashed. Under the Judicature Acts 
 trials at first instance are no longer subject to these limitations, 
 
 (w) Ryalls v. R., 11 A. & E. 781. Vide cution. 
 
 R. V. Hodgkiss, L. R. 1 C. C. R. 212 ; 39 (2) R. v. Hepper, Ry. & M. 210. In R. 
 
 L. J. M. C. 14, post, p. 529. v. Haynes, Ry. & M. 298, Caselce, J., rc- 
 
 (.r) Quashing is matter of discretion. R. fused to try at nisi privs an indictment for 
 
 V. Lynch [1903], 1 K.B. 444. It is said perjury found at quarter sessions and re- 
 
 that the old practice was to require the de- moved by certiorari into the Court of King's 
 
 fendant to demur or plead. 2 Hawk. c. 25, Bench, on the ground that the sessions had 
 
 8. 140. R. V. 8outer, 2 Stark. (N. P.) 423. no jurisdiction over perjury. 
 
 R. V. Burnby, 5 Q.B. 348. {a) R. v. Abraham, 1 M. & Rob. 7. In 
 
 (,y) R. V. Tremcarne, Ry. & M. 147. In this case the defendant's counsel pointed 
 
 R. ?'. Deacon, Ry. & M. 27, Abbott, C..T., out the objections in order to induce the 
 
 refused to try an indictment for a forcible Court to stop the trial, and Tenterden, C..T., 
 
 entry, which was bad for want of alleging saifl that ' it might be convenient some- 
 
 that the entry was 7nr//)?//or^', although the times for counsel to suggest a point on 
 
 counsel for the defendant insisted that the which an indictment is clearly bad, to save 
 
 case should proceed in order that the de- the time of the Court.' In R. r. Hepper 
 
 fendants might have the benefit of an (ante. p. 503), and R. v. Tremearne (nbi 
 
 acquittal by a jury, as they intended to su/jra) the objections to the indictment were 
 
 institute proceedings for a malicious prose- pointed out by the Court.
 
 508 Of Ojfences against the Adyninistration of Justice, [book vii. 
 
 Evidence. 
 
 Corroboration. — Where the defendant on arraignment pleads guilty 
 to the perjury charged, or where he has made a confession or admis- 
 sion (6), that his previous statement on oath was false (c), corroboration 
 is not necessary to warrant his conviction and sentence. But in all 
 other cases the evidence of one witness is not sufficient to convict the 
 defendant on an indictment for perjury. This rule is founded upon the 
 general apprehension that it would be unsafe to convict in a case where 
 there is merely the oath of one man to be weighed against the oath of 
 another {d). The rule does not extend to all the facts, which are neces- 
 sary to be proved on the trial of an indictment for perjury ; but only to the 
 proof of the falsity of the matter upon which the perjury is assigned. 
 Thus, the holding of the court, the proceedings in it, the administering 
 the oath, and even the evidence given by the defendant, may all be proved 
 by one witness (e). 
 
 Nor is the rule to be understood as establishing that two witnesses 
 are necessary to disprove the fact sworn to by the defendant ; for if any 
 material circumstance is proved by other witnesses, in confirmation of the 
 witness who gives the direct testimony of perjury, it may turn the scale 
 and warrant a conviction ( /'). 
 
 In R. V. Roberts {g) the prisoner was indicted for having falsely sworn 
 that P. never was out of his sight between the hours of 7 a.m. and 10 a.m. 
 on a certain day, and two witnesses proved that they saw P. at 8.30 a.m. 
 on that day near L., but could not tell whether the prisoner was in sight of 
 P. or not, as the fences were high. Another witness proved that at 9 a.m. 
 the same morning he saw the prisoner alone and on foot at a place more 
 than six miles from L. It was objected that the assignment of perjury 
 was not proved by two witnesses. Patteson, J., said: 'It is necessary 
 to have two witnesses to prove an assignment of perjury ; but there need 
 not be two witnesses to prove every fact necessary to make out an assign- 
 ment of perjury. If the false swearing be that two persons were together 
 at a certain time, and the assignment of perjury that they were not to- 
 gether at that time, evidence by one witness that at the time named the 
 one was at London, and by another witness that the other was at York, 
 would be a sufficient proof of the assignment of perjury.' 
 
 The rule applies to every assignment of perjury in the indictment. 
 Where, therefore, an indictment contains several assignments of perjury, 
 it is not sufficient to disprove each of them by one witness ; but in order 
 to convict on any one assignment, there must be either two witnesses, 
 or one witness and corroborative evidence, to negative the truth of the 
 matter contained in such assignment. In R. v. Parker {Ji) the prisoner 
 was indicted for perjury alleged to have been committed in an afiidavit 
 to obtain a criminal information, in which he had sworn that he had paid 
 
 (6) As to admissions, see fost, Bk. xiii. (e) 2 Hawk. c. 46, s. 10. 
 
 c. iv. ' Evidence.' (f) R. v. Shaw, L. & C. 579 : 34 L. J. 
 
 (c) R. V. Hook, D. & B. 606, Byles, J. M. C. 169. R. v. Lee [Mich. 1766], M,S. 
 
 {d) R.t;.Muscot, 10 Mod. 193. 4 Bl. Com. Bayley, J. 1 Phill. Evid. 152 (7th ed. 
 
 358. Taylor on Evidence (10th ed.), s. 959. {g) 2 C. & K. 607. 
 
 And see 1 PhiU. Ev. (7th ed.) 151 ; Stark. {h) [1842] C. & M. 639, and MSS. C. S. G. 
 Ev. 859; Best, Ev. (10th ed.), ss. 603-7. 
 
 i
 
 CHAP. I.] Of Perjury. 509 
 
 all his debts, except two, as to which there was an explanation, and there 
 were several assignments of perjury averring that he had not paid certain 
 persons who were named (besides the two excepted ones), and such 
 persons proved that they had not been paid, but only spoke to their 
 respective debts not having been paid ; Tindal, C.J., held that this was 
 not sufficient, and that as to each debt there should be the testimony 
 of two witnesses, or of one witness, and such confirmatory evidence as 
 was equivalent to the testimony of a second witness {%). 
 
 In E. V. Hare (/), where an assignment of perjury was in the vague 
 terms that defendant falsely swore that he had not treated a certain 
 person to brandy, &c., on a certain day, instead of in the definite terms, 
 that he had not treated him at a particular public-house, on a certain 
 day, it was held, that proof of treating at two public-houses by two 
 distinct witnesses was sufficient to support a conviction, because any 
 witness of a treating at a separate time and place on the same day was 
 sufficient corroboration of a witness who spoke only to one act of treating. 
 
 In R. V. Champney (k), Coleridge, J., is reported to have said: ' One 
 witness in perjury is not sufficient, unless supported by circumstantial 
 evidence of the strongest kind ; indeed. Lord Tenterden, C.J., was of 
 opinion that two witnesses were necessary to a conviction.' In a later 
 case, R. v. Yates (l), where the evidence of one witness went in support 
 of all the assignments of perjury, and to confirm him another witness was 
 examined as to a conversation between himself and the defendant, and 
 some entries in the defendant's books were given in evidence ; it was 
 submitted that there was no evidence to go to the jury ; that the rule 
 is that a case of perjury cannot be submitted to the jury on the evidence 
 of a single witness ; and as to the evidence of confirmation, it was not 
 enough that there should be some evidence in confirmation, as in an 
 ordinary case at nisi prius, where some evidence is necessary to prevent 
 a nonsuit ; but it must be such evidence as, in the opinion of the judge, 
 is really confirmatory in some important respect, and equivalent to the 
 positive testimony of a second witness. Coleridge, J., said : ' I think that 
 the case must go to the jury, but I also think without the slightest chance 
 
 (0 In R. V. Mudie, 1 M. & Rob. 128, Tenterden, C.J., said: 'I feel the force of 
 
 Tenterden, C.J., had expressed a doubt the objection. It is a very important point 
 
 on this point. The indictment was for whether the defendant's book, and the oath 
 
 perjury, alleged to liavc been committed by on one side, be not met by the oath of the 
 
 an insolvent debtor in falsely swearing to witnesses on the other side. It would be 
 
 the correctness of his schedule, the defend- very diificult to give any other evidence, 
 
 ant's account book, given by him to the I will not stop the case. If the defendant 
 
 Insolvent Debtors Court, was put in, and is convicted, you can move for a new trial.' 
 
 several persons, whose names were specified The defendant was acquitted on other 
 
 in the indictment as debtors, and omitted grounds. 
 
 in the schedule, appeared in the book as (j) 13 Cox, 17i, Denman, J. 
 
 debtors to the defendant, and ' paid ' was (k) 2 Lew. 258. The same point is said 
 
 marked to their accounts in the defend- to have been ruled by the same learned 
 
 ant's writing. These persons were called, judge m R. v. Wigley, ibid. note. Mr. 
 
 and stated that they did not pay until after iStarkie observes, ' And semhle that the 
 
 the petition and schedule. It was objected contradiction must be given by two direct 
 
 that this was not sufficient evidence, inas- iintnesses, and that the negative supported 
 
 much as it was only oatli against oath, the by one witness and by circumstantial evi- 
 
 defendant having sworn that the debts dence, would not be sufficient. It has been 
 
 were paid ; a single witness, with respect to so held {nt audivi) by Tenterden, C.J.' 3 
 
 each particular debt, swore that it was not Stark. Evid. SCO, note (g). 
 
 paid at the particular time of the schedule. (/) C. & M. 132.
 
 510 Of Offences against the Administration of Justice, [book vil. 
 
 of a verdict for the Crown. The rule that the testimony of a single witness 
 is not sufficient to sustain an indictment for perjury, is not a mere 
 technical rule, but a rule founded on substantial justice ; and evidence 
 confirmatory of that one witness in some slight particulars only, is not 
 sufficient to warrant a conviction.' 
 
 In R. V. Towey (m), an indictment for perjury committed on the trial of a 
 ' civil bill ' in Ireland, alleged that the prisoner, T. T., falsely swore that 
 ' the note produced is not my handwriting, or any part of it, and the name 
 " T. T." as a witness is not in my handwriting.' The note purported to bear 
 the marks of P. and J. T. as makers of the note, and had on it, ' Witness 
 present, T. T.' The payee of the note could not read, but he identified 
 the note, and swore that he saw T. T. write on the paper, and saw P. and 
 J. T. put their marks on it. Another witness proved that he had sub- 
 poenaed T. T. to appear at the sessions as a witness, and that the prisoner 
 then said that there was no occasion to test (subpoena) him ; that he would 
 go to prove the note ; and that at a meeting between the parties to try 
 to settle the civil bill, on the payee of the note saying he had J. T.'s note, 
 and would take the law on it unless he signed a new one, T. T. said that 
 he had been tested (subpoenaed) to come there, but that there was no 
 occasion to test him ; that he would prove the note. But the note was 
 not produced at this meeting. It was held that this evidence was a 
 sufficient corroboration of the evidence of the payee. The prisoner 
 was the only witness to the note, and he could only prove it in his character 
 as a witness, and, therefore, when he said he could prove it, it came to 
 sufficient evidence that he was the witness to the note. 
 
 In R. V. Boulter (n) the indictment alleged that in June, 1851, the 
 prosecutor had distrained upon the prisoner's goods for certain arrears 
 of rent, and that the prisoner on trial at nisi prius falsely swore that 
 there was only one quarter's rent due at the time of the said distress. 
 On the trial for perjury the prosecutor positively swore to the fact of 
 there being five quarters' rent due at the time of the said distress ; and 
 produced his books by which he refreshed his memory ; and for the 
 purpose of corroborating his statement, the son of the prosecutor deposed 
 to a conversation with the prisoner in August, 1850, in which the prisoner 
 admitted that three or four quarters of the said rent were then due. The 
 jury convicted ; but, upon a case reserved, the judges were unanimously 
 of opinion that this was not sufficient corroboration. There was nothing 
 in the evidence of the son relevant to the issue. There was a year's 
 interval between the transaction he spoke of and the time when the 
 distress was made, and the money might have been paid intermediately. 
 The oath of the son was quite as consistent with the oath of the prisoner 
 as with that of the prosecutor. In perjury there must be something 
 to make the one believed rather than the other, and there was no such 
 evidence in this case (o). 
 
 (m) 8 Cox, 328 (C. C. R. Ir.). ence and probative force of its own, inde- 
 
 (n) 2 Den. 396 ; 21 L. J. M. C. 57 ; 3 C. pendent of the other ; so that, supposing 
 
 & K. 236. the charge to be one in which the law 
 
 (o) In Best, Ev. (10th ed.), s. 609, it is allows condemnation on the oath of a 
 
 said to be a question whether ' the old rule single witness, the evidence of either would 
 
 and reason of the matter are satisfied unless form a case proper to be left to a jury, or 
 
 the evidence of each witness has an exist- would at least raise a strong suspicion of
 
 CHAP. 1.] Of Perjury. 511 
 
 In R. V. Virrier (/)), where there were three assignments of perjury upon 
 evidence relating to one and the same transaction, at one and the same 
 time and place, it seems to have been considered that the jury ought not 
 to convict on one of the assignments, although there were several witnesses 
 who corroborated the witness who spoke to such assignment on the 
 fact contained in the other assignments. The assignment was that 
 she falsely swore that B. shook hands with her, and put something 
 into her hand, and told her to give it to her husband, and that it was 
 a sovereign wrapped up in some paper. Evidence was given in support 
 of all the assignments of perjury. Denman, C.J., in summing up, said that 
 as to the second assignment the proof lay almost entirely in the evidence 
 of one witness, and, therefore, he did not see how the jury could convict 
 of the perjury imputed ; but that on the others there was a distinct 
 contradiction of the defendant's testimony by C. and several other 
 witnesses ; and he left it to the jury to say whether there were not a strong 
 body of evidence clearly supporting C.'s denial (q). 
 
 In R. V. Gardiner (r) upon an indictment for perjury, alleged to have 
 been committed in making a charge of an unnatural offence, in which 
 the defendant had deposed that he saw the prosecutor committing the 
 ofEence, and saw the flap of his trousers unbuttoned, and that he was 
 there five minutes ; the prosecutor swore that he did not commit the 
 offence, and that his trousers had no flap ; and to confirm him his brother 
 proved that at the time in question the prosecutor was only absent three 
 minutes, and that the trousers he had on, which were produced in court, 
 had no flap. Patteson, J., held that the corroborative evidence was quite 
 sufficient to go to the jury ; and upon a case reserved, the judges held the 
 conviction right (r). So where perjury was alleged to have been committed 
 by the defendant, who was an attorney, in an affidavit made by him to 
 oppose a motion to refer the defendant's bill of cost to taxation, and 
 to prove the perjury one witness was called, and in lieu of a second 
 witness, it was proposed to put in the defendant's bill of cost delivered 
 by him to the prosecutor ; it was suggested that this was not sufficient, 
 as the bill had not been delivered by the defendant on oath. Denman, 
 C.J. : ' I have quite made up my mind that the bill delivered by the 
 defendant is sufficient evidence, or that even a letter, written by the 
 defendant, contradicting his statement on oath, would be sufficient to 
 make it unnecessary to have a second witness ' (s). 
 
 Where a prisoner was indicted for falsely swearing that he had paid 
 B. a certain sum of money on a particular occasion, and B. swore that 
 
 the guilt of the defendant.' Sec R. v. Shaw, ming up, but did so afterwards ; and having 
 34 L. J. M. C. 109 : L. & C. 579. a distinct remembrance of it, and no doubt 
 (p) 12 A. & E. 317. of the jury's intention, he (on the summons) 
 (q) Denman, C.J., considered the most allowed the postea to be amended by enter- 
 convenient mode of summing up the case to ing a verdict of ' guilty " on the Krst and 
 be to treat the second assignment as the third assignments, and ' not guilty ' on the 
 first, and the first and third as one, and did second ; but the Court afterwards held that 
 so leave the case to the jury, who found a the amendment ought not to have been 
 verdict of ' not guilty on the first assign- made, there being no note or memorandum 
 ment of perjury for want of sufficient cvi- of the judge or other document to amen(/ 
 dence, and guilty on the second,' but said by. 
 
 nothing on the third, and the verdict was (r) 2 Mood. 95 ; 8 C. & P. 737. 
 
 entered accordingly. The Chief Justice did (s) R. v. Mayhew, G C. & P. 315, and see 
 
 not at the time make any note of his sum- Best, Ev. (10th ed.), p. 511.
 
 512 Of Offences acjainst the Administration of Justice, [book vil. 
 
 he received the money in packages, and afterwards counted it, and found 
 it £7 short ; this statement was held not to be corroborated at all by 
 evidence of another person, who also counted it, but had not been present 
 when the money was received {t). 
 
 An indictment alleged that the prisoner falsely swore at a petty ses- 
 sions that R. was the father of her illegitimate child. A witness other 
 than R. proved that the prisoner had said that R. ' had never touched 
 her clothes ' at a time when she generally denied being in the family way. 
 It was ruled that though, under some circumstances, such a statement 
 might have been a sufficient corroboration of the evidence of R., yet 
 this negation was so far a part of the general denial that the jury could 
 not safely convict upon it alone {u). 
 
 In R. V. Hook (v), Wightman, J., said : ' It is not necessary that there 
 should be two independent witnesses to contradict the particular fact, 
 if there be two pieces of evidence in direct contradiction. Here one piece 
 of evidence is that the prisoner himself is proved to have made statements 
 directly contrary to his statement on oath ; that alone would not do ; 
 but in addition to that you have the oaths of other witnesses, which go 
 to shew that that which he stated when not upon oath was true ; and there- 
 fore you have two pieces of evidence. I ought rather to put it that, 
 instead of two witnesses being necessary to prove each fact, you must 
 have the evidence of two persons giving evidence in contradiction to what 
 has been sworn to by the prisoner ; as, one witness who could prove, as in 
 this case, that on other occasions the prisoner had stated that which was 
 diametrically opposed to that which he has sworn, and the other witness 
 to give evidence of that which is directly opposite. You have therefore 
 two contradictions : you have the contradiction of the prisoner himself, 
 as deposed to on oath by one witness, and you have the contradiction 
 of another independent witness, who speaks to the falsehood of the fact : 
 you, therefore, have two independent contradictions on oath.' 
 
 Contradictions by Defendant. — In R. v. Knill {iv), where the defendant 
 had been convicted of perjury, charged to have been committed in an 
 
 {t) R. V. Braithwaite, 1 F. & F. G38 ; 8 those sworn to by the prisoner. Cockburn, 
 
 Cox, 444, Watson, B., and Hill, J. In C. J., is said to have held the private memo- 
 
 the latter report it is stated that ' the randum to be a sufficient corroboration, 
 
 prosecutor took it without counting it, and If this case is correctly reported, it deserves 
 
 carried it to a Mrs. Watson's, and counted reconsideration. The memorandum was 
 
 it over.' In the former, ' The prosecutor not itself admissible, and could only be 
 
 took it without counting it, and carried it used to refresh the memory of the witness ; 
 
 to an adjacent lane, where he counted a so that the whole statement rested on his 
 
 part of it, and found it wrong ; he then single oath ; and, even if the memorandum 
 
 gave it to a Mrs. Watson, and asked her to had been admissible, it would only have 
 
 count it over.' Mrs. Watson was the wit- been the written statement of the witness 
 
 ness called to corroborate B. and not on oath ; and the time when it was 
 
 (w) R. V. Owen, 6 Cox, 105, Martin, B. made and the veracity of its statements 
 In R. V. Webster (1 F. & F. 515 ; 8 Cox, must have rested on his single oath. See 
 187) a count alleged that the prisoner R. v. Lara, 6 T. R. 565, in support of this 
 falsely swore that she had shewn to one C. reasoning. In R. v. Boulter, supra, p. 510, 
 certain invoices bearing certain dates. C. it was not even suggested that the prose- 
 swore that the prisoner had not shewn him cutor's books could be used to corroborate 
 the invoices she had sworn to, but that she his evidence. 
 
 had shewn others ; and he produced a [v) D. & B. 606 (C. C. R.). For the facts 
 
 memorandum, he had made privately at of this case, see post, p. 515. 
 the time, of the dates of the invoices, which (w) 5 B. &. Aid. 929, note (a), 
 
 shewed that they were not the same as
 
 CHAP. I.] Of Perjury. 513 
 
 examination before the House of Lords, the only evidence was a contra- 
 dictory examination of the defendant before a committee of the House 
 of Commons. Application was made for a new trial, on the ground that 
 in perjury two witnesses were necessary, whereas in that case only one 
 witness had been adduced to prove the corpus delicti, namely, the witness 
 who deposed to the contradictory evidence given by the defendant before 
 the committee of the House of Commons ; and it was insisted that mere 
 proof of a contradictory statement by the defendant on another occasion 
 was not sufficient, without other circumstances shewing a corrupt motive, 
 and negativing the probability of any mistake. But the Court held that 
 the evidence was sufficient, tJie contradiction being by the party himself, 
 and that the jury might infer the motive from the circumstances (ww). 
 In an anonymous case (x) a man swore before a justice of the peace, 
 that three women were concerned in a riot at his mill (which was dis- 
 mantled by a mob on account of the price of corn). Afterwards, at the 
 session, when the rioters were indicted (having been tampered with in 
 their favour) he then swore they were not in the riot. Perjury was 
 assigned on the oath that the women were in the riot ; there was no evidence 
 to prove that they were, but the defendant's own original information on 
 oath, which was produced and read. The judge thought this evidence 
 sufficient, and the defendant was convicted {y). 
 
 These two decisions, if correctly reported, appear to be contrary to 
 first principles and to be virtually overruled by the series of cases next 
 to be stated. 
 
 In R. V. Wheatland (2), on an indictment for perjury, alleged to have 
 been committed on the trial of an indictment for larceny, it appeared 
 that the defendant had sworn to several material facts before the com- 
 mitting magistrate, but when he was called on the trial, denied the whole 
 of what he had stated before the magistrate. R. v. Knill and Anon, (a) 
 were cited to shew that the contradiction by the oath before the magis- 
 trate would alone be sufficient evidence to convict the defendant ; but 
 Gurney, B., held, that it was not sufficient to prove that the defendant 
 had, on two different occasions, given directly contradictory evidence, 
 although he might have wilfully done so ; but that the jury must be 
 satisfied affirmatively that what he swore at the trial was false, and that 
 would not be sufficiently shewn to be false by the mere fact that the 
 defendant had sworn the contrary at another time ; it might be that his 
 evidence at the trial was true, and his deposition before the magistrate 
 false. There must, he held, be such confirmatory evidence of the defendant's 
 
 (irw) B. & Aid. 929, note (a). seems sufficient to di.sprove the other ; and 
 
 (.r) Cor. Yates, .1., Lancaster Sum. Ass. with respect to the defendant (who cannot 
 
 1764. And afterwards, Lord Mansfield, contradict what he himself has sworn) is a 
 
 C.J., and Wilmot, J., and Aston, J., to clear and decisive proof, and will warrant 
 
 whom Yates, J., stated the reasons of his the jury in convicting him on cither, for 
 
 judgment, concurred in his opinion. Notes whichsoever is given in evidence to dis- 
 
 to R. V. Harris, 5 B. & Aid. 939, M8. Bayley, prove the other, it can hardly be in the 
 
 J. defendant's mouth to deny the truth of that 
 
 (,V) The Precedent-book of Chambr'^, J., evidence, as it came from himself, 
 cited 5 B. & Aid. ibid., suggests that when (z) 8 C. & P. 238. 
 
 the same person has by opposite oaths as- (a) Supra. 
 
 sorted and denied the same fact, the one 
 
 VOL. I. 2 L
 
 514 Of Offences against the Admrnistratmi of Justice, [book vii. 
 
 deposition before the magistrate, as proved that the evidence given by the 
 defendant at the trial was false (6). 
 
 And in R. v. Hughes (c), where a prisoner was indicted for perjury 
 in evidence given before a grand jury, and her deposition on the hearing 
 of the charge before the committing magistrate was put in to shew that 
 the statement before the grand jury was false ; Tindal, G.J., held, that 
 further evidence must be given ; for if the two contradictory statements on 
 oath alone were proved, non constat which was the true one {d). 
 
 In R. V. Jackson (e), where the prisoner was indicted for perjury, and 
 it appeared that she had made two statements on oath, one of which was 
 directly at variance with the other ; Holroyd, J., is reported to have said : 
 * Although you may believe that on one or other occasion she swore that 
 which was not true, it is not a necessary consequence that she com- 
 mitted perjury ; for there are cases in which a person might very honestly 
 and conscientiously swear to a particular fact, from the best of his 
 recollection and belief, and from other circumstances at a subsequent 
 time be convinced that he was wrong, and swear to the reverse, without 
 meaning to swear falsely either time. Again, if a person swears one 
 
 (h) In R. i'. Knill, the Court held that 
 ' the jury might infer the motive from the 
 circumstances,' none of which are stated in 
 the short minute of the case ; some of them 
 might have been such as to shew that the 
 one statement was false, or the other state- 
 ment true. In the Anonymous case the de- 
 fendant had been tampered with after his 
 first examination, and the evidence of the 
 tampering with the defendant might be 
 such as to lead to the conclusion that his 
 evidence on the trial was false. But sup- 
 posing those cases go the length of estab- 
 lishing the proposition, that the defendant's 
 own evidence upon oath is sufficient to con- 
 tradict the evidence on which the perjury 
 is assigned, it is conceived they cannot be 
 supported. The prosecutor may charge 
 the perjury either on the one statement or 
 on the other, and whichever he selects it is 
 clear that the defendant could not avail 
 himself of a plea of autrefois acquit, or con- 
 vict in case he were subsequently indicted 
 for the other, and therefore he might be 
 twice put in jeopardy, and perhaps twice 
 convicted for the same offence. The judg- 
 ment m R. V. Harris, 5 B. & Aid. 926, is 
 conclusive to shew that this is a good ob- 
 jection. Again, such evidence leaves it 
 wholly uncertain which of the two state- 
 ments is true ; now it is a clear I'ule of 
 criminal law that if the evidence on the part 
 of the prosecution leaves it wholly uncer- 
 tain whether the cri7ne charged has been 
 committed or not, the defendant must be 
 acquitted ; and as to the observation that 
 ' it can hardly be in the defendant's mouth 
 to deny the truth of the evidence that came 
 from himself,' it must be remembered that 
 there are two statements upon oath, and if 
 he is to be concluded from denying one to 
 be true, the same reason would conclude 
 
 him from denying the other, and it would 
 surely be unreasonable to hold that he is 
 concluded to deny the truth of whichever 
 the prosecutor may think fit to select. It 
 is conceived, also, that an indictment 
 charging each of the statements to be false 
 in separate counts could not succeed. The 
 charges being directly contradictory the 
 one to the other, it may be doubted whether 
 the grand jury would be warranted in find- 
 ing such an indictment ; or, if found, 
 whether it would not be bad on the face 
 of it ; and as the defendant could only 
 make a defence to one charge by proving 
 himself guilty of the other, the judge would 
 probably insist upon the prosecutor electing 
 on which charge he would proceed. But 
 supposing these difficulties to be sur- 
 mounted, it is not easy to see how it would 
 be possible for the jury to find a verdict 
 without any evidence to shew which state- 
 ment was false. If they found a general 
 verdict they would at one and the same 
 time find each of the statements to be both 
 true and false, unless indeed they were, satis- 
 fied that the defendant had, upon both 
 occasions, wilfully sworn to matters about 
 which he had no knowledge at all. Atite, 
 pp. 476, 502. C. S. G. 
 (f) 1 C. & K. 519. 
 
 (d) The false statement before the grand 
 jury was that certain tablecloths were the 
 property of the prisoner's son, and she had 
 sworn before the magistrates that they 
 were her husband's ; and evidence of the 
 state of the family was given to prove that 
 the latter statement must be true ; but 
 Tindal, C.J., thought that there was so 
 much doubt whether the prisoner might not 
 have sworn under a misapprehension, that 
 he directed an acquittal, 
 
 (e) 1 Lew. 270. 
 
 J
 
 CHAP. 1.] Of Per jury. 515 
 
 thing at one time, and another at another, you cannot convict where 
 it is not possible to tell which was the true and which was the false. 
 
 And in R. v. Hook (/), the prisoner, a policeman, laid an information 
 against a publican for keeping open his house after lawful hours on the 
 fast day, and on the hearing of the information swore that he knew nothing 
 of the matter, except what he had been told by another person, and that 
 ' he did not see any person leave the publican'' s house after eleven ' on the night 
 in question. Perjury was assigned on this last allegation. It was proved 
 by the clerk of the magistrates that the prisoner on laying the information 
 said, he had caught the publican ; he had last night seen four men leave his 
 house after eleven ; one of them he could swear to ; it was W. ; he knew 
 him by his coat. Another witness proved that the prisoner, on another 
 occasion, made the same statement to him. A third witness, W., proved 
 that, on a third occasion, the prisoner repeated the statement with the 
 variation, ' One I can swear to ; it was your brother.' It was proved that 
 W. and others had left the house on that night after eleven. The prisoner 
 on the hearing of the information acknowledged that he had offered to 
 smash the case for 30s. He told another witness he should make the 
 publican give him money to settle it ; another witness heard him offer the 
 publican to settle it for £1, saying he was risking perjury ; and another 
 witness proved that the prisoner owned he had received 10s. to smash 
 the case, and was to have 10s. more. It was objected that there was 
 no sufficient evidence, as these were only the statements of the prisoner 
 not on oath against that on oath. But, on a case reserved, it was held 
 that the conviction was right. In addition to the statements of the 
 prisoner, there were strong confirmatory circumstances. The prisoner's 
 offering to smash the case for one pound, his admitting that he had 
 received 10s. and was to receive 10s. more, and his talking of making the 
 publican pay to settle it, are strong evidence to shew that what he stated 
 upon his oath was false, and that his statements not upon oath were 
 true (;). 
 
 In this case Pollock, C.B., expressed a doubt whether a conviction 
 could thereafter be permitted in such a case as R. v. Knill (r/). 
 
 Proof of Former Trial.— Where the former trial was of a civil action in 
 any branch of the High Court of Justice (//), the record is proved (?) 
 by the production of the original by an officer of the Court, under order 
 of a judge or master (R. S. C. Ord. LXL, rules 28, 29), or of an office 
 copyO). 
 
 Thus upon an indictment for perjury charged as having been com- 
 mitted on the trial of an action in the High Court of Justice, the 
 
 (/) D. & B. 606 (C. C. R.). The question not now any judgment roll. Under the 
 
 involved was not the fact that the men left old practice, tinal judgment was entered 
 
 the house, but whether the prisoner had before any roll was carried in, and an entry 
 
 truly stated that he saw them leave. in a judgment book, stating that interlocu- 
 
 {()) In R. V. Cleland [1901], 20 N. Z. L. R. tory judgment had been signed in an action, 
 
 509, the Court seem to have considered that and final judgment afterwards entered, 
 
 R. IK Hook actually overrules R. v. Knill, was held enough to prove the entry of such 
 
 ante, p. 512. judgment without producing the judgment 
 
 (h) Including actions tried at the assizes. roll or an examined copy. R. v. Gordon, 
 
 (t) As to former rule, see R. v. lies, C. & M. 410, Denman, C.J. See Fisher r. 
 
 Hardr. 118. Bull (N. P.) 243. 2 Hawk. Dudding, 9 Uowl. Pr. Cas. 872. 
 c. 46, 8. 57. 3 Stark. Ev. 833. There is (;') Vide post, Bk. xiii. c. iii. ' Evidence.' 
 
 2 l2
 
 516 Of Offences against the Administration of Justice, [book vii. 
 
 production by the officer of the Court of the copy writ filed under Ord. 
 v., rule 7, and the copy pleadings filed under Ord. XLI., rule 1, and by 
 the solicitor for the defendant in the action of the order to discuss the 
 action were held sufficient evidence of the existence of the action {k). 
 
 A minute written by the officer of the Court on the jury panel, verdict 
 for damages Is., was held sufficient evidence of a trial at nisi 'prius, though 
 the nisi jwius record on production had no postea endorsed (l). 
 
 Where the perjury is assigned on a former trial for felony or mis- 
 demeanor, the former trial may be proved by certificate of the officer 
 having custody of the records of the court where the former trial took 
 place (m). 
 
 Where the former trial was before a jury it is not necessary to prove 
 that their verdict was given on all the issues sent down for trial (w), 
 nor even that they gave any verdict, if they have in fact been sworn 
 and have tried the case (o). Whatever the form of trial, the material 
 thing to prove is that there was a trial. Its result is immaterial to the 
 issue of perjury, and the judgment or conviction (p) is not admissible as 
 evidence that the perjury assigned was committed. Nor are statements 
 made by the judge in giving judgment on the former trial admissible 
 against a witness or a prosecution for perjury in his evidence given at that 
 trial (r). 
 
 On an indictment against T. R. for suborning one M. to commit 
 perjury, it was contended on the part of the Crown that the bare pro- 
 duction of the record of M.'s conviction was of itself sufficient evidence 
 that he had, in fact, taken the false oath as alleged in the indictment. 
 But it was insisted, for the prisoner, that the record was not of itself 
 sufficient evidence of the fact ; that the jury had a right to be satisfied 
 that such conviction was right ; that R,. had a right to controvert the 
 guilt of M. ; and that the evidence given on M.'s trial ought to be submitted 
 to the consideration of the present jury ; and the Recorder obliged 
 counsel for the Crown to go through the whole case in the same manner as 
 if the jury had been charged to try M. (s). 
 
 Central Criminal Court. — On a trial for perjury at the Central Criminal 
 Court the caption of the same Court of oyer and terminer or gaol delivery 
 at which the indictment for perjury is preferred, the former indictment 
 
 (k) R. V. Scott, 2 Q.B.D. 415. (o) R. v. Bray, 9 Cox, 218. The Re- 
 
 (l) R. V. Brown, M. & M. 315 ; 3 C. & P. corder, after consulting Bramwell, B., and 
 
 572, Tenterden, C.J., after consulting the Byles, J. 
 
 other judges of the Court of King's Bench. (p) R. v. Goodfellow, C. & M. 569 (con- 
 
 (m) 14 & 15 Vict. c. 100, s. 22, ante, viction before justices). See R. v. Dowlin, 
 
 p. 482. 5 T. R. 311. In R. v. Moreau, 11 Q.B. 
 
 (n) R. V. Schlesinger, 10 Q.B. 670. The 1028 (award of an arbitrator), Denman, 
 indictment alleged the trial of two issues C.J., said : ' The decision of the arbitra- 
 before the slieriifs of London on writ of tor in respect of the fact is no more than 
 execution, and the position shewed a verdict a declaration of his opinion, and there is 
 on one issue only. The jury had been no instance of such a declaration of opinion 
 summoned and sworn to try both, as ap- being received as evidence of a fact against 
 proved by the record. The record stated a party to be affected by proof of it in any 
 that the jury, after evidence given, with- criminal case.' 
 drew to consider their verdict, and after (r) R. ik Britton, 17 Cox, 627. 
 they had agreed, returned to the bar to (s) R. v. Reilly, 1 Leach, 454. The re- 
 deliver their verdict, ' Whereupon the cord was not res judicata in the proceedings 
 plaintiff being called, comes not, &c.' against R.
 
 CHAP. I.] Of Perjury. 517 
 
 with the indorsement of the prisoner's plea, the verdict, and sentence of 
 the Court thereon, together with the minutes of the trial, made by 
 the officer of the Court, are at common law sufficient evidence of the former 
 trial, without a regular record or any certificate thereof [t). 
 
 Quarter Sessions. — The sessions book containing the orders and other 
 proceedings of a Court of Quarter Sessions made up and recorded after 
 each sessions, with an entry containing the style and the date of the 
 sessions, and the name of the justices in the usual form of a caption, no 
 other record being kept, is good evidence of the trial of an appeal against 
 an order of removal (w). 
 
 County Court. — Where an indictment is preferred for perjury com- 
 mitted on the hearing of a plaint in the County Court, the proper mode 
 of proving the proceedings in that Court is to produce the Court book 
 containing a note of the plaint or a copy of the minutes bearing the seal 
 of the Court, and purporting to be signed and certified as a true copy by 
 the registrar of the Court under s. 28 of the Count v Court Act, 1888 
 (51 & 52 Vict. c. 43) (r). 
 
 Ecclesiastical Court. — An indictment for perjury alleged that a certain 
 suit was instituted in the Prerogative Court of Canterbury, in which 
 M. S. M. was plaintiff, and J. T., J. H. T., W. B. W., and W. T. A., 
 defendants; and in order to prove this allegation, an officer from the regis- 
 trar's office in the Prerogative Court produced from the office an original 
 allegation put in on behalf of M. 8. M. and the original allegation put in 
 on behalf of the executors in answer to it, and proved the signatures of 
 two advocates, who acted as advocates in the Court, to each of the allega- 
 tions. This was held sufficient proof of the suit having been instituted 
 as alleged {w). 
 
 Proof of Authority to administer the Oath. — It is sufficient, to sup- 
 port the averment that the party administering the oath had com- 
 petent authority for that purpose, to shew in the first instance that he 
 acted as a person having such authority. Thus, upon an indictment 
 for perjury before a surrogate in the Ecclesiastical Court, it was ruled, 
 that the fact of the person who administered the oath having acted 
 as a surrogate was sufficient prima facie evidence of his having been 
 duly appointed, and having authority to administer it. And Pollen- 
 borough, C.J., said : ' I think the fact of Dr. P. having acted as surrogate 
 is sufficient prima facie evidence that he was duly appointed and had 
 competent authority to administer the oath. I cannot for this purpose 
 make any distinction between the Ecclesiastical Courts and other juris- 
 dictions. It is a general presumption of law, that a person acting in a 
 
 (0 R. V. Newman, 2 Den. 390. The a record of the trial of such an appeal, 
 
 trial for perjury was in December 1851 ; (c) This enactment takes the place of 
 
 the trial on which the perjury was com- 1) & 10 Vict. c. 9o, s. 111. 8ee R. v. Row- 
 
 mitted was at a ses-sion held on May 12, land, 1 F. & V. 72. Braniwell, B.. lield 
 
 1851, and the caption was dated on that that the proceedings on hearing the plaint 
 
 day. As to other modes of proof, see 14 & could not be proved by the assistant clerk 
 
 15 Vict. c. 100, s. 22, ante, p. 482. of the Court. In R. v. Ward. 13 Co.x, 270, 
 
 {u) R. V. Yeoveley, 8 A. & E. 806. In Maule, J., held that want of proof of a 
 
 R. I'. Ward, G C. & P. 3()(), Park, J., had county court summons was answered by 
 
 rejected the sessions book on tlie strengtii tlie fact of the prisoner's appearance, which 
 
 of a statement by the clerk of the peace might be proved by parol, 
 
 that he would, on retjuest, have drawn up [iv) R. r. Turner, 5 C. & K. 732, Erie, J.
 
 518 Of Offences against the Administration of Justice, [book vii. 
 
 public capacity is duly authorised so to do' (x). But upon its appearing 
 that the surrogate was appointed contrary to the canon (which requires 
 that no judicial act shall be speeded by any ecclesiastical judge, unless in 
 the presence of the registrar or his deputy, or other persons by law allowed 
 in that behalf), it was held that his appointment was a nullity and the 
 averment that he had authority to administer the oath was negatived (?/). 
 Where perjury was assigned upon an affidavit sworn before C, a com- 
 missioner, &c., and it was proved that C. acted as a special commissioner 
 for taking the affidavits of parties in prison, or unable from sickness to 
 attend before a judge ; Patteson, J., held that this was sufficient evidence 
 that C. was a commissioner, and that it was not necessary to prove 
 the commission under which the affidavit was taken, upon the general 
 principle that a person acting as a public officer must be taken to have 
 authority as such, and that a commissioner for taking affidavits came 
 within that principle (2). An affidavit was alleged to have been sworn 
 before K. G. W., a commissioner, ' then and there being duly authorised 
 and empowered to take affidavits in the said county of G. in or concerning 
 any cause depending in Her Majesty's Court of Exchequer.' It was 
 proved that W. had acted as a commissioner for taking affidavits in the 
 Court of Exchequer for ten years ; that he had never seen his commission, 
 but had directed it to be applied for ten years before through his agent, 
 and had been told by him that it had been granted. It was held that W.'s 
 acting as a commissioner was prima facie evidence that he was so (a). 
 
 On an indictment for perjury in a County Court, Maule, J., held 
 that proof that the judge acted in the capacity of a judge of the Court in 
 pursuance of and under the County Courts Act, 1846 (repealed), was 
 sufficient (b). 
 
 The same rule applies to deputy judges of County Courts (c). 
 
 Where a question arises whether by the practice of a Court an affidavit 
 is prescribed or required, the rules of practice should be proved by an 
 official copy {d) or by an officer who can verify the practice (e). 
 
 Where the jury is assigned on an oath before a Court or person with 
 limited jurisdiction it is necessary to prove such facts as would give 
 jurisdiction to administer the oath (/'). This rule was applied in several 
 cases under the old bankruptcy law where the jurisdiction of commissioners 
 of bankruptcy to examine a bankrupt depended on the existence of a good 
 petitioning creditor's debt (g) or the fact of bankruptcy {h). 
 
 Where the issue and (or) service of a summons or the laying of an 
 
 [x) R. V. Veielst, 3 Camp. 432. R. v. (c) R. v. Roberts, 14 Cox, 101. 
 
 Cresswell, 2 Chit. Cr. L. 312. (d) Vide j'ost, Bk. xiii. c. iii. 
 
 (?/) R. V. Verelst, supra. (e) See R. v. Koops, 6 A. & E. 198. In 
 
 (z) R. 1-. Howard, 1 M. & Rob. 187. tliat case printed rules were not admitted 
 
 (a) R. i\ Newton, 1 C. & K. 469, Atcher- in the absence of evidence that they were 
 
 ley, Serjt., after consulting Tindal, C.J. sanctioned by the Court, or known to 
 
 The defendant had requested Whatley to express its practice. 
 
 act as commissioner in taking this particu- (/) See R. v. Dunning, L. R. 1 C. C. R. 
 
 lar affidavit. 290, ante, p. 486. 
 
 [h] R. V. Ward, 3 Cox, 279. An attempt (g) R. v. Ewington, 2 Mood. 223 ; C. & 
 
 had been made to prove the due constitu- M. 319. 
 
 tion of the Court by production of a copy (/() R. ik Punshon [1812], 3 Camp. 9G. 
 
 of the ' London Gazette,' which turned out ]'ide R. v. Bullock, 1 Taunt. 71. 
 
 to be the wrong one.
 
 ChAp. i.] Of Perjury. 519 
 
 information is necessary to give the justices jurisdiction to take the 
 evidence on which the perjury is assigned, it is necessary to prove the issue 
 service, &c. (i), or that its absence or defects were waived (/). Proof of 
 such matters may also be necessary in order to ascertain the nature of the 
 proceeding before the justices from the point of view of the materiality 
 of the false evidence [k). 
 
 An indictment alleged that the prisoner appeared at petty sessions 
 in pursuance of a summons requiring him to answer a complaint of 
 A. J. touching a bastard child of which she alleged him to be the father [1), 
 and alleged that he committed perjury on the hearing of that complaint. 
 The magistrates' clerk produced a book containing the minutes made 
 by him on the occasion, headed ' Ann J. v. R. N., affiliation,' and then 
 the evidence was set out. There was no other evidence of the proceed- 
 ings before the justices. It was objected that the summons ought to 
 have been produced, or notice to produce it served on prisoner. Wight- 
 man, J., said : ' 7 & 8 Vict. c. 101, provides that" upon complaint by the 
 mother, the justices shall have power to summon the putative father, 
 and upon the appearance of the person so summoned, or upon proof of 
 the service of the summons, to hear and adjudicate upon the case." A 
 summons was, therefore, necessary to give the magistrates jurisdiction 
 to hear the case ; and to prove that they had jurisdiction in this case 
 it must be proved that the prisoner was duly summoned, either by pro- 
 duction of the summons, or by secondary evidence, after notice to the 
 prisoner to produce it. The minutes of examination in this case were 
 no more than the minutes of a shorthand writer ' (;m). 
 
 It has been ruled that on indictments for perjury before justices, if 
 the proceeding there was on a written information it must be produced, 
 or its loss or destruction accounted for (w). 
 
 Petty Sessional Courts now have a register of the minutes and 
 memorandums of all the convictions and orders of the Court, and all 
 proceedings directed by rules of Court to be registered (o). The 
 register is frima facie evidence only in the Court for which it is 
 kept(/;). 
 
 Upon trial for perjury committed at the hearing of an information 
 in bastardy, the indictment alleged the application for a summons, the 
 issuing thereof, and the hearing upon it, proof of the information, of the 
 appearance of the defendant, of the hearing, of evidence being given on 
 both sides, and of no objection being made of the want of a summons, 
 was held sufficient to shew jurisdiction in the justices who heard the 
 information, without proof of the summons which issued upon that 
 
 (t) R. (-. Whvbrow, 8 Cox, 438 : R. v. Hughes, 4 Q.B.D. ()14, and cases cited 
 
 Huirell. ■^ F. & V. 271 : R. v. Carr, 10 Cox, ante, p. 463. 
 
 .11)4 (C. C. R): all casr.s nlaliiig (o the pro- {») R. r. Dillon, 14 Cox, 4. Lopes, J. 
 
 (hiction of KiimnionHcs. (o) 42 & 43 Vict. c. 40, s. 22. Summary 
 
 (/) R. V. Smith, L. II. 1 C. C. R. IJO. .Jurisdiction Rule?, 188() and 1906. 
 
 R. V. Huchcs, 4 i^Ai.D. 614, anlf, p. 4()3. (/j) Police Commissioner v. Donovan 
 
 (k) R. (;. Carr, ubi .^up. [1903], 1 K.B. 895. In other cases it is 
 
 (/) The proceedings were taken under only an aide mcmoire, and does not dispense 
 
 7 & 8 Vict. c. 101, ss. 2, 3, now superseried with proof of summons, «S:c. R. v. Cox, 10 
 
 by 35 & 36 Vict. c. 65, s. 3. Cox, 564 iC. C. R.). 
 
 (m) R. V. Newell, 6 Cox, 21. Cf. R. v.
 
 620 Of Offences against the Administration of Justice, [book vil. 
 
 information ; and a conviction for perjury upon the indictment was 
 upheld {q). 
 
 Proof of the Oath. — The taking the oath must be proved as it is 
 alleged, unless the indictment is amended. Therefore, if it is averred that 
 the defendant was sworn upon the Holy Gospels, &c., it will not be 
 enough to prove that he was sworn in some other manner (r). Where 
 the allegation in an indictment was, that on the trial of an action the 
 prisoner ' was duly sworn, and took his corporal oath on the Holy Gospel 
 of God,' and the proof was that the witness was sworn and examined ; 
 and it was objected that the particular mode of swearing must be proved, 
 as the evidence given would apply to the oath of a Jew, or person of any 
 other religion than the Christian ; Littledale, J., held the proof sufficient, 
 as the ordinary mode of swearing was the one specified (s). Where an 
 indictment stated that the prisoner was sworn to speak ' the truth, the 
 whole truth and nothing but the truth,' and it was proved that the oath 
 taken was in the form, ' you shall true answer make,' this was held to 
 be no variance (t). 
 
 It is necessary to prove that the oath was taken in a place over which 
 the Court of trial for the perjury has jurisdiction, but, where the oath is 
 proved to have been taken in the county in which the defendant is in- 
 dicted, variance between indictment and proof as to the place of taking 
 the oath are immaterial {u). 
 
 The recital of the place where the oath is administered in the jurat 
 of an affidavit is sufficient proof that the oath was administered at the 
 place named (f). Where, therefore, perjury was assigned on an answer 
 in Chancery, and the defendant's signature to the answer, and that of the 
 Master in Chancery to the jurat, were proved, and that Southampton 
 Buildings, which the jurat recited as the place where the oath was admin- 
 istered, was in the county of Middlesex ; Tenterden, C.J., held that this 
 was sufficient proof that the oath was administered in Middlesex {lo). 
 So where on an indictment for perjury committed in an affidavit, the 
 original affidavit was produced, and proved to be signed ' J. T.,' in the 
 handwriting of the prisoner, and the jurat was ' Sworn in open court 
 at Westminster Hall, the 10th day of June, 1846, by the Court,' and 
 it was proved that the words ' By the Court ' were in the handwriting 
 of one of the masters of the Court, by whom the jurats of affidavits 
 are signed when the affidavits are sworn in Court. It was objected 
 that it should be shewn that the master was in Court when the prisoner 
 was sworn before him. Erie, J., said: 'We have proof of the hand- 
 writing of the party sworn, and of the officer, who is authorised to 
 administer the oath ; and when an officer thus authorised writes 
 under a proper jurat the words " By the Court," I think that that is 
 sufficient evidence that the affidavit was sworn before him, and properly 
 sworn in Court ' {x). And upon an indictment in Middlesex, it may 
 
 ((/) R. V. Smith, L. R. 1 C. C. R. 110. Watson, B. 
 
 {r) R. V. McCarther, Peake (3rd ed.) 211. («) R. v. Taylor, Skin. 403. 
 Kissing the book and lifting the hand are {v) R. v. Spencer, 1 C. & P. 200, Tenter- 
 directory only. R. V. Haly, 1 Crawf. & den, C.J. 
 Dix. Circ. Ct. (Ir.) 199. (w) R. v. Spencer, supra. 
 
 (s) R. V. Rowley, Ry. & M. 299. (x) R. r. Turner, 2 C. & K. 732. 
 
 (0 R. V. Southwood, 1 F. & F. 350, 
 
 I
 
 CHAP. 1.1 Of Perjury. 521 
 
 be shewn that the oath was in fact taken in Middlesex, although the jurat 
 state it to have been sworn in the city of London (y). The prisoner must 
 of course be identified as having sworn the oath. 
 
 On an indictment for perjury, in an answer in Chancery, sworn before 
 the passing of the Judicature Acts, the bill must be produced and proved 
 in the usual way (z). Proof of the defendant's signature, and that of the 
 master before whom the answer purported to be sworn, was evidence 
 of the defendant's having sworn to the truth of the contents, without 
 calling the person who wrote the jurat, or proving the identity of the 
 defendant as being the very same person who had signed the answer (a). 
 But unless there was such proof of the defendant's signature, or some 
 other sufficient proof to identify him as the person by whom the oath 
 was taken, no return by commissioners or of a master in Chancery was 
 sufficient (6). In a case upon 31 Geo. II. c. 10, s. 24 (for taking a, false 
 oath to obtain administration to a seaman's effects, in order to receive 
 his wages), it was held necessary to prove, directly and positively, that it 
 was the prisoner who took the oath (c). 
 
 On an indictment for perjury all the evidence referable to the fact 
 on which the perjury is assigned must be proved {d) : such prefatory 
 averments and innuendoes as are stated in the indictment with this 
 object (e). On an indictment for perjury on the trial of an action it was 
 held sufficient to go to the jury if that a witness deposed for recollection 
 the evidence given by the prisoner, though he did not take it down in 
 writing, and could not say with certainty that it was all the evidence 
 given by the prisoner, but could only say with certainty that it was all 
 he gave on that point, and that he said nothing to qualify it ( /'). 
 
 Where a prisoner is indicted for perjury in evidence given on the trial 
 of a cause, it is only necessary for the prosecution to prove so much 
 of that evidence as is relevant to the matter in issue on the trial for 
 perjury ; but if the prosecution prove the whole of the prisoner's 
 evidence on the former trial, and it refers to any deed or other document, 
 which is so mixed up with it that it is necessary to be read in order to 
 make the evidence intelligible, the prisoner is entitled to have it put in 
 
 (ij) R. V. Eniden, 9 East, 437. they require tlic pro.sccutor to anticipate 
 
 (z) 3 Stark. Ev. 859, citing R. v. Alford. the defence (2 Chit. Cr. L. 312 ; 3 8tark. 
 
 1 Leach, 150. Ev. 858), and so far as inconsistent with tlie 
 
 (a) R. V. Benson, 2 Camp. 508. R. v. rule above stated, are not now law. The 
 
 Morris, 2 Burr. 1189; 1 Leach, 50. The defendant can, of course, cro.ss-cxaniine the 
 
 Court of Chancery made a general oider witness who proves his evidence to prove 
 
 that all defendants shoukl sign their that he corrected or explained his evidence, 
 
 answers with a view to (he more easy proof R. v. Carv, 1 Sid. 418. 
 
 of perjury in answers. 2 Burr. 1189. See ( /■ ) R. v. Rowley, ubi nujy. In R. v. 
 
 R. V. Turner, 2 C. K. 732. Muiiton, 3 C. & P. 498, tliree witnesses 
 
 (/>) Id. ibid. stated what the defendant had said on the 
 
 (r) R. r. Brady, 1 Leach. 327. trial of an indictment for an assault, and 
 
 (rf) R. V. Rowley, Ry. & M. Ill, 229, the defendant was convicted, although 
 
 Littledale. J. none of the witnes.ses took down the evi- 
 
 (e) Stark. Ev. 859. There are rulings by dcnce as it was given, and none of them 
 
 Kenyon, C.J., that the irhoh' of the defeiul- professed to state the whole of the evidence 
 
 ant's evidence must be i)roved, unless the given. And this course has been followed 
 
 perjury is assigned on a point which first in subsei|uent cases. R. v. Meek, reported, 
 
 arose on his cross-examination. R. v. 9 C. & P. 513, as to another point. R. v. 
 
 Jones, Peake (3rd ed.), 51. R. r. Dowlin, Ann Bird, (Jloucester Spr. Ass. 1842, Cress- 
 
 ibid. 227. The.se rulings have been eriti- well. .]., ante, p. 500. 
 
 cised by text writers as anomalous, in that
 
 522 Of Offences against the Administration of Justice, [booic vii 
 
 and read for tliat purpose ; but he is not entitled to require it to be 
 regularly proved by calling the attesting witness or the like (g). 
 
 Where the perjury is assigned on an affidavit, deposition or examina- 
 tion signed by the prisoner, the original must be produced and verified, 
 and secondary evidence is not admissible {h), except on proof that the 
 original is lost or destroyed (i), or under the control of the prisoner (/). 
 
 It seems that if a party produces an affidavit, purporting to have been 
 made by him before commissioners in the country, and makes use of it in 
 a motion in the cause, it will be evidence against him that he made it {k). 
 
 Upon an indictment for perjury alleged to have been committed 
 upon the hearing of an information for sporting without a game certifi- 
 cate, in order to prove what the defendant swore before the magistrate, 
 his deposition taken in writing 'oefore the magistrate was put in, and 
 it was held that evidence was not admissible of other things stated by 
 the defendant, when he was examined as a witness before the magistrate, 
 but which were not contained in the written deposition (l). 
 
 Upon an indictment for perjury in an affidavit which was signed 
 with the mark of the defendant, it appeared on production of the affidavit 
 that the jurat omitted to state that it was read over to the defendant (m) ; 
 Littledale, J., said : ' As the defendant is illiterate, it must be shewn that 
 she understood the affidavit. In those cases where the affidavit is made 
 by a person who can write, the supposition is that such person was 
 acquainted with its contents, but in the case of a marksman it is not so. 
 If in such case the master by the jurat authenticates the fact of its having 
 been read over, we give him credit ; but if he does not, and the fact were 
 so, he ought to be called to prove it. I should have difficulty in allowing 
 the evidence of any other person to that fact.' And no evidence being 
 adduced to shew that the affidavit was read over in the presence of the 
 defendant, it was held that the assignments of perjury on this affidavit 
 could not be supported (n). 
 
 (g) R. V. Smith, 1 F. & F. 98, Erie, J. whether any person took it down or not. 
 
 {h) If copies are produced, they must be Robinson v. Vaughton, 8 C. & P. 252, 
 office or examined copies, and not obviously Alderson, B. Inasmuch, therefore, as all 
 defective. R. v. Christian, MSS. C. S. G. the defendant said might have been proved 
 C. & M. 388, Denman, C.J. In that case, by parol, it is difficult to see how the depo- 
 upon an indictment for perjury, a copy of sition being put in could prevent other 
 a bill in Chancery was rejected which con- matters not contained in it from being 
 tained many abbreviations, and had all the proved by parol. The distinction between 
 dates in figures, it being proved that in the depositions in felony and in summary con- 
 original bill all the words were written at victions was not noticed in this case, nor 
 full length, and all the dates expressed by was any reference made to R. i'. Harris, 
 words. 1 Mood. 338. And the decision in the text 
 
 (/) Vide post, Bk. xiii. c. i. ' Evidence.' appears at variance with the ordinary prac- 
 
 (j) R. V. Milnes, 2 F. & F. 10, Hill, J. tice of examining a witness in cases of 
 
 Taylor on Evidence (10th ed.), s. 1535. felony as to other statements made by him 
 
 [k] R. V. James, Show. 397. 3 vStark. before the committing magistrate, after his 
 
 Evid. 857. And see Brickell v. Hulse, 7 A. deposition had been put in and read. 
 
 & E. 454. C. S. G. 
 
 (I) R. V. Wylde, 6 C. & P. 380, Park, J. (m) Unless the jurat so states, other evi- 
 
 The correctness of this decision seems ques- dence must be given that the affidavit was 
 
 tionable. In the case of summary convic- read over to the defendant, 
 tions there is no statute which requires (n) R. v. Hailey, Ry. & M. 94. It was 
 
 magistrates to take down the evidence in also held in this case, that where one affi- 
 
 writing, and therefore what a party says davit, which has a perfect jurat, refers to 
 
 in an examination before a magistrate on another affidavit which is inadmissible for 
 
 such an occasion may be proved by parol, want of proof that it was read over to the
 
 CHAP. I.] Of Perjunj. 523 
 
 Where the evidence was given orally it must be proved by a person 
 present when it was given, e.g., a shorthand writer or other person wlio 
 took a note of it which he can verify, or a person who can swear from 
 memory to the substance of the evidence. The clerk of the Court may 
 be called for this purpose, but it is unusual and inexpedient, even if 
 lawful, to call the judge. 
 
 Where a bill of indictment was preferred for perjury, alleged to have 
 been committed at Quarter Sessions, it was proposed to examine the chair- 
 man of the Quarter Sessions at the trial at which the alleged perjury 
 was committed, but he expressed a desire not to be examined as a witness 
 to prove what was sworn before him ; Patteson, J., held that he ought not 
 to be examined. He was the president of a Court of Kecord, and it would 
 be dangerous to allow such an examination, as the judges of England 
 might be called upon to state what occurred before them in Court (o). 
 
 On an indictment for perjury committed on a trial at the 
 assizes before a Queen's counsel, his notes of the evidence, proved 
 to be in his handwriting, were tendered in evidenc3, but were held 
 inadmissible (p). 
 
 A grand juror in England may not be called to prove perjury 
 committed before the grand jury {q). 
 
 In a case of perjury where the statements of the prisoner had not 
 been taken down and were proved from memory, some observations 
 being made as to the judge of the County Court who had tried the case 
 not being called to prove his notes, though he was willing to appear ; 
 Byles, J., said that the judges of the superior Courts ought not, of course, 
 to be called upon to produce their notes. If he were subpoenaed for 
 such a purpose he should certainly refuse to appear. But the same 
 objection was not applicable to the judges of inferior Courts ; he saw 
 no reason why they should not be called, especially where, as in this 
 case, the judge was willing to appear (r). 
 
 In R. V. Withers (s) the notes of a County Court judge seem to have 
 
 defendant, the former affidavit cannot be suniing, however, that the inconveniences 
 read. The report does not state in what in their case were considerable, it seems 
 manner the one affidavit referred to the worthy of further consideration how far 
 other. Cf. R. v. Petricus, 67 J. P. ;]78. that can prevent their Habihty to be called 
 {(>) R. V. Gazard, 8 C. & P. 59.'). The as witnesses. The general rule inidoubtedly 
 gentleman in question was one of the grand is, that every person is liable to be com- 
 jurors who had to consider the bill, and the pelled to give evidence in a criminal case, 
 grand jury asked the judge whether he and it may be dangerous to introduce ex- 
 ought to be examined. In the absence of ceptions which may prevent persons from 
 his evidence, the bill was ignored. The giving evidence either for the Crown or for 
 case is noted with a query in 3 Stark. 301. the defendant.' C. S. G. 
 In R. V. Jones, C. & P. 137, on an indict- (/;) R. v. Child, 5 Cox, 197, Talfourd, J. 
 ment for perjiuy, the chairman of the Nor is the conviction or judgment on the 
 Worcestershire Quarter Sessions proved trial in which the false oath was taken, 
 what a witness swore on a trial before him II. r. GoodfcUow, C. & M. 509. 
 at the Quarter Sessions. ' It would, no (q) R. v. Hughes, 1 C. & K. 529, Tmdal, 
 doubt, be extremely inconvenient if the C.J. Secus in Ireland, 1 & 2 Vict. c. 37, s. 2. 
 judges were called upon to give evidence as (r) R. v. Harvey, 8 Cox, 99. Cf. R. v. 
 to what occurred before them in court, but Morgan, G Cox, 107. R. r. Ncwall, ibid. 21. 
 tlic inconvenience in the case of chairmen (s) R. i: Withers, 4 Cox, 17. The in- 
 of Quarter Sessions is comparatively slight, dictment alleged that the prisoner falsely 
 especially as they are usually present at the swore that the words J. S. were written by 
 Assizes, and the evidence must be given in J. S. at the house of M. P. in the parish of 
 the county where they are chairmen. As- Jl. in the county of G. The proof by the
 
 524 Of Offences against the Administration of Justice, [book vil. 
 
 been used on a trial for perjury in a County Court to prove the evidence 
 given by the prisoner there. 
 
 Statements or admissions by the prisoner, whether sworn or unsworn, 
 may be put in evidence against him to prove any allegation in the indict- 
 ment. Thus statements made by the prisoner in a petition to an insolvency 
 Court, uncontradicted by any conflicting testimony, were held good 
 evidence to prove allegations on an indictment for perjury as to the 
 condition of the prisoner's afl^airs and the presentation of the petition {t). 
 
 Where an indictment for perjury alleged that a bill was pending 
 in the Court of Chancery, and that it became material to ascertain whether 
 an annuity granted by G. H. to the defendant, or granted to J. B. B., 
 as trustee for the defendant, had been paid up to 1828, and that the 
 defendant falsely swore that the annuity had not been paid up to 1828 ; 
 and in order to shew that B., who was abroad, had paid the money to 
 the defendant, it was proved that B. had sent money to his banker's 
 by his clerk ; it was held that what the clerk said about the money at the 
 time he paid it into the banker's was admissible in evidence, on the ground 
 that it was a declaration made by an agent acting at the time within 
 the scope of his authority (w). 
 
 As to evidence of handwriting where the perjury is assigned on a denial 
 of a signature, see 28 & 29 Vict. c. 18, s. 8, post, Book XIII. ' Evidence ' (v). 
 
 On an indictment for perjury alleged to have been committed on 
 the trial of A. P., for an indecent assault, it appeared that the prisoner 
 had sworn that P. had assaulted her at a certain time and place, but on 
 cross-examination she had admitted that certain liberties had been taken 
 without resistance ; whereon the judge directed an acquittal. P. and 
 others were called to prove that no such assault could have been com- 
 mitted at the time alleged ; and it was held that the prisoner was entitled 
 to prove what her conduct was immediately after the alleged assault ; 
 that she had made immediate complaint ; and that all the evidence which 
 was admissible on the trial of the assault was admissible for the purpose 
 of shewing that the prisoner was not guilty («'). 
 
 The defendant is of course entitled to adduce evidence to prove that 
 the evidence alleged to be false was qualified or explained by later answers, 
 whether in an oral examination or on affidavits, &c. {x). 
 
 Competency. — Most of the common law rules as to the competency 
 
 judge's notes was that the prisoner swore to think that the second signature was ad- 
 
 as alleged, except that they did not describe missible as part of the transaction out of 
 
 M. P.'s house as in the parish of M. Rolfe, which the charge rose. And, the prisoner 
 
 E., held that the allegation might be made not objecting, the paper was handed to the 
 
 out by proving orally that M. P.'s house jury, 
 was in that parish. {iv) R. v. Harrison, 9 Cox, 503. 
 
 (t) R. V. Westley, Bell. 193 (C. C. R.). {x) R. v. Carr, 1 Sid. 418 : 2 Keb. 576. 
 
 (h) R. v. Hall, 8 C. & P. 358, Littledale, In that case an answer in Chancery had 
 
 J. been excepted to as insufficient, and a 
 
 ((') In R. V. Taylor, 6 Cox, 58 (decided second answer was put in explaining the 
 
 before that Act), the defendant had, in a generality of the first. Upon a trial at bar. 
 
 County Court action, sworn that the signa- it was held that nothing could be assigned 
 
 ture to a paper was not his. He had then, as perjury which was explained by the 
 
 on the direction of the judge, written his second answer. ' At which unexpected 
 
 name on a piece of paper, and the judge evidence and resolution the counsel for the 
 
 had compared this writing with that of the prosecution were surprised.' 
 disputed writing. Wightman, J., inclined
 
 CHAP. I.] Of Perjury. 525 
 
 of witnesses have been abrogated by the statutes set forth, fost, 
 Book XIII. Chapter V. (' Evidence '). The remaining exceptions relate 
 to infants of tender years, persons of unsound mind, and the husband 
 or wife of the accused. 
 
 Where, upon an indictment for perjury committed upon a criminal 
 trial, the alleged perjury arose upon evidence given in reply to the testi- 
 mony of one of the defendants on the former trial, who was acquitted and 
 examined as a witness, and the indictment did not state his acquittal, 
 nor did the minute of the verdict produced shew it ; it was held that, 
 although the evidence of a shorthand writer, who stated that the defend- 
 ant was acquitted and then examined, w^as not any proof of his acquittal, 
 yet it was good proof that he was examined (?/). 
 
 Sect. II. — Perjury under the Statute of Elizabeth. 
 
 By 32 Hen. VIII. c. 9, s. 3 (1540), it is inter alia provided that ' no 
 person or persons of what estate, degree, or condition soever he or they 
 be do hereafter unlawfully ' . . . ' suborn any witness by letters, rewards, 
 promises, or by any other sinister labour or means ' . . . ' to the pro- 
 curement or occasion of any manner of perjury by false verdict, or other- 
 wise in any manner of court aforesaid,' i.e. in any of the King's Courts 
 which have authority by the King's Commission, patent, or writ, to hold 
 plea of lands or determine the title to lands. The penalty is forfeiture 
 of £10 by action or information, whereof half goes to the King, half to 
 the person suing. 
 
 5 Eliz. c. 9 (1562) {z), after reciting the above enactment, provides 
 (sect. l)that ' all and every such person and persons which . . . shall unlaw- 
 fully and corruptly procure any witness or witnesses by letters, rewards, 
 promises, or by any other sinister and unlawful labour or means what- 
 soever, to commit any wilful and corrupt perjury, in any matter or cause 
 whatsoever now depending, or which hereafter shall depend in suit and 
 variance, by any writ, action, bill, complaint, or information, in any wise 
 touching or concerning any lands, tenements, or hereditaments, or any 
 goods, chattels, debts, or damages, in any of the courts before mentioned [a), 
 or in any of the Queen's Majesty's courts of record, or in any leet, 
 view of frank-pledge or law-day, ancient demesne court, hundred court, 
 court baron, or in the court or courts of the stannary in the counties 
 of Devon and Cornwall ; or shall likewise unlawfully and corruptly procure 
 or suborn any witness or witnesses, which shall be sworn to testify in 
 
 (y) R. V. Brown. M. & M. .315, Tenter- King.s Courts of Chancery, the Star Cham- 
 den, J., after consulting the other judges of ber, the Whitehall, or elsewhere within any 
 the Court of King's Bench. The acquittal of the Kings dominions of P^ngland or 
 was material only on the ({uestion of the Wales, or the marches of the same, where 
 competence of such defendant to give evi- any person or persons have or from thence- 
 dence on the former trial. forth should have authority by virtue of the 
 
 (z) Made perpetual by 29 Eliz. c. .'J, s. 2, Kings commission, patent, or writ, to hold 
 
 and 21 Jac. 1, c. 28, s. 8. The numbering plea of land, or to examine, hear, or deter- 
 
 of the sections in the text follows that of mine any title of lands, or any matter of 
 
 the Revised Statutes (2nd ed.) which dif- witnesses concerning the title, right, or 
 
 fers from the numbering in Ruffhcad's interest of any lands, tenements, or here- 
 
 edition. ditaments.' 
 
 (a) Viz. (as in 32 Hen. VIII. c. 9), ' the
 
 526 Of Offences against the Admmistration of Justice, [book vii. 
 
 'perpetumn rei memorimn ; that then every such offender or offenders 
 shall for his, her, or their said ofEence, being thereof lawfully convicted 
 or attainted, lose and forfeit the sum of forty pounds : and if it happen 
 any such offender or offenders, so being convicted or attainted as afore- 
 said, not to have any goods or chattels, lands, or tenements, to the value 
 of forty pounds, that then every such person so being convicted or attainted 
 of any the offences aforesaid shall for his or their said offence suffer 
 imprisonment by the space of one half-year, without bail or mainprize, 
 and to stand upon the pillory (6) by the space of one whole hour, in some 
 market town next adjoining to the place where the offence was committed, 
 in open market there, or in the market town itself where the offence was 
 committed . . . ' (c). 
 
 Sect. 2. ' If any person or persons . . . either by the subornation, un- 
 lawful procurement, sinister persuasion, or means of any others, or by 
 their own act, consent, or agreement, wilfully and corruptly commit any 
 manner of wilful perjury, by his or their deposition {d) in any of the 
 Courts before mentioned, or being examined ad ferfetuam rei memoriam, 
 that then every person or persons so offending, and being thereof duly 
 convicted or attainted by the laws of this realm, shall for his or their 
 said offence lose and forfeit twenty pounds, and to have imprisonment 
 by the space of six months without bail or mainprize ' . . . ' and if it 
 happen the said offender or offenders so offending not to have any goods 
 or chattels to the value of twenty pounds, that then he or they to be set 
 on the pillory (5) in some market-place within the shire, city, or borough, 
 where the said offence shall be committed, by the sheriff, or his ministers, 
 if it shall fortune to be without any city or town corporate ; and if it 
 happen to be within any such city or town corporate, then by the said 
 head officer or officers of such city or town corporate, or by his or their 
 ministers, and there to have both his ears nailed. ...'(c). 
 
 Sect. 2 further provides that one moiety of the said forfeitures shall 
 be to the Queen, and the other moiety to such person as shall be grieved, 
 hindered, or molested by reason of any of the offences before mentioned, 
 that will sue for the same, &c. ; and sect. 3, that as well the judge and 
 judges of every such of the said Courts where any such suit shall be, and 
 whereupon any such perjury shall be committed, as also the justices of 
 assize and gaol delivery, and justices of the peace at their quarter 
 sessions (e), both within the liberties and without, may inquire of, hear, and 
 determine all offences against the said Act. And it is provided (sect. 5) that 
 the said Act shall no way extend to any spiritual or ecclesiastical Court, 
 but that every such offender, as shall offend in term as aforesaid, shall be 
 punished by such usual and ordinary laws as are used in the said Courts. 
 And it is also provided (sect. 7) that the said statute shall not restrain the 
 authority of any judge having absolute power to punish perjury before 
 
 (6) The pillory was finally abolished in Taylor, Skin. 403, that the bare making 
 
 1837. Vide ante, p. 249. of an affidavit without producing or using 
 
 (c) The disability to be sworn as a wit- it was not enough, 
 ness until the judgment has been reversed (e) This jurisdiction is taken away by 5 
 is abrogated by 6 & 7 Vict. c. 85. & 6 Vict. c. 38, s. 1. 8. 4 is repealed. S. 
 
 [d) It would seem that the deposition provides penalties for nou-attendance of 
 must be filed or used. Stark. Cr. PI. 121. witnesses. 
 And see 3 Stark, Evid, 857, citing R. v. 
 
 I 
 
 4
 
 CHAP. I.] Of Subornation of Perjury. 527 
 
 the making thereof ; but that every such judge may proceed in the pun- 
 ishment of all offences punishable before the making of the said statute, 
 in such wise as they might have done and used to do to all purposes, so 
 that they set not on the offender less punishment than is contained in the 
 said Act ( /"). 
 
 The statutes of Henry and Elizabeth did not apply to a witness for 
 the Crown ((/). They are now seldom if ever resorted to (A), the remedy 
 at common law or under other statutes being simpler and more extensive. 
 For the interpretation of the old statutes, see 1 Hawk. c. 69 ; Bac. 
 Abr. tit. ' Perjury '(B); 2 Hale, 191, 192 ; 2 Rolle Abr. 77. 
 
 Sect. III. — Subornation of Perjury. 
 
 Subornation of perjury is a misdemeanor indictable at common law (/), 
 and is punishable in the same manner as perjury (/). It consists in pro- 
 curing a man to take a false oath amounting to perjury, who actually 
 takes such oath {k). The offence is in substance the same as counselling 
 or procuring the commission of the misdemeanor of perjury, and is punish- 
 able in the same manner as the principal offenca under sect. 8 of the 
 Accessories, &c., Act, 1861 {I). 
 
 From the definition of the offence it follows that to justify conviction 
 it must be proved that the perjury was committed and was due to the 
 procurement. The proof cannot be made by putting in the record or 
 certificate of the conviction of the perjury [1). 
 
 As to the form of the indictment, see 14 & 15 Vict. c. 100, s. 21, 
 ante, p 482. A suborner may be indicted and tried with the perjurer, 
 and more than one person may be included in the same indictment for 
 subornation (m). 
 
 If the person incited to take such an oath does not actually take it, the 
 person by whom he was so incited is not guilty of subornation of perjury, 
 but is guilty of an indictable misdemeanor (n), and is liable to be 
 punished by fine and (or) imprisonment (o). 
 
 An indictment charged that the defendant, an attorney, being retained 
 to defend W. against a charge of picking L.'s pocket, deceitfully pro- 
 cured himself to be employed by L., and persuaded L. to swear before the 
 grand jury that he did not know who picked his pocket, which he did, and 
 no bill was returned. An objection was made that L.'s evidence was 
 not stated to have been false ; but, upon a case reserved, the judges 
 thought it unnecessary, as the defendant's crime was the same, unless 
 he knew L.'s evidence to be true, and that he should have proved (;>). 
 
 (/) As to present punishments, fi'iie aw<e, (m) R. v. Ehodes, 2 Ld. Raym. 880; 
 
 p. 479. and ante, p. .')02n. 
 
 {g) Re Rowland ap Eliza, 3 Co. Inst. [n] R. v. Reilly, 1 Leach, 454. 
 
 164. (o) Vide ante. p. 203. 1 Hawk. c. 69, 
 
 {h) Buxton V. Gouch, 3 Salk. 269. s. 10. 2 Chit. Cr. L. 317. Bac. Abr. tit. 
 
 (i) 1 Hawk. c. f)9, s. 10. ' Perjury.' 
 
 (j) Ante, p. 479. (p) R. v. Edwards, Easter Term, 1764. 
 
 (k) 1 Hawk. 0. f)9, s. 10. 2 Chit. Cr. L. M8. Bayley, J. As to dissuading witnesaeg 
 
 317. from giving evidence, see fost, p. 541. 
 
 (/) Ante, p. 138. 2 Chit. Cr. L 317.
 
 528 Of Offences against the Administration of Justice, [book vii. 
 
 Sect. IV. — False Oaths not Amounting to Perjury. 
 
 It has already been stated, ante, p. 460, that false oaths (q) in merely 
 private matters are not punishable as perjury, e.g., oaths in making a 
 bargain (r). 
 
 In some cases, relating to matters of public concern, where a false 
 oath has been taken, the party may be prosecuted by indictment at 
 common law, though the offence may not amount to perjury. Thus 
 it appears to have been held that any person making or knowingly using 
 any false affidavit taken abroad (though perjury could not be assigned 
 on it here), in order to mislead our Courts of justice, is punishable as a 
 misdemeanor (s); and Ellenborough, C.J., said, 'that he had not the least 
 doubt that any person making use of a false instrument in order to pervert 
 the course of justice was guilty of an offence punishable by indictment' (t). 
 
 And though a master extraordinary in Chancery had no authority to 
 administer an oath in matters in the Court of Admiralty, a person who 
 made before him an affidavit, with a view to its being received by the 
 Court of Admiralty, knowing at the same time it was false, was held 
 guilty of a misdemeanor at common law (u). 
 
 The indictment stated that the prisoner, being minded to procure a 
 marriage between himself and A. B., went before a surrogate, and was 
 sworn to an affidavit in writing, that the said A. B. had been residing 
 four weeks in the parish of S., whereas she had not, and so he had com- 
 mitted perjury ; and the indictment had all apt allegations of an 
 indictment for perjury. On a case reserved it was held that perjury 
 could not be assigned upon an oath before a surrogate, and that as the 
 indictment did not charge that the defendant took the oath to procure 
 a licence, or that he did procure one, no punishment could be inflicted (v). 
 
 Where the false oath is taken under circumstances not amounting 
 to perjury at common law, or by statute, the taking is an indictable 
 misdemeanor if done to deceive a public officer, whereby a matter required 
 by law for the accomplishment of an act of a public nature is illegally 
 obtained. In R. v. Chapman (w), the third count of the indictment 
 
 (q) i.e., verifying a statement. Breach 
 of promissory oaths, whether public or pri- 
 vate, is not perjury in the modern sense of 
 that word. 
 
 (r) 1 Hawk. c. 69, ss. 3, 4. 
 
 (s) See now 52 & 53 Vict. c. 10, ss. 6, 7 : 
 ante, p. 461. 
 
 (t) O'Mealy v. Newell, 8 East, 364. 1 
 Hawk. c. 69, s. 3. Bac. Abr. tit. ' Perjury ' 
 (A). See White v. R. [1906], 4 Australian 
 Commonwealth L. R. 152. 
 
 (w) R. V. Stone, Dears. 357 ; 23 L. J. 
 M. C. 14. Masters extraordinary in Chan- 
 cery have been superseded by commis- 
 sioners of oaths (52 & 53 Vict. c. 10). 
 
 (v) R. V. Foster, MS. Bayley, J., and 
 R. & R. 459. In R. v. Alexander, 1 Leach, 
 63, the point was submitted to the judges, 
 and several times considered ; but the 
 result was not communicated, as the pri- 
 soner died in Newgate. R. v. Woodman, 
 
 1 Leach, 64, note («). The point appears 
 to have been submitted also in this case to 
 the consideration of the twelve judges ; but 
 their opinion was not publicly communi 
 cated. See 3 Chit. Cr. L. 713. R. v. Fos 
 ter was decided before 4 Geo. IV. c. 76 
 s. 14. Cf. R. V. Verelst, 3 Camp. 432 
 Phillimore v. Machon, 1 P. D. 481. 
 
 (w) 18 L. J. M. C. 152; 1 Den. 432 
 
 2 C. & K. 846. In R. v. Fairie, 9 Cox, 209, 
 the indictment alleged that the prisoner 
 intending to procure a marriage to be 
 solemnised between himseK and E. A. E. 
 she being under the age of twenty-one years 
 without the consent of the natural and 
 law 'id father of the said E. A. E., to wit, 
 without the consent of G. E., he being the 
 person whose consent was by law required 
 before the licence was granted, falsely 
 swore that G. E., the natural and lawful 
 father of the said minor, was consenting.
 
 CHAP. 1.] Of False Oaths not afnduntmg to Perjury. 529 
 
 stated that W. J. was a surrogate having authority to grant licences for 
 marriages, and that the defendant applied to the said W. J. to grant a 
 licence for the solemnization of a marriage between J. B. and S. F., 
 and that the defendant, unlawfully intending to obtain such licence for the 
 said marriage in fraud of the Marriage Act, 1823 (4 Geo. IV. c. 76), for the 
 purpose of obtaining such licence, before the said W. J. as such surrogate 
 (he the said W. J. having competent authority (x), as such surrogate, 
 to administer the said oath) did, for the purpose of thereby obtaining 
 such licence for the marriage of the said J. B. and S. F., falsely corruptly, 
 &c., swear, &c., that the name of him, the defendant, was J. B., and that 
 he was one of the parties for whose marriage a licence was then applied 
 for, and that he was a yeoman and widower, and that the said S. F. 
 had had her usual place of abode within the parish of W. in the county 
 of S. for the space of fifteen days then last past. (The count then 
 negatived the matter sworn in the usual manner.) By means of which 
 false oath the defendant did then obtain from the said W. J., so being such 
 surrogate, a licence for the solemnization of a marriage between the said 
 J. B. and S. F. The prisoner having been convicted, upon a case reserved, 
 it was contended (1) that this count charged no offence ; (2) that a surro- 
 gate had no authority to administer an oath, and at all events not this 
 oath, to the defendant ; (3) that the count did not aver that a written 
 licence was obtained, or the marriage celebrated by means of such licence. 
 The Court for Crown Cases Reserved affirmed the conviction, holding that 
 the count charged a misdemeanor, as it distinctly averred that the 
 prisoner swore falsely as to S. F. ; and any one material fact falsely 
 sworn to was sufficient to support the charge. Then the only question 
 was as to the surrogate's power to administer the oath ; not such an oath 
 as would support an indictment for perjury, but as would make a party 
 guilty of a misdemeanor. By the canon law the surrogate had such 
 power (y), and the Marriage Act, 1823, assumed that he was the proper 
 person to administer the oath (2). To make a false oath in order to procure 
 a marriage licence from an officer empowered to grant such licence was 
 a misdemeanor, because it was a step toward the accomplishment of a 
 misdemeanor. The actual celebration of the marriage was immaterial. 
 Anything essentially connected with marriage was a matter of public 
 concern, so that any step towards its unlawful accomplishment was a 
 misdemeanor (zz). 
 
 In R. V. Hodgkiss (a), the prisoner was indicted for wilful and corrupt 
 perjury in making a false affidavit before a commissioner for taking oaths 
 in the Court of Queen's Bench, for the purpose of getting a bill of sale 
 filed under the Bills of Sale Act, 1854(6). The Court rejected as surplusage 
 
 The affidavit sworn by the prisoner con- Parke, B., vide ante, ]i. 140. See Anon, 
 
 taincd the statement set out in the indict- Ventris, 370 cit. The offence is now punisli- 
 
 nicnt ; but the prisoner was acquitted for able by the penalties of perjury under the 
 
 variance between the indictment and the Marriage Acts, 1840 (3 & 4 Vict. c. 72, s. 4) 
 
 evidence, which proved the girl to bo the and 185(5 (19 & 20 Vict c. 119, ss. 2, 18). R. 
 
 illegitimate daughter of G. E. v. Smith, 4 F. & F. 1099. 
 
 ix) Under 4 Geo. IV. c. 76, s. 14. (a) L. R. 1 C. C. R. 212. 
 
 iy) See Canons of 1003 (No. 103). (b) The offence is now perjury by statute 
 
 (2) See 7 Will. IV. & 1 Vict. c. 22, s. 30. (41 & 42 Vict. c. 31, s. 17). 
 
 {zz) R. V. Chapman, 18 L. J. M. C. 156, 
 
 VOL. T. 2 M
 
 530 Of Offences against the Administration of Justice, [book vil. 
 
 the words describing the offence as perjury, and held that without those 
 words the indictment sufficiently stated a common law misdemeanor, 
 in taking a false oath for which the defendant could be properly convicted, 
 and was liable to the appropriate common law punishment (c). 
 
 In the Official Index to the Statutes will be found the numerous 
 enactments punishing as perjury or as a misdemeanor the making of 
 false statements on oath for matters of public concern, e.g., on registering 
 a bill of sale {d), or a document of title to land (e), or a marriage ( /), or 
 for the purpose of elections {g). 
 
 Sect. V. — Fabrication of Evidence. 
 
 Steps taken for the manufacture or fabrication of false evidence may 
 be indicted as attempts to commit the misdemeanor of perverting the 
 course of justice. In R. v. Vreones {h) the defendant was tried and 
 convicted upon a count of an indictment alleging in substance : That 
 by the terms of a contract for the purchase of a cargo of wheat, it was 
 provided that any dispute arising under the contract should be referred 
 to two arbitrators, whose award should be final and conclusive, that the 
 defendant was appointed by the sellers to take samples of the cargo 
 upon the arrival of the ship ; that such samples were then taken and 
 placed in bags sealed with the seals of the buyer and seller of the cargo, 
 in accordance with the custom of merchants at the port, and for the 
 purpose of being used as evidence before the arbitrators ; that the defend- 
 ant afterwards, intending to deceive the arbitrators to be appointed 
 under the contract and wrongfully to make it appear to them that the 
 bulk of the cargo was of better quality than it really was, so as to pervert 
 the due course of law and justice, unlawfully and designedly removed 
 the contents of the sealed bags and altered their character, and returned 
 to the bags a quantity of wheat in a different condition, and altered in 
 character and value, with intent thereby to pass the same off as true and 
 genuine samples of the bulk of the cargo ; and that afterwards the defend- 
 ant forwarded the samples so altered to the London Corn Trade Associa- 
 tion, with intent that the same should be used as evidence before such 
 arbitrators, and thereby to injure and prejudice the buyer, and to pervert 
 the due course of law and justice. The samples were not in fact used. 
 But on a case reserved after conviction the Court held that the indictment 
 aptly described an attempt to pervert justice, and that arbitrators must 
 be considered as administering public justice {i). Under sect. 192 of the 
 India Penal Code, fabrication of false evidence is punishable as a 
 substantive offence ( j). 
 
 (c) The only authority cited was R. v. (/) Vide post, p. 1012. 
 Foster, ante, p. 528. Martin, B., said (L. R. (g) Vide post, p. 643. 
 
 1 C. C. R. 213) that what was there held (h) [1891] 1 Q.B. 300: GO L. J. M. C. G2. 
 
 was that no punishment could be inflicted, (i) Reference was made by Coleridge, 
 
 because the indictment did not state facts L.C.J., to R. v. Crossley, 7 T. R. 315 (perjury 
 
 sufficient to constitute the offence of taking on an affidavit not in fact used), and by 
 
 a false oath. Pollock, B., to 1 East, P. C. c. 18, s. 4 
 
 (d) 41 & 42 Vict. c. 31, s, 7. (public cheats levelled against the public 
 
 (e) 38 & 39 Vict. c. 87. s. 101 (land trans- justice of the kingdom). 
 
 fer) ; 47 & 48 Vict. c. 54, s. 7 (Yorkshire {j) See Mayne, Ind. Crim. Law (ed. 1896), 
 
 land registry). p. 513. 
 
 J
 
 CHAP. I.] Of False Declarations. 531 
 
 Sect. VI. — Of False Statutory Declarations. 
 
 This section deals with those solemn declarations which are not, 
 strictly speaking, made on judicial ^proceedings, but are for the verifi- 
 cation of certain matters of public or private concern. The term 
 statutory declaration when found in an Act of Parliament means, unless 
 a contrary intention appears, a declaration made by virtue of the 
 Statutory Declarations Act, 1835 {k). That Act (5 & 6 Will. IV. c. 62), 
 * An Act ... to make provision for the abolition of unnecessary 
 oaths,' by sect. 2 enacts, ' that in any case where, by any Act or Acts 
 made or to be made relating to the revenues of customs or excise, the post- 
 offtce, the office of stamps and taxes, the office of woods and forests, land 
 revenues, works, and buildings, the war-office, the army pay-oifice, the 
 office of the treasurer of the navy, the accountant-general of the navy, 
 or the ordnance. His Majesty's treasury, Chelsea hospital, Greenwich 
 hospital, the Board of Trade, or any of the offices of His Majesty's principal 
 secretaries of state, the India board, the office for auditing the public 
 accounts, the national debt office, or any office under the control, direction, 
 or superintendence of the treasury, or by any official regulation in any 
 department, any oath, solemn affirmation, or affidavit might, but for the 
 passing of this Act, be required to be taken or made by any person on the 
 doing of any act, matter, or thing, or for the purpose ot verifying any book, 
 entry, or return, or for any other purpose whatsoever, it shall be lawful 
 for the treasury, if they shall so think fit, by writing under their hands 
 and seals, to substitute a declaration to the same effect as the oath, 
 solemn affirmation, or affidavit which might, but for the passing of this 
 Act, be required to be taken or made ; and the person who might, under 
 the Act or Acts imposing the same, be required to take or make such oath, 
 solemn affirmation, or affidavit, shall, in presence of the commissioners, 
 collector, other officer, or person empowered by such Act or Acts to 
 administer such oath, solemn affirmation, or affidavit, make and sub- 
 scribe such declaration, and every such commissioner, collector, other 
 officer, or person is hereby empowered and required to administer 
 Uie same accordingly ' {I). 
 
 By sect. 3, the declaration so substituted is to be published in the 
 Gazette, and after twenty-one days from the date of the Gazette the pro- 
 visions of this Act are to apply (w). 
 
 Sect. 4. ' After the expiration of the said twenty-one days it shall 
 not be lawful for any commissioner, collector, officer, or other person 
 to administer or cause to be administered, or receive or cause to be 
 received, any oath, solemn affirmation, or affidavit, in the lieu of which 
 such declaration as aforesaid shall have been directed by the treasury 
 to be substituted.' 
 
 Sect. 5, ' If any person shall make and subscribe any such declara- 
 tion as hereinbefore mentioned in lieu of any oath, solemn affirmation, 
 
 (k) Interpretation Act, 1889, s. 21. (m) Orders were made in 1835 and 183G, 
 
 (I) The power given by this section is which are printed in Stat. R. & 0. Revised 
 
 preserved by s. 14 (9) of the Promi.s.sory (ed. 1904), vol. xi. tit. ' Statutory Deciara- 
 
 Oaths Act, 18G8 (31 & 32 Vict. c. 72). tion." 
 
 2m 2
 
 532 Of Offences against the Admmistration of Justice, [book vii. 
 
 or affidavit, by any Act or Acts relating to the revenues of customs (n), 
 or excise (o), stamps and taxes {p), or post-office, required to be made on 
 the doing of any act, matter, or thing, or for verifying any book, account, 
 entry, or return, or for any purpose whatsoever, and shall wilfully make 
 therein any false statements as to any material particular, the person 
 making the same shall be deemed guilty of a misdemeanor ' (q). 
 
 By sect. 7, 'Nothing in this Act contained shall extend to any oath, 
 solemn affirmation, or affidavit which now is or hereafter may be made 
 or taken, or required to be made or taken in any judicial proceeding, 
 in any court of justice, or in any proceeding for, or by way of summary 
 conviction, before any justice or justices of the peace ; but all such oaths, 
 affirmations, and affidavits shall continue to be required and to be 
 administered, taken and made as well, and in the same manner as if this 
 Act had not been passed.' 
 
 Corporate bodies.— Sect. 8. ' It shall be lawful for the universities of 
 Oxford and Cambridge, and for all other bodies corporate and politic, and 
 for all bodies now by law or statute, or by any valid usage, authorised to 
 administer or receive any oath, solemn affirmation, or affidavit, to make 
 statutes, bye-laws, or orders authorising and directing the substitution 
 of a declaration in lieu of any oath, solemn affirmation, or affidavit 
 now required to be taken or made : provided always that such statutes, 
 bye-laws, or orders be otherwise duly made and passed according to the 
 charter, laws, or regulations of the particular university, other body 
 corporate and politic, or other body so authorised as aforesaid.' 
 
 Churchwardens. — Sect. 9. ' In future every person entering upon the 
 office of churchwarden or sidesman, before beginning to discharge the 
 duties thereof, shall, in lieu of such oath of office, make and subscribe, in 
 the presence of the ordinary or other person before whom he would, but 
 for the passing of this Act, be required to take such oath, a declaration 
 that he will faithfully and diligently perform the duties of his office, 
 and such ordinary or other person is hereby empowered and required 
 to administer the same accordingly : provided always, that no church- 
 warden or sidesman shall in future be required to take any oath on 
 cjuitting office, as has heretofore been practised.' 
 
 Local Authorities. — Sect. 10. ' In any case where, under any Act or 
 Acts for making, maintaining, or regulating any highway, or any road, or 
 any turnpike road, or for paving, lighting, watching, or improving any city, 
 town, or place, or touching any trust relating thereto, any oath, solemn 
 affirmation, or affidavit might, but for the passing of this Act, be required 
 to be taken or made by any person whomsoever, no such oath, solemn 
 affirmation, or affidavit, shall in future be required to be or be taken 
 and made, but the person who might under the Act or Acts imposing 
 the same being required to take or make such oath, solemn affirmation, or 
 affidavit, shall in lieu thereof, in the presence of the trustee, commis- 
 sioner, or other persons before whom he might under such Act or Acts 
 be required to take or make the same, make and subscribe a declaration 
 
 (n) See 39 & 40 Vict. c. 36, s. 168, cmte, {q) S. 6 refers to the oath of allegiance, 
 
 p. 371. the taking whereof is now regulated under 
 
 (o) See 32 & 33 Vict. c. 14, s. 25. the Promissory Oaths Acts, 1868 and 1871. 
 (p) See 43 & 44 Vict. c. 19, s. 66.
 
 CHAP. I.] Of False Declarations, 533 
 
 to the same efPect as such oath, solemn affirmation, or affidavit, and 
 such trustee, commissioner, or other person, is hereby empowered and 
 required to administer and receive the same ' (r). 
 
 Pawnbrokers. — Sect. 12. ' Where by any Act or Acts at the time in 
 force for regulating the business of pawnbrokers, any oath, affirmation, or 
 affidavit might, but for the passing of this Act, be required to be taken or 
 made, the person who by or under such Act or Acts might be required to 
 take or makesuchoath, affirmation, or affidavit, shall in lieu thereof make 
 and subscribe a declaration to the same effect ; and such declaration 
 shall be made and subscribed at the same time, and on the same occasion, 
 and in the presence of the same person or persons, as the oath, affirmation, 
 or affidavit in lieu whereof it shall be made and subscribed would by the 
 Act or Acts directing or requiring the same be directed or required to be 
 taken or made ; and all and every the enactments, provisions, and penal- 
 ties contained in or imposed by any such Act or Acts, as to any oath, 
 affirmation, or affidavit thereby directed or required to be taken or made, 
 shall extend and apply to any declaration in lieu thereof, as well and in 
 the same manner as if the same were herein expressly enacted with 
 reference thereto ' {s). 
 
 By the Pawnbrokers Act, 1872 (35 & 36 Vict. c. 93), s. 29, 'If any 
 person makes any false declaration under this Act, either as an applicant, 
 or as identifying an applicant, knowing the same to be false, in any 
 material particular, he shall be guilty of a misdemeanor, and shall be 
 liable to the punishment attaching by law to perjury ' {t). 
 
 Bank of England.— By 5 & 6 Will. IV. c. 62, s. 14, ' In any case in 
 which it has been the usual practice of the Bank of England to receive 
 affidavits on oath to prove the death of any proprietor of any stocks or 
 funds transferable there, or to identify the person of any such proprietor, 
 or to remove any other impediment to the transfer of any such stocks or 
 funds, or relating to the loss, mutilation, or defacement of any bank-note 
 or bank post bill, no such oath or affidavit shall in future be required to be 
 taken or made, but in lieu thereof the person who might have been re- 
 quired to take or make such oath or affidavit shall make and subscribe 
 a declaration to the same effect as such oath or affidavit.' 
 
 By sect. 15, declarations are substituted in lieu of the oaths required 
 by 5 Geo. II. c. 7, ' An Act for the more easy recovery of debts in His 
 Majesty's plantations and colonies in America' {v), and by 54 Geo. III. 
 c. 15, ' An Act for the more easy recovery of debts in His Majesty's 
 colony of New South Wales.' 
 
 Wills. — Sect. 16. ' It shall and may be lawful to and for any attesting 
 witness to the execution of any Avill, or codicil, deed, or instrument in 
 
 (r) S. 11, as to declarations on obtaining in sclied. 3, No. V. of the Act. The section 
 
 patents, was repealed in 1883 (4(3 & 47 Viet. does not apply to pledges above the value 
 
 e. 37), and is now replaced by s. 1, subs. 4. of £10. R. r. Tregoning. 63 J. P. 504. 
 
 of the Patents Act, 1907 (7 Edw. Vll. c. 29). The Act of 1872 does not apply to Ireland. 
 
 In patent matters, a declaration is still re- (?■) 5 Geo. II. c. 7, was repealed in 1887 
 
 quired, which may be statutory or not, as (S.L.R.), and the portions of 54 Geo. III. 
 
 from time to time prescribed by rules. c. 15, to which s. 15 relates, were repealed 
 
 7 Edw. VII. 0. 29, s. 77. as to all the King's dominions in 1892 
 
 («) For s. 13, vide ante, p. 325. (S.L.R.). S. 15 was repealed as to Victoiia 
 
 (0 The declaration referred to is made in 1859 (22 & 23 Vict. e. 12, s. 1). 
 before a magistrate in the form prescribed
 
 534 Of Offences against the Administration of Justice, [book vii. 
 
 writing, and to and for any other competent person, to verify and prove 
 the signing, sealing, publication, or delivery of any such will, codicil, 
 deed, or instrument in writing, by such declaration in writing made 
 as aforesaid, and every such justice, notary, or other officer shall be 
 and is hereby authorised and empowered to administer or receive 
 such declaration.' 
 
 Crown Suits in Colonies. — Sect. 17. ' In all suits now depending or 
 hereafter to be brought in any Court of law or equity by or in behalf of 
 His Majesty, his heirs and successors, in any of his said Majesty's 
 territories, plantations, colonies, possessions, or dependencies, for or 
 relating to any debt or account, that His Majesty, his heirs and successors, 
 shall and may prove his and their debts and accounts, and examine his 
 or their witness or witnesses by declaration, in like manner as any 
 subject or subjects is or are empowered or may do by this present 
 Act ' («')• 
 
 Writings generally. — Sect. 18, reciting that ' it may be necessary and 
 proper in many cases not herein specified, to require confirmation of 
 written instruments or allegations, or proof of debts, or of the execution 
 of deeds or other matters,' enacts that ' it shall and may be lawful for any 
 justice of the peace, notary public, or other officer now bylaw authorised 
 to administer an oath {x), to take and receive the declaration of any 
 person voluntarily making the same before him in the form in the schedule 
 to this Act annexed ; and if any declaration so made shall be false or 
 untrue in any material particular, the person wilfully making such 
 false declaration shall be deemed guilty of a misdemeanor ' (?/). 
 
 Punishment. — Sect. 21. ' In any case where a declaration is substituted 
 for an oath under the authority of this .4ct, or by virtue of any power or 
 authority hereby given, or is directed and authorised to be made and sub- 
 scribed under the authority of this Act, or by virtue of any power hereby 
 given, any person who shall wilfidly and corruptly make and subscribe 
 any such declaration, knowing the same to be untrue in any material 
 particular, shall be deemed guilty of a misdemeanor ' (t). 
 
 The prisoner was indicted under 5 & 6 Will. IV. c. 62, s. 12 (a), for having 
 at S., in the county of G., made a false declaration before E. G. H., a 
 justice of the peace, that he had lost a pawnbroker's ticket. It was 
 stated in the opening of the case that the prisoner told the pawnbroker 
 that he had lost the ticket, and the pawnbroker told him that he must 
 make a declaration of the loss before a magistrate, and for that purpose 
 handed the prisoner a copy of the ticket and a form, to be filled up 
 according to the Act ; the prisoner paid for the form, saying he would 
 
 (w) This section was repealed as to s. 68 of the Conveyancing Act, 1881 (44 & 
 
 Victoria in 1859 (22 & 23 Vict. c. 12, s. 1), 45 Vict. c. 41), the declaration is to be in 
 
 and by s. 2 power was given to colonial the form following : — ' I, A. B., do solemnly 
 
 legislatures to repeal, alter, or amend the and sincerely declare, that and I 
 
 sections, so far as applicable to the colony make this solemn declaration conscien- 
 
 or possession. tiously believing the same to be true, and 
 
 {x) See the Commissioners of Oaths Act, by virtue of the provisions of the Statutory 
 
 1889 (52 & 53 Vict. c. 10). Declarations Act, 1835.' 
 
 [y) See ante, p. 249, for the punishment. (z) Ss. 22, 23 were repealed in 1874 (37 
 
 By s. 19, the same fees are payable on & 38 Vict. c. 35). As to punishments, 
 
 declarations as on the oaths in lieu of which vide ante, p. 249. 
 they are made. By s. 19, as modified by (a) Ante, p. 533,
 
 CHAP. I.] Of False Declarations. 535 
 
 go to a magistrate ; he returned the same day with the form properly- 
 filled up, and with his name and that of Mr. H. attached. Mr. H. was 
 not able to recollect the fact of the declaration having been made, and 
 therefore was not present ; but the pawnbroker identified the declaration. 
 But there was only one witness to prove that the prisoner had not lost 
 the duplicate. Piatt, B. : ' As regards the proof of the declaration 
 having been made by the prisoner, I think there may be sufficient 
 evidence to support the indictment, if you can bring home to him a 
 knowledge of its contents [h) ; but I am of opinion that the falsity of 
 that declaration must be proved by the oaths of two witnesses as in a 
 case of perjury, otherwise there would be but oath against oath.' 
 
 In R. i\ Morgan (r) the defendant was indicted under the 5 & 6 Will. IV. 
 c. 62, s. 12, for making a false declaration before a justice for the borough 
 of Liverpool that she had lost the pawn ticket of certain goods pledged 
 by her. The clerk to the justice could only speak to the handwriting 
 of the justice on the declaration, and, from the great number of these 
 declarations, he could not remember when or where it was made. It 
 was contended that there was no evidence that the declaration had 
 been made before the justice acting as such or even within the borough ; 
 and Gurney, B., held that the objection was good, and that the justice 
 if called might at all events have proved that he had never taken such 
 a declaration out of the borough. No authority was cited, and it is 
 submitted that in view of the authorities above cited the ruling was 
 wrong. 
 
 For other false declarations without oath made punishable as perjury 
 or misdemeanor, see Chronological Table of the Statutes, tit. ' Perjury ' [d). 
 
 Courts of Quarter Sessions have no jurisdiction to try indictments 
 for making or suborning another to make a false affirmation or declaration 
 punishable as a misdemeanor [e). 
 
 Where a prisoner was indicted for making a false declaration before 
 a justice in pursuance of the rules of a benefit society, which required a 
 loss by fire in certain cases to be verified by such a declaration ; it was 
 objected that sect. 18 of the Act of 1835 did not extend to any declarations 
 except those mentioned in the preamble of that section ; but Erskine, J., 
 held that the section extended to all declarations generally ( / ). 
 
 The prisoner was indicted for making a false declaration under sect. 18, 
 
 (6) R. V. Browning, 3 Cox, 437. The .said : ' The Courts always give credence to 
 
 ruling of the learned Baron was right on the signature of the magistrate or commis- 
 
 both points ; though an idle doubt has sioner ; and if his signature to the jurat is 
 
 been raised on the first point. If a man in pro%'ed, that is sufficient evidence that the 
 
 writing admitted that he had made a decla- party was duly sworn, and if the place at 
 
 ration before a justice under the Act. no which it was sworn is mentioned in the 
 
 doubt can exist that such writing would be jurat, that is sufficient evidence that it was 
 
 sufficient evidence against him ; and in this sworn at that place.' And see K. r\ James, 
 
 case the prisoner produced a declaration in and Brickell r. Hulse, ante, p. 522, and R. 
 
 the form under the Act. signed by himself v. Westley, Bell, 193, ante, p. 524. 
 and the justice, and dealt with it, and ob- (f) 1 Cox, 109. 
 
 tained the goods by it, as a valid declara- [d) In particular, see 32 & 33 Vict. c. 62, 
 
 tion ; and it is perfectly clear that this was s. 14 (Debtors) ; 50 & 51 V^ict. c. 28, s. 8 (3) 
 
 abundant evidence that he had made that (Merchandise Marks). 
 
 declaration in the manner and with the for- (f ) 5 & Vict. c. 38, s. 1, ;w«^ Vol. ii. 
 
 niahtics described in it. In R. v. Spencer, p. 1932. 
 1 C. & P. 260, ante, p. 520, Tenterden, C.J., (/) R. v. Boynes, 1 C. & K. 65.
 
 536 Of Offences against the Administration of Justice, [book vii. 
 
 that he had done no act to encumber certain lands, and that he was in 
 possession of those lands, and in receipt of the rents and profits thereof. 
 The declaration was duly made in support of an application to a building 
 society in 1861, for an advance of £150. The mortgage deed of 1861 to 
 the building society was produced, but the attesting witness was not 
 called to prove it. The original conveyance of the property to the prisoner 
 was put in. It was objected that the declaration was confirmatory of the 
 mortgage deed, and as that was not proved, it was not shewn that the 
 matter sworn was material. It was answered that the declaration was 
 made to confirm the original conveyance, and not the mortgage, which 
 was executed after the declaration. Byles, J. : ' I am of opinion that the 
 objection is fatal. The preamble of 5 & 6 Will. IV. c. 62, s. 18 ((/), 
 must be read with the enacting part ; and as the deed, which rendered 
 the declaration necessary, is not proved, this indictment cannot be 
 sustained ' (h). 
 
 An indictment alleged that the prisoner was a member of a benefit 
 society, the rules of which were duly certified, and a transcript of them 
 filed with the clerk of the peace, and that by a rule of the society it 
 was provided that if any free member should have his property destroyed 
 by fire, he should produce a certificate, and if the property was not insured 
 the society would indemnify him to a certain amount if the claim were 
 authenticated by a solemn declaration before a magistrate, and then 
 charged the prisoner with making a false declaration before a magistrate 
 contrary to sect. 18 of the Statutory Declaration Act, 1835 (5 & 6 
 Will. IV. c. 62), that he had sustained a loss by fire. In order to prove 
 the rules of the society a copy of the rules was produced, and the 24th 
 rule, which was applicable to the allegations in the indictment, was 
 proved to have been examined with the transcript at the clerk of the peace's 
 office ; but no other rule had been so examined ; and Erskine, J., held that 
 all the rules ought to have been compared. To prove the rules, either 
 the original transcript should have been produced, or an examined copy 
 of the whole of it. It was then objected that the indictment was not 
 proved. But Erskine, J., held that all the statements in the indictment 
 with reference to the society might be rejected as surplusage, if there was 
 enough on the face of the indictment to shew that an offence was committed 
 without any reference to the society or its rules, which appeared to be 
 the case. The making of the declaration was then proved, and it referred 
 to the certificate, which was put in ; and Erskine, J., allowed the 
 persons whose names purported to be signed to it, to prove that their 
 names were forgeries, as it might go to shew that the declaration was 
 wilfully false (?). 
 
 (q) Ante, p. 534. whether this was not sufficient evidence 
 {h) R. ?'. Cox, 9 Cox, .301. against the prisoner when connected with 
 (i) R. r. Boynes, 1 C. & K. 65. The tlie 24th rule, proved to have been exam- 
 declaration mentioned the name of the so- ined with the transcript, of the allegations 
 ciety, and that the prisoner had ' forwarded in the indictment ? See R. v. Westley, 
 to the said society a certificate as required ante, p. 524. 
 by the 24th rule of the said society.' Qucere 
 
 1
 
 ( 536a ) 
 
 CANADIAN NOTES. 
 
 OF PERJURY AND COGNATE OFFENCES. 
 
 Sec. 1. — Of Perjury Generally. 
 
 Perjury, Definition of. — Code sec. 170. 
 
 Subornation of Perjury, Definition of. — Code sec. 170(2). 
 
 Evidence, what is Included in. — Code sec. 170(3). 
 
 Witnesses Defined. — Code sec. 171. 
 
 Judicial Proceedings Defined. — Code sec. 171(2). 
 
 WJio is Guilty of Perjury. — Code sec. 172. 
 
 False Statement Under Oath within Canada. — Code sec. 172(a). 
 
 False Oath, etc., in Verification of Statement. — Code see. 172(&). 
 
 Subscribing an Affirmation, etc.. Untrue in Whole or Part. — Code 
 see. 172(6). 
 
 Making False Affidavit out of the Province but ivithin Canada. — 
 Code sec. 173. 
 
 Penalty for Perjury or Subornation. — Code sec. 174. 
 
 False Oaths in Extra Judicial Proceedings. — Code sec. 175. 
 
 False Statement in Extra Judicial Proceedings. — Code sec. 176. 
 
 Fabricating Evidence. — Code sec. 177. 
 
 Perjury on Capital Cases. — Code sec. 253. 
 
 Order for Indictment on Perjury before Judge. — Code sec. 870. 
 
 Certificate of Former Trial. — Code sec. 979. 
 
 Punishment. — Perjury being an offence punishable with imprison- 
 ment for more than five years, there is no jurisdiction to impose as 
 the punishment therefor a fine in lieu of imprisonment (Code sec. 
 1035), but both imprisonment and fine may be awarded. Rex v. 
 Legros, 14 Can. Cr, Cas. 161. 
 
 Of Perjury. 
 
 Judicial Proceeding. — An examination for discovery is a ''judicial 
 proceeding" as defined by this section, but the Court has a discretion 
 to refuse to hear a charge of perjury alleged in respect of civil pro- 
 ceedings while such proceedings are pending. R. v. Thickens (1906), 
 11 Can. Cr. Cas. 274. 
 
 An examination ordered by a Judge to be held before the registrar 
 of the Court in a civil proceeding ceased to be a "judicial proceed- 
 ing" under the Criminal Code sees. 170 and 171 as to the offence of
 
 5366 Perjury, Etc. [book vii. 
 
 perjury, when the examiner after swearing the witness leaves the room 
 in which the examination is being held, although the official steno- 
 grapher took the depositions in presence of counsel for the parties. 
 
 A false statement under oath so made in the absence of the offi- 
 cial examiner cannot be made the foundation of a perjury charge. 
 The King v. Rulofson, 14 Can. Cr. Cas. 253. 
 
 False Oath before De Facto Legal Tribunal. — It is perjury under 
 the Code to give false testimony before a justice of the peace holding 
 a judicial proceeding under a provincial law, although the justice was 
 by the terms of that law disqualified from hearing the charge because 
 he was not a resident of the county in which the alleged offence took 
 place. Drew v. The King, 6 Can. Cr. Cas. 424, 33 Can. S.C.R. 228, 
 affirming Drew v. The King, 6 Can. Cr. Cas. 241. 
 
 Materiality. — Under the Code, the giving of false evidence con- 
 stitutes perjury, whether such evidence is material or not, if the false 
 assertion were known to such witness to be false, and intended by 
 the witness to mislead the Court, jury or person holding the pro- 
 ceeding. 
 
 Statutory Declaration. — A false statement, made in a statutory 
 declaration, administered under the "Canada Evidence Act," may 
 be the subject of a charge akin to perjury under Code sec. 175, for 
 the object of sec. 36 of the Evidence Act was to provide a means 
 whereby certain statements not authorized to be made on oath could 
 be verified. 
 
 At Common Law. — It has always been an offence at common law 
 for a competent witness upon oath in a judicial proceeding before a 
 Court of competent jurisdiction, to give evidence material to the 
 issue, which he believes to be false. The common law, however, 
 stopped there and took no notice of false statements, whether made 
 upon oath or not, made under other conditions. The perjury had 
 also to be in a judicial proceeding before a competent tribunal. R. v. 
 Row (1864), 14 U.C.C.P. 307. And it was, therefore, formerly the 
 law that false evidence given upon an examination in the absence of 
 the authority competent to hold such examination was not perjury, 
 R. V. Gibson, 7 Revue Legale (Que.) 573. 
 
 Perjury, etc. — It is not an essential that an information for per- 
 jury should set out the exact words of the false statement in testi- 
 mony taken viva voce, the charge may be properly stated by summar- 
 izing what was in effect the false evidence, specifying the tribunal 
 and the time and place at which the same was given, and charging 
 that thereby the accused "imlawfully committed perjury." R. v. 
 Legros, 14 Can. Cr. Cas. 161, 
 
 Intent to Mislead. — Although an "intent to mislead" is an essential 
 ingredient of the offence, a charge which does not specifically allege 
 such intent may be sufficient if it gives to the accused notice that he is
 
 CHAP. I. ] Affidavits. 536c 
 
 charged with having "falsely, wilfully and corruptly" sworn to, or 
 solemnly declared a statement to the effect and in the words set forth. 
 R. V. Skelton (1898), 4 Can. Cr. Cas. 467, 2 N.W.T. Rep. 210, 215; R. 
 V. Dewar, 2 N.W.T. Rep. 194, Cr. Code sec. 852(3). 
 
 Joint Affidavit. — A joint affidavit made by the defendant and one 
 D. stated : ' ' Each for himself maketh oath and saith that he this 
 deponent is not aware of any adverse claim to or occupation of said 
 lot." The defendant having been convicted of perjury on this latter 
 allegation, it was held that there was neither ambiguity or doubt in 
 what each defendant said, but that each in substance stated that he 
 was not aware of any adverse claim to or occupation of said lot. R. v. 
 Atkinson (1866), 17 U.C.C.P. 295. And it has been held that a statu- 
 tory declaration made jointly by several persons that they know cer- 
 tain alleged facts is to be construed as a statement by each of them 
 severally that he Imows the matters alleged. R. v. Skelton (1898), 
 4 Can. Cr. Cas. 467 (N.W.T.). 
 
 Several Charges on One Affidavit. — Upon a "speedy trial" upon 
 several charges of perjury in respect of one affidavit, the trial Judge 
 is bound to regard the whole affidavit as the sworn statement in respect 
 of each charge, and should not treat each paragraph of the affidavit 
 as an entire statement independently of the other paragraphs. The 
 King V. Cohon, 6 Can. Cr. Cas. 386. 
 
 Oath to Voter — A person applying for a ballot at a Dominion elec- 
 tion in the name of another person entitled to vote may be convicted 
 of perjury in taking the oath of identity with that person, although 
 the Elections Act authorizes the administration of the oath of quali- 
 fication to an "elector" only, and that term must be held to include, 
 for the purposes of administering such oath and prosecuting the per- 
 sonator, the person representing himself at the polls as an elector. R. 
 V. Chamberlain, 10 Man. R. 261. 
 
 Declaration Under Provincial Law. — Perjury is not proved in re- 
 spect of a solemn declaration that there was "no lawful hindrance" 
 to deponent's proposed marriage by shewing that the deponent knew 
 the girl to be under twenty-one and that her parent 's consent had not 
 been obtained as required by the provincial law, if the marriage was 
 valid notwithstanding the absence of such consent. The King v. 
 Moraes (1907), 12 Can. Cr. Cas. 145. 
 
 Warrant of Arrest. — A warrant of arrest for perjury is sufficient 
 under Code sec. 1152 if it charges that the accused committed perjury 
 by swearing that he did not do a particular act specified without al- 
 leging therein that the statement was sworn with intent to mislead 
 the Court. R. v. Lee Chu, 14 Can. Cr. Cas. 322. 
 
 Indictment. — An indictment or charge for perjury in which it is 
 alleged that the accused committed perjury by falsely, wilfully and 
 with intent to mislead the magistrate, swearing to a certain statement,
 
 536cZ Perjury, Etc. [book vii. 
 
 involves a charge that the accused knew such statement to be false 
 and will not be quashed for failure to more specifically charge such 
 knowledge. R. v. Doyle (1906), 12 Can. Cr. Cas. 69. 
 
 Where the statutory form of indictment is not followed but the 
 indictment contains all the averments which the statute requires, the 
 addition of other unnecessary .averments does not invalidate it. R. 
 V. Coote (1903), 8 Can. Cr. Cas. 199, 10 B.C.R. 285. 
 
 In R. V. Cohon (1903), 6 Can. Cr. Cas. 386, the Supreme Court 
 of Nova Scotia held that a charge of perjury is defective as not dis- 
 closing a crime, if it does not allege that the statement was sworn to 
 knowing the same to be false, or if such is not the necessary inference 
 from what is alleged, apart from the declaration in the charge that 
 the accused "thereby committed wilful and corrupt perjury." 
 
 But the decision of the Cohon Case is in conflict with the Quebec 
 decisions under the statute preceding the Code. It has been held in 
 the latter province that an indictment following the statutory form 
 is sufficient if it charges that the accused "committed perjury" by 
 swearing that (specifying the false oath), without including a specific 
 statement that it was so done knowing the same to be false. R. v. Bain 
 (1877), Ramsay's Cases (Que.) 192; R. v. Bownes, Ramsay's Cases 
 (Que.) 192. See sec. 862 as to statements noAV unnecessary in counts 
 for perjury. 
 
 Where a prosecutor has been bound by recognizance to prosecute 
 and give evidence against a person charged with perjury in the evi- 
 dence given by him on the trial of a certain suit, and the grand jury 
 has found an indictment against the defendant, the Court will not 
 quash the indictment because there is a variance in the specific charge 
 of perjury contained in the information and that contained in the 
 indictment, provided the indictment sets forth the substantial charge 
 contained in the information. R. v. Broad (1864), 14 U.C.C.P. 168; 
 and see sees. 852-855. 
 
 A count charging the accused with having committed perjury at 
 an inquest before a coroner is not invalid by reason of the fact that 
 the tribunal was a coroner and a jury. R. v. Thompson (1896), 4 
 Can. Cr. Cas. 265, 2 Terr. L.R. 383. 
 
 Evidence. — D. being charged with perjury, in the assignments of 
 perjury and in the negative averments certain facts sworn to by D. in 
 answering to faits ei articles on the contestation of a saisie arret or 
 attachment were distinctly negatived, in the terms in which they were 
 made. It was held that under the general terms of the negative aver- 
 ments it was competent for the prosecution to prove special facts to 
 establish the falsity of the answers given by D. in his .answers on 
 faits et articles, and the conviction could not be set aside because of 
 the admission of such proof. Do\^Tiie v. R. (1888), 15 S.C.R. 358.
 
 CHAP. I.] Proof of Judicial Proceedings. 536e 
 
 In a prosecution for perjury where it appears that the false oath 
 was taken before a justice receiving the complaint of an offence com- 
 mitted within his jurisdiction, and acting in the matter within his 
 jurisdiction, it is unnecessary to offer further evidence that he had 
 authority to administer an oath. R. v. Callaghan (1860), 19 U.C.Q.B. 
 364. 
 
 A charge of perjury cannot be sustained against a boy under 
 fourteen without proof of guilty knowledge of wrong-doing. Code 
 sec. 18 has not changed the common law which presumed against 
 guilty knowledge where the accused was under the age of fourteen. 
 The King v. Carvery, 11 Can. Cr. Cas. 331. 
 
 It is not essential to the offence of perjury that the notary or other 
 official should have uttered the words of obligation in administering 
 the oath ; such words used by the deponent and accompanied by a re- 
 quest that the affidavit already signed by the deponent should be cer- 
 tified as sworn, will be sufficient. Re Collins (No. 2), 10 Can. Cr. 
 Cas. 73. 
 
 A plea of autrefois acquit to a charge of perjury in taking the 
 oath of identit}^ at a polling booth is not supported by a record of 
 acquittal on a charge of personating an elector at the same time and 
 place, although the oath of identity and the alleged personation were 
 in regard to the same elector. A verdict for personation could not 
 have been received under an indictment for perjury in taking the 
 oath of identity, although the facts constituting personation must 
 necessarilj'- be shewn in order to prove the perjury. The King v. 
 Quinn, 10 Can. Cr. Cas. 412. 
 
 Proof of Judicial Proceedings. — Canada Evidence Act, sees. 23, 
 28(2), 34, 35. 
 
 On a charge of perjury committed at the trial of an indictment 
 such trial and the indictment, verdict, and judgment therein must 
 be proved as matters of record. Such proof may be given either by 
 the production of the original record or of an exemplification thereof, 
 or by a certificate under Code sec. 979 of the substance and effect of 
 the indictment and trial. The viva voce testimony of the clerk of 
 assize and of the official stenographer with the production of the 
 official book of entry in which the clerk recorded his memoranda of 
 the proceedings and of the stenographer's notes of the evidence, are 
 insufficient as legal proof of the fact of the former trial. Where a 
 conviction has been made without the legal proof required by law of an 
 essential part of the crime, such defect is a "substantial wrong or mis- 
 carriage at the trial" and the conviction must be set aside. The King 
 v. Drummond, 10 Can. Cr. Cas. 340, 10 O.L.R. 456. 
 
 Upon a charge of perjury in respect of evidence taken by a magis- 
 trate on requiring securities to keep the peace under sec. 748(2) of 
 the Code, the false statement may be proved by oral testimony, al-
 
 536/ Perjury, Etc. [book vii. 
 
 though not recorded in the minutes of evidence then made by the 
 magistrate. R. v. Doyle (1906), 12 Can. Cr. Gas. 69. 
 
 Corroboration is required on a charge of perjury. See sec. 1002 
 of the Code. 
 
 Where perjury is charged as having been committed on a sum- 
 mary trial for an indictable offence under the Code, the formal record 
 of such summary trial must be proved in the perjury case, although 
 the latter is tried summarily by the same magistrate. 
 
 A magistrate holding a summary trial for perjury alleged to have 
 been committed in a former trial before himself, must not import 
 into the perjury trial his recollection of the demeanour of the accused 
 and other witnesses at the former trial; he must be guided solely 
 by the evidence of the perjury trial considered in view of the de- 
 meanour of the witnesses thereat. R. v. Legros, 14 Can. Cr. Gas. 161. 
 
 Trial hy Police Magistrate. — A police magistrate in Ontario has 
 jurisdiction with the consent of the accused to try the offence of 
 perjury. R. v. Burns (No. 2) (1901), 4 Can. Cr. Cas. 330 (Ont.) ; 
 and by sub-sec. (2) of see. 777, police magistrates of cities and in- 
 corporated towns in every other part of Canada have the like juris- 
 diction. 
 
 Perjury in Pending Civil Action. — Where a charge of perjury 
 is brought on for trial during the pendency of the civil action in which 
 it is alleged to have been committed and where the question of fact 
 on which the perjury is alleged is the same as that involved in the civil 
 action, the Criminal Court should exercise its discretion to postpone 
 the criminal trial until after judgment in the civil action. The King 
 V. Cohon, 6 Can. Cr. Cas. 386. 
 
 A person charged with perjury committed in a civil action is en- 
 titled to have put in evidence those parts of his testimony in the civil 
 action which may explain or qualify the statements in respect of which 
 the perjury is charged. R. v. Coote (1903), 8 Can. Cr. Cas. 199, 10 
 B.C.R. 285. 
 
 But the non-production by the prosecution, on a trial for perjury, 
 of the plea which was filed in the civil suit wherein the defendant 
 is alleged to have given false testimony, is not material when the as- 
 signment of perjury has no reference to the pleading, but the defen- 
 dant may, if he wishes, in case the plea is not produced, prove 
 its contents by secondary evidence. R. v. Ross, 1 Montreal L.R. 
 (Q.B.) 227, 28 L.C.J. 261. 
 
 The permission granted by the Canada Evidence Act to certain 
 officials to "receive" the solenm declarations of persons voluntarily 
 making the same in the statutory form includes an authorization to 
 the declarant to make the same, and constitutes him a person "auth-
 
 CHAP. I.] Perjury in Civil Actions. oSQg 
 
 orized by law to make a solemn declaration." R. v. Skelton (1898), 
 4 Can. Cr. Cas. 467 (N.W.T.). 
 
 Section 176 does not refer to solemn declarations under the Canada 
 Evidence Act but merely to statements and declarations ; the former 
 are covered by sec. 175. It is only in certain cases that statements 
 and declarations other than solemn declarations are specially auth- 
 orized, and sec. 176 appears to be applicable only to such cases. Ibid. 
 
 Section 1002 of the Criminal Code 1906, which requires corrobora- 
 tion in certain cases, and specially includes the offence of perjury 
 under Code sec. 174, does not apply to the analogous offence of making 
 a false statutory declaration under sec. 175. 
 
 A person is "authorized by law" to make a statutory declaration 
 if the declaration is such as can legally be made under the Canada 
 Evidence Act. 
 
 On a charge of making a false statutory declaration, it must be 
 shewn that when the declaration was made the officer receiving the 
 same or the declarant made use of words to the effect that the declara- 
 tion was in the nature of an oath. 
 
 Where a form of statutory declaration was made up by a magis- 
 trate from information given by the accused, and after the latter 's 
 signature had been obtained the magistrate addressed the accused 
 with the words : ' ' Do you declare it is true ? " to which the accused 
 replied, "I do," the declaration has not been legally made in the 
 terms of the Canada Evidence Act and a conviction is not authorized 
 under Code sec. 175, although the allegations in the dociunent are 
 shewn to be wilfully false. Rex v. Phillips, 14 Can. Cr. Cas. 239.
 
 ( 537 ) 
 
 CHAPTER THE SECOND. 
 
 OF IMPUGNING OBSTRUCTING DEFEATING AND PERVERTING THE 
 ADMINISTRATION OF JUSTICE. 
 
 Sect. I. — Of Contempt of Court and Attacks on the Action of 
 
 Judges and Juries. 
 
 Contempts against the superior Courts or their judges {a), and scandalous 
 reflections upon their proceedings (6), (' scandalising the court ') (r), 
 have always been considered criminal ; and one of the earliest cases 
 of criminal prosecution for libel appears to have been an indictment for an 
 offence of this kind (d). 
 
 Generally, any contemptuous or contumacious words spoken to the 
 judges of any Court in the execution of their offices are indictable ; 
 and when disparaging words are spoken of the judges of the superior 
 Courts, the speaker is indictable at common law, whether the words 
 relate to their ofhce or not (e). But where the aspersions on the judge 
 do not relate to his judicial conduct, it is now usual to leave him to his 
 ordinary remedies for defamation ( /'). Attempts to intimidate or unduly 
 influence a judge appear to be indictable misdemeanors (g). Public 
 attacks on Courts of justice have in some instances been treated as a form 
 of sedition (h). 
 
 It is now accepted law that it is a misdemeanor to publish invectives 
 or improper attacks on judges or juries, reflecthig upon and calumniating 
 their action in the administration of justice {{). 
 
 An order made by a corporation, and entered in their books, stating 
 that A. (against whom a jury had found a verdict with large damages 
 
 (a) Vin. Abr. tit. ' Contempt ' (A.) 44. statutes fell into disuse and were repealed 
 
 I'ool V. Sachcverel [1720], 1 P. Wnis. (iVS ; in 1887 (50 & 51 Vict. c. 59). 
 
 24 E. R. 5G5. ( /) See Macleod i'. St. Aubyn [1899], A.C. 
 
 (h) R. V. Gray [1900], 2 Q.B. 3G, where 549. 
 
 ♦ he editor of a newspaper was summarily (;.') See Lord Macclesfield's case, 16 St. 
 
 punished for a scurrilous attack on a judr;e, Tr. 7()7. R. v. Gurney, 10 Cox, 550. And 
 
 in respect of his conduct during a trial as to bribery, post, p. (i27. 
 
 recently concluded. Of. R. v. Almon, 5 (h) O'Connell. v. R. 5 St. Tr. (N. S.) I. 
 
 Burr. 2()8<) ; Wilmot\s Opinions, 243. R. v. Gordon, 22 St. Tr. 177 (imputing cor- 
 
 (c) Be Read and Huggonson, 2 Atk. 4()9, ruption to judges). R. v. Collins, 3 St. Tr. 
 471. (N. S.) 1149. 9 C. & P. 45r). But ' there is 
 
 (d) Holt on Libel, 153. no sedition in just criticism on the adniini- 
 (c) 2 Starkie on Libel, 195. Odgers on stration of the law.' R. v. Sullivan, 11 
 
 liibel (4th ed.), 493 ct seq. And see 1 Hawk. Cox, 50, Fitzgerald, J. 
 
 c. 7 et seq. The proceeding by writ of (i) See R. v. Gray [1900], 2 Q.B. 3^K 
 
 scandalum ma/jnahim upon the statutes R. i>. Almon, 5 Burr. 2(386. Wilmot's 
 
 3 Edw. I. c. 34 ; 2 Rich. II. st. 1, c. 5 ; Opinions. 243. Macleod v. St. Aubyn 
 
 12 Rich. n. c. 11, was of a civil, as well as [1899], A.C. 549, 550. R. v. McHugh 
 
 of a criminal nature; and was formerly [1901], 2 Ir. Rep. 569. R. v. Hart and 
 
 had recourse to in case of defamation of AVhite, 30 St. Tr. 1131, 1189. 
 any of the great officers and nobles. The
 
 538 Of Offences against the Administration of Justice, [book vii. 
 
 in an action for a malicious prosecution, and whicli verdict had been con- 
 firmed in the Court of Common Pleas), was actuated by motives of public 
 justice in preferring the indictment, was held to be a libel reflecting on the 
 administration of justice, for which an information should be granted 
 against the members who had made the order. Ashhurst, J., said, that the 
 assertion that A. was actuated by motives of public justice carried 
 with it an imputation on the public justice of the country ; for if those 
 were his only motives, then the verdict must be wrong. Buller, J., said : 
 * Nothing 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 this country. They can be of no service, 
 and may be attended with the most mischievous consequences. Cases 
 may happen in which the judge and jury may be mistaken : when they are, 
 the law has afforded 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 
 print, or by any other means, to calumniate the proceedings 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 ' (/). 
 
 In R. V. White {k) an information had been filed against the proprie- 
 tors 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. 
 It was contended on the part of the defendants that they had only made a 
 fair use of their right to comment on 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 verdict of a jury, or the decisions of a judge ; 
 and if the defendants 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 only the declamation and invective, and were written not 
 with a view to elucidate the truth, but to injure the characters of indi- 
 viduals, and to bring into hatred and contempt the administration 
 of justice in the country.' 
 
 This doctrine is now fully accepted, and ' when a trial has taken place 
 and the case is over, the judge or jury are given over to criticism ' {I) ; 
 but this liberty does not license personal scurrilous abuse of the judge as 
 a judge (w). 
 
 Offences within this section, if committed with reference to judges 
 of a superior Court, may be dealt with as for contempt of Court (n). 
 
 The rule as to the criminality of attacks or aspersions on a judge in 
 his judicial capacity was originally applied only to the King's judges of 
 the superior Courts. This expression includes the House of Lords, the 
 
 [)) R. V. Watson, 2 T. R. 199. Fitzgerald, J. 
 
 (k) 1 Camp. 359 n. And see a note of (m) R. v. Gray [1900], 2 Q.B. 36, 40, 
 
 another proceeding by information against Russell, L.C.J. 
 
 the same defendants for a libel on Ellen- {n) R. v. Gray, ^lbi sup. Martin's case, 
 
 borough, C.J. Holt on Libel, 170, 171. 2 Russ. & My. 374. Ex parte Jones, 13 
 
 {I) Macleod v. St. Aubyn [18991, A.C. Ves. 237. Re Sombre, 1 Macn. & G. 116. 
 r)49, 561. R. V. Sullivan, "ll Cox, 50 (Ir.),
 
 CHAP. II.] Of Contempt of Court. 539 
 
 Judicial Committee of the Privy Council, the Courts of Appeal Civil and 
 Criminal, and every branch and judge of the High Court of Justice in 
 England and Ireland (o) and superior colonial Courts of record (/?). The 
 rule has been extended to justices of the peace and judges of inferior 
 Courts while acting in the execution of their office. In such cases the 
 remedy is not by summary proceedings for contempt, but by indictment 
 or criminal information {q). 
 
 An indictment does not lie for contemptuous words spoken either 
 of or to inferior magistrates, unless they are at the time in the actual 
 execution of their duty, or at least unless the words affect them directly 
 in their office though it may be good cause for binding the offender to 
 his good behaviour (r). Where the defendant was indicted for saying 
 of a justice of the peace for the county of Middlesex, in his absence, that 
 he was a scoundrel and a liar (s), Ellenborough, C.J., said : ' The words 
 not being spoken to the justice, I think they are not indictable. This 
 doctrine is laid down by Holt in a case in Salkeld {i) ; and in R. v. Pocock (m) 
 the Court of Queen's Bench refused to grant an information for saying of a 
 justice, in his absence, that he was o. forsworn rogue. However. I will not 
 direct an acquital upon this point, as it is upon the record, and may be 
 taken advantage of in arrest of judgment. It will be for the jury now to 
 say whether these words were spoken of the prosecutor as a justice of the 
 peace, and with intent to defame him in that capacity ; for if they were 
 not, this indictment is not supported ; and it could not by possibilitv 
 be a misdemeanor to utter them, although the prosecutor's name may 
 be in the commission of the peace for the county of Middlesex ' (r). But 
 it has been held to be an indictable offence to say of a justice of the peace, 
 when /)/. the execution of his office, ' you are a rogue and a liar " {ir). The 
 Court will not, however, grant an information for calling a magistrate 
 a liar, accusing him of misconduct in having absented himself from an 
 election of clerk to the magistrates, and threatening a repetition of the 
 same Language whenever such magistrate came into the town, unless 
 they tend to a breach of the peace (x). 
 
 Offences of this kind, though in theory indictable, are dealt with 
 summarily by the High Court when directed against any of its 
 divisions (y), and may be dealt with summarily by an inferior Court of 
 record if committed i7i facie curia\ The proceeding in the High Court 
 is by attachment or committal (2). The remedy by indictment is rarely 
 used, owing to the inevitable delay and consequent risk of interference 
 with justice (a). 
 
 (o) Sec Odgcrs on Libel (4th ed.), 49.5. (iv) R. v. Revel, 1 Str. 420. 
 
 Ex parte Fernandez, .30 L. J. C. P. 321. (x) Ex parte Chapman, 4 A. & E. 773. 
 
 ip) Re McDermott, L. R. 1 P. C. 2(50 ; Ex parte Duke of Marlborough, 5 Q.B. 935. 
 
 2 P. C. 341. ()/) Including courts created by commi.'s- 
 
 (q) R. V. Rea, 17 Jr. C. L. R. 584, impu .sions of assize, gaol delivery, or oyer and 
 
 lation on a resident magistrate. terminer. R. r. Parke [1903], 2 K.B. 432. 
 
 (r) Sec Odgers on Libel {4th ed.), 49r., Cf. R. v. Payne [IftOB), 1 K.B. 577. 
 
 497. 1 Hawk. c. 21, s. 13. 2 Starkie on (z) Onslow and Whallcvs case, L. R. 
 
 Libel, 195. 9 Q.B. 219. R. v. Gray [1900], 2 Q.B. 36. 
 
 (s) R. V. Wcltje, 2 Camp. 142. Sec Short & Mcllor, Cr. Pr. (2nd ed.). 342. 
 
 (0 R. V. Wrightson, 2 Salk. 098. Oswald on Contempts (2n 1 ed). 
 
 (u) 2 Str. 1157. And sec R. v. Penny, (n) See R. v. Tibbits [19021. 1 K.B. 77. 
 
 1 Ld. Raym. l.')3. R. v. Parke [1903], 2 K.B. 432. 
 
 (v) R. r. Wcltje, 2 Camp. 142.
 
 540 Of Offences against the Admmistration of Justice, [book vii. 
 
 Sect. II. — Of Acts Affecting Fair Trial of Pending Cases. 
 
 Any publication, exhibition, or representation intended or calculated 
 to interfere with the fair trial of a legal proceeding pending in any Court of 
 justice, is a misdemeanor at common law (b). The incriminated publica- 
 tion or exhibition may be described as attempts to pervert the course of 
 justice, or as calculated to produce that effect (c). 
 
 This rule has been held to apply to a theatrical representation 
 which represented a man in the act of committing an offence for which 
 he was awaiting trial (d). 
 
 So has the circulation by the defendant to an information immediately 
 before its trial, and in the town where the trial was to be held of a 
 vindication of his conduct and an attack on that of the prosecutor (e). 
 and the publication of proceedings before a coroner with comments 
 before the completion of the inquiry (/) ; and the publication of newspaper 
 articles containing statements affecting the character or conduct of persons 
 under accusation of crime, whatever the stage which the proceedings 
 have reached, i.e. whether during a preliminary inquiry before justices, 
 or after committal, or during trial or indictment (g). In E. v. Tibbits 
 and Windust (h) the editor and reporter of a weekly paper were indicted 
 and held to have been rightly convicted of publishing articles by a 
 ' Special Crime Investigator ' containing a number of statements highly 
 detrimental of two persons under an accusation of attempted murder. 
 Of the statements some were published during the prehminary inquiry, 
 some between committal and trial, and some during the actual trial 
 at the assizes. Where the publication relates to a case which is 
 actually only pending before justices of the peace, but in the due 
 course of justice may go for trial before any branch of the High Court, 
 including a Court of assize (?), or the Central Criminal Court {j), the 
 offence may be dealt with by the High Court summarily by attachment 
 for contempt, whether the publication is by an individual or by a cor- 
 poration (A). The offence is committed if the publication is calculated 
 to interfere with a fair trial, should the result of the preliminary inquiry 
 be the committal of the prisoner for trial (?). It would seem that even 
 where the trial will take place at Quarter Sessions or in any inferior Court, 
 
 [h) R. V. Tibbits [1902], 1 K.B. 77. (0 R. v. Davies [1906], 1 K.B. 32. In 
 
 (c) Vide ante, p. 142. See the in- this case a woman was in custody on a 
 dictment in R. v. Tibbits [1902], 1 K.B. charge of abandoning a child. A news- 
 77, where the indictment included charges paper published reports as to her antece- 
 of (1) attempting to prejudice the mind of dents, suggesting that she had been a 
 the examining magistrate, and so to ob- wholesale child farmer. 
 
 struct and pervert justice ; (2) knowingly {j) R. v. Parke [1903], 2 K.B. 432, 439, 
 
 doing acts calculated to obstruct and per- Wills, J. In this case former rulings are 
 
 vert justice ; (3) devising and intending to collected. The publication complained of 
 
 injure A. and B. and to deprive them of a consisted in statements about a man ac- 
 
 fair trial ; (4) conspiracy to obstruct and cused of forgery, and subsequently com- 
 
 pervert justice. Vide ante, p. 163. mitted for trial on charges of forgery and 
 
 (d) R.r.Williaras,2L. J. (0. S.)K.B. 30. murder. Cf. R. v. Payne [1906], 1 K.B. 
 
 (e) R. V. JoUiffe, 4 T. R. 285. 577. 
 
 if) R. V. Fleet, 1 B. & Aid. 379: 19 {k) R. v. 'Freeman's Journal' [1902], 
 
 R. R. 344. 2 Ir. Rep. 82. 
 
 (<7) R. V. Tibbits [1902], 1 K.B. 77. {/) R. v. Davies [1906], 1 K.B. 32-35, 
 
 {h) Ubi sup. Wills, J.
 
 CHAP. 11.1 Of Interference ivith Witnesses. 541 
 
 the High Court may intervene hrevi manu to punish publications cal- 
 culated to prejudice such trial {m). 
 
 Sect. III.— Of Inteeference with Witnesses. 
 
 It is an ofEence at common law to use threats or persuasion to witnesses 
 to induce them not to appear or give evidence in courts of justice, even 
 if the threats or persuasion fail {n). The ofEence is a misdemeanor 
 punishable by fine and (or) imprisonment without hard labour, on 
 indictment or information ; or, if committed with reference to a case in a 
 superior Court of record, by summary proceedings for contempt (o). 
 
 As to conspiracies to do any of these acts, see ante, p. 163. In R. v. 
 Roderick and Clare (p) a conviction was obtained on an indictment for con- 
 spiracy to defeat the ends of justice by preventing a girl under sixteen 
 from attending the assizes to give evidence against a man charged with a 
 criminal ofEence against her. 
 
 There is no precedent of proceedings at common law for discharging 
 or damnifying witnesses because of evidence given by them. But in the 
 case of Parliamentary inquiries, witnesses are protected by the Witnesses 
 Protection Act, 1892 (55 & 56 Vict. c. 64), sect. 1. 'In this Act the word 
 " inquiry " shall mean any inquiry held under the authority of any Royal 
 Commission or by any committee of either House of Parliament, or 
 pursuant to any statutory authority, whether the evidence at such inquiry 
 is or is not given on oath, but shall not include any inquiry by any Court 
 of justice.' 
 
 By sect. 2, ' Every person who commits any of the following acts, 
 that is to say, who threatens, or in any way punishes, damnifies, or 
 injures, or attempts to punish, damnify, or injure any person for having 
 given evidence upon any inquiry, or on account of the evidence which 
 he has given upon any such inquiry, shall, unless such evidence was 
 given in bad faith, be guilty of a misdemeanor, and be liable upon con- 
 viction thereof to a maximum penalty of one hundred pounds, or to a 
 maximum imprisonment of three months.' 
 
 By sect. 3, ' A prosecution for any ofEence under this Act may be 
 heard and determined by a court of summary jurisdiction under the 
 Summary Jurisdiction Acts, provided that should either the com- 
 plainant or the party charged object to the case being dealt with 
 summarily, the Court shall send such cases for trial to the quarter 
 sessions or assizes, or in cases arising within the metropolitan area to 
 the Central Criminal Court.' 
 
 (m) Ibid. p. 37, 39, citing 2 Hawk. c. 2, see indictments for dissuading a witness 
 
 8. 3. See Short & Mellor, Crown Practice from giving evidence against a person in- 
 
 (2nd ed.), 34.5. This jurisdiction is traced dieted, 2 Chit. Cr. L. 235 ; Archb. Cr. PI. 
 
 to the authority of the Court of King's (23rd ed.) 1078 ; and an indictment for a 
 
 Bench as custos morum, assumed on the conspiracy to prevent a witness from giving 
 
 extinction of the Court of Star Chamber. evidence, R. r. Steventon, 2 East, 302. 
 
 (n) 1 Hawk. c. 21, s. 15. 2 Chit. Cr. L. And see R. r. Edwards, ante, p. 527. 
 220, 235. R. V. Lawley, 2 Str. 904. R. v. (o) R. v. Hall, 2 W. Bl. 1110. Onslow 
 
 Steventon, 2 East, 362. R. v. Loughran, and Whalley's cases, L. R. 9 Q.B. 219. 
 1 Cr. & D. (Ir.) 79. R. v. Talley [1875], (p) Swansea Summer Assizes, 4 Aug., 
 
 82 Cent. Cr. Ct. Sess. Pap. 518. 'See also 1900, Jclf. J. The girl had been induced 
 
 R. V. Gray [1903], 22 N. Z. L. R. 52. And to go to the United States.
 
 542 Of Offences against the Administration of Justice. [BOOK VII. 
 
 By sect. 4, ' It shall be lawful for any Court before which any person 
 may be convicted of any offence under this Act, if it thinks fit, in addition 
 to sentence or punishment by way of fine or imprisonment, to condemn 
 such person to pay the whole or any part of the costs and expenses incurred 
 in and about the prosecution and conviction for the offence of which he 
 shall be convicted, and, upon the application of the complainant, and 
 immediately after such conviction, to award to complainant any sum of 
 money which it may think reasonable, having regard to all the circum- 
 stances of the case, by way of satisfaction or compensation for any loss 
 of situation, wages, status, or other damnification or injury suffered by the 
 complainant through or by means of the offence of which such person shall 
 be so convicted, provided that where the case is tried before a jury, such 
 jury shall determine what amount, if any, is to be paid by way of satis- 
 faction or compensation.' 
 
 By sect. 5, ' The amount awarded for such satisfaction or compensa- 
 tion, together with such costs, to be taxed by the proper officer of the 
 Court, shall be deemed a judgment debt due to the person entitled 
 to receive the same from the person so convicted, and be recoverable 
 accordingly.' 
 
 Sect. IV. — Of disobeying Judicial Orders. 
 A. General. 
 
 Wilful disobedience to the order of a competent Court is in certain 
 cases punishable on indictment or summarily by fine and (or) imprison- 
 ment without hard labour. Disobedience by officers of the Court or 
 executive officers to judicial orders will be dealt with under official 
 misconduct {yost, Book VIII., Chapter I.). 
 
 Disobedience by witnesses or parties to lawful orders of a superior 
 Court of record may be dealt with by the Court summarily by committal 
 or attachment for contempt of Court {q). Where the order is to pay money 
 the jurisdiction to imprison for disobedience is limited by the Debtors 
 Acts, 1869 and 1878 (r). The power is oftenest exercised with reference 
 to persons who disobey injunctions, or who, knowing that an injunction 
 has been made against another, aid and abet him in disobeying it {s). 
 A distinction is drawn for purposes of appeal between disobedience to 
 orders of the Court made to enforce a civil right, and those forms of 
 contempt which are regarded as purely criminal, e.g., outside interference 
 with the course of justice {t). Such offences can, it would seem, also be 
 dealt with by indictment (w). There are few if any precedents of an indict- 
 ment for disobeying the orders of a superior Court of record. It is said 
 that where the treasurer of a county refuses to comply with an order 
 for payment of the costs of prosecuting an indictment, the remedy is by 
 
 {q) As to the procedure, see R. S. C. 
 1883, O. 44. Ann Pr. 1909. p. 629. 
 
 (r) See Ann Pr. 1909, p. 586. Murch v. 
 Loosemore [1906], 1 Ch. 692. Under the 
 Acts of 1869 and 1878, imprisonment for 
 non-payment of money mav not exceed one 
 year. 32 & 33 Vict. c. 62, "s. 5 (proviso). 
 
 (s) Seward v. Paterson [1897], 1 Ch. 545 
 (i) Att.-Gen. v. Kissane, 32 L. R. Jr. 320. 
 
 O'Shea v. O'Shea, 15 P. D. 62. 
 
 (u) R. V. Robinson, 2 Burr. 799, 804. 
 
 This relates to an order of Quarter 
 
 Sessions. Cf. R. v. Mortlock, 7 Q.B. 459. 
 
 R. V. Brisby, 1 Den. 416.
 
 CHAP II.] Of Disobedience to Orders of Justices. 543 
 
 indictment (t'). Disobedience to a writ of subpoena, to attend as a witness 
 or produce documents, is enforceable by attachment, if the writ issues 
 out of a superior Court, and apparently by indictment, if the writ issues 
 from a Court of Quarter Sessions {w). 
 
 B. Disobedience of Orders made by Justices of the Peace. 
 
 Disobedience to an order of justices of the peace made in due exercise 
 of their powers is a misdemeanor indictable at common law {x). It is 
 immaterial whether the order of justices is made at general or quarter 
 sessions (y), or at petty sessions (2), or out of sessions (a), provided that it 
 is one which the justice or justices has jurisdiction to make, and that 
 there is no prescribed and adequate remedy other than indictment for 
 disobedience (b). Foster, J., thus stated the rule : ' In all cases where a 
 justice has power given him to make an order, and direct it to an inferior 
 ministerial officer, and he disobeys it, if there be no particular remedy 
 prescribed, it is indictable ' (c). Thus, a party has been held guilty of an 
 indictable offence, in disobeying an order of sessions for the maintenance 
 of his grandchildren (d). In this case it was contended that, as the Poor 
 Law Act, 1601 (43 Eliz. c. 2), s. 7, had annexed a specific penalty, and a 
 particular mode of proceeding, the course prescribed by the Act ought 
 to have been adopted, and that there could be no proceeding by indict- 
 ment : but it was held that the prosecutor was at liberty to proceed 
 either at common law, or in the method prescribed by the statute ; and 
 that an indictment would lie at common law for disobedience to an order 
 of sessions (e). And power to remove a pauper being given to two justices 
 by 14 Car. II. c. 12, the not receiving him was held to be a disobedience 
 of that statute for which an indictment would lie ( /'). 
 
 Where an order of justices is a nullity on the face of it, another order 
 may be made, and an indictment will lie for disobeying the second order (y). 
 
 Where an order is made by justices, any person mentioned in it, and 
 required to act under it, must, upon its being duly served upon him, 
 lend his aid to carry it into effect. Thus where, upon a complaint made 
 
 (v) R. V. Jeyes, 3 A. & E. 416, 422. The v. Boyall, 2 Burr. 832, 834, Lord Mansfield 
 
 order was made by a Court of Quarter Ses- said : ' I do not approve of indicting wliere 
 
 sions. Cf. R. V. Jones, 2 Mood. 171. The there is anotlier remedy : it carries the 
 
 remedy by mandamus has been applied in appearance of oppression.' 
 
 such cases. R. v. Treasurer of ()swestry, (c) Burn's Justice, tit. ' Poor,' s. xvii. 2, 
 
 12 Q.B. 239. i. A mandamus to the inferior oflficer will 
 
 (w) R. V. Brownoll, 1 A. & K. 598. Cf. not be granted, but the procedure must be 
 
 R. V. Ring, 8 T. R. 585. by indictment. R. v Bristow [1795], 6 
 
 (a-) R. r. Robinson [1759]. 2 Burr. 799. T. R. 1G8. 
 
 (y) Id. ibid. See R. r. Bill, an order of (d) R. r. Robinson, 2 Burr, 799. 
 
 .sessions on churchwardens and overseers (e) Id. ibid, 
 
 to account for and pay over money in their ( /" ) R. v. Davis, ubi sup. 
 
 hands (2 Burr. 805, cit.), and R. r. Boys, (g) R. v. Brisby, 1 Den. 41<>. R. r. 
 
 an order of sessions to pay costs of an ap- Marchant, 1 Cox, 203. R. v. Cant, 2 .Mood, 
 
 peal against a poor rate. Ibid. 521. In R. v. Ferrall, 2 Den. 51, the ques- 
 
 (z) R. r. Davis, 2 Burr. 805, cit. 1 Say. tion was whether, under a clause in the 
 
 lfi3 ; 1 Bott. 3(51, pi. 378. Annual Mutiny Act. a soldier was freed 
 
 (a) See R. v. Balme. 2 Cowp. 650. R. from an indictment for disobeying a bas- 
 
 V. Fearnley, 1 T. R. 316 ; 2 Chit. Cr. L. tardy order ; and the Court held that he 
 
 279. was not, as it was a ' criminal matter.' 
 
 (6) R. ('. Robinson, 2 Burr. 799, 803. See now 44 & 45 Vict. c. 58, ss. 138, 145. 
 Lord Mansfield. Vide ante, p. 13. In R.
 
 544 Of Offences against the Administratmn of Justice, [book vn. 
 
 by an excluded member of a friendly society, two persons, A. and B., 
 the then stewards of the society, were summoned, and an order made 
 by two justices that such stewards and the other members of the society 
 should forthwith reinstate the complainant ; it was held that though this 
 order was not served upon A. and B. until they had ceased to be stewards, 
 yet it was still obligatory upon them, as members of the society, to 
 attempt to reinstate the complainant ; and that their having ceased 
 to be stewards was no justification of entire neglect on their part {h). 
 Ellenborough, C.J., said at the trial : ' The order is not confined to the 
 stewards alone, but is made upon all the members of the society ; and the 
 defendants were members of the society independently of their being 
 stewards, and were bound, as members, to see that the order was obeyed ; 
 or, at least, to have taken some steps for that purpose. As members, they 
 might have done something ; as stewards, indeed, they might, with 
 greater facility, have enforced obedience to the order ; but each member 
 had it in his power to lend some aid for the attainment of that object.' 
 And on a motion to enter the verdict 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 
 defendants had shown that they did everything in their power to restore 
 the party, in obedience to the order, they might have given it in evidence 
 by way of excuse (i). 
 
 As a general rule there must be personal service of an order on all 
 persons who are to be proceeded against for disobeying it, and the indict- 
 ment should so state: and it has been held a fatal objection to an indict- 
 ment for disobedience and contempt of an order of sessions, that it 
 charged a contempt by six persons of an order, which was only stated 
 to have been served on four of them {j). 
 
 The entire order of a Court to pay the expenses of a prosecution, 
 under sect. 26 of the Criminal Law Act, 1826 (7 Geo. IV. c. 64), must be 
 served on the treasurer of the county. Where, an order was made to 
 pay an aggregate sum, the details of which were annexed, and the attorney 
 tore off the details, and served the order for the payment of the aggregate 
 sum alone on the treasurer ; it was held, on a case reserved, that he was 
 not indictable for refusing to obey the order (k). 
 
 An indictment for disobeying an order of justices must show explicitly 
 that the order was made ; and it is not sufficient to state the order by way 
 of recital (/). It is said to be safer to aver that the defendant was requested 
 to comply with the terms of the order {m). 
 
 {h) R. V. Gash, 1 Stark. {N. P.) 41. The diction. See R. v. Wade, 1 B. & Ad. 8G1. 
 
 Acts relating to friendly societies are con- (j) R. v. Kingston, 8 East, 41. R. v. 
 
 solidated by 59 & GO Vict. cc. 25, 26. Gilkes, 3 C. & P. 52. 
 
 (/) Id. ibid. The motion was also made (k) R. v. Jones, 2 Mood. 171. This 
 
 on another ground ; namely, a defect in the enactment is repealed and replaced by 
 
 jurisdiction of the magistrates : two magis- 8 Edw. VII. c. 15, s. 4 (2), post, Bk. xii. c.v. 
 
 trates of the county of Middlesex, where the (I) R. v. Crowhurst, 2 Ld. Raym. 1363. 
 
 meetings of the society were lield, having (to) 2 Chit. Cr. L. 279, note (g), citing R. 
 
 made the order, though the society had v. Fearnley, 1 T. R. 316, where an objection 
 
 been originally established in the city of was taken to an indictment that it did not 
 
 London, and its rules enrolled at the ses- contain such statement ; but the Court did 
 
 sions for that city. But the Court decided not find it necessary to give any opinion 
 
 that the magistrates of Middlesex had juris- upon the point.
 
 CHAP II.] Of Disobedience to Orders of Justices. 545 
 
 If the indictment omits to state the service of the order the want of 
 such allegation will not be supplied by an averment that the defendant was 
 requested to perform the duties required by the order (w). It seems 
 not to be a matter for the prosecution to aver, but one for the defence 
 to prove that the order has not been revoked (o). 
 
 An indictment for refusing to obey an order of justices to pay a 
 church-rate, alleged that the rate ' was duly made as by law in that 
 behalf required, and that the same was afterwards duly allowed as by 
 law in that behalf required,' and that ' the defendant was duly rated ' 
 in and by the said rate at the sum of sixteen shillings. It was objected 
 that the facts ought to have been stated which constituted a due making 
 and allowance of the rate and a due rating of the defendant. But it 
 was held (1), that these introductory facts were alleged only to shew 
 that the justices had jurisdiction to make the order, and therefore they 
 fell within the description of inducement, in which such a general allega- 
 tion was allowed ; (2) that the rest of the count shewed that the justices 
 had sufficient authority to make the order, as there was a sufficient 
 information by competent persons to give them jurisdiction {p). The 
 same indictment stated that a church-rate had been duly demanded of 
 the defendant, and that he had refused and neglected to pay the rate to 
 W. A. and J. C, who then were the churchwardens ; and it was held that, 
 though it did not state that they were churchwardens when the rate was 
 demanded, it was sufficient that they were shewn to be so at the time of 
 neglect and refusal to pay the rate, for that was the offence {q). The 
 same indictment alleged that a justice made his warrant (summons), 
 whereby, ' after reciting as therein recited,' he summoned the defendant, 
 and the indictment did not state to whom the warrant was directed. It 
 was held that it was sufficient, for enough of the warrant was stated 
 without mentioning the recital, and it was sufficiently averred that it was 
 directed to the defendant {q). The same indictment averred that a sum- 
 mons was issued on May 30, to appear on June 6, then next, and was 
 ' before the said 6th day of June, to wit, on the 30th of May ' personally 
 served on the defendant, who did not appear in pursuance of it ; and it 
 was held that it must be assumed that the justices satisfied themselves 
 that it had been served a reasonable time before the day of appearance, 
 otherwise they would have acted unjustly in making the order in the 
 absence of the defendant, and the intendment is always favourable to 
 the validity of an order (r). On the same indictment it was also held 
 that it is not necessary to set out the order according to the tenor ; it is 
 enough to set out the substance of it correctly {s). The same indictment 
 did not aver the church-rate to have been in force when the order to pay 
 it was made, but it was held that, as it averred that the rate continued 
 in force at the time of the indictment, it was quite sufficient {t). It was 
 also held that the indictment need not allege the date of the order {u), 
 as that was immaterial. 
 
 {n) R. V. Kingston, 8 East, 41, 53. Church rates aro not now compulsory (31 
 
 (o) R. V. Holland, 5 T. R. 607, 624, & 32 Vict. c. 109). 
 where the defendant was indicted for mal- [q) Ibid. ()) Ihid. 
 
 versation in office as one of the council at (s) Ibid. {t) Ibid. 
 
 Madras. {«.) Ibid. 
 
 ip) R. V. Bidwcll, 1 Den. 222, Parke, B. 
 
 VOL. I. 2 N
 
 546 Of Offences against the Administration of Justice, [book vii. 
 
 An mdictment alleged that an appeal was made by the defendants 
 against a rate to the sessions, who dismissed the appeal, and ordered 
 the defendants ' inmiediately upon service of the said order, or a 
 true copy thereof,' to pay the churchwardens and overseers a sum for 
 costs of the appeal, and that a true copy of the said order was afterwards 
 personally served upon each of the defendants, and each of them had notice 
 of the said order. Nevertheless, the defendants wilfully neglected and 
 refused to pay. Upon the trial the clerk of the peace produced the 
 minutes of the sessions, and read the order, which ordered the defendants 
 ' immediately upon service of this order, or a true copy thereof,' to pay 
 the costs. The clerk of the peace stated that ' the costs were not taxed 
 durmg the actual sitting of the sessions, but between the time of the 
 Court adjourning and its meeting. I reported to the magistrates what I 
 thought fit and proper costs ; and the Court adopted it. I made a verbal 
 statement, which the Court adopted. I gave both parties an opportunity 
 of attending. The defendants did not attend. I wrote a letter to their 
 solicitor. The appeal was dismissed for want of due notice.' The 
 defendants' attorney was the person attending the appeal, and was 
 present when the order was made. There were four or five of the magis- 
 trates at the adjournment who were at the original sessions. A witness 
 proved that he served each defendant with a paper, which he told them 
 was a true copy of the order, as in fact it was, and at the time of service 
 read to each the contents of a parchment writing, which was also a true 
 copy of the order, and was produced on the trial. It was objected, first, 
 that as notice to produce the copies served had not been given, evidence 
 could not be given that the copy served was a true copy ; but it was 
 held that a notice to produce the paper served would have been notice 
 to produce a notice, which is never required ; secondly, that an order to 
 pay ' upon service of the said order, or a true copy thereof,' was bad on 
 the face of it ; but it was held to be perfectly sufficient, — that an order of 
 sessions in that form was good. And the service was also good, whether 
 the book of the sessions or the parchment was the order ; for if the book 
 was the original, it could not be shewn at the time of the service, and if 
 the parchment was the original, its contents were read over (v). And, 
 lastly, that the adjourned sessions had no jurisdiction to fix the amount 
 of costs (tv). The Court held that the justices must be taken to have 
 ordered in the first instance, in the presence of all the parties, that the 
 defendants should pay such costs as the officer might find to be due ; 
 and the result of the evidence being that both parties had an opportunity 
 of attending the taxation, and no objection being made when the amount 
 was stated in Court, a state of things took place which amounted to a 
 consent, and therefore the order was valid (x). 
 
 The Distress for Rent Act, 1737 (11 Geo. II. c. 19), s. 16 (y), enables 
 two justices to put a landlord in possession of premises in any case where 
 one half-yearns {z) rent is in arrear, and the tenant deserts the premises and 
 
 (v) Coleridge, J., said : ' An order of the taxed during the sessions, unless the parties 
 
 quarter sessions is not like an order of jus- consent to taxation out of sessions. Mid- 
 
 tices out of sessions. It is the judgment of land Rail. Co. v. Edmonton Union [1895], 
 
 the Court, and that cannot be carried A. C. 495. 
 
 about : it is suificient if a copy be shewn.' (x) R. v. Mortlock, 7 Q.B. 459. 
 
 ' (w) This point was not then decided; (y) Asamendedby 57 Geo. III. c. 52, s. 1. 
 
 but it is now settled that costs must bo (z) The rent must be a rack rent or full
 
 CHAP. II.] Of Disobedience to Orders of Justices. 547 
 
 leaves them uncultivated or unoccupied so as no sufficient distress can 
 be had ; and sect. 17 empowers the next justice or justices of assize, on the 
 appeal of the tenant, to award restitution to the tenant. Upon an indict- 
 ment for disobeying the order of the justices of assize to restore possession 
 to the tenant, it is not necessary to prove the proceedings before the magis- 
 trates preliminary to the restitution ; and that it is sufficient to put in 
 the record made up by the justices of the peace, in which, after reciting 
 the complaint and other proceedings, they declare that they put 
 the landlord into possession ; and it is unnecesssary to prove the complaint 
 of the landlord {a). 
 
 Upon the trial of an indictment for not paying a sum of money pur- 
 suant to an order of sessions made on an appeal by the defendant against 
 a certificate of two justices, for stopping up, diverting, and turning a 
 part of a public -footway, the record of the order of sessions, together 
 \vith proof of the service of a copy of the order upon the defendant, and 
 a demand of the sum ordered thereby to be paid, to which the defendant 
 only answered that he did not owe anything, is sufficient evidence to go 
 to the jury, and it is not necessary to prove aliunde the existence of the 
 certificate or the fact of the appeal. An order of sessions made upon such 
 an appeal need not show the time at which the certificate of the justices 
 was lodged with the clerk of the peace ; for the sessions have no duty 
 to inquire into that fact, unless the objection is raised before them (6). 
 
 On the trial of an indictment against the stewards of a friendly 
 society for disobeying an order of justices, which recited that the rules 
 of such society had been enrolled ; it was held that the recital was not 
 evidence of that fact, which must be proved by other means, in order to 
 shew that the justices had jurisdiction to make the order under 33 Geo, III. 
 c. 54, s. 2 (c). Upon the trial of such an indictment, the Court refused 
 to enter into the merits of the original case, and to hear objections to the 
 order wliich did not appear upon the face of it {d). But if it appears 
 on the face of the order that the justices had no jurisdiction to make it, 
 the defendant is entitled to acquittal (e). 
 
 three-quarters of the value of the demised ment for embezzlement by the secretary of 
 
 premises (57 Geo. III. c. 52, s. 1). a friendly society was dismissed for want 
 
 («) R. V. Sewell, 8 Q.B. 161. The very of proof of the registration of the society, 
 
 ground of the appeal might be that the jus- The Act of 1793 was repealed in 1855 (18 
 
 tices of the peace had acted without any & 19 Vict. c. 63). Friendly societies arc 
 
 complaint, and therefore the proof of the now governed by two Acts of 1896 (59 & 
 
 complaint could not be necessary. The 60 Vict. cc. 25, 26), and certain subsequent 
 
 Court held in this ease that the order of the statutes making minor amendments. Under 
 
 justices of assize must be made by them as modern legislation the rules are submitted 
 
 individual justices, and not as a Court, and with an application to register the society, 
 
 therefore a certificate of such an order, made to the registrar of friendly societies ; 
 
 signed by the deputy clerk of assize in the and an acknowledgment of registration is 
 
 same way as an order of the Court, is not conclusive of due registration of the society 
 
 sufficient. It seems also that the order unless it is proved that the registry has been 
 
 should be signed by the justices of assize, suspended or cancelled (1896, c. 25, s. 11). 
 
 and that they alone, and none of the other Oakes v. Turquand, L. R. 2 H. L. 354. 
 
 commissioners, have jurisdiction to make Baden Fuller, Friendly Societies (2nd ed.). 
 such an order. As to form of order, see R. [d) R. v. Mitton, 3 Esp. 200 ; R. v. 
 
 V. Traill, 12 A. & E. 761. Gilkes, 3 C. & R 52, Abbott, C.J. 
 
 (6) R. V. Thornton, 2 Cox, 493. (e) R. v. Hollis, 2 Stark. (N. P.) 536, 
 
 (c) R. V. Gilkes, 8 B. & C. 439. Cf. R. Abbott, C.J. R. v. Soper, 3 B. & C. 857. 
 
 V. Kew, Nottingham Assizes, July 15, 1885, These decisions were given while %vrits of 
 
 Pollock, B. Friendly Society Cases, by Dip- error were still in use. 
 rose & Gammon, p. 242, where an indict- 
 
 2 N 2
 
 f
 
 ( 548a ) 
 
 CANADIAN NOTES. 
 
 Sec. 1. — Of Contempt of Court and Attacks on the Actions of Judges 
 
 and Juries. 
 
 Contempt of Court is a criminal proceeding. Ellis v. The Queen, 
 22 Can. S.C.R. 7 ; Re Scaife, 5 B.C.R. 153. It is therefore necessary 
 that the charge should be proved with particularity. Re Scaife, 5 
 B.C.R. 153. 
 
 While a criminal information for libel was pending against one 
 W., H. wrote a letter to a newspaper reflecting upon one of the Judges 
 who delivered judgment on the application for the information, and 
 stating that W. was ",as certain to be convicted as a libeller ever was 
 before his trial." It was held that such letter was clearly contempt 
 of Court. R. V. Wilkinson, Re Houston (1877), 41 U.C.Q.B. 42. 
 
 In New Brunswick the practice has been to issue an attachment 
 against the person publishing the newspaper comment complained 
 of, the award of the attachment not being a final judgment but a 
 method of bringing the party into Court where he may be ordered to 
 answer interrogations, and by his answers purge his contempt if he 
 can. If he were unable to then purge his contempt the Court would 
 then pronounce sentence. Ellis v. Baird, 16 Can. S.C.R. 147. 
 
 An appeal does not lie to the Supreme Court of Canada from a 
 judgment in proceedings for contempt of Court unless it comes within 
 the provisions of the Supreme Court Act as to appeals in criminal 
 cases. Ellis v. The Queen, 22 Can. S.C.R. 7; O'Shea v. O'Shea, L.R. 
 15 P.D. 59. 
 
 Sec. 2. — Of Acts Affecting Fair Trial of Pending Case. 
 
 Where the jury disagreed upon the trial of an indictment and a 
 new jury was ordered for another sittings the cause is meanwhile 
 still a pending one and improper and impartial comments thereon 
 published by one of the accused will constitute a contempt of Court 
 by him. The Court imposing sentence upon a newspaper proprietor 
 for a contempt of Court contained in newspaper comment may, in 
 addition to the infliction of a fine and imprisonment, require the 
 accused to find securities to keep the peace and to refrain from pub- 
 lishing further articles reflecting on the pending cause, and may order 
 imprisonment for six months, or until security is sooner given, or until 
 the pending cause is sooner ended. The King v. Charlier, 6 Can. Cr. 
 Gas. 486.
 
 5486 Contempt of Court, Etc. [bookvii. 
 
 Any publication, whether by parties or strangers, which concerns 
 a cause pending in Court, and has a tendency to prejudice the public 
 concerning its merits, and to corrupt the administration of justice, or 
 which reflects on the tribunal or its proceedings, or on the parties, 
 the jury, the witnesses or the counsel may be visited as a contempt. 
 R. V. Wilkinson, Re Houston (1877), 41 U.C.Q.B. 42, citing Bishop 
 on Criminal Law, 5th ed., vol. 2, sec. 259. 
 
 Where 'the respondent in a controverted election case applied for 
 an order nisi calling on the defendant, his opponent at the election, 
 to shew cause why he should not be committed for contempt of Court 
 for publishing articles in his newspaper reflecting on and pre-judging 
 the conduct of the respondent and of the returning officer during the 
 currency of the proceedings on the election petition, it was held, al- 
 though a prima facie case of contempt had been made out, that as 
 it appears on the same material that the respondent had attended and 
 spoken at a meeting held for the purpose of approving of the conduct 
 of the returning officer and presenting him with a gold watch as a 
 mark of such public approval, the applicant was also in fault, and 
 his application was therefore refused. Re Bothwell Election Case, 4 
 Ont. R. 224. 
 
 Where the alleged contempt consisted in the publishing, in a 
 newspaper, comments on a judgment rendered by a Master in Cham- 
 bers in a cause in which the writer was solicitor for the defendant, but 
 ■after the proceedings in the cau^e before the Master were ended, it 
 was held by the Supreme Court of Canada that the relator in the 
 cause could not be prejudiced as a suitor by the publication complained 
 of, and as such prejudice was the only ground on which he could in- 
 stitute proceedings for contempt he had no locus standi, and his appli- 
 cation should not have been entertained. Re O'Brien, Regina ex rel. 
 Felitz V. Howland, 16 Can. S.C.R. 197, reversing 11 Ont. R. 633, and 
 14 Ont. App. 184. 
 
 Sec. 4. — Disobeying Orders of Court. — Code sec. 165. 
 
 Disobedience of Orders by Justice of the Peace. — Code sec. 674. 
 
 Disobedience of Subpoena. — Code sec. 842.
 
 649 
 
 CHAPTER THE THIRD. 
 
 OF OBSTRUCTING OR RESISTING THE EXECUTION OF LEGAL PROCESS. 
 
 Sect. I. — Of obstructing Process, 
 
 Obstructing the execution of lawful process, whether civil or criminal, 
 is an offence against public justice ; and it has even been held that the 
 party opposing an arrest upon criminal process becomes thereby particevs 
 criminis : that is, an accessory after the fact in felony, and a principal 
 in high treason (a). Where the process, whether civil or criminal, is that 
 of a superior Court of record, the obstruction may be dealt with summarily 
 as contempt of Court (6). 
 
 Giving assistance to a felon pursued by officers of justice, in order to 
 enable him to avoid arrest, is a misdemeanor, as being an obstruction 
 to the course of public justice (c). An indictment was preferred against 
 the defendant for rendering assistance to 0. (who had committed forgery 
 and was being pursued by officers of justice), in order to enable 0. to avoid 
 arrest. It appeared in evidence that 0. had committed a forgery, as 
 stated in the indictment ; and had afterwards thrown himself from the 
 top of a house, by which he was greatly hurt ; and that the defendant, 
 who was a relation and commiserated his wretched condition, conveyed 
 him secretly on board a barge to Bristol, and was actively employed 
 there in endeavouring to enable him to escape from the country. 
 Advertisements had been printed and circulated, stating the charge 
 against 0., and offering a large reward for his apprehension ; but it was 
 not proved that any one of these advertisements had come to the know- 
 ledge of the defendant or that the defendant was acquainted with the 
 particular charge against 0., or knew that he had been guilty of forgery, 
 as alleged in the indictment. Upon this ground the defendant was 
 acquitted : but no other objection was taken to the indictment. 
 
 Privilege. — There is not now any privilege in respect of place (d) 
 or person against arrest on criminal process (e). 
 
 (a) 2 Hawk. c. 17, s. 1, where Hawkins tended privileged places in London and 
 
 submits that it is reasonable to understand Southwark, in which fugitives from civil 
 
 the books which seem to conti'adict this and criminal justice claimed freedom from 
 
 opinion to intend no more than that it is arrest, on pretence that they had been 
 
 not felony in the party himself, who is at- anciently I'oyal palaces. Such were the 
 
 tacked in order to be arrested, to save him- White Friars and its environs, the Savoy, 
 
 self from the arrest by such resistance : and and the Mint in Southwark. The supposed 
 
 see 4 Bl. Com. 128. privilege of such places has been taken 
 
 (6) Vide ante, p. 542. away by legislation. See 8 & 9 Will. III. 
 
 (c) R. V. Buckle [1821], Uloucester c. 27 ; 9 Geo. I. c. 28 ; 11 Geo. I. c. 22. A 
 
 Spring Assizes, Garrow, B. Tlie case similar abuse created by the recognition of 
 
 states that ' OUve had committed forgery,' sanctuary was finally suppressed in 1623, 
 
 not that he was ' suspected of felony,' as by 21 Jac. I. c. 28. 
 
 stated in former editions of this work. (e) lie Freston, 11 Q.B.D. 545. As to 
 
 C. S. G. arrest of witnesses, vide post, Bk. xiii. c. v. 
 
 {d) At one time there were many pre-
 
 550 Of Offences against the Administration of Justice, [book vii. 
 
 Privilege from arrest on civil 'process continues in favour of members of 
 either House of Parliament while Parliament is sitting, and in favour of 
 barristers, solicitors, police and witnesses eundo, morando et redeundo from 
 a case in which they are concerned (/), and of ministers of religion, while 
 officiating in a place of worship or in the burial of the dead, or going to 
 or from such service (g). 
 
 In some proceedings, particularly in those relating to the-execution 
 of the revenue laws (h), the Legislature has made special 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 officers in the appre- 
 hension of the party is only a misdemeanor, punishable by fine and (or) 
 imprisonment (i). 
 
 An indictment for obstructing the execution of process must state 
 that the arrest was lawful, i.e., made by proper authority (j). 
 
 But where the process is regular, and is executed by the proper officer, it 
 is not lawful even for a peace officer to obstruct such officer, on the ground 
 that the execution of it is attended with an affray and disturbance of the 
 peace ; for if one, having sufiicient authority, issues a lawful command, 
 it is not in the power of any other, having an equal authority in the same 
 respect, to issue a contrary command ; as that would be to legalise con- 
 fusion and disorder (k). Some sheriff's officers having apprehended 
 a man by virtue of a writ against him, a mob collected, and endeavoured 
 by violence to rescue the prisoner. In the course of the scuffle, which 
 was at ten o'clock at night, one of the bailifis, having been violently 
 assaulted, struck one of the assailants, a woman, and it was thought for 
 some time that he had killed her ; whereupon, and before her recovery 
 was ascertained, the constable was sent for, and invited to arrest the bailiff 
 who 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 offered to them ; notwithstanding which the constable pro- 
 ceeded to take them into custody upon a charge of murder, and at first 
 offered to take care also of their prisoner ; but their prisoner was soon 
 rescued from them by the surrounding mob. The next morning, the 
 woman having recovered, the bailifis were released by the constable. 
 Upon these facts. Heath, J., was of opinion that the constable and his 
 assistants were guilty of assault and rescue (I). 
 
 By the Sheriffs Act, 1887 {m), 'if a sheriff finds any resistance on the 
 execution of a writ ' (including any legal process, s. 38), ' he shall take 
 with him the power of the county (n), and shall go in proper person to do 
 execution, and may arrest the resisters and commit them to prison, and 
 every such resister shall be guilty of a misdemeanor.' 
 
 if) See Mather, Sheriff Law, 184. Be (m) 50 & 51 Vict. c. 55, s. 8 (2), which 
 
 Gent, 40 Ch. D. 190. re-enacts 13 Edw. I. c. 39, Stat. West. 2. 
 
 (g) See 24 & 25 Vict. c. 100, s. 36. Ante, This power is index^endent of the powers of 
 
 l^. 407. the sheriff and under-sheriffs to disperse 
 
 (h) Ante, Bk. iv. c. iii. pp. 374 et seq. rioters. Ante, Bk. vi. c. i. p. 431. 
 
 (i) 2 Chit. Cr. L. 145, note (a). (n) Posse comitatus. See 2 Co. Inst. 194. 
 
 {j) R. V. Osmer, 5 East, 304. Dalton, c. 195. Howden v. Standish, 6 
 
 (k) 1 East, P. C. 304. C. B. 504. Burdett v. Colman, 14 East, 188. 
 
 [l) Anon. [1793], 1 East, P. C. 305. As to calhng in the mihtary, see ante, p. 431.
 
 CHAP. III.] Of Rescue of Property Lawfully Seized. 551 
 
 Where the obstruction of process by the rescue of a party arrested 
 is accompanied by violence and assault upon the officer, the offence is 
 indictable ; and rescuing, or attempting to rescue a party arrested on a 
 criminal charge is usually punished upon indictment (o). The offence of 
 rescuing a person arrested on mesne process, or in execution after 
 judgment, subjects the offender to an action in which damages are 
 recoverable {'p). And the Courts have often granted an attachment 
 against such wrongdoers, it being the highest violence and contempt 
 that can be offered to the process of the Court {q). 
 
 Sect. II. — Rescue of Property Lawfully Seized. 
 A. Property Distrained. 
 
 Distress for Rent. — Rescue of a distress for rent consists in retaking 
 from the distrainor goods legally (r) distrained and in the possession of 
 the distrainor by her bailiffs before they have been placed in the custody 
 of the law by being lawfully impounded (s). It is a misdemeanor at 
 common law (s), if the retaking is forcible and amounts to a breach of the 
 public peace {t) ; but a mere trespass without circumstances of violence 
 is not indictable (w). 
 
 A lessee who resists with force a distress for rent or forestalls or 
 rescues the distress is guilty of forcible detainer {v). 
 
 Distress of Animals damage feasant. — Where a hay ward had distrained 
 a horse damage feasant on a private enclosed piece of pasture, and it was 
 rescued from him on the way to the pound, and before it was impounded ; 
 it was held that this was not indictable, for till the horse got to the pound 
 the hay ward was merely acting as the servant of the owner of the land (w). 
 If the hayward (who was a manorial officer) had distrained the animal 
 while straying on a common or in a lane, the animal would have been 
 in the custody of the law from the moment of seizure and the rescue 
 indictable (x). 
 
 B. Property Jmpounded. 
 
 Pound-breach consists in the wrongful removal, whether with or 
 without force, of cattle or other personal property from a place in which 
 
 (o) Post, p. 567. bailiff goods lawfully seized under a distress 
 
 {p) Bac. Abr. tit. ' Rescue ' (C). Cora. for rent, was indictable. An illegal distress 
 
 Dig. tit. ' Rcscous ' (D). may be resisted. See R. v. Pigott [18511. 
 
 {q) Bac. Abr. ibid. Com. Dig. tit. ' Res- Ir. C. L. R. 471, 478, Perrin, B. 
 
 ecus' (D). In order to ground an attach- (s) 1 Co. Inst. 47. See Cro. Circ. Comp. 
 
 ment for a rescue, it seems there must be a (10th ed.) 198 ; 2 Starkie, Cr. PI. (2nd ed.) 
 
 return of it by the sheriff ; at least, if it 044 ; 2 Chit. Cr. L. 201 — for precedents of 
 
 was on an arrest of mesne process. Bac. indictments. Cf. 1 Bishop, Amer. Cr. L. 
 
 Abr. ibid. 2 Hawk. c. 22, s. 34. Anon. s. 467 : 2 Bishop, Amer. Cr. L. ."?. 111. The 
 
 Mod. 141. And see, as to the return of usual remedy is by action of trespass at 
 
 the rescue by the sheriff. Com. Dig. tit. common law (Rich v. WooUcy, 7 Bing. 
 
 'Rcscous' (D) 4, (D) 5. Bac. Abr. tit. 651) or under 2 Will. & Mary, c. 5, yost, 
 
 ' Rescue ' (E). R. v. Belt, 2 Salk. 586. R. p. 552. 
 
 r. Elkins, 4 Burr. 2129. Anon. 2 Salk. 580. (/) ^«'e, p. 441. Anon. 3 Salk. 187. 
 
 R. V. Minify, 1 Str. 642. R. v. Ely, 1 Ld. (u) Ante, p. 10. 
 
 Raym. 35." Anon. 2 Salk. 586. 1 Ld. [v) Ante, pp. 441 et scq. 
 
 Raym. 589. [w) R. v. Bradshaw [1835], 7 C. & P. 233, 
 
 (r) R. r. Nicholson, 65 J. P. 298, London Coleridge, J. Cf. Green r. Duckett, 11 
 
 County Sessions, where McConnell, K.C., Q.B.D. 275. 
 
 ruled that rescuing from the custody of a (x) R. v. Bradshaw, uhi swp.
 
 552 Of Offences against the Administration of Justice, [book vii. 
 
 they have been lawfully 'impounded,' and thereby placed in the custody 
 of the law (y), e.g., by placing cattle seized under a distress for rent 
 in an enclosed field (z). 
 
 It has been doubted whether a pound-breach (a) is an indictable 
 offence, if unaccompanied by a breach of the peace (h). But, on the other 
 hand, it had been submitted that, as pound-breach is an injury and insult 
 to public justice, it is indictable as such at common law (c), and the latter 
 view has Ijeen accepted in two recent cases at Quarter Sessions {d). 
 
 The Pound-breach Act, 1843 (6 & 7 Vict, c. 30), provides for the sum- 
 mary conviction of any person who releases cattle distrained on enclosed 
 land (e). 
 
 The civil remedy, however, given by 2 Will. & M. c. 5, s. 4, in most 
 cases of pound-breach, or rescue of goods distrained for rent, is the best 
 remedy where the offenders are responsible persons (/). That statute 
 enacts that, upon pound-breach, or rescous of goods distrained for rent, 
 the person grieved shall, in a special action on the case, recover treble 
 damages and costs against the offenders, or against the owner of the goods, 
 if they come to his use {g). 
 
 C. Goods Seized under Legal Process. 
 
 It is laid down in the books (Ii) that if rescues are made upon a distress, 
 &c.,for the King, an indictment lies against the rescuer {h). This rule 
 appears to be applicable to distress levied under the warrant of justices 
 of the peace. Such goods on lawful seizure are at once in custodia 
 legis (i). Thus, where a defendant was indicted for rescuing goods 
 distrained for a church-rate it seems not to have been doubted that such 
 a rescue was indictable (j). 
 
 On an indictment in Ireland for rescuing property distrained for poor- 
 rate, it was held unnecessary to prove the making of the rate, or that 
 there was any sum dvie at the time of making the distress ; and that 
 the warrant to collect, if in the form and with the requisites required 
 by the Poor Law Act, was sufficient pmna facie evidence of the authority 
 of the collector ; and that the section which required the sum to be collected 
 
 (y) 1 Co. Inst. 47. For precedents of in- see 12 & 13 Viet. c. 92, ss. 5, 6 ; 17 & 18 
 
 dictments, see 2 Cliit. Cr. L. 204, 206. Vict. c. 60. 
 Cro. Circ. Comp. (10th ed.) 199. (/) Kemp v. Christmas [1898], 79 L. T. 
 
 (2) R. V. Bntterfield [1893], 17 Cox, 598. 233 (C. A,). 
 As to private pounds, see Green v. Duckett, (g) As to the proceeditigs upon this 
 
 11 Q.B.D. 275. statute, see Bullen on Distress (2nd ed.), 
 
 (a) In former editions of this work the 171 e< seg'. 244; Bradby on Distress, &c.,282 
 Mirror of Justices, c. 2, s. 26, was cited as et seq. Bac. Abr. tit. ' Rescue ' (C). 8. 75 
 authority for saying that pound- breach is a of the Highway Act, 1835 (5 & 6 Will. IV. 
 greater offence than rescue. The reference c. 50), imposes a penalty on persons break- 
 is not traceable, and the book is of no ing the pound to rescue cattle, &c., found 
 authority. See Selden Society Publ. vol. 7, trespassing on highways. 
 
 by Maitland. (A) F. N. B. 102-9. Com. Dig. tit. 
 
 (b) 2 Chit. Cr. L. 204 (6), and authorities ' Rescous.' 
 
 there cited. (i) See R. v. Walshe [1876], Ir. Rep. 10 
 
 (<•) Ibid. C. L. 511, 515, Palles, C.B. 
 
 Id) R. V. Bntterfield, uhi sup. {j) R. v. Wilhams, 1 Den. 529. The 
 
 (e) See 14 & 15 Vict. e. 92, s. 19, as to point decided was that the warrant waa 
 
 these offences in Ireland As to liabihty unlawful. 
 
 for supplying impounded cattle with food. 
 
 I
 
 CHAP. III.] Of Rescue of Goods Lawfully Seized. 553 
 
 to be specified in the warrant was satisfied by a reference in the warrant 
 to the collector's book delivered at the time to the collector, and by such 
 reference the book became incorporated with the warrant {k). But 
 where on a similar indictment the warrant was in the same form as in the 
 preceding case, but the occupiers were described in the collector's book 
 as ' tenants of commons,' it was held that the collector had no authority 
 to distrain on the actual occupier, as the description in the book was 
 insufficient il). 
 
 On a similar indictment it appeared that in the rate-book and distress 
 warrant the occupier was described as J. W. Evidence was given that 
 J. W. was the occupier when the rate was struck, but had died before 
 issue of the warrant. It was held that the distress was lawful as the 
 collector, under 6 & 7 Vict. c. 92, s. 6, was entitled to distrain all goods 
 and chattels, to whomsoever they might belong, found on premises 
 in respect of which any person was rated as occupier {m). 
 
 In Ireland rescue without actual force from a special bailiff of a cow 
 taken by him under a civil bill decree was held not to be indictable at 
 common law {n). In another case a bailiff under a sheriff's warrant 
 addressed to him alone, and not to him and his assistants, seized goods in 
 execution, and left them in charge of keepers and went away. During 
 his absence the goods were rescued by the defendant from the keepers. 
 It was held that on these facts the defendant could not lawfully be 
 convicted of having by threats and violence compelled the bailiff to 
 abandon the seizure (o). 
 
 For a man to retake from a sheriff's officer his own goods seized under 
 a writ of execution against the goods of another though apparently not 
 larceny {p) might perhaps involve the offence of rescue {q). 
 
 (k) R. V. Broiian, G Cox. 381. The cow was seized on the lands in the oceupa- 
 
 warrant was headed, ' General warrant to tion of N. Walshe, but belonged to the 
 
 collect and levy poor-rate, Gorey Union,' prisoner, and could not lawfully be taken 
 
 and directed the collector ' to levy the in pursuance of the decree. Rescue of 
 
 several poor-rates, and arrears of poor- goods, &c., taken iinder a civil bill decree 
 
 rates, in the annexed book set forth, from is a misdemeanor under the Civil Bill Courts 
 
 the several persons therein rated, or other (Ireland) Act, 1864(27 & 28 Vict. c. 99),s. 20, 
 
 persons liable to pay the said rates and (o) R. v. Noonan, Ir. Rep. 10 C. L. 505 
 
 arrears of rates,' and was signed by the The judges were not unanimous. The in- 
 
 chairman of the guardians, two guardians, dictment was apparently framed on 27 & 28 
 
 and the clerk of the union at a meeting of Vict. c. 99, s. 26. Palles, C.B., raised the 
 
 the board. question whether, on an indictment differ- 
 
 (/) R. V. Boyle, 7 Cox, 428 ; 6 Ir. C. L. R. ently framed, the evidence might have 
 
 598. warranted a conviction (p. 508). 
 
 (to) R. v. Westropp [1851], 2 Ir. C. L. R. (?>) R. v. Knight, 73 J.R 15. 
 
 217. \q) But sec Earl of Bristol r. AVilsmore, 
 
 (n) R. V. Walshe, Ir. Rep. 10 C. L. 511. 1 B. & C. 574. 
 The decree was against N. Walshe, and the
 
 ( 554(1 ) 
 
 CANADIAN NOTES. 
 Sec. 1. — Of Obstructing Process. 
 
 Resisting or Obstruct iiig Public Officer. — Code sec. 168. 
 
 For Definition of Public Officer. — See Code sec. 2(29). 
 
 Resisting or Obstructing Peace Officer. — Code sec. 169. 
 
 For Definition of Peace Officer. — See Code sec. 2 (26). 
 
 Summary Trial of Offence. — Code sec. 773. 
 
 Where a bystander states to other bystanders in the hearing of 
 a police officer making an arrest for drunkenness, that the person 
 being arrested is not drunk, such does not constitute the offence of 
 obstructing a peace officer, if the statement is made bond fide, and in 
 the belief of its truth. If, in an unwarranted attempt of the police 
 to arrest the bystander, the latter strikes a policeman, he is not guilty 
 of an assault upon the peace officer in the execution of his duty, for 
 the policeman had no duty to arrest him. The King v. Cook, 11 Can. 
 Cr. Cas. 32. 
 
 Where the process of an inferior Court is void by reason of its 
 containing a direction to ,a peace officer to seize certain goods at a 
 place outside of the territorial jurisdiction of the Court, such process 
 is insufficient upon which to base ,a conviction for resisting the officer 
 in its execution. R. v. Finlay (1901), 4 Can. Cr. Cas. 539 (Man.). 
 
 Where a bailiff obtained possession of goods under a writ of re- 
 plevin, but at the request of the party in whose possession they were 
 seized they were given by the bailiff into the possession of a third 
 party, the latter giving the bailiff' an undertaking or agreement to 
 deliver him the goods on demand, it was held that in attempting to 
 retake the goods in the possession of the third party the bailiff was 
 not acting in the execution of any "process," but merely upon the 
 undertaking. R. v. Carley, 18 C.L.T. 26. 
 
 The re-taking of possession by the vendor under a contract for the 
 conditional sale of chattels is not within the term "lawful distress or 
 seizure" as here used, and an obstruction of the vendor's bailiff in 
 regaining possession is not an offence under this section. R. v. Shand 
 (1904), 8 Can. Cr. Cas. 45, 7 O.L.R. 190. 
 
 Punishment on Summary Conviction. — Code sec. 781. 
 
 As the penalty under Code sec. 169 is imprisonment or fine, and 
 under Code sec. 781 may be both imprisonment and fine, the question
 
 5546 Ohstructing Process. [book vii. 
 
 has arisen whether a magistrate with power to do alone such acts as are 
 usually required to be done by two or more justices must not be 
 governed by the provisions of Part XVI, to the exclusion of power 
 to act under Code sec. 169. 
 
 In R. V. Crossen (1899), 3 Can. Cr. Cas. 153 (Man.), it was held 
 that the parties accused of resisting a peace officer in the execution 
 of his duty could not be tried summarily by two justices except after 
 compliance with Code sec. 778, notwithstanding Code sec. 169, and 
 this ruling was followed in R. v. Carmichael (1902), 7 Can. Cr. Cas. 
 167 (N.S.). 
 
 In R. V. Nelson (1901), 4 Can. Cr. Cas. 461 (B.C.), it was held 
 by Mr. Justice Drake that the accused can be tried summarily by the 
 magistrate under the summary convictions clauses of the Code, or he 
 can be tried before a magistrate as for an indictable offence. 
 
 In R. V. Jack (No. 2) (1902), 5 Can. Cr. Cas. 304, Mr. Justice 
 Walkem, of the Supreme Court of British Columbia held that the 
 offence of obstructing a peace officer in the performance of his duty, 
 where an .assault upon the officer is not also charged, may be sum- 
 marily tried either by two justices of the peace, or a police magistrate 
 under the summary convictions part of the Code by virtue of sec. 
 169 ; and that the latter section is not controlled by the provisions 
 of sees. 773 and 781 as to the summary trial of the like offence before 
 a magistrate with the consent of the accused. 
 
 In the opinion of Walkem, J., the punishment on summary con- 
 viction is limited to that specified in sec. 169. Sec. 781 providing a 
 different punishment on a trial before a magistrate with the consent 
 of the accused would have no application where the procedure under 
 the summary convictions clauses was followed. 
 
 Semble, if the charge were for an assault on the officer in the per- 
 formance of his duty, sees. 773 and 781 would then apply and not 
 sec. 169. 
 
 In the Province of British Columbia the magistrate has absolute 
 jurisdiction to proceed under the summary trials' part (XV.) by sec. 
 784(3) without the consent of the .accused, and to award both fine 
 and imprisonment under sec. 776. 
 
 It is necessary for the prosecution to prove that rent was due 
 and in arrear before a conviction can be made under this section for 
 the offence of wilfully obstructing a lawful distress. On such a 
 charge evidence is admissible for the defence in proof that no rent 
 was due. R. v. Harron (1903), 7 Can. Cr. Cas. 543, 6 O.L.R. 668.
 
 ( 555 ) 
 
 CHAPTER THE FOURTH. 
 
 OF ESCAPES. 
 
 A. General Rule, 
 
 An escape is where one who is arrested gains his liberty before he is 
 delivered by due course of law {a). It is distinct from flight from justice 
 before arrest (6), 
 
 The term ' escape ' is usually applied where the liberation of the prisoner 
 is effected either by himself or others, without force. Where it is effected 
 by the prisoner himself with force, it is called 'prison-hreaking ; and where 
 it is effected by others, with force, it is commonly called a rescue (c). 
 
 Escapes fall into three classes — escape by the prisoner, escape suffered 
 by an officer of the law, and escape suffered by a private person who has 
 the prisoner in custody. But these distinctions, while recognised as to 
 common law offences, cannot be applied with exactness to the statutes 
 regulating offences of these classes. 
 
 B. Escapes by the Party. 
 
 As all persons are bound to submit themselves to the judgment of the 
 law, those who, when lawfully arrested on criminal process, free them- 
 selves from custody before they are put in a prison or other legal place of 
 detention, are guilty of a misdemeanor, punishable by fine and imprison- 
 ment (d). It is also criminal in a prisoner to escape from lawful confine- 
 ment on a criminal charge though no force or artifice be used on his part 
 to effect such purpose. Thus, a prisoner is guilty of a misdemeanor if he 
 goes out of his prison by licence of the keeper (e), without any obstruction, 
 the doors being open by the consent or negligence of the gaoler, or if he 
 escapes in any other manner, without using any kind of force or 
 violence, or if after his prison has been broken by others, without his 
 procurement or consent, he escapes through the breach so made(/'). 
 
 The punishment for escape by the party is fine and (or) imprison- 
 ment {g). The common law as to escape has been usually regarded as 
 
 (a) Termes de la Ley. (e) Att.-Gen. v. Hobert, Cro. Car. 210 ; 
 
 (b) Provision is made for the arrest of 79 E. R. 784. 
 
 persons charged with indictable offences, (/) 1 Hale, 611. 2 Co. Inst. 589. 590. 
 
 who fly from justice out of the country in Sum. 108. Staundf. 30, 31. 2 Hawk. 
 
 which the offence was committed. See 11 e. 18, ss. 9, 10. 31 Edw. III. stat. 1, c. 3, 
 
 & 12 Vict. c. 42, ss. 12, 13, 14, 16 ; Extra- post, p. 501. 
 
 dition Acts, 1870-1906; and Fugitive (j/) 14 & 15 Vict. c. 100, s. 29, authorises 
 
 Offenders Act, 1881. the imposition of hard labour for ' escape,' 
 
 (c) 1 Hale, 596. 2 Hawk. cc. 17-21. not saying whether escape by the party ia 
 
 (d) 2 Hawk. c. 17, s. 5. 4 Bl. Com. 129. meant, or escape suffered by custodians.
 
 556 Of Offences against the Administration of Justice, [book vii. 
 
 applying only to persons in custody on a criminal charge, but in one case 
 it has been held as misdemeanor at common law for a prisoner to escape 
 who was in gaol under the order of a bankruptcy court (h). 
 
 C. Escapes suffered hy Officers of the Law. 
 
 An escape of this kmd must be from lawful custody. 
 
 There must have been an actual arrest ; and if an officer, having a 
 warrant to arrest a man, sees him shut up in a house and challenges 
 him as his prisoner, but never actually has him in custody, and the party 
 gets away from the house, the officer cannot be charged with an escape {i). 
 
 The custody must be lawful ; for, if a man is arrested for a supposed 
 crime, when no such crime was committed, and the party is neither 
 indicted nor charged, or for such a slight suspicion of an actual crime 
 and by such an irregular process as will not justify arrest or detention, the 
 officer is not guilty of an escape by suffering the prisoner to go at large {j). 
 But if a warrant of commitment plamly and expressly charges a man 
 with treason or felony, though it be not strictly formal, the custodian 
 suffering an escape is punishable ; and where commitments are good in 
 substance, the custodian is as much bound to observe them as if they 
 were made ever so exactly {k). Whenever an imprisonment is so far 
 irregular that it will be no offence in the prisoner to break from it by force, 
 it can be no offence in the officer to suffer him to escape (/), 
 
 It is generally considered that the imprisonment must be for some 
 criminal matter. The escape of one committed for petty larceny {m) 
 was criminal ; and on general principles of law to suffer the escape 
 of a person committed for any other crime whatsoever would also be 
 criminal {n). It has been held criminal to assist the escape of a man 
 arrested under order of a bankruptcy court ; and this decision would 
 seem to depend for its justification on the conception that escape from 
 lawful custody m a civil matter is a criminal offence (o). 
 
 A sheriff who allows a prisoner on civil process to escape is liable to 
 attachment or to summary punishment under the Sheriffs Act, 1887 {f). 
 The imprisonment must also be contiiiuing at the time of the escape ; 
 and its continuance must be grounded on that satisfaction which public 
 justice demands for the crime committed. 
 
 Voluntary Escape. — According to the older authorities whenever 
 
 (A) R. V. AUan, C. & M. 295, Commis- (o) R. v. Allan, C. & M. 295. 
 
 sioner Rogers, after consulting Erskine and (p) 50 & 51 Vict. c. 55, s. 29. As to 
 
 Wightman, JJ. See 2 Hawk. c. 6 • 2 Co. escape of civil prisoners from local prisons, 
 
 Inst. 589, 590. see j)ost, p. 571. It is said not to have been 
 
 (i) 2 Hawk. c. 19, s. 1. criminal to let a prisoner go who had been 
 
 (j) Ibid. s. 24. acquitted and detained untd he paid his 
 
 (k) Ibid. s. 24. A commitment to a fees. 2 Hawk. c. 19, s. 4. This matter, 
 
 prison, and not to a person, was held good discussed in the last edition (vol. 1, p. 891, 
 
 in R. V. Fell, 1 Ld. Raym. 424. and note), is no longer material, as no fees 
 
 (I) Id. ibid. s. 2. And see post, pp. 563, are now payable by prisoners to gaolers or 
 
 573. officers of the Court : and penalties are 
 
 (m) The distinction between grand and imposed for exacting them or detaining 
 
 petit larceny was abolished in 1827 by 78 prisoners for non-payment. 55 Geo. III. 
 
 Geo. IV. c. 29, s. 2, re-enacted in 1861 as c. 50, ss. 4, 5, 9, 13 ; 8 & 9 Vict. c. 114. 
 
 24 & 25 Vict. c. 96, s. 2. And see Mee v. Cruikshank, 20 Cox, 210. 
 
 (?i) 2 Hawk. c. 19, s. 3. 1 Hale, 592.
 
 CHAP. IV.] Of Escapes suffered by Officers of the Law. 557 
 
 an officer, having the custody of a prisoner charged with, and guilty of, 
 a capital offence, knowingly gives him his liberty with an intent to save 
 him either from trial or execution, such officer is guilty of a voluntary 
 escape, and liable to the same punishment as the prisoner whom he has 
 allowed to escape {q). Hawkins says that Hale was of opinion (r) that 
 in some cases an officer might be guilty of a voluntary escape who had 
 no intention to save the prisoner, but meant only to give him a liberty 
 which, by law, he had no colour or right to give {s) ; but dissents from 
 Hale's opinion, on the ground that it is not sufficiently supported by 
 authorities, and does not seem to accord with the purview of 5 Edw, III. 
 c. 8 (t). He considers that a person who has power to bail is guilty 
 only of negligent escape, by bailing one who is not bailable ; and 
 that in some cases an officer 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 woidd warrant goods to be his own which he is suspected to have 
 stolen), seems to have been only adjudged guilty of a negligent escape (w). 
 And suggests that if, in these cases, the officer were only guilty of a 
 negligent escape, in suffering the prisoner to go out of the limits of the 
 prison, without security for his return, he could not have been guilty 
 in a higher degree if he had taken bail for his return ; and that it is there- 
 fore reasonable to mfer that it cannot be a general rule that an officer 
 is guilty of a voluntary escape by bailing his prisoner, whom he has no 
 power to bail, but that the judgment of all offences of this kind must 
 depend upon the circumstances of the case ; such as the heinousness 
 of the crime with which the prisoner is charged, the notoriety of his guilt, 
 the improbability of his returning to render himself to justice, the inten- 
 tion of the officer, and the motives on which he acted (v). 
 
 Under the present law the question of granting bail is for the High 
 Court or for justices of the peace and not for governors of prisons, and all 
 felonies and misdemeanors are bailable. The police have certain powers 
 of releasing on bail, but not in the case of indictable offences. So that the 
 opinions of Hale and Hawkins are now only of abstract interest. 
 
 At common law a gaoler was bound to keep persons entrusted to him 
 until delivered under order of a Court or otherwise in due course of law, 
 and could not transfer them to another gaol without judicial directions. 
 
 By the Prison Act, 1865 (28 & 29 Vict. 126), ss. 63, 64, and 65, prisoners 
 may under certain circumstances be removed from one prison to another 
 and into different jurisdictions, without the gaoler incurring any liability 
 for escape {w). 
 
 Negligent Escape. — A negligent escape is where the party arrested 
 
 (q) Staundf. 33. 2 Hawk. c. 19, s. 10. was allowed out by licence of the gaoler, on 
 
 4 Bl. Com. 129. the ground of sickness in the prison. Haw- 
 
 (r) Sum. 113. 1 Hale, 596, 597. kins says that, generally, the old cases on 
 
 (s) e.g., if a gaoler bailed a prisoner who this subject are so very briefly reported 
 
 was not bailable. that it is very difficult to make an exact 
 
 (t) Relating to improper bailing of per- state of the matter from them, 
 
 sons by marshals of the King's Bench. (v) 2 Hawk. c. 19, s. 10. 
 
 Repealed in 1887 (S. L. R.). (w) See also ss. 24-28 of the Prison Act, 
 
 («) See Att.-Gen. v. Hobert, Cro. Car. 1877 (40 & 41 Vict. c. 21), and s. II of the 
 
 210 ; 79 E. R. 784. The prisoner was in Prison Act, 1898 (61 & 62 Vict. c. 41). 
 the Gatehouse Prison for misdemeanor, and
 
 558 Of Offences against the Administration of Justice, [book vii, 
 
 or imprisoned escapes against the wDl of him that arrests or imprisons 
 him, and is not freshly pursued and taken again before he has been lost 
 sight of {x). Where a party so escapes the law "will presume negligence 
 in the officer. Thus, if a person in custody on a charge of larceny, 
 suddenly, and without the assent of the constable, kills, hangs, or drowns 
 himself, this is considered as a negligent escape in the constable (y). 
 Hale says that if a prisoner charged with felony breaks a gaol, this seems 
 to be a negligent escape, on the ground that the gaol should have been 
 more secure or the officers more vigilant (z). 
 
 Undoubtedly an escape happening from defects in these particulars 
 would come within the principle of guilty negligence in those responsible 
 in the proper custody of the criminal ; but it is submitted that a person 
 charged with a negligent escape under such circumstances would be 
 entitled to shew in his defence that all due vigilance was used, and that 
 the gaol was so constructed as to have been considered by persons of 
 competent judgment a place of perfect security {a). 
 
 If a justice of peace bails a person not bailable by law, it excuses the 
 gaoler, and is not felony in the justice, but is said to render him liable 
 to fine as for a negligent escape (6). Whoever de facto occupies the office 
 of custodian of a prisoner is liable to answer for a negligent escape (c). 
 But it seems that an indictment for a negligent escape will only lie 
 against those officers upon whom the law casts the obligation of safe 
 custody. Thus, on an indictment against one of the yeoman warders 
 of the Tower and the gentleman gaoler, for permitting the escape of 
 P. who had been committed for high treason, it appeared that the 
 constable of the Tower had committed P. to the special care of the yeo- 
 man warder ; but the Court held that the defendants were not such 
 officers as the law took notice of, and therefore could not be guUty of a 
 negligent escape (d). But a sheriff is as much liable to answer for an 
 escape suffered by his bailiff as if he had actually suffered it himself ; 
 and the Court may charge either sheriff or bailiff for such an escape (e). 
 
 {x) Dalt. c. 159. Bum's Just. tit. (a) Neglect to keep gaols in a proper 
 ' Escape,' IV. state of repair- seems to have been treated 
 (y) Dalt. c. 159. as indictable. See the precedents of in- 
 (2) 1 Hist. P. C. 600, where it is said that dictments for this offence, 4 Wentw. 363, 
 ' therefore it is lawful for the gaoler to Cro. Circ. Comp. 189. Cro. Circ. Ass. 398 ; 
 hamper them with irons, to prevent their 3 Chit. Cr. L. 668, 669. The duty of main- 
 escape.' But see the note (a) ibid., where taining ' prisons ' in proper condition now 
 it is said that this liberty can only be in- devolves on the Prison Commissioners and 
 tended where the officer has just reason to their staff. The obhgation as to the main- 
 fear an escape, as where the prisoner is un- tenance of lock-ups and cells devolves on 
 ruly, or makes any attempt for that pur- the local police authority, 
 pose ; but that otherwise, notwithstanding (6) At common law, according to Y. B 
 the common practice of gaolers, it seems 25 Edw. III. 39 (in the last edition of the 
 altogether unwarrantable, and contrary to year books mispaged 25 Edw. III. 82 a). 
 the mildness and humanity of the laws of He was also liable to be fined by justices of 
 England, by which gaolers are forbidden to gaol delivery, by 1 & 2 Ph. & M. c. 13 
 put then- prisoners to any pain or torment. (repealed 1826, 7 Geo. IV. c. 64, 6. 32). 
 3 Co. Inst. 34, 35. Custodes gaolarum See 1 Hale, 596, and as to escapes by ad- 
 pcEnam sihi commissis Hon atigeant, nee eos mitting to bail or to improper liberty, ante 
 torqiieant vel redimant, sed omni scevitia p. 557. 
 remota pietateque adhibita judicia debite (c) 2 Hawk. c. 19, s. 28. 
 exequantur. Flet. Lib. 1, cap. 26. Coke in (d) R. v. Hill, Old Bailey, Jan., 1694. 
 his commentary on 13 Edw. I.(Stat.Westm. Burn's Just. tit. ' Escape,' III. R. v. Rich, 
 2),c. 11, is express, that by the common law Old Bailey, Jan., 1694, MS. Bayley, J. 
 it might not be done. 2 Co. Inst. 381. (e) 2 Hawk. c. 19, s. 29, and R. v. Fell,
 
 CHAP. IV.] Of Escafes suffered by Officers of the Law. 559 
 
 The difference between voluntary and negligent escape is important 
 in considering the effect of the retaking of a prisoner after he had been 
 suffered to escape. 
 
 When an officer has voluntarily suffered a prisoner to escape, it is said 
 that he can no more justify retaking him than if he had never had him 
 in custody ; because, by his own free consent, he has admitted that he has 
 nothing to do with him ; but if the prisoner returns and puts himself 
 again under the custody of the officer, it seems that the officer may 
 lawfully detain liim, and take him before a justice to be dealt with 
 according to law (/'). 
 
 An officer who makes fresh pursuit after a prisoner, who has escaped 
 through his negligence, may retake him at any time afterwards, whether 
 he finds him in the same or a different county : and it would seem that 
 an officer who has negligently suffered a prisoner to escape, may retake 
 him, wherever he finds him, even without fresh pursuit. For since the 
 liberty gained by the prisoner is wholly owing to his own wrongful 
 act, there seems no reason why he should have any manner of advantage 
 from it (g). If the officer pursues a prisoner, who flies from him, so 
 closely as to retake him without losing sight of him, this is not in law an 
 escape ; but if the officer once loses sight of the prisoner, it seems that be 
 will be guilty of a negligent escape, even though he retakes him imme- 
 diately afterwards (h). And where he has been fined for the escape he 
 does not purge the off ence or avoid the fine by retaking the prisoner (i). 
 Nor can he excuse himself by killing a prisoner in the pursuit (;'), 
 though he could not possibly retake him {k). 
 
 The offence of suffering an escape is an indictable misdemeanor, but 
 maybe proceeded against by attachment of criminal information (1). 
 
 Where persons present in a Court of record are committed to prison 
 by such Court, the keeper of the prison of the Court is bound to have 
 them already to produce when called for, and if he fails to produce them, 
 may be adjudged guilty of an escape, without further inquiry ; unless 
 he has some reasonable excuse ; as that the prison was set on fire, or 
 broken open by enemies, &c., for he is precluded by the record of the 
 commitment from denying that the prisoners were in his custody {m). 
 It has been said (n), that if a gaoler says nothing in excuse of such an 
 escape, it shall be adjudged voluntary : but it seems difficult to main- 
 tain that where it is not certain, whether an escape is negligent or volun- 
 tary, it ought to be adjudged a crime of so high a nature, without a 
 previous trial (o). With respect to prisoners not committed by a Court of 
 
 1 Ld. Kaym. 424. See the Sheriffs Act. 12. 2 Hawk. c. 19, ss. G, 13. 
 
 1887 (50 & 51 Vict. c. 55), s. 29. (I) In R. v. Gaoler of Shrewsbury, 1 Str. 
 
 (f) 2 Hawk. c. 19, s. 12; c. 13, s. 9. 532, the Court refused to grant an attach- 
 
 Dalt. c. 169. Burn's Just. tit. ' Escape.' ment against a gaoler for a voluntary 
 
 ((j) 2 Hawk. c. 19, s. 12. escape of one in execution for obstructing 
 
 (h) Staundf. 33. 1 Hale, 602. 2 Hawk. an excise otiicer in the execution of his 
 
 c. 19, ss. 6, 13. office, but ordered him to shew cause why 
 
 (i) 2 Hawk. c. 19, ss. 12, 13. there should not be an information. 
 
 (j) As to the custodian's right to wound (m) 2 Hawk. c. 19, s. 15. In such cases 
 
 or kUl an escaped prisoner in the attempt there is a remedy by attachment for not 
 
 to retake him, see R. v. Dodson, 2 Den. 35 producing the prisoner, 
 
 (felony) ; R. v. Forster, 1 Lew. 187 (mis- (n) Staundf. 34. 1 Hale, 599, 603. 
 
 demeanor). (o) 2 Hawk. c. 19, s. 15. 
 
 {k) Staundf. 33. 1 Hawk. c. 28, ss. 11,
 
 560 Of Offences against the Adtmnistration of Justice, [book vii. 
 
 record, but in the lawful custody of any person, by any other means 
 whatsoever, it seems to be agreed that the custodian is not punishable 
 for an escape, except on indictment (p). 
 
 According to the older authorities a person who had suffered another 
 to escape could not be arraigned for such escape as for felony, until 
 the principal had been attainted ; on the ground that he was only punish- 
 able as an accessory to the felony, and that the general rule was, that 
 no accessory ought to be tried until the principal had been attainted (q) ; 
 but that he might be indicted and tried for a misprision before any 
 attamder of the principal offender ; for, whether such offender were 
 guilty or innocent, it was a high contempt to suffer him to escape. 
 If, however, the commitment were for high treason, and the person 
 committed actually guilty of it, it was said that the escape was imme- 
 diately punishable as high treason also, whether the party' escaping 
 were ever convicted of such crime or not ; and the reason given was, 
 that there are no accessories in high treason (r). Under the present 
 law the rules as to the trial of accessories are different (s). But the 
 effect of the change on the offence of voluntary escape has not been 
 judicially determined. 
 
 Every indictment for negligent or voluntary escape should expressly 
 shew that the party was actually in the defendant's custody for some 
 crime, or upon some commitment upon suspicion of crime (t). Judgment 
 was arrested upon an indictment which stated that the prisoner was in 
 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 (u). But where 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 held, upon an indictment against the constable for dis- 
 charging her, that by an allegation of his being charged with her, ' so 
 being such loose,' &c., it was sufficiently averred that he was charged 
 with her ' as such loose,' &c. ; and it was also held unnecessary to aver 
 that the constable knew the woman to be a street- walker (v). And every 
 indictment should also shew that the prisoner went at large (w) ; and 
 also the time when the offence was committed for which the party was 
 
 (p) 2Hawk. c. 19, s. 16. It is laid down as Circ. Ass. 338, is an indictment as for a 
 
 a rule, that though where an escape is finable, misdemeanor against a gaoler, for wilfully 
 
 the presentment of it is traversable ; yet permitting a prisoner to escape who was 
 
 that where the offence is amerciable only, under sentence of imprisonment for the 
 
 there the presentment is of itself conclu- term of six months, after a conviction of 
 
 sive ; such amerciaments being reckoned grand larceny ; but it seems that it ought 
 
 amongst those minima de quihus non curat to have been laid as a felony. See 2 Stark. 
 
 hx (Staundf. c. 32, p. 36) ; and this dis- Cr. PL 600, note (6), referring to R. v. Bur- 
 
 tinction is said to be well warranted by the ridge, 3 P. Wms. 497 ; 24 E. R. 1154. 
 
 old books (2 Hawk. c. 19, s. 21) : and see (r) 2 Hawk. c. 19, s. 26. 
 
 post, p. 561. (s) Ante, p. 130. 
 
 (g) As to present rule, vide ante, p. 130. {t) Id. ibid. s. 14. 
 
 A person who has suffered a convicted felon (m) R. v. Fell, 1 Ld. Raym. 424 ; 2 Salk. 
 
 to escape is an accessory after the fact, R. v. 272. 
 
 Burridge,3P. Wms.439; 24E.R. 1133; and {v) R. v. Bootie, 2 Burr. 864. As to the 
 
 therefore a person who suffers or aids the sufficiency of such averments, see R. v. 
 
 escape of a felon may be tried for a substan- Boyall, 2 Burr. 832. 
 
 tive felony as an accessory after the fact; and [w) 2 Hawk. c. 19, s. 14. 
 see Holloway v. R., 17 Q. B. 317. In Cro.
 
 I 
 
 CHAP. IV.] Of Escapes suffered by Officers of the Law. 561 
 
 in custody ; that it may appear that it was prior to the escape {x). An 
 indictment for a voluntary escape should allege that the defendant 
 ' feloniously and voluntarily permitted the prisoner to go at large ' {y) ; 
 and should state the particular 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. (z). But it is questionable whether such certainty, as to the 
 nature of the crime, is 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 (a). 
 
 Jurisdiction. — By 3 Edw. I. {Stat. West, frim.), c. 3 (6), the proceedings 
 and trial for the offence of an escape were to be had before the justices 
 in eyre of assize ; but the statute did not affect the jurisdiction of the 
 Court of King's Bench (c). 31 Edw. III. stat. 1, c. 14, enacts, that 
 ' the escape of thieves and felons, and the chattels of felons, and of 
 fugitives, and also escapes of clerks convict out of their ordinaries' prison, 
 from thenceforth to be judged before any of the King's justices, shall be 
 levied from time to time, as they shall fall as well of the time past as of 
 the time to come' {d). The Act seems not to be limited to justices ' in 
 eyre,' and justices of gaol delivery may punish justices of peace for a 
 negligent escape, in admitting persons to bail who are not bailable (e). 
 
 Punishment. — It is considered that voluntary escape amounts to the 
 same kind of crime as the offence of which the party was guilty, and for 
 which he was in custody ; whether the person escaping were actually 
 committed to gaol, or under arrest only, and not committed ; and 
 whether he were ' attainted,' or only accused but not indicted, of such 
 crime (/). No one is liable to the higher degree of punishment for a 
 voluntary escape but the person actually permitting of it ; therefore, a 
 principal gaoler was held to be only finable for a voluntary escape suffered 
 by his deputy (g). 
 
 B. Negligent Escape. — Whenever a person is found guilty upon 
 indictment of a negligent escape of a criminal actually in his custody, 
 he is liable to a, fine {h). It is said that, by the common law, the penalty 
 
 (x) And also that it was subsequent to escape of a felon was within the benefit of 
 
 the last general pardon. 2 Hawk. c. 19, clergy, even if the felony of the principal 
 
 8. 14. On an indictment for an escape, a was not clergyable. 1 Hale, 599. A 
 
 pardon, if relied on as an excuse, must be gaoler guilty of voluntary escape was not 
 
 proved by the defendant. R. v. Fell, 1 Ld. bable to capital punishment unless the of- 
 
 Raym. 424. fence for which the party escaping was 
 
 (y) Felonice et Voluntarie A. B. ad committed was capital at the time when ho 
 
 largum ire permisit. escaped. 2 Hawk. c. 19, s. 25. 
 
 (z) 2 Hawk. c. 19, s. 14. (g) R. v. FeU, 1 Ld. Raym. 424 ; 2 Salk. 
 
 (a) Id. ibid. 272. 1 Hale, 597, 598. 
 
 (6) Repealed in 1863 (26 & 27 Vict. (/t) 2 Hawk. c. 19, s. 31, where the author 
 
 c. 125). says, ' It seems most properly to be called 
 
 (c) Staundf. c. 32, p. 35. Eo que le banke a fine. But this does not clearly appear 
 
 le roy est un eire, et phis haul que un eire, car from the old books ; for in some of them it 
 
 si le eire sea in un county, el le banke le roy seems to be taken as a fine, in others as an 
 
 veigne la, le eire cessera. amerciament ; and in others it is spoken of 
 
 {d) This enactment is not repealed. generally as the imposition of a certain sum, 
 
 (e) 2 Hawk. e. 19, s. 19. and without any mention of either fine or 
 
 (/) 2 Hawk. c. 19, s. 22. It does not amerciament.' There is probably a mis- 
 matter whether the person suffering a conception as to the nature of a fine in 
 voluntary escape was rightfully entitled to mcdi?cval times. See 2 Pollock & Mait- 
 keep the gaol if he assumed the custody of land, Hist. Eng. Law, 512. 
 the gaol in fact. Ibid. s. 23. Voluntary 
 
 VOL. I. 2 o
 
 562 Of Offences against the Administration of Justice, [book vii. 
 
 for suffering the negligent escajDe 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, as 
 of course, to be doubled ; but that the forfeiture was no greater for 
 suffering a prisoner to escape who had been committed on two several 
 accusations, than if he had been committed but on one {i). 
 
 In 14 & 15 Vict, c, 100, s. 29 (/), which allows a sentence of imprison- 
 ment with hard labour for escape, it is not stated whether it is meant to 
 apply to escape permitted by the gaoler or escape by the party. 
 
 The law with respect to escapes suffered by private persons is in 
 general the same as in relation to those suffered by officers. Wherever 
 any person has another lawfully in his custody, whether upon an arrest 
 made by himself or another, he is guilty of an escape if he suffers him to 
 go at large before he has delivered him over to some other who by law 
 ought to have the custody of him. If a private person arrests another 
 on suspicion of felony, and delivers him into the custody of another 
 private person, who receives him and suffers him to go at large, it is said 
 that both of them are guilty of an escape ; the first, because he should 
 not have parted with him till he had delivered him into the hands of a 
 public officer ; the latter, because, having charged himself with the 
 custody of a prisoner, he ought, at his peril, to have taken care of him {k). 
 
 But where a private person, having made an arrest on suspicion of 
 felony, delivers over his prisoner to the projjer officer, as the sheriff or 
 his bailiff, or a constable, from whose custody the prisoner escapes, the 
 private person wiU not be chargeable (I). 
 
 A private person who voluntarily allows his lawful prisoner to escape 
 is punishable as an officer woidd be for the same offence (m) ; and for an 
 escape due to his negligence, he is punishable by fine and imprisonment 
 at the discretion of the Court (n). 
 
 (i) 2 Hawk. c. 19, s. 33. As to liability 595. Stauiidf. 34. Sum. 112, 114. The 
 to forfeiture of oifice, see s. 30. Hawkins proper course to be pursued by a private 
 states (Bk. ii. c. 19, s. 32, and more fuUy person, who has arrested a person on a 
 c, 37, s. 28) that a negligent escape may be charge of felony, is, as soon as he reasonably 
 pardoned before it happens ; but a volun- can, to hand him over to the jDohce or take 
 tary one cannot be so pardoned ; such par- him before a magistrate, to be dealt with 
 don would be by way of indemnity. As to according to law. See Reed ?'. Cow- 
 pleading a pardon by way of excuse to an meadow, 7 C. & P. 821, Parke, B. ; and 
 indictment, see R. v. Fell. 1 Ld. Raym. 424. Edwards v. Ferris, 7 C. & P. 542, Patte- 
 
 (j) Ante, p. 213. son, J. 
 
 (k) 2 Hawk. c. 20, ss. 1, 2. 1 Hale, 595. (m) Ante, p. 556. 
 
 Sum. 112. (n) 2 Hawk. c. 20, s. G. See 14 & 15 
 
 (I) 2 Hawk, c 20, ss. 3, 4. 1 Hale, 594, Vict. c. 100, s. 29, ante, p. 213.
 
 ( 562a ) 
 
 CANADIAN NOTES. 
 
 ESCAPES BY THE PARTY. 
 
 Being at Large. — Code sec. 185. 
 
 It may be proved as a defence that the prisoner is at large condi- 
 tionally under a license or ticket of leave or otherwise, and that the 
 conditions have been observed. R.S.C. (1906) ch. 150. The license 
 issued under the authority of that statute may be revoked by the 
 Governor-General either with or without cause assigned. R. v. John- 
 son, 4 Can. Cr. Cas. 178 (Que.). The revocation by the Crown without 
 cause assigned does not interrupt the running of the sentence, and the 
 latter terminates at the same time as if no license had been granted. 
 Ibid. 
 
 Without Lawful Excuse. — Upon a summary conviction of the 
 defendant and the passing of sentence of four months' imprisonment, 
 for breach of a provincial law. the magistrate of his own motion re- 
 quired the defendant to enter into a recognizance to appear when 
 called upon (a procedure not authorized in such cases) and upon doing 
 so the defendant was released. The defendant having been afterwards 
 imprisoned under a warrant issued two months after the date of sen- 
 tence, held that the term of imprisonment is to be counted from the 
 day of passing sentence and that the defendant was not liable as upon 
 an escape to make up the period for which he was so at liberty, as there 
 was no mens rea and the magistrate's action was a "lawful excuse" 
 quoad the defendant. R. v. Robinson (1907), 12 Can. Cr. Cas. 447, 
 per Riddell, J. 
 
 The time during which a person under sentence is improperly at 
 liberty through an erroneous order for bail, is not to be counted as part 
 of the term of imprisonment. R. v. Taylor (1906), 12 Can.,Cr. Cas. 
 245, per Stuart, J. 
 
 Escapes after Conviction or From Prison. — Code sec. 189. 
 
 Escape from Lawful Authority. — Code sec. 190. 
 
 Escape from Eeformatories. — R.S.C. (1906) ch. 148, sec. 22. 
 
 Escape from Industrial Refuge.— R.S.C. (1906) ch. 148, sec. 23. 
 
 Additional Term as Punishment. — R.S.C. (1906) ch. 148, sec 24. 
 
 Escape hy Failure to Perform Legal Duty. — Code sec. 193. 
 
 Escape Suffered hy Officer of the Law. 
 
 Permitting Escape of Prisoner under Sentence of Death or Impri- 
 sonment for Life, etc. — Code sec. 191.
 
 562& Rescues and Escapes. [book vii. 
 
 Permitting Escape of Prisoner under Sentence for Less than Life, 
 etc. — Code sec. 192. 
 
 A prisoner who is charged before justices with an indictable offence 
 and who is verbally remanded, after the examination of witnesses, until 
 the following day in order to procure bail or, in default, be committed, 
 is not in the custody of the officer merely for the purpose of enabling 
 him to procure bail, but under the original warrant, and the officer is 
 liable to conviction if he negligently permits him to escape. R. v. 
 Shuttleworth, 22 U.C.Q.B. 372.
 
 ( 563 ) 
 
 CHAPTER THE FIFTH. 
 
 PRISON BREAKING. 
 
 Common Law. — Where a person who is lawfully in prison effects his 
 escape by force or against the gaoler's will (a), the offence is usually called 
 prison breaking ; and such breach of prison, or even the conspiring to 
 break it, is felony at common law, for whatever cause, criminal or civil, 
 the j)arty was lawfully imprisoned (6) ; 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 (c). At common law the offender 
 was liable to suffer death on conviction, but the severity of the common 
 law is mitigated by a statute of 1295 (23 Edw. I. (d), De frangentibus 
 frisonam), which enacts, ' That none, from henceforth, that breaketh 
 prison, shall have judgment of life or member for breaking of prison only ; 
 except the cause for which he was taken and imprisoned did recpiire such 
 judgment, if he had been convict thereupon, according to the law and 
 custom of the realm, albeit in times past it hath been used otherwise.' 
 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 a lesser charge, is punishable only 
 as a misdemeanor, i.e., by fine and imprisonment (e). 
 
 Any place whatsoever wherein a person, under a lawful arrest for a 
 supposed crime, is restrained of his liberty, whether in the stocks, or the 
 street, or in the common gaol, or the police cells, or the house of a constable 
 or private person, is a prison at common law (/) and within the meaning 
 of the above statute ; for ' imprisonment ' means restraint of liberty (g). 
 The statute extends as well to a prison in law as to a prison in deed (h). 
 
 A person taken upon a capias, awarded on an indictment against 
 him for a supposed treason or felony, is within the statute if he breaks 
 prison, whether such crime were or were not committed by him or by any 
 other person ; for there is an accusation against him on record, which 
 makes his commitment lawful, though he may be innocent and the 
 prosecution groundless. And if an innocent person be lawfully com- 
 mitted to prison on such a suspicion of felony (actually done by some 
 other) as will justify his imprisonment, though he be not indicted, he 
 is within the statute if he break the prison ; for he was legally in custody, 
 
 (a) Att.-Gen. v. Hobert, Cro. Car. 210 ; and translations as 1 Edw. II. stat. 2. 
 29 E. R. 784. (e) 4 Bl. Cora. 130. 
 
 (b) 4B1. Com. 129. 1 Hale, 607. Bract. (f) Att.-Gen. v. Hobert, Cro. Car. 210; 
 I. 3, c. 9. 2 Co. Inst. 588. 79 E. R. 784. 
 
 (c) 2 Hawk. c. 18, s. 1. {g) 2 Hawk. c. 18, s. 4. 
 
 (d) Described in the old printed copies (A) 2 Co. Inst. 589. 
 
 2o2
 
 564 Of Offences against the Administration of Justice, [book vii. 
 
 and ought to have submitted to it until he had been discharged by due 
 course of law (i). 
 
 But if no felony at all was committed, and the party had not been in- 
 dicted, no warrant or committal for such supposed crime would make him 
 guilty within the statute, by breaking the prison ; his imprisonment being 
 unjustifiable. And though a felony were committed, yet if there were no 
 just cause of suspicion either to arrest or commit the party, his breaking the 
 j)rison will not be felony if the warrant or order of committal is not in 
 such form as the law requires ; because the lawfulness of his imprison- 
 ment in such case depends wholly on the warrant, &c. ; but if the party 
 were taken up for such strong causes of suspicion as would justify his 
 arrest and commitment, it seems that it will be felony in him to break 
 the prison, though he happens to have been committed by an informal 
 warrant (/). 
 
 The crime for which the party must be imprisoned, in order to make 
 his breaking the prison felony within the meaning of the statute, must be 
 capital at the time of his breaking the prison {k). 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 limited by the statute only in respect of imprisonment for offences 
 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 (t). 
 
 An offender breaking prison, while it is uncertain whether his offence 
 will become capital, is highly punishable for his contempt, by fine and 
 imprisonment {m). 
 
 If the crime for which the party is arrested, and with which he is 
 charged in the commitment is not capital, and the offence is not in fact 
 greater than the commitment states, breaking the prison will not amount 
 to felony within the statute (w). And though the offence as expressed in 
 the commitment is capital, yet if, in the event, it is found not to be capital, 
 it is difficult to maintain that the breaking of the prison on a commitment 
 for it can be felony ; as the words of the statute are, ' except the cause 
 for which he was taken and imprisoned require such a judgment' {n). 
 On the other hand, if the offence which was the cause of the commitment 
 is in fact capital but is expressed in the commitment as one less severely 
 punishable, it is suggested that the breaking of the prison by the party 
 is felony within the statute (o). It was not material whether the party 
 who broke prison were under an accusation only, or actually attainted 
 of the crime charged against him ; for persons attainted, breaking prison, 
 were as much within the exception of the statute as any others {"p). 
 
 {i) 2 Hawk. c. 18, ss. 5, 6. 
 590. Sum. 109. 1 Hale, 610, 
 
 0') 2 Hawk. c. 18, ss. 7, 15 ; 
 et seq. 2 Co. Inst. 590, 591. 
 1 Hale, 610, 611. 
 
 {k) 2 Hawk. c. 19, s. 25. 
 
 {I) Ibid. c. 18, s. 13. 
 
 (m) Ibid. c. 18, s. 14. 
 
 {n) See the statute, ante, p. 
 
 2 Co. Inst. 
 611. 
 
 c. 16, s. 13 
 Sum. 109. 
 
 563. 
 
 (o) 2 Hawk. c. 18, s. 15. Hawkins, after 
 
 giving his reasons for these conclusions, 
 says that no express resolution of the points 
 appearing, and that as the authors who 
 have expounded the statute (see Co. Inst. 
 590, 591; Sum. 109, 110; 1 Hale, 609) 
 seem rather to incline to a different opinion, 
 he will leave these matters to the judgment 
 of the reader. 
 
 (p) Staundf. c. 32. 2 Hawk. c. 18, s. 16.
 
 CHAP, v.] Prison Brealdng. 565 
 
 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 is 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 accessories in high treason; and such assistance given to persons com- 
 mitted for felony will make him who gives it an accessory to the felony, 
 and by the same reasoning a principal in the case of high treason {q). 
 
 The breach of the prison within the meaning of the statute must be 
 actual, and not merely a constructive hreaking. Therefore, if the party 
 go out of a prison without obstruction, the prison doors being open 
 through the consent or negligence of the gaoler, or if he otherwise escape, 
 without using any kind of force or violence, he seems to be guilty of a mis- 
 demeanor only (r ) . But the breaking need not be intentional . Thus where a 
 prisoner made his escaj)e from a house of correction, by tying two ladders 
 together, and placing them against the wall of the yard, but in getting 
 over threw down some bricks which were placed loose at the top (so as 
 to give way upon being laid hold of), the judges were unanimously of 
 opinion that this was a prison breach {s). The breaking must be either 
 by the prisoner himself, or by others through his procurement, or at 
 least with his privity ; for if the prison is broken by others without his 
 procurement or consent, and he escapes through the breach so made, it 
 seems that he cannot be indicted for the breaking, but only for the 
 escape {t). And the breaking must not be from the necessity of an 
 inevitable accident happening, without the contrivance or fault of the 
 prisoner ; as if the prison should be set on fire by accident, and he should 
 break it open to save his life {u). It seems also that no breach of prison 
 will amount to felony, unless the prisoner actually escapes {v). 
 
 The offence of prison breach differs from those of escape or rescue in 
 that a party may be arraigned for j^rison breaking before he is convicted 
 of the crime for which he was imprisoned, on the ground that it is not 
 material whether he is guilty of such crime or not, and that he is punish- 
 able as a principal offender in respect of the breach of prison {iv). But 
 if the party has been indicted and acquitted of the felony for which he 
 was committed, he is not to be indicted at common law or under the old 
 statute afterwards for the breach of j^i'ison ; for though, while the 
 principal felony was untried, it was immaterial whether he were guilty 
 of it or not, or rather the breach of prison raised a presumption of the 
 guilt of the principal offence, yet, upon its being clear that he was not 
 
 (q) 2 Hawk. c. 18, s. 17. Bensted's case, does escape accordingly, this is felony, not 
 
 Cro. Car. 583 ; 79 E. R. 1101. Limerick's only in the stranger who broke the prison, 
 
 case, Kcl. (J.) 77. but also in the prisoner that escapes by 
 
 (r) 1 Hale, 611. 2 Co. Inst. 590. means of this breach, as he consents to the 
 
 (a) R. V. Haswell (1821). R. & R. 458, breach of the prison by taking advantage 
 
 Richardson, J., thought that if this had of it. 
 
 been an escape only, it would not have been (m) 1 Hale, 611. Sum. 108. 2 Co. Inst, 
 
 felony. ' 590. 
 
 (0 2 Hawk. c. 18, s. 10. In Pult. do (v) 2 Hawk. c. 18, s. 12. 
 
 Pac. 1476, pi. 2, it is said, that if a stranger (w) 2 Co. Inst. 592. 1 Hale, 611. 2 
 
 breaks the prison, in order to help a priso- Hawk. c. 18, s. 18, 
 ner committed for felony to escape, who
 
 566 Of Offences against the Administration of Justice, [book vii. 
 
 guilty of the felony, lie is in law as a person never committed for felony ; 
 and so his breach of prison is no felony {x). 
 
 An indictment for breach of prison, in order to bring the offender 
 within the statute, must specially set forth his case in such manner that 
 it may appear that he was lawfully in prison, and for such a crime as 
 requires judgment of life or member ; and it is not sufficient to say in 
 general ' that he feloniously broke prison ' {y) ; as there must be an 
 actual breaking to constitute the offence (2), It is necessary that such 
 breaking be stated in the indictment (a). 
 
 The offence of prison breaking and escape, by a party lawfully 
 committed for treason or felony, is a felony (6) ; but was clergyable even 
 when the felony for which the party was committed was not clergyable (c). 
 It is now punishable under 7 & 8 Geo. IV. c. 28, s. 8 {d). In this the 
 offence differed from a voluntary escape, which is punishable in the 
 same degree as the offence for which the party suffered to escape was in 
 custody (e). Where the prison breaking is by a party lawfully confined 
 upon charge of misdemeanor, it is punishable as a misdemeanor, by fine 
 and (or) imprisonment (/). 
 
 The prisoner was found guilty upon an indictment, which charged 
 that he had been convicted {g) of felony, and sentenced to death ; but 
 had received a pardon on condition {h) of being imprisoned with hard 
 labour in the house of correction for two years : that he was committed 
 to and confined in a house of correction ; and that before the expiration 
 of the two years, he did feloniously break the said house of correction, 
 and make his escape out of it, and go at large. This was held to be 
 punishable as a common-law felony by imprisonment not exceeding a 
 year (?'), to begin from the passing of the sentence {j). 
 
 As to escapes, &c., from convict prisons, see fost, p. 573. 
 
 (x) 1 Hale, 612, where it is also said that if 
 the party should be first indicted for the 
 breach of prison, and then be acquitted of 
 the principal felony, he may plead that 
 acquittal of the principal felony, in bar to 
 the indictment for the breach of prison. 
 In R. V. Waters, 12 Cox, 390, W. was given 
 into custody without a warrant on a charge 
 of felony. He was conveyed before a 
 magistrate, who remanded him in custody 
 without any evidence on oath. W. was 
 removed to a lock-up from which he 
 escaped. The charge of felony made 
 against him was dismissed by the magis- 
 trates. Martin, B., held that the dismissal 
 by the magistrates was not equivalent to 
 an acquittal by a jury, that the defendant 
 was legally in custody, although no evi- 
 dence was taken upon oath to justify his 
 remand, and that these facts were no de- 
 fence to the indictment for breaking prison. 
 
 (y) 2 Hawk. c. 18, s. 20. (:) Ante, p. 565. 
 
 (a) R. V. Burridge, 3 P. Wms. 483; 
 Staundf. 31 a. 2 Co. Inst. 589 et seq. 
 
 (b) Ante, p. 563. (c) 1 Hale, 612. 
 
 (d) Vide ante, p. 246. As to imprison- 
 ment, vide ante, p. 212. 
 
 (e) Ante, p. 556. 
 
 (/) 2 Hawk. c. 18, s. 21. As to escape 
 
 from imprisonment under order of a bank- 
 ruptcy court, see R. v. Allan, C. & M. 295. 
 
 (g) Certificates of the former conviction 
 were at one time not admissible in evidence. 
 R. V. Smith, East. T. 1788. MS. Bayley, J. 
 And neither the production of the calendar 
 of the sentences signed by the clerk of 
 assize, and by him delivered to the gover- 
 nor of the prison, nor the evidence of a 
 person who heard sentence passed, was 
 sufficient to prove that a prisoner is in 
 lawful custody under a sentence of im- 
 prisonment passed at the assizes ; the 
 record itself had to be produced ; or 
 other proof as provided by statute. 
 R. V. Bourdon, 2 C. & K. 366, Maule, 
 J. It would seem that the conviction 
 can now be proved under 34 & 35 Vict, 
 c. 112, s. 18, post, Bk. xiii. tit. ' Evidence.' 
 It is, of course, also necessary to prove that 
 the prisoner was in prison, and that the 
 sentence had not been served or reduced. 
 
 (h) Vide ante, p. 252. 
 
 (i) See 1 & 2 Geo. IV. c. 88, s. 1, post, p. 568. 
 
 (/) R. V. Haswell, R. & R. 458. The 
 Court also held that the prisoner might, if 
 it was thought right, be also whipped three 
 times in addition to the imprisonment. 
 Vide ante, p. 215,
 
 ( 566a ) 
 
 CANADIAN NOTES. 
 
 OF PRISON BREAKING. 
 
 Prison Breach. — Code sec. 187, 
 
 Attempts to Break Prison. — Code sec. 188. 
 
 The expression "prison" includes any penitentiary, common gaol, 
 public or reformatory prison, lock-up, guard room or other place in 
 which persons charged with the commission of offences are usually kept 
 or detained in custody. Sec. 2(30).
 
 (567) 
 
 CHAPTER THE SIXTH. 
 
 RESCUE AND AIDING ESCAPE FROM CUSTODY. 
 
 Rescue, or the offence of forcibly and knowingly freeing another from 
 arrest or imprisonment is, in most instances, of the same nature as 
 prison breaking (a). 
 
 Where a prison is such that the party himself would, by the common 
 law, be guilty of felony in breaking from it, a stranger would be guilty of 
 felony in rescuing him from it. But though, upon the jDrinciple that 
 wherever the arrest of a felon is lawful rescue of him is a felony, it is 
 not material whether a person arrested for felony, or suspicion of felony, 
 is in the custody of a private person or of an officer ; yet if he is in the 
 custody of a private person, it seems that the rescuer should be shewn to 
 have knowledge of the prisoner being under arrest for felony (6), Where 
 the imprisonment is so far groundless or irregular, or for such a cause, 
 or the breaking of it is occasioned by such a necessity, &c., that the party 
 himself breaking the prison is, either by the common law or by 23 Edw. I. 
 De frangentibus prisonam (c), saved from the liability to capital punish- 
 ment, a stranger who rescues him from such an imprisonment is, in like 
 manner, also excused (d). 
 
 A stranger who rescues a person committed for and guilty of high 
 treason, knowing him to be so committed, is guilty of high treason (e), 
 whether he knew that the party rescued were guilty of high treason 
 or not : and he would, in like manner, be guilty of felony by rescuing a 
 felon, though he knew not that the party was imprisoned for felony (/). 
 
 As the prisoner himself seems not to be guilty of felony by breaking 
 prison, unless he actually goes out of it (r/), the breaking of a prison by a 
 stranger, in order to free the prisoners who are in it, is said not to be 
 felony, unless some prisoner actually by that means gets out of prison (h). 
 
 A person cannot be tried for felonious rescue except on indictment. 
 The sheriff's return of rescue is not enough (t). 
 
 (a) Ante, p. o().3. says that this opinion is not proved by tho, 
 
 (6) 1 Hale, liO(>. authority of the case (Y. B. 1 Hen. VI. 5) 
 
 (c) Ante, p. 5(33. Sonietimes cited as on which it seems to be grounded. Ben- 
 1 Edw. II. stat. 2. sted's case is spoken of in R. v. Burridge, 
 
 (d) 2 Hawk. c. 21, ss. 1, 2. 2 Co. Inst. 3 P. Wms. 4()9, as having been cited and 
 589. Staundf. 30, 31. allowed to be law at an assembly of all the. 
 
 (e) 2 Hawk. c. 21, s. 7. Staundf. 11, 32. then judges of England, except the Chief 
 Sum. 109. 1 Hale, 237. As to breaking Justice of the Common Pleas, in Limerick's 
 prison, see ante, p. 5G3. case, Kcl. (J.) 77. 
 
 if) Bensted's case, Cro. Car. 583; 79 (y) Ante, p. 505. 
 
 E. R. 1101, where it is said that it was so (h) 2 Hawk. c. 18, s. 12 ; c. 21, s. 3. 
 
 resolved by ten of the judges. And see (;) 1 Hale, 60(j. 
 1. Hale, G06. But Hawkins (c. 21, s. 7)
 
 568 Of Offences against the Administration of Justice, [book vii. 
 
 It was considered that lie who rescued a person for felony could not 
 be arraigned for such offence as a felony until the principal offender 
 had been attainted {j). But it is said that he might be immediately 
 proceeded against for a misdemeanor (k). If the prisoner were acquitted 
 or convicted of a non-capital offence, the rescuer could not be indicted 
 for felony, but could be convicted of misdemeanor and subjected to fine 
 and imprisonment or either {I). 
 
 The indictment for a rescue, like that for an escape (m) or for breaking 
 prison (w), should specially set forth the nature and cause of the imprison- 
 ment, and the special circumstances of the fact in question (o). And 
 the word ' rescued ' {rescussit), or something equivalent to it, must be 
 used to shew that it was forcible and against the will of the custodian 
 of the prisoner (p). 
 
 Punishment. — The rescue of one in custody for felony,. or suspicion of 
 felony, is felony {q). At common law the rescue of a person under commit- 
 ment for burglarv (then a transportable offence) was punishable only as 
 a felony within clergy (r). By the Eescue Act, 1821 (1 & 2 Geo. IV. c. 88), 
 s, 1, 'if any person shall rescue, or aid and assist in rescuing, from the 
 lawful custody of any constable, officer, head-borough, or other person 
 whomsoever, any person charged with, or suspected of, or committed 
 for any felony, or on suspicion thereof, then if the person or persons so 
 offending shall be convicted of felony, and be entitled to the benefit of 
 clergy, and be liable to be imprisoned for any term not exceeding one 
 year (s), it shall be lawful for the Court, by or before whom any such 
 person or persons shall be convicted, to order and direct, in case it shall 
 think fit, that such person or persons, instead of being so fined and 
 imprisoned as aforesaid, shall be transported beyond the seas for seven {t) 
 years, or be imprisoned only, or be imprisoned and kept to hard labour 
 in the common gaol, house of correction, or penitentiary house, for any 
 term not less than one and not exceeding three years ' {u). 
 
 Where the party rescued is in custody for misdemeanor, the rescuer 
 will be punishable as for a misdemeanor ; for, as those who break prison 
 are guilty only of misdemeanor, punishable by fine and imprisonment, 
 in cases wherein they are saved from judgment of death by 23 Edw. \.De 
 frangentihus prisonam, those who rescue such prisoners in the hke cases 
 are punishable in the same manner (v). Where a prisoner was indicted 
 for a misdemeanor in aiding and assisting in the rescue of a person, 
 apprehended and in custody under the warrant of a justice of peace, 
 
 {j) See ante, p. 560, note (g). It is levied, &c., and that the defendant rescued 
 
 doubtful whether the old rule has not lapsed them, is not sufficient, 
 
 with the change of the law as to the trial of (p) R. v. Burridge, 3 P. Wms. 484. 
 
 accessories, ante, p. 130. The rule as to (</) Rescue was clergyable even when the 
 
 rescue of traitors was different, all being offence of the prisoner was not. 1 Hale, 
 
 accessories in treason. 607. 
 
 {k) 2 Hawk. c. 21, s. 8. . (r) R. v. Stanley, R. & R. 432. 
 
 (I) 1 Hale, 598, 599. (s) See R. v. Haswell, ante, p. 566. 
 
 (m) Ante, p. 555. (t) Now penal servitude for three to 
 
 (n) Ante, p. 567. seven years. Vide 54 & 55 Vict. c. 69, s. 1, 
 
 (o) 2 Hawk. c. 21, s. 5. In R. v. West- ante, pp. 211. 212. 
 
 bury, 8 Mod. 357, it was holden that an (u) See 54 & 55 Vict. c. 69, s. I, a7ite, 
 
 indictment for a rescue of goods levied pp. 211, 212. 9 & 10 Vict. c. 24, s. 1, 
 
 must set forth the fieri facias at large ; and which affected 1 & 2 Geo. IV. c. 88, s. 1, 
 
 that setting forth quod cum virtute brevis, was repealed in 1892 (S. L. R.). 
 
 (be, de fieri facias, and a warrant thereon be (v) 2 Hawk. c. 21, s. 6. 4 Bl. Com. 130.
 
 CHAP, vi.j Of Aiding an Escape. 569 
 
 granted upon a certificate of the clerk of the peace of the county, reciting 
 that a true bill for misdemeanor had been found against the party appre- 
 hended, and it was objected that the warrant was illegal, as justices of 
 peace had only authority to issue warrants upon oath made of the facts, 
 which authorised the issuing such warrants (tv), it was held that the 
 warrant was legal, and that the prisoner was guilty of a misdemeanor, 
 in assisting in the rescue of the person apprehended under it (x). 
 
 It was a misdemeanor at common law to aid a person to escape from 
 custody, who was confined under the remand of Commissioners for the 
 Relief of Insolvent Debtors, and not on any criminal charge (y). 
 
 The rescue of a prisoner committed by the judges of any of the 
 superior Courts is said to be 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 was given (z). 
 
 Aiding and assisting a prisoner to escape out of prison, 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 a felon in making 
 an actual escape, is felony (a). In a case which underwent elaborate 
 discussion, the Court of King's Bench held, that a person who assisted 
 the escape from prison of a prisoner who had been convicted of felony 
 within clergy, and, having been sentenced to be transported for seven 
 years, was in custody under such sentence, was an accessory after the 
 fact to the felony (b). The Court proceeded upon the ground that one 
 so convicted of felony, within the benefit of clergy, and sentenced to be 
 transported for seven years, continued a felon till actual transportation 
 and service pursuant to the sentence ; and that the assistance given 
 amounted, in law, to receiving, harbouring, or comforting, such felon (c). 
 But they held the indictment to be defective, in not charging that the 
 defendant knew that the principal was guilty, or convicted, of felony (d). 
 The offence of aiding a prisoner to escape out of prison appears also to 
 have been considered as an accessorial ofience in cases of piracv (e). 
 
 By the Prison Escape Act, 1742 (16 Geo. II. c. 31),s. 3 (/), it is enacted 
 
 (iv) This form of warrant is now clearly ceipt to make a man an accessory after the 
 
 legal under 11 & 12 Vict. c. 42, s. 3. fact. Ante, p. 126. 
 
 (x) R. I'. Stokes, Stafford Sum. Ass. 1831, (d) 3 P. Wms. 492. The prisoner was 
 
 Park and Patteson, JJ. 5 C. & P. 148, and charged upon a second indictment as an ac- 
 
 MSS. C. S. G. cessory, knowing the principal to have been 
 
 (y) R. V. Allan, C. & M. 295, Erskine and under sentence of transportation ; and was 
 
 Wightman, JJ. tried upon this second indictment, con- 
 
 (z) 1 East, P. C. 408, 410. Bac. Abr. tit. victed, and sentenced to be transported, id. 
 ' Rescue ' (C). 3 Co. Inst. 141. Y. B. 22 499, 503. But such sentence was not war- 
 Ed w. III. 13. ranted by law. See R. v. Stanley, R. & R. 
 
 (a) R. V. Tilley, 2 Leach, 671. 432. 
 
 (6) R. V. Burridge, 3 P. Wms. 439. (f) R. v. Scadding, Yelv. 134. 1 East, 
 
 (c) The assistance was not particularly P. C. 810. 
 specified in the special verdict ; the state- (/) Ss. 1, 2 of this Act were repealed in 
 ment was, that the defendant (who was 1823 (4 Geo. IV. c. 64, s. 1), so far as they 
 confined in the same gaol with the party related to prisons to which that Act apphcd. 
 whom he assisted to escape) ' did wilfully The Act of 1823 (repealed by the Prison 
 aid and assist the said W. P., so being in Act, 1865 (28 & 29 Vict. c. 126, s. 73)) did 
 custody as aforesaid, to make his escape not apply to Bethlehem Hospital or Bride- 
 out of the said gaol.' But any assistance well, nor to Millbank and Gloucester Peni- 
 given to one known to be a felon, in order tentiaries, nor to ships or vessels provided 
 to hinder his suffering the punishment to for the reception and employment of con- 
 whjch he is condemned, is a sufficient re- victs sentenced to transportation. 5 Geo,
 
 570 Of Offences against the Administration of Justice, [book vii. 
 
 that ' If any person shall aid or assist any prisoner to attempt to make 
 his or her escape from the custody of any constable, head-borough, 
 tithingman, or other officer or person who shall then have the lawful 
 charge of such prisoner, in order to carry him or her to gaol, by virtue 
 of a warrant of commitment for treason, or any felony (except petty 
 larceny) {g), expressed in such warrant ; or if any person shall be aiding 
 or assisting to any felon to attempt to make his escape from on board 
 any boat, ship, or vessel, carrying felons for transportation, or from 
 the contractor for the transportation of such felons, his assigns or agents, 
 or any other person to whom such felon shall have been lawfully delivered, 
 in order for transportation ' ; every person so offending, and being 
 convicted, shall be deemed and adjudged to be guilty of felony, and be 
 transported for the term of seven years (A). 
 
 Sect. 4. ' Provided always, that there shall be no prosecution for any 
 of the said offences, unless such prosecution be commenced within one 
 year after such offence committed/ 
 
 By the Murder Act, 1751 (25 Geo. II, c. 37), s. 9 {i), ' If any person or 
 persons whatsoever shall by force set at liberty, or rescue, or attempt to 
 rescue or set at liberty, any person out of prison who shall be committed 
 for or found guilty of murder, or rescue, or attempt to rescue, any person 
 convicted of murder going to execution, or during execution, every person 
 so offending shall be deemed, taken, and adjudged to be guilty of felony ' (/). 
 
 By the Criminal Lunatic Asylums Act, 1860 (23 & 24 Vict. c. 75), 
 s. 12, ' any person who rescues any person ordered to be conveyed to any 
 asylum for criminal lunatics during the time of his conveyance thereto 
 or of his confinement therein, and any officer or servant in any asylum 
 for criminal lunatics who through wilful neglect or connivance permits 
 any person confined therein to escape therefrom {jj), or secretes, or abets 
 or connives at the escape of any such person, shall be guilty of felony, 
 and being convicted thereof shall be liable to be kept in penal servitude 
 for any term not exceeding four years {k), or to be imprisoned for any 
 term not exceeding two years, with or without hard labour, at the dis- 
 cretion of the Court ; and any such officer or servant who carelessly 
 allows any such person to escape as aforesaid shall, on summary conviction 
 before two justices of such offence, forfeit any sum not exceeding twenty 
 pounds nor less than two pounds.' 
 
 i 
 
 IV. c. 84, s. 1 ; c. 85, s. 27. Of the ex- 
 cepted prisons, Millbank and Gloucester, 
 the King's Bench, Fleet, Marshalsea, and 
 Palace Court Prisons have ceased to exist. 
 Since the abolition of transportation, hulks 
 are not used. The present Bethlehem 
 Hospital is not on the site of the old hospital, 
 and is not used as an asylum for criminal 
 lunatics, and Bridewell is used only for 
 apprentices. The repeal of 4 Geo. IV. 
 c. 64, and 5 Geo. IV. c. 85, by 28 & 29 Vict. 
 c. 126, does not revive legislation repealed 
 by those Acts. Vide ante, p. 5. 
 
 {g) Merged in larceny. 24 & 25 Vict. 
 0. 96, s. 2, post. Vol. ii. p. 1177. 
 
 {h) Now penal servitude from three to 
 seven years, or imprisonment with or with- 
 out hard labour for not more than two years. 
 
 54 & 55 Vict. c. 69, s. 1, ante, pp. 21 1, 212. 
 
 (0 Rep. in 1828 (9 Geo. IV. c. 31, s. 1), 
 ' except so far as relates to rescues and 
 attempts to rescue.' Sect. 10 was repealed 
 in 1867. S. L. R. 
 
 (j) The punishment of death was abol- 
 ished and transportation (now penal servi- 
 tude) for Hfe substituted (7 Will. IV. & 1 
 Vict. c. 91, s. 1). For other punishments, 
 see 54 & 55 Vict. c.69,s. l,rtri<e,pp.211,212, 
 247. 
 
 (jj) A like provision as to institutions 
 for ordinary lunatics is made by 53 & 54 
 Vict. c. 5, s. 323. 
 
 (k) Nor less than three years. Quaere, 
 whether the maximum is increased to five 
 years, vide ante, p. 211.
 
 CHAP. VI.] Of Aidifig an Escape. 571 
 
 Naval and Military Prisons.— The Naval Discipline Act, 1866 (29 &, 
 30 Vict. c. 109), ss. 70, 82 (?), imposes penalties on persons aiding escape 
 or attempts to escape from a naval prison (ni). These provisions are 
 not limited to the United Kingdom. 
 
 The Army Act (n) provides for the punishment on conviction by 
 court-martial of persons subject to military law who wilfully, and without 
 proper authority, release, or wilfully or without reasonable excuse allow 
 the escape of prisoners in their custody or charge (s. 20), or who being in 
 lawful custody escape or attempt to escape (s. 22) (o). 
 
 Local Prisons.— By the Prison Act, 1865 (28 & 29 Vict. c. 126), s. 37, 
 ' Every person who aids any jDrisoner in escaping or attempting to escape 
 from any prison, or who, with intent to facilitate the escape of any 
 prisoner, conveys or causes to be conveyed into any prison any mask, 
 dress, or other disguise, or any letter, or any other article or thing (p), 
 shall be guilty of felony, and on conviction be sentenced to imprison- 
 ment with hard labour for a term not exceeding two years ' (q). 
 
 This section is not limited to criminal prisoners, i.e., prisoners ' charged 
 with or convicted of crime ' (s. 4) (r). 
 
 Certified Reformatories, &e. — Escaping or aiding escape from reforma- 
 tories and industrial schools is punishable on summary conviction (8 Edw. 
 VII, c. 7, s. 72). As to aiding the escape of prisoners being conveyed 
 under the Fugitive Offenders Act, 1881, see 44 & 45 Vict. c. 69, ss. 25, 28. 
 
 The following decisions on the superseded but similar Acts of 1742 and 
 1823 may be of value in construing sect. 37 of the Act of 1865. The 
 Act of 1742 only applied where an escape was actually made (s), and 
 was limited to escapes of prisoners committed to or detained in prison, 
 for treason or felony plainly expressed in the warrant of commitment (t). 
 
 Delivering instruments to a prisoner, to facilitate his escape from 
 prison, was within the Act of 1742, though the prisoner had been pardoned 
 for the offence of which he was convicted, on condition of transporta- 
 tion (u). And a prisoner was within the Act, though there be no evidence 
 that he knew of what specific offence the person he assisted had been 
 convicted (v). 
 
 (I) As amended by 47 & 48 Vict. c. 39. or other chief officer of a prison (s. 4). 
 
 (w) Penal servitude, three to fourteen ' Prisoner ' is defined for the purposes of 
 
 years, or imprisonment with or without the Prison Act, 1877 (40 & 41 Vict. c. 21), 
 
 hard labour for not over two years. The as ' any jierson committed to prison on 
 
 ]msons are appointed and governed under remand or for trial, safe custody, punish- 
 
 K. 81 of the Act of 1866, as amended by 47 ment, or otherwise.' The Act ap])lies (s. .3) 
 
 & 48 Vict. c. 39. to all prisons belonging to a prison autlior- 
 
 (n) 44 & 45 Vict. c. 58. ity as defined by the Act of 1865. The 
 
 (o) See Manual of Military Law (ed. definition of 'prisoner' is wide enough to 
 
 1907), c. iv. include penal servitude prisoners for the 
 
 (p) A crowbar is an article or thing time being detained in a local prison, 
 within this section. R. v. Payne, L. R. 1 (/) Connivance for reward at the escape 
 
 C C. R. 27. fiom prison of a y)erson in civil custody 
 
 (7) This Act does not extend to Scotland entails liability on the gaoler to loss of office, 
 
 or Ireland, or convict ])risons, or any mili- inability to serve again, and a penalty of 
 
 lary or naval prison (s. 3). ' Prison ' £500. 8 & 9 Will. III. c. 27. s. 4. 
 shall mean gaol, house of correction, bride- (.s) R. v. Tilley. 2 Leach, 6()2. 
 
 well, or penitentiary ; it siiall also include (/) R. v. Greenif, 1 Leach, 363. R. v. 
 
 the airing grounds, or other grounds or (iil)bon, 1 Leach, 98, note (a). 
 buildings occupied by prison officers, for («) R. v. 8haw, R. & R. 125. 52t). 
 
 the use of the prison and contiguous there- (?') Ibid. An indictment at common law 
 
 to. ' Gaoler ' shall mean governor, keeper, for aiding a prisoner's escape should state
 
 572 Of Ojfenees against the Administration of Justice, [book vu. 
 
 When the record of the conviction of the j)risoner, whose escape was 
 to have been efTected, had been produced by the proper officer, no evidence 
 was admissible to contradict what it stated ; nor to shew that it had never 
 been filed among the records of the county ; notwithstanding that the 
 indictment referred to it with a frout patet as remaining amongst those 
 records (w). 
 
 Where a count stated that the gaol thereinafter mentioned, situate 
 at the parish of the Holy Trinity, in C, in the county of W., was a gaol 
 to which the provisions of 4 Geo. IV. c. 64 (x) extended, and that one 
 T. was a prisoner in the said gaol, and that the defendant, at the parish 
 aforesaid, feloniously did aid and assist T., then and there being such 
 prisoner, in attempting to escape from the said gaol ; it was held on 
 error that the count was good, though it did not allege the means by 
 which the defendant aided T. in attempting to escape, and though it did 
 not allege in direct terms that T. did attempt to escape (y). Another 
 count stated that T., being a prisoner in the said gaol, so situate as afore- 
 said, was meditating and endeavouring to effect his escape from the 
 said gaol, otherwise than by due course of law, and in order thereto had 
 procured a key to be made with intent to efiect his escape by means 
 thereof, and had made to the defendant, then being a turnkey of the 
 said gaol, overtures to induce him to aid him to escape from the said 
 gaol, and so was endeavouring to procure his escape from the said gaol, 
 and that the defendant whilst T. was such prisoner in the said gaol at 
 the parish aforesaid, &c., feloniously did procure and receive into his 
 possession the said key, being adapted to and capable of opening divers 
 locks in the said gaol, with intent thereby to enable T. to escape from 
 the said gaol, and so the jurors said that the defendant at the parish 
 aforesaid feloniously did aid and assist T. in attempting to escape from 
 the said gaol ; and it was held that the introductory part of the count 
 stated an attempt to escape and the means used with sufficient particu- 
 larity, and sufficiently shewed an ofience within 4 Geo. IV. c. 64, and 
 that the count was not bad for want of a more particular venue to the 
 acts charged in the introductory part as an attempt by T. to escape, 
 and that the count was not double (z). It was also held, that the general 
 averment of the gaol being a gaol to which the provisions of 4 Geo. IV. c. 64 
 applied was sufficient, without shewing how it came within them, and 
 that it was not necessary to shew more particularly that the gaol was a 
 gaol for the county within 5 & 6 Vict. c. 110, s. 2 (a). It was further 
 held, that aiding an escape was a substantive offence under 4 Geo. IV. 
 c. 64, s. 43 (rep.), and therefore the count was not bad in charging the 
 accessory without including the principal or alleging that he had been 
 convicted, and at all events such an objection was too late after the 
 trial (6). It was also held, that it was not necessary to shew that the 
 prosecution was commenced within a year after the offence, as required 
 by sect. 4 of the Act of 1742 (c). 
 
 that the party knew of his offence. R. v. (z) Ibid. 
 
 Young, Trin. T. 1801, MS. Bayley, J. (a) Repealed. 
 
 (w) R. V. Shaw, supra. [h) Holloway v. R., uli supra. 
 
 (x) Rep. 1865 (28 & 29 Vict. c. 126, s. 73). (c) Ante, pp. .569, 570. Holloway v. R.. 
 
 (y) Holloway v. R., 17 Q.B. 317- uhi supra.
 
 ( 572a ) 
 
 CANADIAN NOTES. 
 
 RESCUE AND AIDING ESCAPE. 
 
 Rescue of Person under Sentence of Death or for Life. — Code 
 sec. 191. 
 
 Rescue of Person under Other Sentence. — Code sec. 192. 
 
 Aiding Escape hy Conveying Things into Prison. — Code sec. 194. 
 
 Causing Discharge of Prisoners hy Pretended Authority. — Code 
 sec. 195. 
 
 Remainder of Term. — Code sec. 196.
 
 ( 573 ) 
 
 CHAPTER THE SEVENTH. 
 
 OF ESCAPE OR BEING AT LARGE, WHILE UNDER SENTENCE OF PENAL 
 SERVITUDE ; AND OF RESCUING OR AIDING THE ESCAPE OF PERSONS 
 UNDER SUCH SENTENCE. 
 
 On the substitution of penal servitude for transjDortation (a), certain of 
 the legislation as to transportation was applied mutatis mutandis to 
 persons under sentence of penal servitude. 
 
 The Transportation Act, 1847 (10 & 11 Vict. c. 67), s. 2, authorises 
 the removal of persons under sentence or order of transportation within 
 Great Britain from the prison in which they are confined to any other of 
 His Majesty's prisons in England (6). 
 
 By the Convict Prisons Act, 1850 (13 & 14 Vict. c. 39), power is given 
 to a Secretary of State to aj)point not less than three fit persons as directors 
 of Parkhurst and Pentonville Prisons, and of the places for the confine- 
 ment of male offenders under sentence or order of transportation. The 
 directors so appointed took over the powers and duties in England of 
 the suj^erintendent of convicts under the Act of 1824, and of the visitors 
 of Parkhurst Prison (c), and the commissioners of Portland (d). 
 
 The Convict Prisons Act, 1853 (16 & 17 Vict. c. 121), extends to females 
 the provisions of the Act of 1824, as to places of confinement for males (e). 
 
 By the Prison Act, 1898 (61 & 62 Vict. c. 41), s. 1, the Prison Commis- 
 sioners appointed under the Prison Act, 1877, for local jDrisons were 
 made virtute officii directors of convict prisons. 
 
 By the Penal Servitude Act, 1853 (16 & 17 Vict. c. 99), s. 6, ' Every 
 person who under this Act shall be sentenced or ordered to be kept in 
 penal servitude may, during the term of the sentence or order, be con- 
 fined in any such prison or place of confinement in any part of the United 
 Kingdom, or in any river, port, or harbour of the United Kingdom, in 
 which persons under sentence or order of transportation may now by 
 law be confined, or in any other prison in the United Kingdom, or in 
 any part of his Majesty's dominions beyond the seas, or in any port or 
 harbour thereof, as one of his Majesty's principal secretaries of state may 
 from time to time direct ; and such person may during such term be 
 kept to hard labour and otherwise dealt with in all respects as persons 
 
 (a) By 16 & 17 Vict. c. 99, and 20 & 21 invalid and weak-minded convicts. 
 
 Vict. c. 3, ante, p. 210. As to transporta- (d) Escape and rescue from Pentonville 
 
 tion, vide ante, p. 209. is specially punishable under 5 & 6 Vict. 
 
 (b) The Act also deals with the removal c. 29, ss. 24,25,28. The prison is not now 
 from Ireland of male offenders sentenced to used as a convict establishment. 
 
 ' transportation.' (e) The Act recites 5 Geo. IV. c. 84 ; 9 & 
 
 (c) Escape and rescue from Parkhurst is 10 Vict. c. 28, since rep. ; and 13 & 14 Vict, 
 specially punishable under 1 & 2 Vict. c. 82, c. 39, supra. 
 
 83. 12, 13, 14. The prison is now used for
 
 574 Of Offences against the Administration of Justice, [book vii. 
 
 sentenced to transportation may now by law be dealt with while so 
 confined.' 
 
 Sect. 7. ' All Acts and provisions of Acts now applicable with respect 
 to persons under sentence or order of transportation shall, so far as may 
 be consistent with the express provisions of this Act, be construed to 
 extend and be applicable to persons under any sentence or order of 
 penal servitude under this Act ; and all the powers and provisions con- 
 tained in the Transportation Act, 1824 (5 Geo. IV. c. 82), authorising the 
 appointment by his Majesty from time to time of places of confinement as 
 therein mentioned for male offenders under sentence or order of transpor- 
 tation, and authorising his Majesty to order male offenders convicted in 
 Great Britain and under sentence or order of transportation to be kept to 
 hard labour in any part of his Majesty's dominions out of England, shall 
 extend and be applicable to and for the appointment by his Majesty of 
 like places of confinement in any part of the United Kingdom for offenders 
 (whether male or female) sentenced under this Act in any part of the 
 United Kingdom, and to and for the ordering of such offenders to be 
 kept to hard labour in any part of his Majesty's dominions out of England ; 
 and all the provisions of the said Act concerning the removal to or from 
 and confinement in the places of confinement in or out of England, 
 appointed under the said Act, of the offenders therein mentioned, and 
 all Acts and provisions of Acts now in force concerning or relating to the 
 regulation and government of such places of confinement, and the 
 custody, treatment, management, and control of or otherwise in relation 
 to the offenders confined therein, shall, so far as the same may be con- 
 sistent with the express provisions of the Act, extend and be applicable 
 to and for the removal to and from and confinement in the places of 
 confinement appointed under this Act of the offenders sentenced in any 
 part of the United Kingdom, and otherwise be applicable to and in respect 
 of such places of confinement and the offenders to be confined therein ' (/). 
 
 The Penal Servitude Act, 1857 (20 & 21 Vict. c. 3), s. 3, after reciting 
 that the provisions applicable to persons under sentence of transportation 
 extend to persons under penal servitude only when they are conveyed 
 to and kept in places of confinement appointed under the Transportation 
 Act, 1824, and that it is expedient to extend the provisions, enacts that 
 ' any person now or hereafter under sentence or order of penal servitude 
 may, during the term of the sentence or order, be conveyed to any place 
 or places beyond the seas to which offenders under sentence or order of 
 transportation may be conveyed, or to any place or places beyond the 
 seas which may be hereafter appointed as herein mentioned ; and all 
 Acts and provisions now applicable to and for the removal and transporta- 
 tion of offenders under sentence or order of transportation to and from 
 any places beyond the seas, and concerning their custody, management, 
 and control, and the property in their services, and the punishment of 
 such offenders if at large without lawful cause before the expiration of 
 their sentence, and all other provisions now applicable to and in the case 
 of persons under sentence or order of transj)ortation, shall apply to and 
 
 (/) All powers of a secretary of state are Lieutenant (s. 8). For ss. 9, 10, 11, see 
 in Ireland to be exercised by the Lord ante, p. 219. 
 
 1
 
 CHAP. VII.] Escape while under Sentence of Penal Servitude. 575 
 
 in the case of persons under sentence or order of penal servitude, as if 
 they were persons under sentence or order of transportation ' {g). 
 
 tSect. 6. ' Where in any enactment now in force the expression '' any 
 crime punishable with transportation/' or " any crime punishable by 
 law with transportation," or any expression of the like import, is used, 
 the enactment shall be construed and take effect as applicable also to any 
 crime punishable with penal servitude '{h). 
 
 Army and Navy.^By sect. 58 of the Army Act (?'), when a jDerson 
 subject to military law is convicted by court-martial and sentenced to 
 penal servitude, such conviction and sentence shall have the same effect 
 as if such person had been convicted in the United Kingdom of an offence 
 punishable by penal servitude and sentenced to penal servitude by a 
 competent civil court, and ' all enactments relating to a person sentenced 
 to penal servitude by a competent civil court shall so far as circumstances 
 admit apply accordingly/ By the Naval Discipline Act (/), like jiro- 
 vision is made as to persons subject to naval discipline. 
 
 The following portions of the Transportation Acts with respect to 
 the escape of convicts appear to be applied by the Acts of 1853 and 1857 : 
 
 By the Transportation Act, 1824 (5 Geo. IV. c. 84), s. 15, offenders 
 removed under the Act are put in the custody of a superintendent and 
 overseer, who during the term of his custody have ' the same jjowers 
 over him as are incident to the office of a sheriff or gaoler, and shall in 
 like manner be answerable for any escape of such offender ' (k). 
 
 By sect. 22, ' If any offender who shall have been or shall be so sen- 
 tenced or ordered to be transported or banished (l), or who shall have 
 agreed or shall agree to transport or banish himself or herself on certain 
 conditions {'m), either for life or any number of years, under the provisions 
 of this or any former Act, shall be afterwards at large within any jiart 
 of his Majesty's dominions, without some lawful cause, before the expira- 
 tion of the term for which such offender shall have been sentenced or 
 ordered to be transported or banished, or shall have so agreed to trans- 
 port or banish himself or herself, every such offender so being at large, 
 being thereof lawfully convicted, shall suffer death, as in cases of felony, 
 ivithout the benefit of clergy (ti) : and such offender may be tried either in 
 the county or place where he or she shall be apprehended, or in that from 
 whence he or she was ordered to be transported or banished ; and if any 
 
 (g) Fors. 4, vide post, p. 577. S. 5 deals R. & R. 512. As to terms of pardon, vide 
 
 with the re-commitment of convicts at large ante, p. 252. 
 under licence if their licences are revoked. (n) The words italicised were repealed 
 
 (h) See enactments as to penal servitude, by 4 & 5 Will. IV. c. ()7, which substituted 
 
 ante, pp. 210, 211. transportation for life. Penal servitude 
 
 (0 44 & 45 Vict. c. 58, continued an- was substituted for transportation in 1853 
 
 nually by the Army Annual Act. and 1857 {vide ante, p. 210). The present 
 
 (j) 29 & 30 Vict. c. 109, s. 70, as amended punishment under s. 22 is penal servitude 
 
 by 47 & 48 Vict. c. 39, ss. 3, 7. As to for life, or not less than three years, or 
 
 ' escapes,' &c., see 29 & 30 Vict. c. 109, s. 62. imprisonment with or without hard labour 
 
 {k) Vide ante, ]i.55(i. The duties of super- for not more than two years (54 & 55 Vict, 
 
 intendent are now vested in the directors of c. (i9, s. 1, ante, pp. 211, 212). .See R. v. 
 
 convict prisons, 13 & 14 Vict. c. 39, s. 1. Lamb, 3 C. & K. 90. 4 & 5 Will. IV. 
 
 {/) Transportation is superseded by c. 07, except as to the maximum (life), was 
 
 penal servitude. As to banishment, vide repealed in 1888 and 1892 (S. L. R.). The 
 
 ante, p. 208. punishment of accessories before and after 
 
 (to) As to fatal variance in describing the fact is regulated by the Accessories, &c., 
 
 conditions of mercy, see R. v. Fitzpatrick, Act, 1801, ante, p. 130.
 
 576 Of Offences against the Administration of Justice, [book vii. 
 
 person shall rescue, or attempt to rescue, or assist in rescuing or attempt- 
 ing to rescue, any such offender from the custody of such superintendent 
 or overseer, or of any sheriff or gaoler, or other person conveying, 
 removing, transporting, or reconveving him or her, or shall convey, or 
 cause to be conveyed, any disguise, instrument for effecting escape, or 
 arms, to such offender, every such off'ence shall be punishable in the same 
 manner as if such offender had been confined in a gaol or prison, in the 
 custody of the sheriff (o) or gaoler, for the crime of which such offender 
 shall have been convicted ; and whoever shall discover and prosecute 
 to conviction any such offender so being at large within this kingdom, 
 shall be entitled to a reward of twenty pounds for every such offender 
 so convicted ' (p). The word ' feloniously ' is essential in an indictment 
 under this section (q). 
 
 By sect. 23, ' In any indictment against any offender for being found 
 at large, contrary to the provisions of this or of any other Act now made, 
 or hereafter to be made ; and also in any indictment against any person 
 who shall rescue, or attempt to rescue, or assist in rescuing, any such 
 offender from such custody, or who shall convey, or cause to be conveyed, 
 any disguise, instrument for effecting escape, or arms, to any such offender, 
 contrary to the provisions of this or of any other Act now made, or here- 
 after to be made, whether such offender shall have been tried before any 
 Court or judge, within or without the United Kingdom, or before any 
 naval or military court-martial, it shall be sufficient to charge and allege 
 the order made for the transportation or banishment of such offender, 
 without charging or alleging any indictment, trial, conviction, judgment, 
 or sentence, or any pardon or intention of mercy, or signification thereof, 
 of or against, or in any manner relating to such offender/ 
 
 By sect. 24, ' The Clerk of the Court or other officer having the 
 custody of the records of the Court (r), where such sentence or order of 
 transportation or banishment shall have been passed or made, shall, at 
 the request of any person on his Majesty's behalf, make out and give a 
 certificate in writing, signed by him, containing the effect and substance 
 only (s) (omitting the formal part) of every indictment and conviction 
 of such offender, and of the sentence or order for his or her transporta- 
 tion or banishment (not taking for the same more than six shillings and 
 eightpence), which certificate shall be sufficient evidence of the con- 
 viction and sentence, or order for the transportation or banishment of 
 such offender ; and every such certificate, if made by the clerk or officer 
 of any Court in Great Britain, shall be received in evidence, upon proof 
 of the signature and official character of the person signing the same (t) ; 
 and every such certificate, if made by the clerk or officer of any Court 
 
 (o) The sheriff has no longer the custody actmg as such, and havmg custody of the 
 
 of any prisonerconfinedin a prison subject to records. R. v. Parsons, 10 Cox, 243. R. 
 
 the Prison Acts. 50 & 51 Vict. c. 55, s. 16. v. Jones, 2 C. & K. 524. 
 
 (■p) The reward is payable by the county (s) This enactment superseded the simi- 
 
 treasurer on the order of the judge before lar but not identical provisions of 6 Geo. I. 
 
 whom the conviction takes place. R. v. c. 23 ; 56 Geo. III. c. 27, s. 8, as to which, 
 
 Emmons, 2 M. & Rob. 279, Coleridge, J. R. see R. v. Sutchfle, R. & R. 469, 914. R. v. 
 
 V. Ambury, 6 Cox, 79. Vide post, Bk. xii. Watson, R. & R. 468. 1 Hawk. c. 47, s. 21. 
 
 c. vi. it) See 8 & 9 Vict. c. 113, s. 1 ; 14 & 15 
 
 (5) R. V. Home, 4 Cox, 263, Patteson, J. Vict. c. 99, s. 13 ; 34 & 35 Vict. c. 112, s. 18. 
 
 (r) Including a deputy clerk of the peace Post, Bk. xiii. c. ii. ' Evidence.' 
 
 H
 
 CHAP. VII.] Escape while under Sentence of Penal Servitude, bll 
 
 out of Great Britain, shall be received in evidence, if verified by the seal 
 of the Court, or by the signature of the judge, or one of the judges of the 
 Court, without further proof ' (m). 
 
 In the following cases certificates have been held sufficiently to 
 comply with the terms of sect. 24. 
 
 (a) A certificate stating that the prisoner had been convicted of two 
 larcenies and sentenced to two several terms of transportation of seven 
 years each for the said larcenies {v). 
 
 (b) A certificate that the prisoner was ' in due form of law convicted 
 of feloniously and burglariously breaking and entering the dwelling- 
 house of T. D. and feloniously and burglariously stealing therein one 
 piece of the current gold coin,' &c., and ' was thereupon ordered to be 
 transported beyond the seas for the term of his natural life ' (w). 
 
 (c) A certificate that the prisoner ' at the general quarter sessions of 
 the peace of our Lady the Queen, holden at M. in the county of K., the 
 prisoner was in due form of law tried and convicted ' (x). 
 
 It would seem that even if the certificate states that a sentence was 
 imposed in excess of the powers of the Court of trial, the sentence cannot 
 be treated as a nullity, but must be regarded as valid until quashed or 
 reversed (y). 
 
 There are several decisions as to the efTect of pardons (z) conditional 
 on the convict transporting himself (a). Under the present law a person 
 sentenced to penal servitude but pardoned on condition of leaving the 
 realm would seem to be liable to conviction under sect. 22, if he 
 returned in breach of the conditions. 
 
 Prisoners outside the United Kingdom. — The Penal Servitude Act, 
 1857 (20 & 21 Vict. c. 3), s. 4, preserves the powers of the Transporta- 
 tion Act, 1824 (b), as to appointing places beyond the seas to which 
 offenders under sentence or order of penal servitude may be conveyed. 
 But the powers are not in use as to persons sentenced in the United 
 Kingdom. 
 
 By the Convict Prisons Abroad Act, 1859 (22 Vict. c. 25), ss. 13-19, 
 provision is made for the trial and punishment of convicts or others 
 concerned in escapes or rescues. The Act applies to convict prisons at 
 Bermuda and Gibraltar, and other places appointed bv His Majesty 
 (sect. 2). 
 
 The Colonial Prisoners Kemoval Act, 1869 (32 & 33 Vict. c. 10), 
 provides for the removal of prisoners under sentence from one colony 
 to another to complete the sentence. The removed prisoner is liable 
 to the laws and regulations of the colony to which he is removed. 
 
 The Colonial Prisoners Eemoval Act, 1884 (47 & 48 Vict. c. 31), 
 
 («) See also po.st, Bk. xiii. c. ii. Coui't of Quartoi' Sessions for larceny. 
 
 (v) R. V. Russell, 1 Cox, 81, Patteson, J. (z) As to pardon, vide ante, p. 252. 
 
 (lo) R. V. Ambury, 6 Cox, 79, Williams, [a) R. v. Miller, 1 Leach, 74 ; 2 W. Bl. 
 
 J. Sufficient as to description of the 797. R. v. Madan, 1 Leach, 223. R. v. 
 sentence. Aickles, 1 Leach, 391, 396. R. v. Thorpe, 
 
 [x) R. V. Home, 4 Cox, 263, Patteson, J 
 Sufficient as to the description of the Court 
 
 (y) R. V. Finney, 2 C. & K. 774, Alder 
 son, B.,who consulted several of the judges, 
 The certificate shewed a sentence of four- 
 teen years' transportation imposed by a 
 
 VOL. I. 2 P 
 
 ibid. 396 a. And see 1 Hawk. c. 47, ss. 22, 
 23. 
 
 (6) See 5 Geo. IV. c. 84, ss. 3, 13 ; G 
 r.co. IV. c. 69, s. 1 ; 11 Geo. IV. & 1 Will. 
 IV. c. 39, ss. 2, 5 ; 10 & 11 Vict. c. 67, s. 1.
 
 578 Of Offences against the Administration of Justice, [book vii. 
 
 provides for the removal of prisoners and criminal lunatics from one 
 colony to another (c) or to the United Kingdom. A punishment is 
 provided for escape ^sect. 9). 
 
 For the Orders in Council made under these Acts as to arrangements 
 between colonies and the Kegulations of December 13, 1889, as to 
 removals under the Act of 1884 see Statutory Rules and Orders Revised 
 (ed. 1904), tit. 'Colonial Prisoner,' and the Colonial Prisoners Removal 
 Order in Council, 1907 (St. R. & 0. (1907) No. 742). 
 
 (c) See Ex parte Tilonko, K.B.D. Oct. 12, 
 Nov. 25, 1907, 42 L. J. Newsp. 628, 754, 
 unsuccessful applications to quash a de- 
 
 portation order and warrant issued under 
 s. 2 of the Act of 1884. 
 
 I
 
 ( 579 ) 
 
 CHAPTER THE EIGHTH. 
 
 OF COMPOUNDING OFFENCES. 
 
 Agreements not to prosecute or to stifle a prosecution for a criminal 
 offence are in certain cases criminal (a). This offence is distinct from 
 that of misprision of felony (6). 
 
 It was said by Lord Westbury in Williams v. Bayley (c), ' If you are 
 aware that a crime has been committed you shall not convert that crime 
 into a source of profit or benefit to yourself. . . . Now, that is the principle 
 of the law and the policy of the law, and it is dictated by the highest 
 considerations. If men were permitted to trade upon the knowledge of 
 a crime, and to convert their privity to that crime into an occasion of 
 advantage, no doubt a great legal and a great moral offence would be 
 coirmiitted, and that is what I apprehend the old rule of law intended 
 to convey when it embodied the principle under the words which have 
 now somewhat passed into desuetude, viz., misprision of felony. That 
 was a case where a man, instead of performing his public duty and giving 
 information to the public authorities of a crime that he was aware of, 
 concealed his knowledge, and further converted it into a source of 
 emolument for himself.' In the last words Lord Westbury seems to be 
 confusing misprision of felony with comjioundiwj of felony . That offence 
 (in the earlier books described as theft-bote) is committed 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 punishable as felony ; but is now punished as a misdemeanor 
 by fine and (or) imprisonment, unless it is accompanied with such degree 
 of maintenance given to the felon as to make the party an accessory 
 after the fact (e). But merely to take back one's own goods which have 
 been stolen, is no offence at all unless some favour be shewn to the 
 thief (/). 
 
 The offence of compounding a felony applies to all felonies, and is 
 not limited to larceny. 
 
 Where an indictment for compounding felony alleged that after 
 taking a sum of money for compounding, the defendant desisted from 
 prosecuting, and it appeared that he did prosecute to conviction, the 
 defendant was held entitled to be acquitted {g). But an indictment 
 
 («) It is well recognised that agreements (c) L. R. 1 H. L. 200, 220. 
 
 not to prosecute a felony or misdemeanor (d) 1 Hawk. c. 59, s. 5. 4 Bl. Com. 133. 
 
 are illegal and unenforceable. See Fivaz v. (e) 1 Hawk. c. 59, s. 6. 2 Hale, 400. 
 
 NichoUs, 2 C. B. 501. Rawlings v. Coal Vide ante, p. 126. 
 
 Consumers' Association, 43 L. J. j\I. C. 111. (f) 1 Hawk. c. 59, s. 7. 
 
 Windhill Local Board v. Vint, 45 Ch. D. 351. (g) R. r. Stone, 4 C. & P. 379, Bosanquet, 
 
 (b) Ante, p. 129. J. 
 
 2p2
 
 580 Of Offences against the Administration of Justice, [book vii. 
 
 which did not allege that the defendant desisted from prosecution has 
 been held good {h). The offence of compounding a larceny may be com- 
 mitted by a person other than the owner of the stolen goods or a material 
 witness for the prosecution {i). 
 
 By sect. 101 of the Larceny Act, 1861 (24 & 25 Vict. c. 96) (/), it is 
 felony to take any reward for helping a person to any property stolen 
 or obtained by false pretences ; and by sect. 102 to advertise a reward 
 for the return of things stolen, involves a forfeiture of fifty pounds {k). 
 
 Compounding Misdemeanors. — It is not certain whether an agree- 
 ment to stifle a prosecution for misdemeanor is indictable apart from 
 conspiracy if). 
 
 An agreement to prevent or put an end to a prosecution for misde- 
 meanor is void and unenforceable as impeding the course of public 
 justice (m). It is immaterial whether the agreement is made with the 
 defendant or with a third party (n). When an indictment has been 
 found the prosecution may be terminated by nolle prosequi entered by 
 leave of the Attorney-General, or by leave of the Court (w). Sometimes 
 after verdict a prosecution is abandoned, with the sanction of the Court, 
 in cases where the offence principally and more immediately affects an 
 individual ; the defendant being permitted to sfeak with the prosecutor 
 before any judgment is pronounced, and a trivial punishment being 
 inflicted if the prosecutor declares himself satisfied (o). In a case of an 
 indictment for ill-treating a parish apprentice, a security for the fair 
 expenses of the prosecution given by the defendant after conviction, 
 upon an understanding that the Court would abate the period of his 
 imprisonment, was held 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 
 imprisonment inflicted on him (p). 
 
 In Keir v. Leeman {q) it was laid down, that ' the law will permit a 
 compromise of all offences, though made the subject of a criminal prose- 
 cution, for which offences the injured party might recover damages in 
 an action.' But it seems that this proposition should be limited to the 
 ' cases where the private rights of the injured party are made the subject 
 of agreement, and where by the previous conviction of the defendant 
 the rights of the public are also preserved inviolate ' (r). For ' when a 
 verdict of guilty is taken, and the Court suspend judgment, and allow 
 the questions between the parties to be referred, the matter is very 
 different, for then it is only to enable the Court the better to see what 
 
 (/i) R. r. Burgess, 16 Q.B.D. 141. (p) Beeley v. Wiiigfield, 11 East, 4(). 
 
 (?') R. V. Burgess, supra. See the observations on this case in Keir v. 
 
 (j) Vide fost, Vol. ii. p. 1489, ' Larceny. Leeman, 6 Q.B. 320 ; and see also Baker v. 
 
 {Ic) Ibid. Townshend, 7 Taunt. 422 ; and see In re 
 
 {I) See Dillon v. O'Brien, 20 L. R. Ir. Parkinson, 56 L. T. N. S. 715. Kirk v. 
 
 316. Steph. Dig. Cr. L. (6th ed.) 122. Archb. Strickwood, 4 B. & Ad. 421. But in gene- 
 
 Cr. PI. (23rd ed.) 1090, 1091. ral any contract or security made in con- 
 
 (m) Windhill Local Boai-d v. Vint, 45 sideration of dropping a criminal prosecu- 
 
 Ch. D. 351. Colhns v. Blantern, 2 Wils. tion, suppressing evidence, soliciting a par- 
 
 (K.B.) 341. Edgecombe v. Rodd, 5 East, don, or compounding any pubUc offence, 
 
 294. Cf. Kaufmann v. Gerson [1904], 1 without leave of the Court, is invalid. 1 
 
 KB. 591. Chit. Cr. L. 4. 
 
 in) See Archb. Cr. PL (23rd ed.) 1089. (q) 6 Q.B. 308. 
 
 (o) 4 Bl. Com. 363, 364. (r) Keir v. Leeman, 9 Q.B. 371, in error.
 
 CHAP. viiL] Gomfounding Offences. 581 
 
 sentence ought to be given ' (s). ' But if the offence is of a public nature 
 no agreement can be valid that is founded on the consideration of stifling 
 a prosecution for it ' (^). A contract therefore to withdraw a prosecution 
 for perjury, and to give no evidence against the accused, is founded 
 on an illegal consideration and void (u). 
 
 So where an action was brought on an agreement, by which the 
 defendants, in consideration that the plaintiff, being the prosecutor of 
 an indictment against certain persons for an assault and riot, would not 
 proceed further on such indictment, promised the plaintiff to pay him 
 a certain sum of money, and in pursuance of that agreement the plaintiff 
 did not proceed further with the indictment, and informed the Court, 
 before which the indictment was pending, of the premises, and, by leave 
 of the Court, forbore to give evidence upon the indictment, and there- 
 upon there was an acquittal ; it was held that the agreement was illegal ; 
 for the offence was not confined to the j)ersonal injury, but was accom- 
 panied with a riot, which was a matter of public concern, and therefore 
 not legally the subject of compromise (y). 
 
 In one case an indictment for a nuisance by makuig an embankment 
 in the Thames, whereby the navigation was obstructed, was referred (iv) ; 
 but the question of the legality of the reference was not raised. But 
 where an indictment had been preferred against the defendant for non- 
 repair of a highway, which it was alleged he ought to have repaired 
 ratione tenurcB ; the 2)rosecutor and defendant before the trial agreed 
 to leave the question of liabihty to repair to reference ; the arbitrator 
 was to make an award on the evidence adduced before him ; a verdict 
 was to be entered according to the result of the award, and the arbitrator 
 awarded that the defendant was guilty of the non-repair alleged in the 
 indictment : it was held that the reference was illegal, as the question 
 of liability to repair was of public concern {x). 
 
 Where indictments for perjury and conspiracy were removed into 
 the Queen's Bench, and on the indictment for perjury coming on for 
 trial, it was agreed, under the advice of counsel, that no evidence should 
 be tendered, a verdict of not guilty taken on both indictments, and that 
 all matters in difference between the prosecutor and defendant should 
 be referred to a barrister ; it was held that it would have been illegal to 
 refer the indictment for perjury, and, as it would seem, the indictment 
 for conspiracy ; but that the indictments were not referred, and the 
 verdicts of acquittal must at all events stand ; and that there was 
 nothing illegal in referring all matters in difference and at the same 
 time consenting to verdicts of acquittal, unless there was a corrupt 
 
 («) R. V. Hardey, 14 Q.B. 529, an indict- eludes ' aciiminal proceeding by the Crown ' 
 
 nicnt for conspiracy. R. v. Roxburgh, 12 from the powers of the Court to refer 
 
 Cox, 8, an indictment for common assault. causes or matters for inquiry or report (52 
 
 (0 Keir v. Leeman, Q.B. 308. Can- & 53 Vict. c. 49, s. 13 (1) ). The Criminal 
 
 non V. Rands, 11 Cox, G31. Appeal Act, 1907 (7 YAw. MI. c. 23), s. 9, 
 
 (m) Keir v. Leeman, \ihi sup. citing authorises the Court of Criminal Appeal to 
 
 Collins V. Blantern, 2 Wils. (K.B.), 341. order reference of certain kinds of matters 
 
 (v) Keir v. Leeman, supra. arising on a criminal appeal to a commis- 
 
 (w) R. V. Dobson, 6 Q.B. 637. See Fal- sioner for inquiry and report. Vide post, 
 
 lowes V. Taylor, 7 T. R. 475, and the ob- Bk. xii. c. iv. 
 
 servations on this ease in Keir v. Leeman, (.r) R. v. Blakemore, 14 Q.B. 54-1. 
 9 Q. B. 393. The Arbitration Act, 1 889, ex-
 
 582 Of Offences against the Administration of Justice, [book vii. 
 
 agreement to stifle the prosecution, which did not appear to be the 
 fact iy). 
 
 It is clear that the consent of the Court cannot make an agreement to 
 abandon a prosecution valid, if it would otherwise be unlawful (z). 
 
 Informations on Penal Statutes. — The compounding of informations 
 on 'penal statutes is a misdemeanor against public justice, by contributing 
 to make the laws odious to the peoj)le (a). Therefore in order to dis- 
 courage malicious informers, and to provide that offences, when once 
 discovered, shall be duly prosecuted, it was enacted in 1575 by 18 Eliz, 
 c. 5, s. 4 (6), that an informer shall not compound or agree with any 
 person accused of contravening a penal statute without the leave of the 
 Court (sect. 4), and that if any person shall offend in making of com- 
 position or other misdemeanor contrary to the true intent and meaning of 
 this statute, or shall ' by colour or pretence or process, or without process 
 upon colour or pretence of any matter of offence against any penal 
 law, make any composition, or take any money, reward, or promise of 
 reward for himself as to the use of any other ' without the order or consent 
 of some Court, he shall on lawful conviction stand two hours in the 
 pillory (c), be for ever disabled to sue on any popular or penal statute, 
 and shall forfeit ten pounds (sect. 5). This statute extends even to 
 those penal actions where the whole penalty is given to the prosecutor {d). 
 But it does not apply to penalties only recoverable by information 
 before justices (e). 
 
 In a case where it was held that threatening, by letter or otherwise, 
 to put in motion a prosecution by a public officer, to recover penalties 
 for selling Fryer s Balsamv^'it\iOVit a stamped label (/), 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 offence 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 18 Eliz. c. 5, s. 5 {g). But no indictment for 
 any attempt to commit such a statutable misdemeanor can be sustained 
 as a misdemeanor at common law, without bringing the offence intended 
 within, and laying it to be against, the statute. Though if the party so 
 threatened had been alleged to be guilty of the ofience imputed, within 
 the statute imposing the duty and creating the penalty, such an attempt 
 to compound and stifle a j)ublic prosecution for the sake of private lucre, 
 in fraud of the revenue, and against the policy of the statute (which 
 gives the penalty as auxiliary to the revenue, and in furtherance of 
 public justice for the sake of example), might also, upon general 
 
 {y) R. v. Hardey, 14 Q.B. 529. In R. v. (b) Made perpetual by 27 Eliz. c. 10. 
 
 Bardell, 5 A. & E. 619, an indictment for (c) The punishment of the pillory is 
 
 conspiracy was referred. The lawfulness abolished. For substituted punishments, 
 
 of the reference was not discussed, and the see ante, p. 250. 
 
 question argued was whether the reference (d) 4 Bl. Com. 136, note (3). 
 
 was revocable under the Arbitration Act (e) R. v. Crisp, 1 B. & Aid. 282. 
 
 of 1833 (3 & 4 Will. IV. c. 42). The Act of (/) i.e., in contravention of the Medicines 
 
 1889, as already stated, does not apply to Stamp Act, 1802 (42 Geo. III. c. 56). 
 
 criminal proceedings by the Crown. (g) R. v. Southerton, 6 East, 126. But 
 
 (2) Keir v. Leeman, supra. qucere, and see R. v. Crisp, 1 B. & Aid. 286, 
 
 (rt) 4 Bl. Com. 136. 287.
 
 CHAP. VIII.] Compomiding Offences. 583 
 
 principles, have been deemed a sufficient ground on which to have 
 sustained the judgment at common law (h). 
 
 A party is liable to the punishment prescribed by 18 Eliz. c. 5, s. 5, 
 for taking the penalty imposed by a jienal statute, even if there is no 
 action or proceeding for the penalty. The prisoner applied to one R., 
 and demanded five pounds, as a penalty which R. had incurred under 
 the General Turnpike Act, by suffering his waggon to be drawn on a 
 turnpike road by more than four horses. R. had incurred such a penalty, 
 and the prisoner obtained the money by way of composition to prevent 
 any legal proceedings ; no process had been sued out, and no information 
 had been laid before a magistrate. The prisoner having been convicted, 
 judgment was respited, upon a doubt whether the offence was within 
 the statute, so as to subject the prisoner to the specific punishment 
 therein prescribed, inasmuch as no action or proceeding was depending 
 in which the order or consent of any Court in Westminster Hall for a 
 composition could have been obtained. But the judges were all of 
 opinion that the conviction was right, and that the statute applies to 
 all cases of taking a penalty incurred, or pretended to be incurred, 
 without leave of a Court at Westminster, or without judgment or 
 conviction (i). 
 
 A person may be convicted under 18 Eliz. c. 5, s. 5, for taking money 
 upon colour or pretence of a party having committed an offence, though 
 in fact no offence liable to a penalty has been committed by the person 
 from whom the money is taken (/). As to taking rewards for the recovery 
 of stolen goods, &c., see post, Vol. ii. p. 1489. 
 
 (h) R. V. Southerton, 6 East, 12G. But (i) R. v. Gotley [1805], R. & R. 84. 
 
 quaere, and see R. v. Crisp, 1 B. & Aid. 286, (j) R. v. Best, 2 Mood. 124. 
 
 287.
 
 ( 584a ) 
 
 CANADIAN NOTES. 
 
 OF COMPOUNDING OFFENCES AND STIFLING PROSECUTIONS. 
 
 Corrupting Witnesses, Jurymen, Accepting Bribes and Otherivise 
 Ohstructi7ig Justice. — Code sec. 180. 
 
 An indictment or charge that the accused paid money to a person 
 not to attend a Court of Revision in connection with an election, does 
 not disclose a "perversion or defeat of justice" under Code sec. 
 180 (cZ), where it does not shew any ground for supposing that the 
 non-attendance would defeat justice, and where the person receiving 
 the money was the person whose right to vote was in question and 
 might therefore abandon his claim. The offence disclosed may pro- 
 perly be charged under sub-sec. {a) of Code sec. 180 as an attempt to 
 dissuade a person by a bribe from giving evidence. R. v. Lake, 11 Can. 
 Cr. Cas. 37. 
 
 Any attempt to corrupt or influence a jury by money, promises, 
 letters, threats or persuasions, except only by the strength of the 
 evidence and the argument of the counsel in open Court at the trial of 
 the cause, constituted the common law offence of embracery, whether 
 the jurors gave any verdict or not and whether the verdict given were 
 true or false. R. v. Cornellier, 29 C.L.J. 69. 
 
 It is provided by the Canada Temperance Act, R.S.C. (1906) ch. 
 152, sec. 150, that everyone who on any prosecution under that Act or 
 any Act in force in any province in respect of the issue of licenses for 
 the sale of fermented or spirituous liquors, or under the Temperance 
 Act of 1864, tampers with a witness, either before or after he is 
 summoned or appears as such witness, or by the offer of money, or by 
 threats, or in any other way, either directly or indirectly, induces or 
 attempts to induce any such witness to absent himself or to swear 
 falsely shall incur a penalty of fifty dollars for each offence. This 
 special provision is not affected by the Code. R. v. Gibson, 29 N.S.R. 
 88. 
 
 A conviction may be made under this section of the Code for dis- 
 suading a person by corrupt means from giving evidence under the 
 Ontario Liquor License Act. R. v. Holland, 14 C.L.T. Notes 294. 
 
 It is an offence under Code sec. 180(a) to attempt to dissuade a 
 watness by bribery or other corrupt means to give in lieu of the wit- 
 ness's own belief that version of the facts which the person making 
 the corrupt offer believed to be the truth. R. v. Silverman, 14 Can. Cr. 
 Cas. 79.
 
 5845 Compounding Penal Actions. [book yii. 
 
 Compounding Penal Actions. — See Code see. 181. 
 The compounding of an information on penal statutes is a misde- 
 meanour against public justice by contributing to make the laws odious 
 to the people. Therefore in order to discourage malicious informers, 
 and to provide that when offences are once discovered they shall be 
 prosecuted, 18 Eliz. ch. 5 was passed, providing a fine upon an in- 
 former for taking money to settle the charge. But that statute did 
 not apply to penalties which are only recoverable by information 
 before justices, and an indictment for making a composition in such a 
 case was held bad in arrest of judgment. R. v. Mason, 17 U.C.C.P. 534. 
 The receipt of money in consideration of the non-prosecution of a 
 charge for the infraction of liquor laws is indictable as compounding 
 a misdemeanour of a public nature. Re Fraser, 1 C.L.J. 326 ; R. v. 
 Mabey, 37 U.C.Q.B. 248. 
 
 If the agreement be upon the understanding that the accused shall 
 be discharged from custody, although not so stated in express terms, it 
 is illegal and void. Leggatt v. Brown, 29 O.R. 530, 30 O.R. 225. 
 
 The assent of the magistrate to the charge being withdrawn on 
 being informed of the agreement of settlement does not validate the 
 agreement. 
 
 Where the charge is for an offence against the public as distin- 
 guished from offences which, although punishable by criminal process 
 are essentially in the nature of private injuries, it is immaterial that 
 the offence charged was not a felony before the abolition of the distinc- 
 tion between felony and misdemeanour by the Criminal Code. 
 
 Although a person who has parted with his money or property by 
 means of a fraud practised upon him or who has had it stolen from 
 him, is entitled to take his own property if offered to him, he is not 
 permitted to screen the offender by an agreement not to prosecute nor 
 to drop a prosecution already begun. Morgan v. McFee, 14 Can. Cr. 
 Cas. 808. 
 
 Obtaining money by false pretences is a crime committed against 
 the public as well as against the individual defrauded, and an agree- 
 ment between the latter and the accused to settle the charge pending 
 before the magistrate is void. 
 
 A contract between the accused and the complainant made in con- 
 sideration of the withdrawal of a charge of obtaining money by false 
 pretences in respect of which a preliminary enquiry was pending 
 before a magistrate is not enforceable, although the criminal proceed- 
 ings were dropped in pursuance of the contract. Morgan v. McFee, 
 14 Can. Cr. Cas. 308. 
 
 Corruptly Taking Reivard Without Bringing Offender to Trial. — 
 See Code sec. 182.
 
 CHAP. VIII.] Advertising Rewards. 584c 
 
 Advertising Reward, and Immunity for Offender Where Property 
 Stolen. — See Code sec. 183. 
 
 A prosecution taken against the proprietor of a ''newspaper" for 
 publishing an advertisement offering a reward for the recovery of stolen 
 property under paragraph (d) must be commenced within six months 
 from the commission of the offence. Sec. 1140(d).
 
 ( 585 ) 
 
 CHAPTER THE NINTH. 
 
 OF BARRATRY, MAINTENANCE, CHAMPERTY, AND BUYING AND SELLING 
 PRETENDED TITLES AND EMBRACERY. ' 
 
 Sect. I. — Barratry. 
 
 The common law and early legislation were hostile ' to the traffic of 
 merchandising in quarrels, of huckstering in litigious discord ' (a). One 
 form of such traffic is common barratry, which is a misdemeanor at 
 common law (6). 
 
 A common barrator is defined to be ' a common mover, exciter, or 
 maintainer of suits, 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 
 and disquiet may grow among neighbours ' (c). But one act of this de- 
 scription will not make anyone a common barrator, as it is necessary in 
 an indictment for this offence to charge the defendant with being a 
 common barrator, which is a term of art appropriated by law to this 
 crime {d). It has been held that a man shall not be adjudged a barrator 
 in respect of any number of false actions brought by him in his own 
 right (e) ; but this is doubted, in case such actions be merely groundless 
 and vexatious, without any manner of colour, and brought only with a 
 design to oppress the defendants (/). 
 
 The offence is now rarely prosecuted. The most recent instance 
 occurred in 1889, viz., a prosecution for stirring up a series of fraudulent 
 actions for damages against a railway company {(j). 
 
 It is not barratry for a solicitor to maintain a party in a groundless 
 action, to the commencing whereof the solicitor was in no way privy (Ji). 
 It seems to have been held that a feme covert could not be indicted as 
 a common barrator (t) ; but this is doubtful (/). 
 
 (a) Reynell v. Sprye, 1 De G. M. & G. Oxford Diet. s.v. 
 
 656, 680, Knight Bruce, L.J. (d) Case of BaiTatry, uhi sup. R. «'. 
 
 (6) See Burton's case, Cro. Eliz. 148, Hardwicke, 1 Sid. 282. R. v. Hannon, (» 
 
 referred to in Bradlaugh v. Newdegate, 11 Mod. 311. 
 
 Q.B.D. 1, 6; Chapman's case, Cro. Car. (e) Roll. Abr. 355. 
 
 340; Palfrey's case, Cro. Jac. 527 ; deci- (/) 1 Hawk. c. 81, s. 3. 
 
 sions on the conclusion of the indictment. [g) R. v. Bellgrave, Guildford Assizes, 
 
 (c) R. V. Urlyn, 2 \\'ms. Saund. 308, Archb. Cr. PI. (23rd ed.) 1080. 
 
 note (1). Case of Barratry, 8 Co. Rep. 36. [h) 1 Hawk. c. 81, s. 4. 
 
 1 Hawk. c. 81, ss. 1, 2. Co. Litt. 368, a, b. (i) Bac. Abr. tit. ' Baron and Feme ' 
 
 See the notes to Bac. Abr. tit. ' Barratry ' (G) in the notes, citing Roll. Rep. 39. 
 
 (A). As to the derivation of the word, see (;) 1 Hawk. c. 81, s. 6.
 
 586 Of Offences against the Administration of Justice, [book vii. 
 
 Indictment. — An indictment for this offence may be in a general 
 form, stating the defendant to be a common barrator {k), without shewing 
 any particular facts : but it is clearly settled that the 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 (l). 
 And the prosecutor will be confined to his note of particulars, and will 
 not be at liberty to give evidence of any other acts of barratry than 
 those which are therein stated (m). 
 
 It seems never to have been necessary to describe the offence as 
 committed at any certain place, as from its nature it involves a repetition 
 of several acts which may have been in different places {n). 
 
 Jurisdiction. — The statute 34 Edw. III. c. 1, authorises the justices 
 to restrain rioters and all other barrators, and to pursue, arrest, take and 
 chastise them according to their trespass and offence, and to cause them 
 to be imprisoned and duly punished, according to the law and customs 
 of the realm, and according to that which to them shall seem best 
 by their discretions and good advisement (o), and barratry seems 
 accordingly to be triable at greater sessions {p). 
 
 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 punish- 
 ment by being disabled to practise for the future (r). 
 
 Sect. II. — Frivolous Arrests. 
 
 To cause any person to be arrested or attached in the name of a 
 fictitious plaintiff or of a person who is ignorant of and has not authorised 
 the proceeding is criminal (s). The offence, if committed in respect of 
 proceedings in a superior Court, appears to be punishable as a contempt. 
 If committed in proceedings in inferior local Courts of record, it is 
 punishable summarily by imprisonment {t). 
 
 (/.) R. V. Cooper, 2 Str. 1246. s. 14. Bac. Abr. tit. ' Barratry ' (C). 4 
 
 {I) R. V. C4rove, 5 Mod. 18. I' Anson v. Bl. Com. 134. A statute of 1275 (3 Edw. I. 
 
 Stuart, 1 T. R. 748, Buller, J. R. v. Wylie, Stat. West. prim. c. 3), providing for the 
 
 1 B. & P. (N. R.) 95, Heath, J. grievous punishment by the king of bar- 
 
 (m) Goddard i\ Smith, 6 Mod. 262. rators, and of sheriffs permitting them in 
 
 (n) Parcel's case, Cro. Eliz. 195. 1 their shires, was repealed in 1863 (26 & 27 
 
 Hawk. c. 81, s. 14. Bac. Abr. tit. ' Bar- Vict. c. 125). 
 
 ratry ' (B). (r) As to punishing in a summary man- 
 
 (o) 1 Edw. III. st. 2, c. 16. Possibly ner, a person convicted of common Barra- 
 
 the inclusion in the commission of the try who shall practise as a solicitor in any 
 
 peace of maintainors of evil barrators {ch suit or action in England, see Frivolous 
 
 malveis baretz en pais). Arrests Act, 1725 (12 Geo. I. c. 29, s. 4 ; 
 
 (p) 5 & 6 Vict. c. 38, s. 1. Barnes v. made perpetual by 21 Geo. II. c. 3). 
 
 Constantine, Yelv. 46 ; Cro. Jac. 32, recog- (s) This offence would usually involve 
 
 laised in Busby v. Watson, 2 W. Bl. 1050. perjury, q.v. ante, p. 451 et seq. See 4 Bl. 
 
 See R. V. Urlyn, 2 Wms. Saund. 308, note Com. 134. 
 
 (1). In Hawk. c. 81, s. 8, there is a qucere {t) 8 Eliz. c. 2, s. 3. 4 Bl. Com. 134. An 
 
 to this point, as having been ruled differ- action for damages is also given, ss. 3, 4. 
 
 ently in Rolle's Reports. As to treble costs, the Act was repealed in 
 
 (q) See 34 Edw. III. c. 1. 1 Hawk. c. 81, 1842 (5 & 6 Vict. c. 97).
 
 CHAP. IX.] Maintenance. 587 
 
 Sect. Ill, — Maintenance (w). 
 
 Earlier and later oj)inions as to what constitutes maintenance are not 
 in harmony (v). According to Coke (tv), ' maintenance signifieth in law 
 a taking in hand, bearing-up or upholding of a quarrel or side, to the 
 disturbance or hindrance of common right.' This definition seems to 
 be based on 1 Edw. III. stat. 2, c. 14 (1327), which declares that ' because 
 the King desireth that common right be administered to all persons, as 
 well poor as rich, he commandeth and defendeth that none of his coun- 
 sellors, nor of his house, nor none other of his ministers, nor no great man 
 of the realm by himself nor by other, by sending of letters nor otherwise, 
 nor none other in this land great or small, shall take upon them to main- 
 tain quarrels or parties in the country to the let and disturbance of the 
 common law ' (x). 
 
 By 32 Hen, VIII. c. 9, s, 3 (1540), it is enacted, that ' no person or 
 persons of what estate, degree, or condition soever he or they be, do 
 hereafter unlawfully retain for maintenance of any suit or plea any 
 person or persons upon pain of forfeiture of ten pounds, recoverable 
 by penal action ' (y). 
 
 It was considered to be maintenance where a person assisted another 
 in his pretensions to lands, by taking or holding the possession of them 
 for him by force or subtlety, or where a person stirred up quarrels and 
 suits in relation to matters wherein he was in no way concerned (z), or 
 it may be where a person officiously intermeddled in a suit depending 
 in a court of justice, and in no way belonging to him, by assisting either 
 party to a suit with money, or otherwise, in such suit (a). Where there 
 is no contract to have part of the thing in suit, the party so intermeddling 
 is said to be guilty of tnaintenance generally ; but if the party stipulates 
 to have part of the thing in suit, his offence is called champerty (b). 
 
 ' Unlawful maintenance is not merely under some circumstances a 
 civil wrong entitling the person injured to damages, but is a wrong 
 
 (u) As to American law, see 2 Bishop, the books rwraZt's (e« jaoj'*), in distinction to 
 
 Ci-. L. ss. 130, 131, 136-138. Kent. Comm. another carried on in courts of justice, and 
 
 Pt. 6, lect. 67. Story, Contracts (4tli ed.), therefore called cmialis. It is punishable 
 
 s. 578. As to Indian law, see Bhagwat r. at the King's suit by fine and imprison- 
 
 Debi [1908], L. R. 35 Ind. App. 48. raent, whether the matter in dispute any 
 
 (v) British Cash, &c., Co. 7;.Lamson Store way depended in plea or not; but is said 
 
 Co. [1908], 1 K.B. 1006, 1013, Moulton, L.J. not to be actionable. 
 
 (w) Co. Litt. 368 b. Cf. 2 Co. Inst. 208, (a) 1 Hawk. c. 83, s. 3, Bac. Abr. tit. 
 
 212, 213. 1 Hawk. c. 83, ss. 1, 2. Bac. ' Maintenance.' 4 Bl. Com. 134. This 
 
 Abr. tit. ' Maintenance.' Other early dcfi- kind of maintenance is called curialis. 
 
 nitions are collected in Bradlaugh v. New- (b) Co. Litt. 368. 1 Hawk. c. 83, s. 3, vide 
 
 degate, 17 Q.B.D. 1, 5, and British Cash, post, p. 594. The abuse of legal proceed - 
 
 &c., Co. i». Lamson Store Co. [1908], 1 K.B, ings by oppressive combinations to carry 
 
 1006, 1019. them into effect is said to have speedily 
 
 (a;) Confirmed in 1383 (7 Rich. II. c. 15). appeared upon the establishment of the 
 
 4 Edw. III. c. 11, confirmed by the same laws in the time of Edward I. ' Instead o* 
 
 Act, was repealed in 1881 (44 & 45 Vict. their former associations for robbery anA 
 
 c. 59). violence, men entered into formal combi- 
 
 (y) By a common informer. Half the nations to support each other in law .suits ; 
 
 penalty goes to the Crown, half to the in- and it was found requisite to check this 
 
 former. The penalty is cumulative on the iniquity by Act of Parliament.' 2 Hume, 
 
 criminal liability and on civil liability to 320, referiing to the ordinance of conspira- 
 
 persons injured. tors. Edw. I. post, p. 595. 
 
 [z) This kind of maintenance is called in
 
 588 Of Offences against the Administration of Justice, [book vil. 
 
 founded on a prohibition by statute, which makes it a criminal act and 
 a misdemeanor ' (c). It has been held that the statutes relating to main- 
 tenance are declaratory of the common law {d). It seems immaterial 
 whether the maintenance is of the plaintiff or of the defendant (e), and 
 a corporation seems to be liable for maintenance as much as an individual, 
 unless it is in liquidation (/). A maintenance is not limited to civil 
 actions at common law : but it is not maintenance to assist another, 
 and in a criminal proceeding {g). But such assistance may amount to 
 malicious prosecution or conspiracy to pervert justice {h). 
 
 ' The substance of the law is that parties shall not by their countenance 
 aid the prosecution of suits of any kind which every person must bring 
 on his own bottom and at his own expense ' (?'). 
 
 ' All our cases of champerty and maintenance are founded on the 
 principle that no encouragement should be given to Htigation by the 
 introduction of parties to enforce those rights which others are not 
 disposed to enforce ' (j). 
 
 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 in 
 the whole or part of the expense of the suit, may properly be said to be 
 guilty of an act of maintenance {k). It has been said that no one can be 
 guilty of maintenance in respect of any money given by him to another 
 for the purposes of an intended suit, before any suit is actually commenced ; 
 but it would seem that this, if not strictly maintenance, must be equally 
 criminal at common law (l). And a person may be as much guilty of 
 maintenance for supporting 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 (m). 
 
 (c) Metropolitan Bank i\ Pooley, 10 App. at common law as if the money were given 
 Cas. 210, 218, Selborne, L.C. after the commencement of the suit ; 
 
 (d) Pechell v. Watson, 8 M. & W. G91. though perhaps it may not in strictness 
 
 (e) See British Casli, &c., Co. v. Lamson come under the notion of maintenance. 
 Store Co. [1908], 1 K.B. 1006, 1021. Where a declaration alleged that the de- 
 
 (/) Ibid, and cf. Metropolitan Bank v. fendant unlawfully and maliciously did 
 
 Pooley, 10 App. Cas. 210, 218. procure, instigate, and stir up one T. 
 
 ((/) See Harris v. Brisco, 17 Q.B.D. 504. to commence and prosecute an action 
 
 (h) Ante, p. 160. against the plaintiff, wherein certain issues 
 
 {i) Wallis V. Duke of Portland, 3 Ves. 49, were joined, as to which the plaintiff was 
 
 affirmed. Bro. P. C. Suppl. 161, and ap- acquitted ; the Court held that no cause of 
 
 proved in Alabaster v. Harness [1895], 1 action appeared, the declaration not shew- 
 
 Q.B. 339, 343. ing maintenance (as the action appeared 
 
 (j) Prosser v. Edwards, 1 Y. & C. (Ex.) not to have been commenced when the 
 
 481, Abinger, C.B., approved in Alabaster defendant interfered), and not alleging 
 
 V. Harness, p. 344, Lopes, L.J. See Brad- want of reasonable and probable cause for 
 
 laugh V. Newdegate, ubi sup. Fischer v. the action. Flight v. Leman, 4 Q.B. 883. 
 
 Kamala Naicker, 8 Moore, Ind. App. 170, The distinction between instigating a suit 
 
 187 (' something against good policy and and maintaining one already begun seems 
 
 justice'). Vide post, p. 594, note (/"). too narrow. Bradlaugh v. Newdegate, 11 
 
 (k) 1 Hawk. c. 83, s. 4, and authorities Q.B.D. 1, 8. 
 there cited in the margin. (m) 1 Hawk. c. 83, s. 13. Bac. Abr. tit. 
 
 (/) Bac. Abr. tit. ' Maintenance.' 1 ' Maintenance ' (A). The writ of attaint is 
 
 Hawk. c. 83, s. 12, where it is said, that if obsolete, and writs of error are superseded 
 
 it plainly appear that the money was given by appeals, vide post, Bk. xii. c. iv. 
 
 merely with a design to assist in the prose- Where a declaration alleged that the 
 
 cution or defence of an intended suit, which defendant unlawfully, maliciously, and 
 
 afterwards is actually brought, surely it without reasonable or probable cause, and 
 
 cannot but be as great a misdemeanor in without having any interest in the suit 
 
 the nature of the thing and equally criminal therein mentioned, instigated and stirred
 
 CHAP. IX.] Maintenance. 589 
 
 Judicial opinion as to what constitutes unlawful maintenance from the 
 point of view of criminal and civil liability has gradually changed (n). The 
 view now accepted is that of Lord Abinger in Findon v. Parker (o) : ' The 
 law of maintenance as I understand it upon the modern construction is 
 confined to cases where a man improperly and for the purpose of stirring 
 up litigation and strife encourages others either to bring actions or to 
 make defences which they have no right to make' (p), and the tendency of 
 judicial decision is to attempt to carve out of the old law such remnant as 
 is consistent with modern views of public policy and freedom of trade and 
 contract, and to disregard the ancient definitions : but to recognise that 
 there is such a thing as maintenance in cases of ' wanton and officious 
 intermeddling with the disputes of others in which the defendant has no 
 interest whatever, and where the interest he renders to one or the other 
 party is without justification or excuse ' (q). 
 
 The following classes of Acts in the nature of maintenance have 
 been held justifiable or excusable or unlawful from the circumstances 
 under which they are done. 
 
 Maintenance may be justified by the interest of the maintainer in 
 the suit, i.e., (1) an actual valuable interest in the result of the suit 
 itself as the present, contingent or future, (2) or the interest which 
 consanguinity or affinity to the suitor gives to the man who aids him, or 
 (3) the interest arising from the connection of the parties, e.g. as master 
 and servant, or (4) that which charity and compassion (r) gives a man on 
 behalf of a poor man, who, but for the aid of his richer helper, could not 
 assert his rights, and would be oppressed and overborne in his endeavour 
 to maintain them (s). 
 
 In litigation relating to a patent for nickel plating, advertisements in- 
 viting persons interested in the nickel plate trade to subscribe towards the 
 expenses of a pending appeal were held not to be open to objection, as the 
 persons invited to subscribe had a common interest with the advertiser (/-). 
 
 1. Interest.— Not only those who have an actual interest in the thing 
 in dispute, e.g. those who have a reversion expectant on an estate-tail, or a 
 lease for life or years, &c., but also those who have a bare contingency 
 of an interest in the lands in question, which possibly may never vest in 
 possession, and even those who by the act of God have the immediate 
 possibility of such an interest, such as heirs apparent (u), or the husbands 
 of such heirs, though it be in the power of others to bar them, may 
 lawfully maintain another in an action concerning such lands : and if a 
 
 up a pauper to commence and prosecute Cash, &c., Co. v. Lamson Store Co. [1908], 
 
 an action against the plaintiff, by reason 1 K.I3. lOOG, 1012, 1020. And see p. 1014. 
 
 whereof the pauper did commence and Moulton, L.J. 
 
 prosecute such action, whereby the plahitirt" (g) [1908] 1 K.B. 1006,1013, 1014, 
 
 was put to great trouble and vexation, and IMoulton, L.J. 
 
 obliged to lay out a large sum in the defence (r) iSee 4 Bl. Com. 134. Harris v. Brisco, 
 
 of such action ; the Court held the declara- 17 Q.B.D. 504, 513. 
 
 lion good. Pcchcll v. Watson, 8 M. & W. (.s) Bradlaugh v. Newdegate, 17 Q.B.D. 
 
 tJOl. 1, 11, Coleridge, C.J., approved in Alabas- 
 
 (7i) Thus the purchase of a chose in action ter v. Harness [1895], 1 Q.B. 339, 343, 
 
 which under the old law amounted to Esher, M.R. 
 
 maintenance, is not now so regarded. (t) Plating Co. v. Farquharson [1881], 17 
 
 Fitzroy v. Cave [1905], 2 K.B. 364. Ch. D. 49 (C.A.). 
 
 (o) 11 51. & W. 075. (») See Alabaster v. Harness [1895], 1 
 
 (p) Quoted and approved in British Q.B. 339, 346, Rigby, L.J.
 
 590 Of Offences against the Administration of Justice, [book vii. 
 
 plaintifE in an action of trespass aliene 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 {v). Also, he who 
 is bound to warrant lands may lawfully maintain the tenant in 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 
 maintain a suit concerning the thing in which he has such an equity {w). 
 And wherever any persons claim a common interest in the same thing, 
 as in a way, churchyard, or common, &c., by the same title, they may 
 maintain one another in a suit concerning such thing (x). 
 
 Where, on the trial of an action brought to recover the amount of an 
 attorney's bill, in which there was a plea of maintenance, it appeared that 
 Jesus College, Oxford, had given notice to set out tithes in kind to all the 
 owners of old inclosures in the parish of Tredington, who had, as far as 
 living memory went, paid certain sums of money in lieu of tithes for the 
 old inclosures, and that, at a meeting of the owners of such old inclosures, 
 it was agreed by them that they should defend any suit or suits which 
 should be instituted by Jesus College, to enforce the payment of tithes, 
 and that the expenses of such defence should be paid by the owners in 
 proportion to their interests, as ascertained by the poor rate ; the owners 
 considering that if Jesus College should succeed in one suit as to any part 
 of the old inclosures, that would invalidate the payments as to all. It 
 was held that the agreement to defend the suits was not maintenance ; 
 for, although the payments were not the same per acre, and although the 
 interest in each payment was separate, yet all the owners of the old 
 inclosures had an interest in supporting the moduses over all the old 
 inclosures, and consequently the agreement was not officiously entered 
 into in order to defend the suits (y). 
 
 Where a count stated that Y. had deposited a sum of money in plain- 
 tiff's hands, which the plaintifE had delivered to the defendant at his 
 request, and that Y., threatening to bring an action against the plaintiff 
 to recover the money, and thereupon, in consideration that the plaintiff, 
 at the request of the defendant, would defend any action Y. should com- 
 mence, the defendant undertook to save the plaintiff harmless ; that Y. 
 brought an action to recover the money, and that the plaintiff defended 
 it with the privity and consent of the defendant ; it was held that this 
 was not maintenance (2). 
 
 Where a member of Parliament procured an informer to sue another 
 member of Parliament for penalties for having sat and voted without 
 being duly qualified, and gave him an indemnity against all costs and 
 expenses, it was held that the member and the informer had no such 
 common interest in the penalty sued for as would be a defence to an action 
 for maintenance (a). 
 
 {v) Bac. Abr. tit. ' Maintenance ' (B). 1 tit. ' Maintenance ' (B). 
 Hawk. 0. 83, ss. 14, 15, &c. (y) Findon v. Parker, 11 M. & W. 675, 
 
 (w) Id. ibid., and see the judgment of and MS. C. S. G. 
 Buller, J., in Master v. Miller, 4 T. R. 340 (z) Williamson v. Henley, 6 Bing. 229. 
 
 et seq. («) Bradlaugh v. Newdegate, 17 Q.B.D. 
 
 {x) 1 Hawk. c. 83, ss. 24, 25. Bac. Abr. 1,
 
 CHAP. IX.] Maintenance. 591 
 
 H. being interested in certain appliances for the electrical treatment of 
 diseases, employed T. as an expert to report on them, who published a 
 favourable report. H, subsequently instigated T. to sue A. for publishing 
 a newspaper article commenting unfavourably on T.'s report and qualifi- 
 cations. The action failed, and A. sued H. for maintaining it. It was 
 held that H. had no common interest with T. in his action for libel, and 
 was liable for maintenance of that action (6). 
 
 The action being for libel in jsoint of law could concern only the person 
 who brought it (c). 
 
 Where the defendants, a trading company, obtained contracts for the 
 hire of an apparatus in which the company dealt from customers of the 
 plaintiffs of a rival trading company, and agreed to indemnify the hirers 
 from claims by the plaintiffs for breach of contract, it was held that 
 their contracts of indemnity were given in lawful defence of the com- 
 mercial interests of the defendants, and that they were not liable for 
 maintenance {d). 
 
 At one time not only he who laid out money to assist another in his 
 suit, but even he who by his friendship or interest saved the party 
 an expense which he might otherwise have had to incur, or gave or 
 endeavoured to give any kind of assistance to a party in the manage- 
 ment of his suit, was held to be guilty of maintenance (e). But this 
 doctrine is not now accepted (/). 
 
 It has been said that he who gives any public countenance to another 
 in relation to his suit is liable for maintenance {g) ; as if a person of great 
 power and interest says publicly 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 anything or not ; for such practices not only tend to 
 discourage the other party from going on with his cause, but also to 
 intimidate juries from doing their duty (h). 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 (i). A man is not guilty of an act of mainte- 
 nance, by giving another friendly advice as to his proper remedy at law, 
 or as to the lawyer likely to do his business most effectually (/). 
 
 2. Affinity. — Whoever is of kin, or godfather to either of the parties, 
 or related by any kind of affinity still continuing, may lawfully 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 (k). 
 
 (h) Alabaster v. Harness [1895], 1 Q.B. 1 Hawk. c. 83, ss. 5, G. 
 399. Cf. Shackell v. Rosier [1836], 2 Bing. (/) Master v. Miller, 4 T. R. 340, Bullcr, 
 
 N. C. 635. A contract to indemnify the J. 
 
 plaintiff against an action for publishing a (r/) See post, p. 598, ' Embracery.' 
 
 libel at the defendant's request. (h) 1 Hawk. c. 83, s. 7. Bac. Abr. tit. 
 
 (c) See British Cash, &c.. Co. v. Lamson ' Maintenance ' (A). 
 Store Co. [1908], 1 K.B. 1006, 1021, (/) 1 Hawk. c. 83, s. 8. 
 
 Buckley, L.J. (j) Ibid. s. 9. Bac. Abr. tit. ' Main- 
 
 (d) Id. ibid. tenance ' (A). 
 
 (e) Bro. tit. ' Maintenance,' 7, 14, 17, &c. {k] Bac. Abr. tit. ' Maintenance ' (B).
 
 592 Of Offences against the Administration of Justice, [book vii. 
 
 3. Tenure. — It seems that a landlord might justify laying out his 
 own money in defence of his tenant's title, where the lands were originally 
 derived from the landlord, but that he could not maintain the tenant 
 in respect of lands not held of himself (I). 
 
 4. Service.^A master may pray one to be of counsel for his servant, 
 and may go with him, and stand with him, and aid him at the trial : 
 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 (w). And a servant cannot lawfully lay out any of his own 
 money to assist the master in his suit [n). 
 
 5. Charity. — And one may lawfully give money to a poor man to 
 enable him to carry on his suit (o) : and anyone may safely go with a 
 foreigner, who cannot speak English, to a counsellor and inform him of 
 his case {f). 
 
 The gift to be justified must be out of charity or compassion, but it 
 is not necessary to shew that due inquiry was made or that a reasonable 
 belief existed, that the action maintained was well founded {q). Charit- 
 able aid is none the less within the exception when coupled with interest 
 arising from community of religion in a dispute relating to religious 
 matters (r). 
 
 6. Lawyer and Client. — It is not maintenance for a lawyer to give 
 professional aid to his client in legal proceedings. 
 
 A barrister may lawfully set forth his client's cause to the best advan- 
 tage ; but can no more justify giving him money to maintain his suit, 
 or threatening a juror (s),than any other person. And a soKcitor, when 
 retained, may lawfully prosecute or defend an action, and lay out his 
 own money in the suit [t). 
 
 Where there was one attorney on the record, and another attorney 
 became before the trial really and substantially the attorney for the 
 client in the conduct of the suit, and the latter, after verdict, but before 
 judgment, hona fide purchased from his client the benefit of his verdict, 
 it was held that the transaction, being a purchase of the subject-matter 
 of the suit by the attorney, was void ; for the attorney was to be con- 
 sidered as the attorney having the management of the cause, and the 
 purchase was in effect a purchase by the attorney in the cause of the 
 subject-matter of it 'pendente lite, not for the purpose of enabling the client 
 
 1 Hawk. c. 83, s. 26. Among the relations laugh v. Newdegate, 11 Q.B.D. 1, 11. 
 
 specified under this head are brother, son- (o) See the cases from the year books 
 
 in-law, and brother-in-law. Bradlaugh v. quoted in Harris v. Brisco, 17 Q.B.D. 504, 
 
 Newdegate, 11 Q.B.D. 1, 11. But in 512, Fry, L.J. 
 
 Burke v. Greene, 2 Ball & Beatty (Ir.) 517, [p) Bro. tit. ' Maintenance.' Bac. Abr. 
 
 an advance of money by a first cousin for tit. ' Maintenance.' 1 Hawk. c. 83, ss. 30, 
 
 recovery of an estate was held maintenance. 37. 
 
 Cf. Hutley v. Hutley, L. R. 8 Q.B. 112, a [q) Harris v. Brisco, 17 Q.B.D. 504.^ 
 
 champertous gift between cousins. (r) Holden v. Thompson [1907], 2 K.B. 
 
 (I) 1 Hawk. c. 83, s. 29. 489, approved in British Cash, &c., Co. v. 
 
 (m) Bro. tit. 'Maintenance,' 44, 52. 1 Lamson Store Co. [1908], 1 KB. 1006, 
 
 Hawk. c. 83, ss. 31, 32, 33, where reference 1014, Moulton, L.J. 
 
 is made to real actions now obsolete. (Writs (s) Vide post, 'Embracery,' p. 598, and 
 
 of right for dower, de dote unde nil habuit, ante, ' Contempt,' p. 537. 
 and g-J^are ?7«pe(i?7, have been superseded by {t) 2 Co. Inst. 564. Bac. Abr. tit. 
 
 writs of summons, under the Judicature Acts 'Maintenance' (B) 5. 1 Hawk. c. 83, ss. 
 
 and Rules.) 28, 29, 30. 
 
 (n) 1 Hawk. c. 83, s. 24. But see Brad-
 
 CHAP. IX.] Maintenance. 593 
 
 to carry on the suit, but because he wanted money ; and independently 
 of the statutes restraining the purchase of property in suit, no attorney 
 could be permitted to purchase anything in litigation, of which litigation 
 he had the management {u). 
 
 A contract with a solicitor to give him a portion of the profits arising 
 from the successful prosecution of a suit to establish a right to coal 
 mines on being indemnified against the costs of the proceedings is 
 champerty and maintenance {v). 
 
 A contract whereby a solicitor stipulates with a client to receive, 
 in consideration of the advances requisite to conducting the proceedings 
 to a successful issue, over and above his legal costs, a sum commensurate 
 with his outlay and exertions and with the benefit resulting to the client, 
 is unlawful. The contract would be directly in violation of the laws 
 against maintenance, if the stipulation were that the plaintiff, as solicitor 
 in the action, in consideration of his advancing the funds necessary for 
 carrying on the litigation, should receive a portion of the proceeds or 
 property to be recovered ; and the only difference between the two 
 case's is that, in the former, the party would have the security of the 
 property ; whereas here he has only the personal security of the client. 
 But if he be a solvent man, he get a share of the property by another 
 mode, viz., by suing him, and obtaining judgment {w). An agreement 
 to be carried into effect in this country, which would be void on the 
 ground of champerty if made here, is not the less void because it is made 
 in a foreign country, where such a contract would be legal. Where, 
 therefore, an attorney entered into an agreement in France with a French 
 subject to sue for a debt due to the latter from a person residing here, 
 whereby the attorney was to receive by way of recompense a moiety of 
 the amount recovered ; it was held that this agreement was void for 
 champerty {x). If any act were done under such an agreement in 
 England, the party doing it would be indictable here {y). 
 
 But there is a distinction between the assignment by a client to his 
 solicitor of the subject-matter of a suit by way of security, and an abso- 
 lute sale of the subject-matter of the suit. In the latter case the solicitor 
 might have an opportunity of imposing on his client, from his superior 
 knowledge of the value of that subject-matter, and might after the pur- 
 chase take improper means to increase the value. But a mere assign- 
 ment, by way of security, is open to no such danger, and may be very 
 advantageous to the client (2). A client having obtained a verdict for 
 recovery of certain land, by deed granted the crop of potatoes then grow- 
 ing upon the land, and all other effects thereon, until payment of £100 
 due with interest to the attorney (for money lent and professional ser- 
 vices), with a proviso that if the client paid the £100 and the interest on 
 a certain day, the deed should be void. The deed also contained a power 
 to the attorney, on default of payment, to enter, carry away, and dispose 
 
 (if) Simpson v. Lamb, 7 E. & B. 84. (x) Giell v. Levy, IG C. B. (N. S.) 73. 
 
 (y) Hilton v. Woods [1867], L. R. 4 Eq. ('/) See R. v. Biisac, 4 East 103. A case 
 
 432. A title to sue arising under such a of conspiracy formed outside England. And 
 
 contract is bad. Ibid. 439. Vide post, vide ante, p. 53. 
 
 p. 595, ' Champerty.' (r) Per Campbell, C. J., Ander-son v. 
 
 (w) Earle v. Hopwood, 9 C. B. (N. S.) Radcliffe, E. B. & E. 800 ; citing Wood v. 
 
 5GG. See Price v. Beattie, 32 L. J. Ch. 734. Downes, 18 Ves. 120. 
 
 VOL. I. 2 Q
 
 594 Of Offences against the Administration of Justice, [bookvii. 
 
 of the effects assigned ; provided that, if he sold the property, he should 
 hold the surplus, after paying the expenses and reimbursing himself, in 
 trust for his client. It was held that this deed could not be impeached 
 on the ground of either champerty or maintenance (a). 
 
 But no barrister or solicitor can justify using deceitful practices in 
 maintenance of a client's clause : and they are liable to be punished for 
 misdemeanors in this respect by the common law, and also by 3 Edw. I. 
 Stat. Westm. 1, c. 29. AH fraud and falsehood, tending to impose upon 
 or abuse the justice of the King's courts, are within the purview of the 
 statute (6). 
 
 It would seem that absence of mens rea or honesty of motive is not a 
 defence to an indictment for maintenance (c). 
 
 Punishment i — By the common law as reinforced by the statutes set 
 out below, all unlawful maintainers are not only liable to render damages 
 in an action at the suit of the l^arty grieved, but may also be indicted and 
 fined, and (or) imprisoned ; and it seems that a Court of record may 
 commit a man for an act of maintenance in the face of the Court (d). 
 
 By a statute of 1377 (1 Rich. II., c. 4), 'it is ordained and established 
 and the King our Lord straightly commandeth that none of his counsellors, 
 officers, or servants nor any other person within the realm of England, of 
 whatsoever estate or condition they be shaU from henceforth take nor 
 sustain any quarrel by maintenance, in the country or elsewhere, on 
 grievous pain ; that is to say, the counsellors and the King's great 
 officers, on a pain which shall be ordained by the King himself, by the 
 advice of the lords of his realm ; and other less officers and servants of 
 the King, as well in the Exchequer and all the other Courts and places as 
 of his own meiny, upon pain to lose their offices and services and to be 
 imprisoned and then to be ransomed at the King's will, every of them 
 according to his degree, estate and desert : and all other persons through 
 the realm upon pain of imprisonment, and to be ransomed as the other 
 aforesaid ' (e). 
 
 Sect. IV. — ChamI'erty (/). 
 
 Champerty is a species of maintenance, being a bargain with a plaintiff 
 or defendant campum partiri, to divide the land or other matter sued for 
 between them, if they prevail at law ; whereupon the champertor is to 
 
 (a) Anderson v. Radcliffe, supra, af- et seq. Bac. Abr. tit. ' Maintenance,' in 
 
 firmed in error, E. B. & E. 119, upon the the margin. 
 
 ground that the contract was confined to (c) See Alabaster v. Harness [1895], 1 
 the payment of a debt already due for Q.B. 339, 345, Rigby, L.J. 
 costs subject to taxation, and therefore the {d) 2 Rolle, Abr. 114. 2 Co. Inst. 208. 
 attorney got nothing but a security for a 1 Hawk. c. 83, s. 38. Bac. Abr. tit. ' Main- 
 just debt. See also Cook v. Field, iS Q.B. tenance ' (C). Hetley, 79. 
 460, where an agreement to sell the possi- (e) This statute was confirmed in 1383 
 bihty and expectancy of an estate, in case (7 Rich. II. c. 15), and againin 1540(32 Hen. 
 the vendor became devisee of it, was held VIII. c. 9, s. 1). See 1 Hawk. c. 80, s. 143. 
 lawful. (/) The English law of champerty does 
 
 lb) 2 Co. Inst. 215. Bac. Abr. and not extend to India. Kunwar Ram Lai v. 
 
 Hawk, stipra. The statute enacts that the Nil Kanth [1893], L. R. 20 Ind. App. 112. 
 
 offender shall be imprisoned for a year and Cf. Fischer v. Karnala Naicker [1860], 8 
 
 a day, and shall not plead again if he be a Moore, Ind. App. 170. Bhagwat v. Debi 
 
 pleader. Dy. 362. 1 Hawk. c. 83, s. 33 [1908], L. R. 35 Ind. App. 48.
 
 CHAP. IX.] Chamferty, 595 
 
 carry on the party's suit at his own expense (</). It is defined in the old 
 books to be, the unlawful maintenance of a suit, in consideration of some 
 bargain to have part of the thing in dispute, or some profit out of it {h). 
 
 The Ordinacio de Conspiraforibus (1300, 33 Edw. I.) declares that 
 ' champertors be they that move pleas or suits or cause to be 
 moved either by their own procurement or by others and sue them at 
 their proper costs for to have part of the land in variance or part of 
 the gains ^ (i). 
 
 The statute of Westminster 1 (1275, 3 Edw. I.), c. 25, enacts, that*' no 
 officers of the King, by themselves nor by 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 j)unished at the King's pleasure ' (/). 
 In this statute ' courts ' means courts of record only, and ' covenant ' in- 
 cludes all kinds of promises and contracts of this kind. 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. The 
 statute applies to a grant of rent out of the lands in question, but not to a 
 grant of rent out of other lands ; nor to a grant of part of a thing in suit, 
 made in consideration of a precedent debt (k). The maintenance of a tenant 
 or defendant is as much within the meaning of the statute as the main- 
 tenance of a demandant or plaintiff. And it has been held immaterial 
 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 (l). 
 
 By 13 Edw. I (Stat. Westm. the second), c. 49 (m), it is enacted that ' the 
 chancellor, treasurer, justices, nor any of the King's council, no clerk 
 of the chancery, nor of the exchequer, nor of any justice or other officei", 
 nor any of the King's house, clerk ne lay, shall not receive any church, 
 nor advowson of a church, land, nor tenement, 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. And he that doth any such thing (ki ceste chose face), 
 either himself or by another, or make any bargain {baret y face) shall be 
 punished at the King's pleasure, as well he that purchaseth as he that 
 doth sell.' This statute extends only to the officers therein named, and 
 not to any other person (n). 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 they 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 con- 
 sideration made by any other person, of any terre-tenant, is no offence, 
 unless it appear that he did it to maintain the party (o). 
 
 (</) 4 BI. Com. 135. Hawk. c. 84, s. 3 et neq. Bac. Abr. (it. 
 
 (/() Stanley v. Jones, 7 Bing. 377, 1'indal, ' Clianiperty.' 
 
 CJ. (/) Id. ibid. 
 
 (0 1 Stat. Rev. (2nd ed.), 77. (m) 1 Stat. Rev. (2nd ed.), 35. The old 
 
 (;') Said to be declaratory of the eommon translations of this and the next Act do not 
 
 law. Hanis r. Brisco, 17 Q.B.D. 504, 511 accurately represent the French text. 
 
 (C- A.). (n) 2 Co. Inst. 484, 485. 
 
 (k) Sec the authorities collected in 1 (o) 1 Hawk. c. 84, s. 12. 
 
 2q2
 
 596 Of Offences against the Administration of Justice, [book vii. 
 
 28 Edw. I. c. 11 (p), reciting that ' the King hath heretofore ordained 
 by statute that none of his ministers should take no plea for champerty (a 
 cfiampart), by which statute others than officers {autres que ministres) were 
 not bounden before this time/ 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, 
 taking upon him {enprise). And to attaint him thereof {pur ceo atteindre), 
 whosoever will shall be received to sue for the King before the justices 
 before whom the jilea hangeth, and the judgment shall be given by them. 
 But it may not be understood hereby, that any person shall be prohibit 
 to have counsel of pleaders, or of learned men in the law for his fee, or of 
 his parents and next friends/ 
 
 It seems to be agreed that champerty in any action at law, and pur- 
 chase of land, pending a suit in equity concerning it, are within this statute; 
 and 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 conveyance executed, pending a plea, in pursuance of a precedent 
 bargain, nor a surrender by a lessee to his lessor, nor a conveyance or 
 promise thereof made by a father to his son, or by an 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 [q). A bargain by a 
 man, who has evidence in his own possession respecting a matter in 
 dispute between third persons, and who at the time professes to have 
 the means of procuring more evidence, to purchase from one of the 
 contending parties, as the price of the evidence which he so possesses 
 or can procure, an eighth part or share of the sum of money, which 
 shall be recovered by means of the production of that evidence, is an 
 illegal agreement ; and if there be any difference between such a con- 
 tract, and direct champerty, it is strongly against the legality of such 
 contract ; as besides the ordinary objection, that a stranger to the 
 controversy has acquired an interest to carry on the litigation to the 
 utmost extent, by every influence and means in his power, the bargain 
 to furnish and to procure evidence for the consideration of a money 
 payment in proportion to the effect produced by such evidence, has a 
 direct tendency to pervert the course of justice (r). But a contract to 
 communicate information on terms of getting a share of any property 
 that might be recovered by means of this information is not champerty (s), 
 unless it provides that the person giving the information and to share the 
 property is himself to recover the property {t). Where a biU was filed 
 for the purpose, amongst other things, of declaring an agreement void, 
 
 (p) 1 Stat. Rev. (2nd ed.), 58. (r) Stanley v. Jones, 7 Bing. 369. Potts 
 
 (q) Bac. Abr. tit. ' Champerty.' 1 Hawk. v. Sparrow, 6 C. & P. 749. 
 
 c. 84, s. 14 et seq. But it is said to be (s) Sprye v. Porter, 7 E. & B. 58. 
 
 dangerous for a counsellor to meddle with (t) Rees v. De Bernardy [1896], 2 Ch. 
 
 any such gift, since it cannot but cany with 437, Romer, J. Wedgerfield v. De Ber- 
 
 it a strong presumption of champerty. 2 nardy [1908], 24 T. L. R. 497 : 25 T. L. R, 
 
 Co. Inst. 564. 21.
 
 CHAP, ix.j Buying and Selling Pretended Titles. 597 
 
 whicli had been made by a seaman for the sale of his chance of prize 
 money to his prize agents, who were to carry on the suit, Grant, M.R., 
 expressed an opinion that the agreement was void, as amounting to 
 champerty (u). An agreement with a man of straw to support a suit 
 by him for penalties on terms of sharing the penalties recovered is 
 champerty (v). 
 
 Subscription by strangers of money to maintain litigation for the 
 recovery of property to be repaid out of the property if recovered is both 
 maintenance and champerty {w). 
 
 In Sprye v. Porter (x), to a declaration upon an agreement the defen- 
 dant pleaded that one T. died possessed of personal property, intestate 
 and without any known relation, and that administration had been 
 granted to the Treasury Solicitor, and that the defendant was ignorant 
 of his being related to T., or in any way entitled to the property ; and 
 that it was thereupon unlawfully agreed between the parties that the 
 plaintiff and E. should give and supply information and evidence in case 
 of proceedings for recovery of the property, that, by means of such 
 information and evidence, the defendant should successfully recover 
 the property ; and that if by means of such information and evidence 
 the defendant should actually recover the property, he would pay each 
 of them one-fifth of the amount ; and that for the purpose of carrying 
 this illegal agreement into effect the parties entered into the agreement 
 set out in the declaration, and that it was under the illegal agreement 
 that the property was actually recovered. It was held that this was 
 maintenance in its worst aspect (y). 
 
 While the mere assignment of the subject of a suit is not maintenance, 
 it is maintenance to agree to give another the benefit of a suit on con- 
 dition that he prosecutes it (z). 
 
 Relationship or collateral interest will not justify or excuse cham- 
 perty (a). 
 
 Sect, V. — Buying and Selling Pretended Titles. 
 
 Buijimj or selling a pretended title is said in the books to be a high 
 offence at common law, as plainly tending to oppression, for a man to 
 buy 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 worth 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 (h). Offences 
 of this kind were restrained by several statutes. By 13 Edw. I. c. 49 (c) 
 no person of the King's house shall buy any title whilst the thing is in 
 
 (u) Stevens v. Bagwell, 15 Ves. 139. (//) Stanley v. Jones, 7 Bing. 369, was 
 
 (v) Wood V. DowneP, 18 Ves. 120, Eldon, held on express authority to shew that the 
 
 C. SeeBradlaugh r. Newdegate, 11 Q.B.D. agreement was illegal. 
 
 1, 13. (z) Harrington v. Long, 2 My. & K. 590. 
 
 (if) lie Thomas [1894], 1 Q.B. 747. In Cf. Fitzroy v. Cave [1905], 2 K.B. 364. 
 
 this case the solicitor for the Utigant con (a) Hutlcy v. Hutlcy, L. R. 8 Q.B. 112. 
 
 cerned in the champerty attempted to set (6) Bac. Abr. tit. 'Maintenance' (E). 
 
 up the illegality as an answer to a claim for 1 Hawk. c. 86, s. 1. Moore (K.B.) 751. 
 
 ta.xation of costs. Hob. 115. Plowd. 80. 
 
 (r) 7 E. & B. 58. (c) Ante. p. 595.
 
 598 Of Offences against the Administration of Justice, [book vii. 
 
 dispute, on pain of both the buyer and seller being punished at the King's 
 pleasure. The similar but more general provisions of 32 Hen. VIII. c. 9, 
 s. 2 {d), were repealed by sect. 11 of the Land Transfer Act, 1897 
 (60 & 61 Vict, c, 65). 
 
 Sect. VI. — Embracery. 
 
 Embracery consists in such practices as tend to affect the administra- 
 tion of justice by improperly working upon the minds of jurors. It is 
 immaterial whether the jurors are grand jurors or petty jurors (e). Any 
 attempt whatsoever to corrupt or influence or instruct a jury in the cause 
 beforehand, or in any way to incline them to be more favourable to the 
 one side than to the other, by money, promises, letters, threats, or per- 
 suasions, except only by the strength of the evidence and the arguments 
 of counsel in open court, at the trial, is an act of embracery, whether the 
 jurors on whom such an attempt is made give verdict or not, or whether 
 the verdict given be true or false ( / ). And giving money to another, to 
 be distributed among jurors, is an offence of the nature of embracery, 
 whether the money is or is not actually distributed. 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 means except by arguments from 
 the evidence which may have been produced, and exhortations from the 
 general obligations of conscience to give a true verdict. And all fraudu- 
 lent contrivances whatsoever to secure a verdict are offences of this 
 nature ; as where persons by indirect means procure themselves or others 
 to be sworn on a tales de circumstantihus in order to serve on one side [g). 
 
 It is said that the law will not suffer a mere stranger so much as to 
 labour a juror to appear, and act according to his conscience : but it 
 seems that a person who may justify any other act of maintenance (/?) 
 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 can justify the labouring a juror not to appear {i). 
 
 Offences of this kind are indictable misdemeanors punished by fine 
 and imprisonment without hard labour (/). They have also been dealt 
 with by statute. 5 EdAv. III. c. 10 enacted that any juror taking of the one 
 party or the other, and being duly attainted, should not be put in any 
 assizes, juries, or inquests, and shall be commanded to prison, and further 
 ransomed at the King's will. 
 
 (d) For the construction of this section, 416, cit. The latest precedents of an in- 
 see 1 Hawk. c. 86, s. 7. Kennedy v. Lyell, dictment for this offence were in R. v. 
 15 Q.B.D. 491. Jenkins v. Jones, 9 Baker, 113 Cent. Crim. Ct. Sess. Pap. 374, 
 Q.B.D. 128. 589, and R. v. Davies [1909], 150 Cent. 
 
 (e) Anon. v. Rowe (K.B. Ir.), 644, 727. Cr. Ct. Sess. Pap. 736, in which cass the 
 Information for procuring a grand jury to indictment was for attempting to pervert 
 throw out bills of indictment. the course of justice by influencing a juror 
 
 (/) 1 Hawk.c. 86, ss. 1,5. 4B1. Com. 140. during a criminal trial. Aa to giving 
 
 [g) 1 Hawk. c. 85, s. 4. R. v. Opie, 1 money to a juror after the verdict, see 
 
 Wms. Saund. 301, an information for a 1 Hawk. c. 85, s. 3. 
 
 conspiracy in the nature of embracery to (A) Ante, pp. 587 et seq. 
 
 obtain a false verdict m which the overt (i) 1 Hawk. c. 85, s. 6. 
 
 act alleged was contrivmg by bribes to get (j) Ibid. s. 7. 4 Bl. Com. 140. In He 
 
 D. and T., two of the conspirators included Dimn [1906], Victoria L. R. 493, the ques- 
 
 in the tales and sworn of the jury. As to lion was discussed whether embracery 
 
 bribing jurors, see also R. v. Young, 2 East, could be dealt with as contempt of Court.
 
 CHAP. IX.] Of Embracery, 599 
 
 34 Edw. Ill, c. 8 (1360) enacted that a juror attainted of such offence 
 should be imprisoned for a year. 
 
 The Juries Act, 1825 (6 Geo. IV. c. 50), s. 6X, repeals so much of 5 Edw, 
 III. c. 10, ' as relates to the punishment of a corrupt juror,' and so much 
 of 34 Edw. III. c. 8 {k), ' as directs the proceedings against jurors taking 
 a reward to give their verdict ' ; and enacts and declares, by sect. 61, 
 that ' notwithstanding anything herein contained, every person who 
 shall be guilty of the offence of embracery, and every juror who shall 
 wilfully or corruptly consent thereto, shall and may be respectively 
 proceeded against by indictment or information, and be punished by 
 fine and imprisonment, in like manner as every such person might have 
 been before the passing of this Act.' 
 
 32 Hen. VIII. c. 9, s. 3, enacts that no person shall ' embrace any free- 
 holders or jurors ' . . . ' for to maintain any matter or cause, or to the dis- 
 turbance or hindrance of justice or to the procurement or occasion of any 
 manner of perjury by false verdict or otherwise ' . . . ' upon pain of 
 forfeiture for every such offence of £10,' half to the King and half to him 
 that shall sue within a year {I). 
 
 {k) These Acts were repealed as to Ire- same lines as s. 62, supra. 
 land in 18.33 (3 & 4 Will. IV. c. 93, s. 50). (?) As to the meaning of this statute, see 
 
 The .Juries (Ireland) Act, 1871 (34 & 35 1 Hawk. c. 85, s. U. 
 Vict- c. 65), s. 49, is subste^ntialJy on the
 
 ( 600a ) 
 
 CANADIAN NOTES. 
 
 OF BARRATRY, MAINTENANCE, CHAMPERTY, ETC. 
 
 Sec. 4. — Champerty is a criminal offence, and a champertous con- 
 tract will not be enforced by the Courts. The English champerty laws 
 were introduced or continued in Ontario and Quebec under the Quebec 
 Act, 1774. Meloche v. Dequire, 8 Can. Cr. Cas. 89 ; Hopkins v. Smith 
 (1901), 1 O.L.R. 659. 
 
 The criminal law of England on this subject was introduced into 
 ^ British Columbia by R.S.C. (1886) ch. 144, sec. 2. 
 
 A bargain by which A., a stranger to B., having no interest recog- 
 nized by law in a given property, agrees to help B. to recover such pro- 
 perty in a Court of justice in consideration of getting a portion of the 
 fruits of the suit is champerty and is an indictable offence by the com- 
 mon law of England. Briggs v. Fleutot, 10 B.C.R., at p. 316.
 
 i
 
 (601) 
 
 BOOK THE EIGHTH. 
 
 OF OFFENCES WITH RESPECT TO PUBLIC OFFICE : AND OF 
 BRIBERY AND CORRUPTION OF AND BY OFFICIALS, AGENTS, 
 PARLIAMENTARY CANDIDATES AND ELECTORS. 
 
 CHAPTER THE FIRST. 
 
 OF MISCONDUCT IN OFFICE. 
 
 Sect. I. — General Common Law Rule. 
 
 Where a public officer is guilty of misbehaviour in office by neglecting 
 a duty imposed upon him either at common law or by statute, he commits 
 a misdemeanor and is liable to indictment unless another remedy is 
 substituted by statute {a). The liability exists whether he is a common 
 law or a statutory officer (h) ; and a person holding an office of important 
 trust and of consequence to the public, under letters patent or derivatively 
 from such authority, is liable to indictment for not faithfully discharging 
 the office (c). 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 which he is 
 bound to take notice of, it is not necessary to state that he had notice 
 of those acts, for he is presumed from his situation to know them (d). 
 
 In some cases also the offence will involve a forfeiture of his office, 
 if it be beneficial (e). 
 
 The present chapter will deal with oppression, negligence, fraud, and 
 extortion by officers, and with refusal to take up an office on proper 
 appointment. As to bribery and buying and selling offices, see post, 
 pp. 619, 627. 
 
 Sect. II. — Oppression. 
 
 Judicial OflQcers. — Although a judge is not indictable for mere error 
 of judgment ( /) the oppression and tyrannical partiality of judges and 
 other magistrates in the administration, and under colour of their offices, 
 
 («) See R. V. HaU [1891], 1 Q.B. 747. Com. Dig. 'Officer' (K. 2) (K. 3), and 
 
 Vide ante, p. 11. Earl of Shrewsbury's ca.se. 9 Co. Rep. 42, 
 
 (6) R. V. Wyat, 1 Salk. 380. Anon., 6 -50. As to forfeiture by conviction of 
 
 Mod. 96. treason or felony, see 33 & 34 Vict. c. 23, 
 
 (c) R. V. Bembridge [1783], 22 St. Tr. 1, s. 1, ante, p. 250. 
 
 77, 1.51 : 3 Doug. 327, Lord Mansdeld. ( f) R. v. Loggen, 1 Str. 74. Ander.«on v. 
 
 And see 1 Salk. 380n. Gofrie [1895], 1 Q.B. 668. And see R. v. 
 
 (d) R. V. HoUond, o T. R. 607. Nelson, Cockbum's Report. 
 
 (e) 4 Bl. Com. 540. 1 Hawk. c. 66, s. 1.
 
 602 
 
 Of Offences with Respect to Public Office, [book viii. 
 
 may be punished by impeachment in Parliament, or by information or 
 indictment, according to the rank of the offender and the circumstances 
 of the offence (g). 
 
 High Court. — There are no modern instances of criminal proceedings 
 against judges of the Supreme Court for misconduct in office (h). They 
 cannot be removed from oflS.ce except on address presented by both 
 Houses of ParHament to the King (i). 
 
 Coroner. — ' A coroner ' [or deputy-coroner (?) ] ' who is guilty of extortion 
 or of corruption or of wilful neglect of his duty or of misbehaviour in the 
 discharge of his duty shall be guilty of a misdemeanor, and in addition 
 to any other punishment may, unless his oflSce of coroner is annexed to 
 any other ofl&ce, be adjudged by the Court before whom he is so convicted 
 to be removed from his office ' (k). A coroner is also guilty of a mis- 
 demeanor if he acts as a solicitor to prosecute or defend a person for 
 an offence of which he is charged on an inquisition taken before such 
 coroner {I) ; or if he refuses on the written request of the majority of the 
 jury to siunmon as a witness a qualified legal practitioner named by the 
 jury, or to direct such person to make a post-mortem examination of 
 the deceased (m). He is also Hable to be summarily fined for not returning 
 inquisitions, depositions, &c., in cases of murder and manslaughter, to the 
 proper Court of trial, and for not attending (w) the Court in person (o). 
 
 It would seem to be misbehaviour within the Coroners Act, 1887, 
 to refuse without adequate reason or from improper motives to hold 
 an inquest (p), or to take an inquisition without view of the body (q), or 
 to use corrupt influence over the jury (r), or to take sworn jurors off the 
 panel so as to get from the remaining jurors a verdict of insanity (s). 
 A criminal information has been allowed against a coroner who on a 
 jury returning a verdict of accidental death recorded the verdict, but 
 committed a person to prison on a charge of murder (t) : and it appears 
 to be misconduct for the coroner to enter the jury room when the jurors 
 are deliberating and to take the verdict there (m). A coroner is liable to 
 a motion by the Lord Chancellor for inability or misbehaviour in office (v). 
 
 (g) 1 Bl. Com. 141. As to where the 
 judge has absolutely no jurisdiction, e.g., 
 where he pronounces an illegal sentence, 
 see Mayne. Ind. Cr. Law (ed. 1896), p. 342. 
 R. V. Nelson, Cockbum's Report, 124, 150. 
 
 {h) See Anderson v. Gorrie, ubi supra. 
 
 (i) 38 & 39 Vict. c. 77, s. 5 (E). 40 & 41 
 Vict. c. 57, s. 13 (I). 
 
 (j) 55 & 56 Vict. c. 56, s. 1 (5). 
 
 (k) 50 & 51 Vict. c. 71, s. 8 (2). A re- 
 enactment of 25 Geo. II. c. 29, s. 6. 
 
 [1) Ibid. s. 10. (m) Ibid. s. 21 (3). 
 
 {«) Ibid. s. 9. See Lord Buckhurst's 
 Case, 1 Keb. 280. 
 
 (o) i?eUrwm[1827],Carr.Supp.l7. The 
 duties of a coroner as to holding mquests are 
 laid down in R. v. Kent J J., 11 East, 229. 
 R. V. Price, 12 Q.B.D. 247. R. v. Stephenson, 
 13 Q.B.D. 331. R. v. Graham [1905], 21 
 T. L. R. 576. See precedents of indict- 
 ments against coroners for refushag to take 
 inquisitions, or for not returning mquisi- 
 tions accordmg to evidence. 2 Chit. Cr. 
 
 Law, 255 ; Cro. Circ. Comp. (10th ed.) 173, 
 and see Jervis on Coroners (6th ed.) 59. 
 
 (}}) Re HuU, 6 Q.B.D. 689. Re Ward, 
 30 L. J. Ch. 775. As to exhuming a 
 body too late for an effective view, see R. 
 V. Parker, 2 Lev. 140. 
 
 (?) 2 Hale, 270. 
 
 Ir) R. V. Coates, Dickson, J. P. 515. 
 
 (s) R. V. Stukeley, 12 Mod. 493. Cf. R. 
 V. Whitcomb, 1 C. & P. 125. 
 
 {t) R. V. Scory, 1 Leacb, 43. And see 
 1 Str. 69. 
 
 (u) Mitchelstown Inquisition, 22 L. R. Ir. 
 279. And see Jervis on Coroners (6th ed.) 
 60. As to intoxication during inquest, see 
 R. V. Ward, 30 L. J. Ch. 775. Ex parte 
 Pasley [1842], 3 Dr. & W. (Ir.) 34. As to 
 recording an inquisition against three when 
 the jurors' verdict was as to one only, R. 
 V. Marsh [1700], 1 Salk. 172. As to ex- 
 amining witnesses before the jury is sworn, 
 see R. V. Whitcomb, 1 C. & P. 124. 
 
 {v) 50 & 51 Vict. c. 71, s. 8 (I).
 
 CHAP. L] Of Misconduct in Office. 603 
 
 County Court Judges. — County Court judges, like all other judges 
 of inferior Courts, appear at common law to be liable to indictment for 
 grave misconduct in office. A rule for a criminal information against 
 a County Court judge for misconduct in office was discharged on the 
 ground that the applicant had already elected his remedy by applying 
 to the Lord Chancellor to inquire into the alleged misconduct {w). 
 
 Colonial Judges. — Judges of a Colonial Court directly appointed by 
 the Crown are liable to amotion for misconduct [x). 
 
 Justices of the Peace. — Justices of the peace have often been held 
 liable to criminal information for fraud or misconduct in office, which 
 could not be excused by mistake or ignorance of law {ij). As a general 
 rule justices are not punishable for acts done at general or quarter 
 sessions {z), but there are some precedents in respect of such acts {a). 
 But with respect to the acts of justices in petty sessions or out of sessions 
 the precedents are numerous (6). 
 
 Though a justice of the 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 a criminal information, but will leave the 
 party complaining to his ordinary remedy by action or indictment (c). 
 And whenever the acts or defaults of justices have been challenged, 
 either by way of indictment, or application for a criminal information, 
 the question has always been, not whether the act done might, upon 
 full and mature investigation, be found strictly right, but from what 
 motive it had proceeded ; whether from a dishonest, oppressive, or cor- 
 rupt motive {d), ' under which description fear and favour may generally 
 be included,' or from mistake or error. In the former case alone they 
 have become the objects of punishment (e). 
 
 Precedents of indictments are very rare, it being obviously more 
 seemly and expedient that criminal proceedings against justices should 
 be conducted in the High Court, and allowed only in the cases where 
 the conditions imposed by the Crown Office Rules, 1906, rr. 35-39, are 
 satisfied. 
 
 A large number of the precedents of criminal proceedings against 
 justices relate to their conduct in the quasi- judicial functions as to 
 
 {tv) R. V. Marshall, 4 E. & B. 475. Ex ford JJ., 2 W. Bl. 432. R. v. Tlielps, 2 Ld. 
 
 park. Ramshay, 18 Q.B. 173. By the Kenyon, 570. R. v. Davie, 2 Dougl. 588. 
 
 County Courts Act, 1888 (51 & 52 Vict. Staundf. P. C. 173. 
 
 c. 43), ss. 15, 50, 51, provision is made for (6) R. v. Mather, 2 Barnard. (K.B.) 249 
 
 amotion of judges and officers of county (an obviously illegal order for whipping a 
 
 courts for misconduct. woman). R. v. Brooke, 2T. R. 190 (caprici- 
 
 (.r) 22 Geo. III. c. 75. Willis v. Gipps, ously discharging a vagrant committed by 
 
 6 8t. Tr. (N. 8.) 311. Re Sanderson, fi another justice). R.r. Wel)stcr,3T.R.388. 
 
 Moore, P. C. 38. And see 6 Moore, P. C. R. v. Badger, 4 Q.B. 468, 472 (refusal of bail 
 
 (N. S.) App. As to Canadian judges, see inwilfuldcHanceof thelaw). R. r. Dodgson, 
 
 30 & 31 Vict. c. 3, s. 99. 9 A. & E. 704 (conviction in face of a claim 
 
 (y) T7(Z€ Short & Mcllor, Cr. Pr. (2nd ed.) of a right). Ex furte H-iggim, 10 3 \iv.%'i% 
 
 158. (wilful refusal to receive legal evidence). 
 
 {z) R. V. Seton, 7 T. R. 373, Kenyon, C.J. (c) R. v. Palmer, 2 Burr. 1162. Vide I 
 
 See R. V. Colam, 20 W. R. 331, Blackburn, Bl. Com. 354. n. (17). 
 
 J. R. V. Venablcs, 2 Ld. Raym. 1407 ; 8 {d) Ex parte Fentiman, 2 A. & E. 127, 
 
 Mod. 378 n. 129, Patteson, J. 
 
 (a) See R. r. Shrewsbury JJ.. 2 Barnard (e) R. v. Borron, 3 B. & Aid. 432, 434, 
 
 272. R. V, Eyres, ibid. 250. R. v. Sea- Abbott, C.J. Cf. 1 Bl. Com. 354, n. (17).
 
 604 Of Offences with Respect to Public Office, [book viii. 
 
 granting or refusing licences to sell intoxicants. Though upon this subject 
 the justices have a discretionary jurisdiction, and though discretion 
 means the exercising the best of their judgment upon the occasion that 
 calls for it, wilful abuse of such discretion is criminal (/). The High 
 Court can therefore grant an information against justices who refuse, 
 from corrupt and improper motives, to grant such licences {g) ; or for 
 granting such licences improperly (h). 
 
 Where two sets of justices had concurrent jurisdiction, and one set 
 appointed a meeting to grant ale licences, and, after such appointment, 
 the other set ajDpointed a meeting for the same purpose on a subsequent 
 day, and having met, granted a licence which had been refused by the 
 first set ; it was held that the acts of the justices who appointed the 
 second meeting were illegal and indictable. Kenyon, C.J., said that 
 it was proper that the question should be settled whether it were legal 
 for two different sets of magistrates, having concurrent jurisdiction, to 
 run a race in the exercise of any part of their jurisdiction ; and that it 
 was of infinite importance to the public that the acts of magistrates 
 should not only be substantially good, but also that they should be 
 decorous. And Ashhurst, J., said that it was a breach of the law to 
 attempt to wrest the jurisdiction out of the hands of the magistrates 
 who first gave notice of the meeting ; for what the law says shall not be 
 done, it becomes illegal to do, and is therefore the subject-matter of an 
 indictment, without the addition of any corrupt motives (i). 
 
 Jurors. — Misconduct by jurors sworn to try a civil or criminal cause 
 is an offence usually punished summarily by fine for contempt of Court (j), 
 but is apparently indictable if the misconduct is grave or involves actual 
 corruption (k). Every juror who shall wilfully or corruptly consent to 
 embracery [l) may be proceeded against by indictment or information, 
 and is punishable by fine and imprisonment (m). It would seem that 
 evidence of jurors is not admissible to prove misconduct by the jury or 
 any juror in the jury room (w). 
 
 Executive and Ministerial Officers. — An indictment or criminal in- 
 formation will lie against executive or ministerial officers for oppression 
 or for illegal acts done corruptly or from vindictive or otherwise improper 
 motives, but not for acts done by ignorance or mistake (o). 
 
 Churchwardens.— By the Vestries Act, 1831 (1 & 2 Will. IV. c. 60), 
 s. 11, ' if any churchwarden, rate-collector, overseer, or other parish officer, 
 shall refuse to call meetings according to the provisions of this Act, or 
 
 (/) R. I'. Young, 1 Burr. 556, 560. of an issue with the object of giving their 
 
 (g) R. V. Williams, 3 Burr. 1317. The verdict for the defendant, 
 
 licences were refused because the appUcants (I) Vide ante, p. 598. 
 
 would not give their votes for members of (w) 6 Geo. IV. c. 50, s. 61 (E) : 34 & 35 
 
 Parliament, as the justices would have had Vict, o. 65, s. 49 (I). And see R. v. 
 
 them. Cf. R. v. Hann, ibid. 1716, 1780. Young, 2 East, 14, 16, cit. 
 
 (h) R. V. Holland, 1 T. R. 692. («) Vide Jackson v. Williamson, 2. T. R. 
 
 (0 R. V. Sainsbury, 4 T. R. 451. 281, followed in R. v. Mullins, 6 Canada 
 
 (7) R. V. Brown [1907], 7 N. S. W. State Cr. Cas. 363. And see Taylor, Ev. (10th 
 
 Rep. 290, 300, 301, where the English ed.), s. 944. In R. v. Brown [1907], 7 
 
 authorities are collected and discussed. N. 8. W. State Rep. 296, the Court, after con- 
 
 {h) Sec 1 Hawk. c. 85, s. 4. See R. v. gidering all the authorities, held the evidence 
 
 Opie, 1 Wms. Saund. 301. Indictment for of fellow jurors inadmissible to establish 
 
 a conspiracy to procure certain of the con- misconduct by a juror in a criminal case. 
 
 spirators to be sworn as jurors on the trial (o) R. v. Friar, 1 Cliit. Rep. (K.B.) 702.
 
 CHAP. I.] Of Misconduct in Office, 605 
 
 shall refuse or neglect to make and give the declarations and notices 
 directed to be made and given by this Act, or to receive the vote of any 
 ratepayer as aforesaid, or shall in any matter whatsoever alter, falsify, 
 conceal, or suppress any vote or votes as aforesaid, such churchwarden, 
 rate-collector, overseer, or other parish officer, shall be deemed and 
 taken to be guilty of a misdemeanor ' (p). 
 
 The civil functions of churchwardens in rural parishes have been 
 transferred to parish councils or to the chairman of the parish meeting, and 
 they are no longer overseers of the poor {q). Their remaining functions 
 are mainly, if not solely, ecclesiastical, and they would seem no longer to 
 be public officers in the full sense of the term. 
 
 Clergymen. — ^It would seem that it is not an indictable offence for 
 a clergyman to refuse to marry a couple {r). There is specific statutory 
 provision for punishing breaches by clergymen of the Marriage Acts {s). 
 
 Constables. — An indictment lies at common law against a constable 
 for neglecting the duties required of him by common law or by statute {t) ; 
 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 (u). 
 
 Gaolers. — 14 Edw. III. c. 10 {v), enacted that if any gaoler, by 
 too great duress of imprisonment, makes any prisoner that he hath in 
 ward become an apf rover against his will ; that is, to accuse and turn 
 evidence against some other person ; it shall be felony in the gaoler. 
 For it is not lawful to induce or excite any man even to a just accusation 
 of another ; much less to do it by duress of imprisonment ; and least of 
 all by a gaoler to whom the prisoner is committed for safe custody {w). 
 And a gaoler may be discharged and fined for voluntarily suffering his 
 prisoner to escape, or for barbarously misusing him {x). So, a gaoler 
 is indictable for refusing to receive a prisoner duly committed by a 
 magistrate {y). 
 
 Poor Law Officers. A. Misfeasance. — Overseers and other officers of 
 the poor law are usually punished summarily for offences with regard 
 
 (p) This section was repealed in 1894 (.50 punished under the Police Acts. See 2 «& 3 
 
 & 57 Vict. c. 73) as to parish meetings, and Vict. c. 93, s. 12 ; 22 & 23 Vict. c. 32, s. 2(> 
 
 had previously been repealed as to London (county) ; 2 & 3 Vict. c. 47, s. 14 (metro- 
 
 in 185.5 (18 & 19 Vict. c. 120). polis) ; 10 & 11 Vict. c. 89, s. 10 (towns) : 
 
 Ul) LocalGovernment Act, 1894(56&57 45 & 40 Vict. c. 50, s. 194 (municipal 
 
 Vict. c. 73), ss. 5, 0, 19. boroughs). As to taking gratuities, see 
 
 (/•) R. V. James, 2 Den. 1 ; 3 C. & K. 107. Chisholm v. Holland, 50 J. P. 197. 
 
 The indictment seemed open to several (it) R. i\ Wyat, 1 Salk. 380 : 2 Ld. 
 
 objections. It did not aver that the parties Raym. 1189. 
 
 might lawfully marry; or that the clergy- (v) Repealed in 1803. (S. L. R.) 
 
 man was required to perform the ceremony [w) 4 Bl. Com. 128. 3 Co. Inst. 91. 
 
 at a lawful time, between the appointed [x) 1 Hawk. c. 06, s. 2. Vide ante, 
 
 hours. Strong intimations were thrown p. 550, ' Escape.' 
 
 out tliat a refusal to marry is merely an (y) R. v. Cope, (5 A. &, E. 220 ; 1 N. & P. 
 
 ecclesiastical offence. See the Deceased 515 ; 7 C. & P. 720. See the form of in- 
 
 Wife's Sister's Marriage Act, 1907 (7 Edw. dictment there. The indictment was in 
 
 VII. c. 47), 3. 1. substance brought to try tlie question 
 
 (s) Vide post, p. 1015 et seq. whether under a gaol Act (4 Geo. IV. c. 04^ 
 
 (0 R. V. Wyat, 1 Salk. 380. Crowther's the Court of Aldermen of tlie City of Lon- 
 
 case, Cro. Eliz. 054 ; indictment against a don had authority to exclude from Newgate 
 
 constable for refusing to make a hue and gaol prisonei-s committed by the Middlesex 
 
 cry after notice of a burglary. Neglect of justices. 
 duty by the police created by statute is
 
 606 Of Offences with Respect to Public Office, [book viii. 
 
 to their duties (2). But an overseer of the poor is indictable for mis- 
 feasance in the execution of his office («) ; if he misuse the poor, as by- 
 keeping and lodging several poor persons in a filthy, unwholesome room, 
 with the windows not in a sufficient state of repair to protect them 
 against the inclemency of the weather (h) or by exacting labour from 
 them when they are unable to work (c). Overseers have been held 
 indictable for neglecting to provide necessaries for the poor (d), including 
 medical assistance (e). A relieving officer has been held to be indictable 
 for refusing medical assistance to a poor person (/). If overseers procure, 
 or contrive by sinister means to prevail upon, a man to marry a pregnant 
 woman, for the purpose of throwing the expense of maintaining her and 
 the issue from themselves upon another parish or township, they may be 
 indicted (g). And for most breaches of their duty overseers may be 
 punished by indictment or information (h) : but with respect to the 
 proceeding by information, 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 (i). 
 
 An indictment against overseers on sect. 47 of the Poor Law Amend- 
 ment Act, 1834 (4 & 5 Will. IV. c. 76), for not accounting to the auditor of a 
 union, upon request, on a day appointed by him, is bad, unless it appear 
 that there was some rule, order, or regulation of the Local Government 
 Board that the overseers should account upon such request ; and where 
 no such order, &c., is alleged, the indictment cannot be sustained after 
 verdict, merely because it appears, by inference, or by the inducement, 
 that the defendants have not in fact accounted for one whole quarter (;'). 
 
 An overseer of the poor is not indictable if (without force, fraud or 
 menace) he removes a pauper under an order of removal after it has been 
 confirmed on appeal by the sessions, subject to the opinion of the High 
 Court, and before its final determination by that Court. The Coiu't said 
 that the action of the overseers was not a violation of any known rule or 
 law (k). 
 
 As to wilful neglect bv an overseer of his duties under the Registration 
 Acts, see R. v. Hall [1891], 1 Q.B. 747, ante, p. 11. 
 
 B. Negligence. — An overseer of the poor is indictable for wilful neglect 
 of duty. Thus overseers have been held indictable for not providing for the 
 j)oor (l) ; for refusing to account within four days after the appointment 
 
 (2) Archbold's Poor Law (1.5th ed., by 1 Bott. .360, pi. 377 : 2 Nol. 474. From 
 
 Brooke Little), 165. these authorities it appears that an indict- 
 
 (a) Tawney's case, 16 Vin. Abr. 415 (not nient will lie even in some cases where a 
 
 providing for the poor, or relieving them particular punisliment is created by statute 
 
 when there is no necessity). 1 Bott. 358, and a specific method for recovering the 
 
 pi. 371, penalty is pointed out. But as to this, see 
 
 (h) R. V. Wetherill, Cald. 432. ante, p. 11. 
 
 (c) R. V. WinsWp, Cald. 72, 76, Lord (i) R. v. Slaughter, Cald. 247n. 
 Mansfield. (j) R. v. Crossley, 10 A. & E. 132 ; 2 P. 
 
 (d) R. V. Booth, R. & R. 47. & T>. 319. It is left undecided how far 
 
 (e) R. V. Meredith. R. & R. 46. disobedience of an order to account made 
 
 (f) R. V. Curtis, 15 Cox, 746. under s. 98 is indictable. 10 A. & E. 138, 
 
 (g) R. V. Compton, Cald. 246. R. i>. Patteson, J. 
 
 Tarrant, 4 Burr. 2106 ; and R. v. Herbert, (k) R. v. Cooper, 3 Sess. Cas. 346. 
 
 1 East, P. C. 461. (I) 2 Nolan, 475. Tawney's case, I 
 
 (h) R. V. Commings, 1 Bott. 357, pi. 370. Bott. 358, pi. 371. R. v. Winship, Cald. 72. 
 R. V. Robinson, 2 Burr. 799. R. v. Jones, 
 
 i
 
 CHAP. I.] Of Misconduct in Office. 607 
 
 of new overseers, under the Poor Law Act, 1601 (43 Eliz. c. 2) {in) ; 
 for not making a rate to reimburse constables under the Poor ReHef Act, 
 1662 (14 Car. II. c. 12) (n); and for not receiving a pauper sent to them 
 by order of two justices (o) ; or disobeying any other order of justices, 
 where the justices have competent jurisdiction {"p). There may be cases 
 in which the neglect to provide a pauper with necessaries is indictable. 
 Thus where an indictment stated that the defendant, an overseer, had 
 under his care a poor person belonging to his township, but neglected 
 and refused to provide for her necessary meat, &c., whereby she was 
 reduced to a state of extreme weakness, and afterwards, through want 
 of such reasonable and necessary meat, &c., died, the defendant was 
 convicted and sentenced to a year's imprisonment (</). And where an 
 overseer was indicted for neglecting to supply medical assistance when 
 required to a pauper labouring under dangerous illness, it was held that 
 an offence was sufficiently charged and proved, though such pauper was 
 not in the parish workhouse, nor had previously to his illness received 
 or stood in need of parish relief (r). 
 
 Sheriffs.— By the Sheriffs Act, 1887 (50 & 51 Vict. c. 55), s. 29— 
 
 ' (1) If a person being a sheriff, under-sheriff, bailiff, or officer of a 
 sheriff, whether within a franchise or without, does any of the following 
 things, that is to say : — 
 
 (a) Conceals or procures the concealment of any felon ; or 
 
 (6) Refuses to arrest any felon in his bailiwick ; or 
 
 (c) Lets go at large a prisoner who is not bailable ; or 
 
 {d) Is guilty of an offence against or breach of the provisions of this 
 Act ; 
 
 He shall (without prejudice to any other punishment under the 
 provisions of this Act) be guilty of a misdemeanor, and be liable on 
 conviction to imprisonment for a term not exceeding one year and to pay 
 a fine, or, if he has not wherewith to pay a fine, to imprisonment not 
 exceeding three years. 
 
 (2) If any person being either a sheriff, under-sheriff", bailiff", or officer 
 of a sheriff, or being employed in levying or collecting debts due to the 
 Crown by process of any Court, or being an officer to whom the return or 
 execution of writs belongs, does any of the following things, that is to 
 say : — 
 
 (a) Withholds a prisoner bailable after he has offered sufficient 
 security ; or 
 
 (6) Takes or demands any money or reward under any pretext 
 whatever other than the fees or sums allowed by or in jjursuance of this 
 or any other Act ; or 
 
 (m) R. V. Commings, 5 Mod. 179 ; 2 Nol. justices have no jurisdiction, R. v. Smilli, 
 
 453, 476, where it is observed in the note 1 Bott. 415, pi. 461. 
 (3) that this case occurred prior to 17 Geo. {q) R. v. Booth, R. & R. 47, note (a). 
 
 II. c. 38. (r) R. V. Warren, cor. Holroyd, J., 
 
 [n) R. V. Barlow, 2 Salk. 609 ; 1 Bott. Worcester Lent Assizes, 1820. See Hays 
 
 357, pi. 309. V. Bryant, 1 H. Bl. 253. R. v. Meredith, 
 
 (o) R. V. Davis, 1 Bott. 361, pi. 378; R. & R. 46. For an indictment against a 
 
 Say. 163. relieving officer for refusing to supply 
 
 (p) Vide ante, p. 543. 2 Nol. 476. R. v. medical assistance, see R. t-. Curtis, 15 Cox, 
 
 Boys, Say. 143. But otherwise where the 746.
 
 608 Of Offences with Res])ect to Public Office, [book viii. 
 
 (c) Grants a warrant for the execution of any writ before he has 
 actually received that writ ; or 
 
 (d) Is guilty of any offence against or breach of the provisions of this 
 Act, or of any wrongful act or neglect or default in the execution of his 
 office, or of any contempt of any superior court ; 
 
 He and any person procuring the commission of any such offence 
 shall, without prejudice to any other punishment under the provisions 
 of this Act, but subject as hereinafter mentioned, be liable — 
 
 (i) To be punished by the Court as hereinafter mentioned, and 
 
 (ii) To forfeit two hundred pounds, and pay all damages suffered by 
 any person aggrieved. 
 
 And such forfeiture and damage may be recovered by such person as 
 a debt by an action in his Majesty's High Court of Justice. 
 
 (3) Any of the following courts, that is to say, his Majesty's High 
 Court of Justice, any Court of Assize, Oyer and Terminer or gaol delivery, 
 or any judge of any of the said Courts, also where the alleged offence has 
 been committed in relation to any writ issued out of any other court of 
 record than those above mentioned, the Court out of which such writ 
 issued may, on complaint made of any such offence as aforesaid having 
 been committed and on proof on oath given by the examination of 
 witnesses or by affidavit or qn interrogatories of the commission of the 
 alleged offence, and after hearing anything which the alleged offender 
 may urge in his defence (which evidence and hearing may be taken and 
 had in a summary matter), punish the offender or cause proceedings to 
 be taken for his punishment in like manner as a person guilty of contemjDt 
 of the said Court may be punished. 
 
 (4) The Court may order the costs of or occasioned by any such 
 complaint to be paid by either party to the other, and an order by the 
 High Court of Justice in any such summary proceeding to pay any costs, 
 damages, or penalty, shall be of the same effect as a judgment of the 
 High Court, and may be enforced accordingly. 
 
 (5) Any of the said Courts being a superior Court of record may also 
 proceed for and deal with such offence in like manner as for any contempt 
 of such Court. 
 
 (6) n any person not being an under-sheriff, bailiff, or officer of a 
 sheriff, assumes or pretends to act as such, or demands or takes any fee 
 or reward under colour or pretext of such office, he shall be liable to be 
 punished in manner provided by this section as if he were an under- 
 sheriff guilty of a contempt of Court. 
 
 (7) Any proceeding in pursuance of this section against a sheriff, 
 under-sheriff, or any other person to whom this section applies shall be 
 taken within two years after the alleged offence was committed, and not 
 subsequently, and if the proceeding is in a summary manner shall be taken 
 before the end of the sittings of the Court held next after the offence 
 was committed and not subsequently. 
 
 (8) Nothing in this section shall render a person liable to be punished 
 twice in respect of the same offence, but if any proceeding is taken against 
 a person under this section for any offence the Court or Judge may 
 postpone or stay proceedings and direct any other available proceeding 
 to be taken for punishing such offence.' 
 
 I
 
 CHAP. I.] Of Misconduct in Office. 609 
 
 A sheriff is indictable for refusing or neglecting to execute a criminal 
 according to his sentence (s) ; but he is not bound to execute a criminal 
 if he be not in his custody, and in such case, if it is intended by the Court 
 which passed the sentence that the sheriff should do execution, there 
 should be a special mandate to the party having the prisoner in custody 
 to deliver him to the sheriff, and another to the sheriff to receive the 
 prisoner and execute him [t). 
 
 Misconduct hy Crown Officials outside Great Britain. 
 
 There is a series of statutes providing for the trial in England of 
 officers of the Crown who have committed certain classes of offences in 
 connection with their office outside Great Britain. 
 
 By an Act of 1698 (U Will. III. c. 12) entitled ' an Act to punish 
 Governors of Plantations in the Kingdom for crimes by them committed 
 in the plantations,' it is enacted (w) that ' If any governor, lieutenant- 
 governor, deputy governor, or commander-in-chief of any plantation 
 or colony within his Majesty's dominions beyond the seas shall ... be 
 guilty of oppressing any of his Majesty's subjects beyond the seas within 
 their respective Governments or commands or shall be guilty of any other 
 crime or offence contrary to the laws of the realm or in force within their 
 respective governments or commands, such oppressions, crimes and 
 offences shall be inquired of, tried and determined in his Majesty's 
 Court of King's Bench here in England, or before such commissioners 
 and in such county of this realm as shall be assigned by his Majesty's 
 commission and by good and lawful men of the same county and that 
 such punishments shall be inflicted on such offenders as are usually 
 inflicted for offences of like nature committed here in England.' The 
 Act contains no machinery for bringing the offender home nor for 
 collecting evidence in the colony and applies only to governors and 
 commanders-in-chief. 
 
 By the Criminal Jurisdiction Act, 1802 (42 Geo. III. c. 85), after reciting 
 the Act of 1698 and Acts of 1773 and 1784 relating to India (v), it is enacted 
 (sect. 1) that ' if any person who now (June 22, 1802) is or heretofore 
 has been or shall hereafter be employed by or in the service of his Majesty 
 his heirs or successors in any civil or military station, office, or capacity 
 out of Great Britain, or shall heretofore have had, held or exercised or 
 now has, holds, or exercises, or shall hereafter have, hold, or exercise any 
 public station, office, capacity, or employment, out of Great Britain, 
 shall have committed, or shall commit, or shaU have heretofore been, or is, 
 or shall hereafter be, guilty of any crime, misdemeanor, or offence in the 
 execution, or under colour, or in the exercise of any such station office 
 capacity or employment as aforesaid, every such crime offence or 
 misdemeanor may be prosecuted or inquired of, and heard and determined 
 
 (s) See Sheriffs Act, 1887, s. 13. been deterred from oppressing his Majesty's 
 
 (0 R. V. Antrobus, 2 A. & E. 788, 803, subjects within their several governments, 
 
 Denman, C.J. nor from committing several other great 
 
 (m) The preamble recites that due pun- crimes and offences, not deeming thom- 
 
 ishment was not provided for several selves punishable for the same here nor 
 
 crimes committed out of the realm of accountable therefor to any person within 
 
 England, and that divers governors, &c., their respective governments, 
 had taken advantage thereof, and had not {v) Post, p. 610. 
 
 VOL. I. 2 R
 
 610 Of Offences with Respect to Public Office, [book vm. 
 
 in his Majesty's Court of King's Bench here in England, either upon an 
 information exhibited by his Majesty's Attorney-General, or upon 
 an indictment found, on which information or indictment such crime, 
 of?ence or misdemeanor, may be laid and charged to have been committed 
 in the county of Middlesex, and all such persons so offending, and also 
 all persons tried under any of the provisions of the said recited Act [of 
 1698, supra] or this Act, or either of them, for any ofEence crime or mis- 
 demeanor, and not having been before tried for the same out of Great 
 Britain, shall on conviction be liable to such punishment as may by any 
 law or laws now in force, or any Act or Acts that may hereafter be passed, 
 be inflicted for any such crime, misdemeanor, or offence committed in 
 England and shall also be liable, at the discretion of his Majesty's 
 Court of King's Bench, to be adjudged incapable of serving his Majesty 
 in any station, office, or capacity, civil or military, or of holding or 
 exercising any public emplojonent whatever.' 
 
 Sects. 2, 3, 4 make provision for the issue of writs of mandamus to 
 Courts or persons in the country where the ofEence was committed for 
 the taking of evidence in support of the matters charged against the 
 accused, and for the transmission to the Court of King's Bench of the 
 depositions or answers to interrogatories. Sect. 5 makes provision for 
 punishing wilful and corrupt false evidence as perjury under the law of 
 the kingdom {w), island or place in which the evidence is taken. 
 
 This statute appears to apply to the whole of the King's dominion 
 outside Great Britain. It has been held not to apply to felonies, but only 
 to misdemeanors (x). It has been used to try colonial governors for 
 alleged oppressions and illegalities (y), and to try officers for frauds on 
 the Crown (z). 
 
 India. — There is also a series of statutes applying to official misconduct 
 in India, all passed while that country was still in the hands of the East 
 India Company, but still in force. The statutes are 10 Geo. III. c. 47, 
 s. 4; 13 Geo. III. c. 63, s. 39; 21 Geo. III. c. 70, s. 7; 24 Geo.IIL(sess. 2), 
 c. 25, ss. 64-83 {a) ; 33 Geo. III. c. 52, ss. 62, 63-67, 140, 162 ; 3 & 4 Will. 
 IV. c. 85, s. 80 (b). The offences are made triable in the High Court of 
 Justice in Middlesex within a time variously limited after the commission 
 of the offence or the return of the official to England. 
 
 The East India Company Act, 1793 (33 Geo. III. c. 52), s. 62, enacts 
 that ' the demanding 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 pretended to be for the use 
 of the said [East India] Company, or of any other person whatsoever, by 
 any British subject holding or exercising any office or emplo}Tnent under 
 his Majesty, or the said united 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 
 
 (w) This apparently refers to Ireland. son [1900], noted in Short & Mellor, Cr. 
 S. 2 has ' country, island or place.' Pr. (2nd ed.) 85. 
 
 (x) R. V. Shawe, 5 M. & S. 403. (a) See R. v. Hollond, 5 T. R. 607. 
 
 (y) R.iJ. Eyre, L.R. 3 Q.B. 487 (Jamaica). (b) They are collected and summarised 
 
 Picton's case, 30 St. Tr. 225 (Trinidad). in Ilbert, Government of India (2nd ed.), 
 
 (z) R. V. Turner [1889], R. v. Hodgkin- 255, 258. 
 
 i
 
 CHAP. I.] Of Misconduct in Office. 611 
 
 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 offender, to be paid to the 
 prosecutor or informer (sect. 63). 
 
 An ex-officio information charged that the defendant, a British subject, 
 held for a long time the office of resident at Tanjore, and during all that 
 time resided in the East Indies, and that whilst he held the said office, 
 and within six years before the filing of the information, in the East 
 Indies, he did unlawfully receive from a certain person in the East Indies 
 a sum of 2,000 rupees, as a gift and present, against the statute ; whereby 
 he was guilty of extortion and a misdemeanor, and by force of the statute 
 had forfeited the sum of £200, the value of the said rupees ; and the 
 Court of Queen's Bench held that it was no ground to arrest the judgment 
 that the count did not state whether the rupees were Bombay, Madras, 
 or Sicca rupees, or state the value of a single rupee ; and that Court and 
 the Court of Exchequer Chamber held that the count was good, although 
 it did not aver that the gift was received by way of extortion or under 
 colour of the office : first, because, supposing the statute were confined 
 to such cases, the information was made good after verdict by the sect. 21 of 
 the Criminal Law Act, 1826 (7 Geo. IV. c. 64), as it described the offence 
 in the words of the statute creating it ; and secondly, because the Act of 
 1793 extended to any receipt of a gift by any officer ; for the object of the 
 Legislature was to prevent any officer from receiving any gift or present 
 of money in the East Indies absolutely, whatever the reason of the gift 
 might be ; and, although the count did not allege for whose use or 
 pretended use the gift was received ; for even if an officer received a 
 present under colour of its being a present to the Queen, he would be 
 guilty of an offence within the statute (c). 
 
 Indictment. — Upon an indictment against an officer for neglect of 
 duty, it is sufficient to state that he was such ofiicer, and it is not necessary 
 to state his appointment {d). The indictment need not aver that the 
 
 (c) R. V. Douglas, 13 Q.B. 42. The jury gift itself was money ; 2nd!y, that it was 
 had found a verdict on several counts, right to estimate the value at the time of 
 charging receipts of sums in rupees as gifts, the receipt, and not of the conviction ; 
 after which followed a finding as to each 3rdly, that imprisonment in default of pay- 
 count severally that the sum received, as ing the forfeiture was rightly awarded, as 
 in the count mentioned, was the sum of so that forfeiture was not arbitrarily imposed 
 many rupees, which sum of rupees, at the by the Court, but fixed by the statute, and 
 time of receiving them, was of the value of superadded, by authority of the statute, to 
 30 much British money, being at the rate the other punishments of the offence. The 
 of Is. lid. per rupee, and the Court of Court of Queen's Bench held that the altera- 
 Quecn's Bench adjudged fine and imprison- tions in the Madras Courts made by 
 ment separately upon each count upon several statutes did not preclude the issuing 
 which the defendant was convicted ; and of a mandamus under the East India Corn- 
 further, that the defendant, in pursuance pany Act, 1773 (13 Geo. III. c. 03, s. 40), 
 of the statute, do also forfeit to the Queen to examine witnesses, to the Madras Court 
 the several sums following (naming the as finally constituted, and that such a man- 
 value of the sums in rupees, as found on damus directed to the Chief Justice and 
 each count respectively), the said forfeit- other judges, who were two, of the Madras 
 ures amounting together to the sum of (the Supreme Court, requiring them to hold a 
 aggregate of the values) ; and further, that Court and examine witnesses, was well 
 the defendant be imprisoned until lie shall executed by the Chief Justice and one 
 have paid the said fines and forfeitures. other judge. See also this case as to what 
 And the Court of Exchequer Chamber held, parchment writings are such examinations 
 1st, that this judgment was good, although as are required by the Act to be returned 
 it did not give the defendant the option of to such a mandamus, 
 forfeiting the rifts actually received, as the {d) R. v. Hollond, 5 T. R. 607. This 
 
 2r2
 
 612 Of Offences with Respect to Public Office, [book viii. 
 
 defendant had notice of all the facts it states, if it was his duty to have 
 known them (e). Where some of the charges against the defendant were 
 for disobeying orders, and it was stated that those orders were made and 
 communicated to him, but their continuance in force was not averred, 
 it was ruled that the orders must be taken to continue in force until 
 revoked (/). 
 
 Sect. III. — Fraud. 
 
 General. — A public officer may be indicted for frauds committed in 
 his official capacity. Thus where two persons were indicted for enabling 
 others to pass their accounts with the pay office in such a way as to 
 enable them to defraud 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 revenue (g). And an indictment 
 or criminal information will lie for failing to account for money received 
 virtute officii (h) ; for defrauding the Crown in the purchase of stores by 
 means of false vouchers {i) and generally for frauds in office (j), whether 
 the officer is employed in England or in a British possession {k), or even 
 in a foreign country (l). As to offences outside the realm and in India, 
 vide ante, pp. 609, 610. 
 
 Justices' Clerks. — A justices' clerk has been held to be indictable for 
 refusing to pay over to the county treasurer half of the penalty imposed 
 by justices under sect, 26 (now repealed) of the Alehouse Act, 1828 
 (9 Geo. IV. c. 61) (m). 
 
 Overseers. — An overseer of the poor who had received from the 
 putative father of a bastard child born within the parish a sum of money 
 as a composition with the parish for the maintenance of the child, was 
 held liable to indictment for fraudulently omitting to give credit for this 
 sum in his accounts with the parish (n). It was objected that the defen- 
 dant was not bound to bring this sum to account, the contract being 
 illegal (o) ; 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 damnified by its 
 being omitted in the overseer's accounts. But Lord Ellenborough was 
 of opinion, that though the defendant would have been liable to the 
 putative father for so much of the money as was not expended upon the 
 maintenance of the child and the lying-in of the mother, yet having 
 
 was an indictment under the East India (i) R. v. Davison, 31 St. Tr. 99. 
 
 Company Act, 1784 (24 Geo. III. c. 25). (j) R. v. Jones, 8 East, 31. R. v. 
 
 Tlie statute made wilful neglect of duty a Hedges, 28 St. Tr. 1315. R. v. Hollond, 
 
 misdemeanor ; and it was held that the 5 T. R. 607. 
 
 indictment need not aver corruption. (k) R. v. Jones, ubi supra. R. v. Mun- 
 
 Ss. 1-63 of the Act were repealed in 1872 ton, 1 Esp. 62. 
 
 (35 & 36 Vict. c. 63). (/) R. v. Turner [18891, 24 L. J. Newsp. 
 
 (e) R. V. Hollond, vbi S2ipra. 466, 469, 479 (a British official in South 
 
 (/) Id. ibid. America). R. v. Hodgkinson, ubi supra 
 
 ((/) R. V. Bembridge, 20 St. Tr. 1, vide (the case of a British consul in Germany). 
 
 ante, p. 601. R. v. Baxter [1851], 5 Cox, (m) R. v. Dale, Dears. 47. 
 
 302, and MS. C. S. G., Patteson, J. (?;) R. v. Martin, 2 Camp. 268. 
 
 {h) R. V. Hodgkinson (Q.B.D.), June 26, (o) See Townson v. Wilson, I Camp. 396. 
 
 1900, Archb. Cr. PI. (23rd ed.) 1014.
 
 CHAP, i.] Of Extortion. 61 S 
 
 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 oSence by 
 attempting to put it into his own pocket. 
 
 Wilful disobedience by overseers, assistant overseers, and officers of a 
 parish or union to the legal and reasonable orders of justices and guardians 
 in carrying to execution the Poor Law Acts or orders is summarily punish- 
 able by statute (/)). 
 
 Wilful neglect of the rules, regulations or orders of the Local 
 Government Board under the Poor Law Acts is also punishable by 
 statute, and on the third offence as a misdemeanor or indictment by fine 
 of not less than £20 and imprisonment (r/). 
 
 Registrars. — By the Yorkshire Registries Act, 1884 (47 & 48 Vict, 
 c. 54), s. 46, * If any registrar or other person employed in the register 
 office is party or privy to any act of fraud or collusion in relation to the 
 registration of any assurance, will, or other instrument under this Act, or 
 the giving of any certificate or copy, or the making of any search or the 
 taking of any extract or copy under this Act, or any rules made there- 
 under, he shall be guilty of a misdemeanor and shall upon conviction on 
 indictment be liable to imprisonment with or without hard labour for 
 any period not exceeding two years. 
 
 Sect. IV. — Extortion.^ 
 
 Extortion in a large sense signifies any oppression under colour of 
 right : but in a more strict sense signifies the unlawful 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 (r). 
 
 The offence of extortion is a misdemeanor at common law punishable 
 by fine and imprisonment : and also by removal from the office in the 
 execution whereof it was committed [s). It was regarded of special 
 gravity when officers of the law took money for their judgments or for 
 the release of prisoners in their custody (t). 
 
 By 3 Edw. I. {Stcvt. West, prim.), e. 26 (1275), it is enacted that ' no 
 sheriff nor other the King's officer take any reward to do his office, but shall 
 be paid of that which they take by the King ; and he that so doth shall 
 
 {])) 4 & .5 Will. IV. c. 76, s. 95. Cf. 17 102. 
 
 Geo. II. c. 38, s. U. (s) 1 Hawk. c. 08, s. 5. Bac. Abr. tit. 
 
 (q) 4 & 5 WiU. IV. c. 76, s. 96. ' Extortion.' 
 
 (r) 1 Hawk. c. 68, s. 1. 1 Bl. Ck)m. (0 See Beawfage's case, ubi supra. 
 141. Beawfage's case, 10 Co. Rep. 100, 
 
 American Note. 
 
 ' As to extortion in America, see Wil- tyre, 3 Irel. 171, 174 ; S. v. Sellers, 7 Rich, 
 
 liams V. Snced, 160 ; S. v. Brown, 12 Minn. 368, 372 ; P. v. Cook, 4 Seld. 67, 59 Am. Dec. 
 
 490 ; P. V. Rust, 1 Caines, 130 ; C. v. Bay- 451. This is said to follow from the maxim 
 
 ley, 7 Pick. 279. There are many statutes ' omnia presumunlur rite esse acta ' where a 
 
 in America which deal with tliis offence. man is doing a lawful thing, and it is pre- 
 
 Bishop Amer. Cr. L. ii. s. 404. sumcd to be done lawfully ; but if a man 
 
 It seems that in America a person who does an unlawful act it cannot be pre- 
 
 is not an officer, but who serves as such and sumed that he does it lawfully. Some of- 
 
 claims to be such, is estopped from denying fences are in America called ' extortion ' 
 
 his official appointment. Bishop, ii. s. 392, where the defendant cannot be called an 
 
 citing 1 Gab. Ciim. Law, 783 ; S. v. Mcln- officer at all, see Bishop, iL s. 392,
 
 614 Of Offences hy Persons in Office. [book viii. 
 
 yield twice as much and shall be punished at the King's pleasure ' {u). 
 An action lies to recover the double value {v). This enactment is repealed 
 as to sheriffs and their officers by the Sheriffs Act, 1887 (50 & 51 Vict, 
 c. 55), and replaced by sect. 29 (2) of that Act, ante, p. 607, and is super- 
 seded as to coroners by sect. 8 (2) of the Coroners Act, 1887 (50 & 51 Vict, 
 c. 71). As to extortion by Indian officials, see 33 Geo. III. c. 52, s. 62, 
 ante, p. 610. 
 
 Where a collector of post-horse duty demanded a sum of money of a 
 person, charging with having let out post-horses without paying the 
 duty, and threatened him with an Exchequer process, and he thereon 
 gave him a promissory note for five pounds, which was afterwards paid 
 and the proceeds handed over to the farmer of the post-horse duties, it 
 was held to be extortion {w). 
 
 Official Fees. — Justices of the peace are bound by the old form of 
 their oath of office (x) to take nothing for the execution of their office 
 but of the King, and fees accustomed, and costs limited by statute. 
 And no public officer may take any other fees or rewards for doing 
 anything relating to his office than some statute in force gives him, or such 
 as have been anciently and accustomably taken ; and if he does otherwise, 
 he is guilty of extortion {y). All prescriptions contrary to the statute 
 and to the common law have always been held void ; as where the 
 clerk of a market claimed certain fees as due time out of mind for the 
 examination of weights and measures (z). 
 
 The stated and known fees allowed by courts of justice to their 
 respective officers are not restrained by the common law, or by 3 Edw. I. 
 c. 26, supra, and at common law may be legally demanded and insisted 
 upon without extortion (a). An officer who takes a reward, voluntarily 
 given to him, and usual in certain cases, for the more diligent or 
 expeditious performance of his duty, cannot be said to be guilty of 
 extortion ; for without such a premium it would be impossible in many 
 cases to have the laws executed with vigour and success (6). But it has 
 been always held, that a promise to pay an officer money for the doing 
 of a thing for which the law will not suffer him to take anything is merely 
 void, however freely and voluntarily made (c). 
 
 The following statutes impose penalties for offences in the nature of 
 extortion by taking excessive or illegal fees : — Officers of the High 
 Court (15 & 16 Vict. c. 73, s. 26, common law ; 15 & 16 Vict. c. 87, ss. 3, 4, 
 chancery) ; bailiffs of inferior Courts (7 & 8 Vict. c. 19, s. 3), or of County 
 Courts (51 & 52 Vict. c. 43, s. 50) ; clerks of Courts of Assize and Quarter 
 Sessions for taking certain fees as to discharge of recognizances or for 
 drawing indictments (10 Will. III. c. 12, ss. 7, 8), or on discharge of 
 
 (u) By the ' king's pleasure ' is meant fees. Archbold, Q.S. (6th ed.). 
 by the king's justices before whom the (y) Dalt. c. 41. Burn's Just. tit. ' Ex- 
 cause depends, and at their discretion, 2 Co. tortion.' 
 Inst. 210. (z) 1 Hawk. c. G8, s. 2. Bac. Abr. tit. 
 
 (v) Com. Dig. 323, tit. ' Extortion ' (C). ' Extortion.' 
 
 (w) R. V. Higgins, 4 C. & P. 247, {a) 1 Hawk. c. 68, s. 3. 2 Co. Inst. 210. 
 
 Vaughan, B. Co. Lit. 368. Bac. Abr. tit. ' Extortion.' 
 
 (x) See Burn's Justice (17th ed.), vol. 3, (b) Bac. Abr. tit. ' Extortion.' 2 Co. 
 
 Justice of Peace, p. 21. The penal oath Inst. 210 ; 3 Co. Inst. 149. Co. Lit. 368. 
 
 of office contains no express reference to (c) Bac. Abr. tit. ' Extortion.'
 
 CHAP, t] Of Extortion. 615 
 
 accused persons (53 Geo. III. c. 50, ss. 4, 5, 9 ; 8 & 9 Vict. c. 114, s. 1) ; 
 and clerks of the peace for receiving excessive fees (57 Geo. III. c. 91, 
 s. 2 ; 11 & 12 Vict. c. 43, s. 30 ; 45 & 46 Vict. c. 50, s. 164) ; and clerks 
 of justices for taking excessive fees (26 Geo. II. c. 14, s. 2). 
 
 Coroners. — Extortion by a coroner or his deputy is a statutory 
 misdemeanor (d). It is extortion for a coroner to accept a bribe under 
 a threat to hold an unnecessary inc[uest (e), or to refuse to view a body 
 until the fees of himself and his clerk have been paid (/). 
 
 Gaolers. — It is extortion for a gaoler to obtain money from his prisoner 
 by colour of his office (g), or to detain the corpse of a prisoner in order to 
 enforce a claim for his charges {h). And by the Gaol Fees Abolition Act, 
 1815 (55 Geo. III. c. 50), s. 13, it is a misdemeanor for a gaoler to exact 
 fees from prisoners for or on account of their entrance, commitment, or 
 discharge, or to detain a prisoner for non-payment of a fee or gratuity. 
 Prison officers incur penalties for taking fees (28 & 29 Vict. c. 126, 
 ss. 20, 66). 
 
 Churchwardens. — It has been held extortion in a churchwarden (i) 
 to obtain a silver cup or any other valuable thing by colour of his office ; 
 and that he is indictable if he take money corrujDtly colore officii and 
 does not account for it (/). 
 
 Ecclesiastical Officers. — It has been held to be extortion for the 
 chancellor and registrar of a bishop to oblige the executor of a will 
 to prove it in the Bishop's Court and to take fees thereon when they 
 knew that the will had already been proved in the Prerogative 
 Court {k). 
 
 Franchise Holders. — Where custom has ascertained the toll,, if the 
 miller takes more than the custom warrants, it is extortion (/) ; and the 
 same if a ferrytnan takes more than his due by custom for the use of his 
 ferry (m). And where the farmer of a market erected 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 were forced to hire the stalls 
 of the farmer, taking money for the use of the stalls in such a case was 
 held extortion (w). 
 
 By sect. 50 of the Turnpike Act, 1823 (4 Geo. IV. c. 95), no person who 
 shall take more toll than he is authorised to take, shall be prosecuted by 
 indictment for extortion, or otherwise (o). 
 
 Sheriffs. — Extortion by sheriffs and their officers is punishable under 
 50 & 51 Vict. c. 55, s. 29, set out ante, p. 607. It is extortion for an under- 
 sherif? to obtain his fees by refusing to execute process till they are 
 
 (d) 50 & 51 Vict. c. 71, s. 8 (2), ante, (k) R. v. Loggen, 1 Str. 73. 
 
 p. 602. 55 & 56 Vict. c. 56, s. 1 (5). (/) R. v. Burdett, 1 Ld. Ravm. 149. 
 
 (e) R. V. Harrison, 3 Co. Inst. 149. (m) R. v. Roberts, 4 Mod. 101. 
 
 (/) 1 East, P. C. 382. (n) R. v. Burdett, 1 Ixl. Rayni. 149. 
 
 {g) SeeR. t>. Broughton, Trcm. P.C. 111. (o) This is not repealed, but the unre- 
 
 32 Geo. II. c. 28, ss. 11, 12, repealed in 1887 pealed portion of the Act is now treated as 
 
 as to sheriffs and their officers. local and personal (see 53 & 54 Vict. c. 51, 
 
 (/«) R. V. Scott, 2 Q.B. 248 n. R. v. Fox, s. 3. S. L. R.), and all turnpike trusts are 
 
 ibid. 246. And see Jones v. Ashburnham, now expired. In R. r. Hamlyn, 4 Camp. 
 
 4 East, 455, 460. 379, it had been decided that questions of 
 
 (i) As to the present position of these exemption from toll could not be tried by 
 
 officers, see ante, p. 604. indicting the turnpike keeper for extortion 
 
 0) R. V. Eyres, 1 Sid. 307. in taking the toll.
 
 616 Of Offences by Persons in Office. [book viii. 
 
 paid (p) and for a sheriff's officer to bargain for money to be paid bim by 
 A. to accept A. and B. as bail for C. whom he has arrested {q), or to 
 arrest a man in order to obtain a release from him (r). 
 
 Indictment. — Two persons may be indicted jointly for extortion 
 where no fee was due. Upon an indictment against the chancellor and 
 the registrar of a bishop, it was objected that the offices of the defendants 
 were distinct, 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 
 Parker, C.J., said : ' This would be an exception if they were indicted for 
 taking more than they ought ; but it is only against them for contriving 
 to get money where none is due : and this is an entire charge. For 
 there are no accessories in extortion (s) : but he that is assisting is as 
 guilty as the extortioner, as he that is party to a riot is answerable for 
 the acts of others ' (t). And an indictment against three averring that 
 they, colore offlciormn suorum, took so much, is good, for they might take 
 so much in gross, and afterwards divide it amongst them, of which the 
 party grieved could have no notice (u). 
 
 An indictment for extortion is triable in the county where the offence 
 was committed {v) and is within the jurisdiction of Courts of Quarter 
 Sessions (iv). A count for extortion ought to charge a single offence 
 only ; because every extortion from every particular person is a separate 
 and distinct offence, and each offence requires a separate and distinct 
 punishment, and therefore a count charging the defendant with extorting 
 divers sums exceeding the ancient rate for ferrying men and cattle over 
 a river was held bad (x). The indictment must state a sum which the 
 defendant received : but it is not material to prove the exa«t sum as laid 
 in the indictment ; so that on an indictment for taking extortionately 
 twenty shillings, proof of but one shilling will be sufficient (y). An 
 indictment for extortion, where nothing was due, ought to state that 
 nothing was due (z) ; and if it is for taking more than was due, it ought 
 to shew how much was due (a). The offence lies in the taking, not in 
 the extortionate agreement, and a pardon after the agreement and 
 before the taking does not pardon the extortion (b). 
 
 {p) Empson v. Bathursfc, Hutt. 62, s. 4, extortion could be tried in any county, 
 
 where it is said that an obhgation made 1 Hawk. c. 68, s. 6, note (3). Burn's Jus- 
 
 by extortion is against common law, for it tice, tit. ' Extortion.' Starkie, Cr. PL 385, 
 
 is as robbery ; and that the sheriff's fee is note {k). But this enactment was repealed 
 
 not due until execution. See Beawf age's in 1879 (42 & 43 Vict. c. 59). 
 case, 10 Co. Rep. 100. (lo) 2 Hawk. c. 26, s. 50. 2 Chit. Cr. L. 
 
 iq) Stotesbury r. Smith, 2 Burr. 924. 294n. The old form of commission of the 
 
 (?) Williams v. Lyons, 8 Mod. 189. peace contained the word ' extortions.' 
 
 (s) Vide ante, p. 138. The present form, coupled with 5 & 6 Vict. 
 
 (<) R. V. Loggen, 1 Str. 75. Qiicere, c. 38, s. 1, is wide enough to include the 
 
 whether this was not an indictment for a offence. 
 
 conspiracy to defraud, and not for extor- (a;) R. v. Roberts, Carth. 220. 
 
 tion. But as to the rule, that several per- (y) R. v. Bm'dett, 1 Ld. Raym. 149. 
 
 sons may be jointly indicted for extortion, And see R. v. Gillham, 6 T. R. 267. 
 see R. V. Atkinson, Ld. Raym. 1248 ; 1 (z) R. v. Lake, 3 Leon. 268. Com. Dig. 
 
 Salk. 382. tit. ' Extortion.' 
 
 {u) Lake's case, 3 Leon. 268. Com. (a) Ibid. 
 
 Dig. tit. ' Extortion.' (b) R. v. Burdett, 1 Ld. Raym. 149, 
 
 iv) It was said that Under 31 Eliz. c. 5, Holt, C.J.
 
 CHAP. I.] Of Refusal to serve a Public Office. 617 
 
 Sect, V. — Of Refusal to serve a Public Office. 
 
 It is a misdemeanor at common law punishable by fine and (or) 
 imprisonment to refuse to serve a public office when duly elected (c). 
 And the refusal of persons to execute ministerial offices to which they 
 are duly appointed, and from the execution of which they have no proper 
 ground of exemption {d), seems in general to be punishable by indictment. 
 Indictments for this offence have not been presented for many years, 
 and the existing precedents appear to apply only to parochial or corporate 
 offices filled by election, except one, which relates to the refusal of a 
 sheriff to take up his office or appointment (e). 
 
 The indictment must aver that the defendant had notice of his 
 appointment to the office in question (/). 
 
 Constables. — It is indictable for a constable, after he has been duly 
 chosen, to refuse to execute the office {g), or to refuse to take the oath 
 for that purpose {h). But a person is not liable to serve the office of 
 constable unless he is resident in the parish. Where, therefore, a person 
 occupied a house, and paid all parish rates in respect of it, and carried 
 on the trade of a printer, frequenting the house daily on all working days, 
 and sometimes remaining there during the night at work, but not sleeping 
 in the house, it was held that he was not liable to serve the office of 
 constable in the parish where the house was situated {i). But where 
 a person occupied a warehouse in M., and usually slept at a lodging-house 
 in M. from Monday till Saturday, when he returned to his mother's in 
 H., where he also had premises, and he did suit and service to the court- 
 leet of H., the Court thought that he was liable to be appointed a constable 
 of M. {j). 
 
 Mayors, &c. — In the case of mayors, aldermen and persons elected 
 to serve in municipal office, refusal to serve is punishable by fine, which 
 in practice, if not in law, supersedes the remedy by indictment {k). 
 
 (c) R. V. Bower, 1 B. & C. 587. R. v. fondant unlawfully, kc, ' did neglect and 
 Dcni3on, 2 Ld. Kenyon, 259. refuse to take upon lumself the execution 
 
 [d) For exemption from service in paro- of the said oflice ; ' and it is not necessary 
 chial offices, see Archb. Cr. PI. (23rd ed.) to state that he refused to be sworn. R. t'. 
 ]251n. Brain, 3 B. & Ad. G14. Upon such an in- 
 
 (c) R. V. Woodrow, 2 T. R. 731. dictment, proof that he refused to be sworn 
 
 (/ ) R. V. Fearnley, 1 T. R. 31G. R. v. is sufficient frima facie evidence of a re- 
 White, Cald. 183. R. v. Winship, Cald. 72. fusal to take the office ; but if it were 
 R. V. Kingston, 8 East, 41. proved that, although not sworn, he had 
 
 ig) R. V. Lowe, 2 Str. 92. R. v. Chappie, acted as constable, the refusal to take the 
 
 3 Camp. 91. R. v. Genge, 1 Cowp. 13. R. oath would not prove that he refused to 
 
 V. Clerke, 1 Keb. 393. By the Paiish Con- take the office. Ibid. Where there is a 
 
 stables Act, 1872 (35 & 36 Vict. c. 92), after special custom of swearing in constables, 
 
 the March 24, 1873, no parish constable as in the City of London, it is unnecessary 
 
 shall be appointed except as therein pro- to set such custom out in the indictment, 
 
 vided. Where, if an indictment for refusing to 
 
 (h) R. ?'. Harpur, 5 Mod. 96. Fletcher serve the office of constable on being thcre- 
 
 ?'. Ingram, 5 Mod. 127. to chosen by a corporation did not set forth 
 
 (i) R. V. Adlard, 4 B. & C. 772 ; 7 P. & the prescription of the corporation so to 
 
 R. 340. See Donne v. Martyr, 8 B. & C. choose, it was bad ; for a corporation has 
 
 62. no power of common right to choose a 
 
 [j) R. V. Mosley, 3 A. & E. 488. See constable. R. v. Barnard, 1 Ld. Raym. 
 
 this case as to what is an excessive fine for 94. 
 
 refusing to serve the office. It is sufficient, {k) 45 & 46 Vict. c. 50, s. 34 ; 51 & 52 
 
 in an indictment for refusing to execute the Vict. c. 41. s. 75 ; 56 «& 57 Vict. c. 73, 9. 48 ; 
 
 office of constable, to state that the dc- (52 & 63 Vict. c. 14, ss. 7, 34.
 
 618 Of Offences hy Persons in Office. [book vill. 
 
 Overseers of the Poor. — A person is indictable for refusing to take 
 upon himself the office of overseer of the poor (l). For though the Poor 
 Law Act, 1601 (43 Eliz. c. 2), says only that certain persons therein 
 described shall be overseers, and gives no express indictment for a refusal 
 of the office, yet upon the principles of the common law, which are that 
 every man shall be indicted for disobeying a statute, the refusal to serve 
 when duly appointed is indictable (m). But there should be previous 
 notice of the appointment, and the indictment should shew that the 
 defendant was Jbound to undertake the office by setting forth how he 
 was elected (n). 
 
 (I) R. V. Jones, 2 Str. 1145. 1 Bott. 360, be for the overseer's year : and an indict- 
 
 pl. 377. R. V. Poynder, 1 B. & C. 178. R. ment, stating that the defendant was ap- 
 
 V. Hall, 1 B. & C. 123. pointed ' overseer of the poor of the parish 
 
 (m) R. V. Jones, ubi siiprn. of A.' and that he afterwards refused ' to 
 
 {n) R. V. Harpur, 5 Mod. 96. In R. v. take the said office of overseer of the parish 
 
 Burder, 4 T. R. 778, it was held that an to which he was so appointed,' was held 
 
 appointment of an overseer of the poor for good on demurrer. 
 the year next ensuing must be understood to
 
 ( 618a ) 
 
 CANADIAN NOTES. 
 
 OP OFFENCES WITH RESPECT TO PUBLIC OFFICE, ETC. — OF MISCONDUCT 
 
 IN OFFICE. 
 
 Sec. 1. — Misconduct of Officers Entrusted with Execiition of Writs. 
 — Code see. 166. 
 
 Amount of Fine. — Code sec. 1029. 
 
 Term of Imprisonment. — Code sec. 1052. 
 
 Neglect of Duty. — On a trial of an indictment charging a misde- 
 meanour against the principal Registrar of Deeds of a county and his 
 deputy jointly for misfeasance in not recording deeds in their due 
 order, it was objected that they could not be indicted together in one 
 indictment and legally convicted at one and the same time ; but it was 
 held by the full Court on the points reserved, that though the principal 
 might perhaps not be indictable for the wrongful act of his deputy 
 committed in his absence and without his knowledge or consent, it is 
 a different thing when he is present and knowing and consenting to 
 the act; that in such a case both are wrong-doers and particeps crim- 
 inis. It was also contended, in the same case, that the deputy registrar 
 could not be legally convicted so long as his principal legally held the 
 office ; but it was held that the deputy was liable to be indicted not only 
 while the principal holds office, but even after the deputy himself has 
 been dismissed from his office. R. v. Benjamin (1853), 4 U.C.C.P. 179. 
 
 Sec. 3. — Frauds. 
 
 Frauds upon Government. — Code sec. 158. 
 Consequences of Conviction. — Code sec. 159. 
 Breach of Trust hy PuMic Officer. — Code sec. 160. 
 
 Sec. 4. — Extortion. 
 
 In R. V. Tisdale (1860), 20 U.C.Q.B. 272, two justices of the peace 
 were tried before McLean, J., and a jury and found guilty upon an 
 indictment for extortion in exacting from a person charged on a pre- 
 liminary enquiry before them with a felony 25 shillings as fees due to 
 them as justices and for fees for his arrest. The magistrates had held 
 that the charge was not sustained by the evidence, but had collected 
 the costs above mentioned from the accused as a condition of his 
 discharge.
 
 6185 Misconduct in Public Office. [bookviii. 
 
 The offence is not constituted by demand only without actual 
 receipt of the illegal fee. IMd; Parsons v. Crabb, 31 U.C.C.P. 151. 
 
 The statute of 1275, 3 Edw. I. ch. 26, which deals with both civil 
 and criminal process therefor, is declaratory of the common law in 
 enacting the offence of extortion by the King 's officers to be indictable ; 
 the offence is a common law misdemeanour punishable on indictment 
 or information by fine and imprisonment and removal from office. 
 Ibid. The repeal of that statute as regards Ontario by Ont. Stat. 1902, 
 2 Edw. VII. ch. 1, is in terms as well as constitutionally limited to 
 such portions of same as are within the provincial legislative authority. 
 Stat. Law Revision Act (Ont.), 1902, ch. 1, sec. 2. 
 
 Evidence of corrupt motive must be adduced in order to obtain 
 leave to exhibit a criminal information against a justice of the peace 
 for malfeasance of office. The King v. Currie, 11 Can. Cr. Cas. 343. 
 
 Misbehaviour in office is an indictable offence at common law and 
 it is not essential that pecuniary damage should have resulted to the 
 public by reason of such irregular conduct, nor that the defendant 
 should have acted from corrupt motives. R. v. John R. Arnoldi 
 (1893), 23 O.R. 201. A man accepting an office of trust concerning 
 the public, especially if attended with profit, is answerable criminally 
 to the King for misbehaviour in his office. R. v. Bembridge, 22 St. Tr. 
 1, 3 Doug. 327. And where there is a breach of trust, fraud or im- 
 position in a matter concerning the public, though as between indi- 
 viduals it would only be actionable, yet as between the King and the 
 subject it is indictable. Ibid.
 
 (619) 
 
 CHAPTER THE SECOND. 
 
 OF BUYING AND SELLING PUBLIC OFFICES. 
 
 Common Law. — The buying and selling of offices of a public nature 
 has been held a misdemeanor and indictable at common law («). In R. 
 V. Vaughan (6) Lord Mansfield said that a great officer of the Crown, at the 
 head of the Treasury and in the King's confidence, would be guilty of a 
 misdemeanor in selhng his interest with the King on procuring an 
 office (c) and ' wherever it is a crime to take it is a crime to give ; they 
 are reciprocal.' That case was an attempt, by offering a bribe to the Duke 
 of Grafton, then first Lord of the Treasury and a Privy Councillor, to 
 procure the grant to the defendant of a patent of the reversion to the 
 office of clerk in the Supreme Court of Jamaica. On an indictment for 
 conspiracy to obtain money, by procuring from the Lords of the Treasury 
 the appointment of a person to an office in the customs (d), it was proposed 
 to argue that the indictment was bad on the face of it, as it was not a 
 misdemeanor at common law to sell or to purchase an office like that of 
 coast-waiter. But Ellenborough, 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 R. v. Vaughan, it would be very 
 difficult to argue that the offence charged in the indictment was not a 
 misdemeanor. And Grose, J., afterwards, in passing sentence, said 
 that there could be no doubt but that the offence charged was clearly 
 a misdemeanor at common law. 
 
 Where the defendant, who was clerk to the agent for the French 
 prisoners of war at Porchester Castle, took bribes in order to procure 
 the exchange of some of them out of their turn, it appears to have been 
 made the subject of an indictment (e). 
 
 Statutes. — The principal statutes against the sale of public office 
 still in force (/) are hereunder stated. 
 
 (a) Stockwell D. North, Noy, 102; Moore be called to ordain, name, or make, jus- 
 (K.B.) 781. 1 Hawk. c. 07, s. 3. Bac. Abr. tices of the peace, sherifTn, esclieaters, 
 tit. ' Officea and Officers.' 3 Chit. Cr. L. customers, comptrollers, or any other offi- 
 681. ccr or minister of the Kintr, shall be firmly 
 
 (b) 4 Burr. 2494, 2500. sworn that they shall not ordain, name, or 
 
 (c) He added : ' I suppose that most of make, any of the above-mentioned oflicers 
 the impeachments against ministers have for any gift or brokage, favour, or affec- 
 been for taking money to procure offices tion ; nor that none which pursueth by 
 grantable by the Crown.' himself, or by other, privily or openly, to 
 
 (d) R. V. Pdllman, 2 Camp. 229n. be in any manner of office, sliall be ])ut into 
 
 (e) R. V. Beale, cited in R. v. Gibbs, the same office, or in any other, but that 
 1 East, 183. they make all such officers and ministers 
 
 (/) 12 Rich. II. c. 2 enacted, ' that the of the best and most lawful men, and suf- 
 
 chancellor, treasurer, keeper of the privy ficient to their estimation and knowledge.' 
 
 seal, steward of the King'sliouse, the King's This Act was repealed in 1871 (34 & 35 
 
 chamberlain, clerk of the 'rolls, the justices Vict. c. 48). As to its meaning, effect, and 
 
 of the one bench and of the other, barons extent, see Earl of Macclesfield's case. If) 
 
 of the Exchequer, and all other that shall St. Tr. 767.
 
 620 Of Buijing and Setting Public Offices, [book viii. 
 
 The Sale of Offices Act, 1551 (5 & 6 Edw. VI. c. 16 ) {g), for the avoidhig 
 of corruption which may hereafter happen to be in the officers and 
 ministers, in places or rooms wherein there is requisite to be had the true 
 administration of justice or services of trust, and to the intent that persons 
 worthy and meet to be advanced to the place where justice is to be 
 ministered, &c., should hereafter be preferred to the same and none other, 
 enacts (sect. 1) that if any person or persons at any time hereafter bargain 
 or sell any office or offices, or deputation of any office or offices, or any 
 part or parcel of any of them, or receive, have, or take any money, fee, 
 reward, or any other profit directly or indirectly, or take any promise, 
 agreement, covenant, bond, or any assurance to receive or have any money, 
 fee, reward, or other profit, directly or indirectly, for any office or offices 
 or for the deputation of any office or offices, or any part of any of them, 
 or to the intent that any person should have, exercise, or enjoy any office 
 or offices , . . which office or offices, or any part or parcel thereof, shall 
 in anywise concern the admmistration or execution of justice, or the 
 receipt, controlment, or payment of the King's , . . treasure, rent, 
 revenue, account alneage, auditorship or surveying of any of the 
 King's . . . honours, castles, manors, lands, tenements, woods or here- 
 ditaments, or any of the King's . . . customs Qi) or any other adminis- 
 tration, or necessary attendance to be had, done or executed in any of the 
 King's Majesty's custom house or houses, or the keeping of any of the King's 
 towns, castles, or fortresses being used, occupied, or appointed for a place of 
 strength and defence, or which shall concern or touch any clerkship in any 
 court of record wherein justice is to be ministered; the offender shall not 
 only lose and forfeit all his right, interest and estate in or to such office or 
 deputation of office, but also shall be adjudged a person disabled to have, 
 occupy, or enjoy such office or deputation. The statute further enacts 
 (sect. 2) that such bargains, sales, bonds, agreements, &c., shall be void ; 
 and provides (sect. 3) that the Act shall not extend to any office whereof 
 any person shall be seised of any estate of inheritance, nor to any office 
 of the keeping of any park, house, manor, garden, chase, or forest. It 
 also provides (sect. 4) that all judgments given or things done by 
 offenders, after the offence and before the offender shall be removed from 
 the exercise of the office or deputation, shall be good and sufficient in law {i). 
 
 There are many decisions on this Act collected in Chit, Stat. vol. 8, 
 tit. ' Offices (against sale of).' 
 
 The following offices have been held to fall within the purview of 
 the Act : Chancellor, registrar, and commissary in ecclesiastical courts 
 and surrogates (/) ; cofferer {k), surveyor of the customs (I) ; customer of 
 
 {g) See Co. Lit. 234 a. The Act does not {h) The Act was repealed in 1825 (6 Geo. 
 
 extend to Ireland. Macarty v. Wickford, IV. c. 105, s. 10), so far as regards the customs 
 
 Trin. 9 Geo. IV. K. B. Bac. Abr. ' Offices or officers in the service of the customs, 
 
 and Officers' (but vide 49 Geo. III. c. 126): [i) Ss.5, 6 were repealed in 1863(S,L.R.). 
 
 nor to the colonies : Blankard v. Galdy, 2 {{) 12 Co. Rep. 78. 3 Co. Inst. 148. 
 
 Salk. 411 ; 2 Ld. Raym. 1245. Daws v. Dr. Tudor's case, Ci'o. Jac. 269. Robo- 
 
 Pindar, 3 Keb. 26; and see Bac. Abr. tham v. Taylor, 2 Brownl. 11. Tuxton v. 
 
 ' Offices and Officers ' (F). But if the Morris, 2 Ch. Cas. 42. 1 Hawk. c. 67, s. 4. 
 
 office, though in the plantations, had been {k) Sir Arthur Ingram's case, 3 Bulst. 
 
 granted under the great seal of England, 91 ; Co. Lit. 234, where it is said that the 
 
 the sale of it would have been held criminal king could not dispense with tliis statute 
 
 at common law. R. v. Vaughan, 4 Burr. hy any non obstante. See also Ci-o. Jac. 385. 
 
 2494, 2500, Lord Mansfield. ' (/) 2 And. 55, 107.
 
 CHAP, ii.j Sale of Offices Act, 1809. 621 
 
 a port (m) ; of collector and supervisor of the excise (n) ; clerk of the 
 crown, and clerk of the peace (o) ; gaolers (p) ; and stewards of Courts 
 leet {q). But offices in fee have been held to be out of the statute (r) ; 
 nor was the sale of a bailiwick of a hundred within it, for such an office 
 did not concern the administration of justice, nor is it an office of trust (s). 
 And for the like reason the office of clerk to the deputy registrar in the 
 prerogative Court of Canterbury was held to be not within the Act {t), 
 A seat in the six clerks' office was not within the statute, being a minis- 
 terial office only (u) ; the statute did not extend to military officers (v). 
 In Purdy v. Stacy {iv), Lord Mansfield said 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 corruptor and corrupted. 
 
 One who makes a contract for an office in violation of the Act is 
 absolutely disabled for life from holding the office and his capacity 
 cannot be restored by any grant or dispensation whatever (x). 
 
 Deputation. — Where an office is within the statute, and the salary 
 is certain, if the principal makes a deputation reserving a less sum out of 
 the salary, it is good. And if the profits are uncertain, and arise from 
 fees, if the principal makes a deputation reserving a certain sum out of 
 the fees and profits of the office, it is good : for in these cases the deputy 
 is not to pay 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 principaFs ; so that, as to him, it is 
 only reserving a part of his own, and giving away the rest to another. 
 But where the reservation 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 (?/). 
 
 This Act is recited and much extended by the Sale of Offices Act. 1809 
 (49 Geo. III. c. 126), which enacts (sect. 1), that 'all the provisions therein 
 contained shall extend to Scotland and Ireland, and to all offices in the 
 gift of the Crown, or of any office appointed by the Crown, and all com- 
 missions, civil, naval, or military (z), and to all places and employments, 
 and to all deputations to any such offices, commissions, places, or em- 
 ployments, in the respective departments or offices, or under the 
 appointment or superintendence and control of the lord high treasurer, 
 or commissioners of the Treasury, the secretary of state, the lords com- 
 missioners for executing the office of lord high admiral (a). . . . The 
 
 (m) 1 H. Bl. 327. («') 5 Burr. 2098. There is a ruling in 
 
 (n) Law I'. Law, 3 P. Wms. 391. 2 Vern. 308; and cas. te7np. Talbot, 40, that 
 
 (o) Macarty v. Wickford, Trin. 9 Geo. II. the Act did not apply to purser.';, which was 
 
 K.B. Bac. Abr. 'Offices and Officers' described by Lord Loughborough as con- 
 
 (F). See post, p. 626. trary to an evident principle of law. 1 H. 
 
 (p) Stockwith V. North, Moore, K.B. Bl. 320. 
 
 781. (x) Hob. 75. Co. Lit. 234. Cro. Car. 
 
 (q) Williamson v. Barnsley, 1 Brownl. 301. Cro. Jac. 380. Cas. temp. Talb. 107. 
 
 70. (?/) Bac. Abr. ' Offices and Officers ' (F). 
 
 (r) Ellis V. Ruddle, 2 Lev. 151. 1 Hawk. c. 07, s. 5. Salk. 408. 6 Mod. 
 
 is) R. V. Godbolt, 4 Leon. 33. 234. Godolphin v. Tudor, Comb. 350. 
 
 (0 Aston V. Gwinnell, 3 Y. & J. 136. (z) 5 & 6 Edw. VI. c. 16, did not apply 
 
 (m) Sparrow v. Reynold, Pasch. 20 Car. to military officers : see note (r), supra. 
 
 2 (C. B.). Bac. Abr. ' Offices and Officers ' (o) The parts here omitted were repealed 
 
 (F). in 1872 (35 & 36 Vict. c. 97). 
 
 (v) 1 Vern. 98.
 
 622 Of Bmjincj and Selling Public Offices, [book viii. 
 
 commander-in-cliief . . . and also the principal officers of any other public 
 department (6), or office of his Majesty's government in any part of the 
 United Kingdom, or in any of his Majesty's dominions, colonies, or 
 plantations, which now belong or may hereafter belong to his Majesty (c) ; 
 and also to all offices, commissions, places, and employments belonging 
 to or under the appointment or control of the East India Company (d), 
 in as full and ample a manner as if the provisions of the said Act were 
 repeated, as to all such offices, commissions and employments, and made 
 part of this Act ; and the said Act and this Act shall be construed as 
 one Act, as if the same had been herein repeated and re-enacted.' By 
 sect. 2 in case of forfeiture the right of appointment vests in the Crown, 
 
 Sect. 3. '. . . If any person or persons shall sell, or bargain for the sale 
 of, or receive, have, or take any money, fee, gratuity, loan of money, 
 reward, or profit, directly or indirectly, or any promise, agreement, 
 covenant, contract, bond or assurance, or shall by any way, device, or 
 means, contract or agree to receive or have any money, fee, gratuity, 
 loan of money, 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 money, reward or profit, or 
 make or enter into any promise, agreement, covenant, contract, bond, 
 or assurance to give or pay any money, fee, gratuity, loan of money, 
 reward 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 employ- 
 ment, specified or described in the said recited Act [of 1551, ante, p. 620] 
 or this Act, or within the true intent or meaning of the said Act, or this 
 Act, or for any deputation thereto, or for any part, parcel, or participation 
 of the profits thereof, or for any appointment or nomination thereto, or 
 resignation thereof, or for the consent or consents, or voice or voices of 
 any person or persons, to any such appointment, nomination, or resign- 
 ation ; 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 sect. 4, '. . . If any person or persons shall receive, have or take, 
 any money, fee, reward, or profit, directly or indirectly, or take any 
 promise, agreement, covenant, contract, bond, or assurance, or by any 
 way, means, or device, contract or agree to receive or have any money, fee, 
 gratuity, loan of money, reward or profit, directly or indirectly, for any 
 interest, solicitation, petition, request, recommendation, or negotiation 
 whatever, made or to be made, or pretended to be made, or under any 
 pretence of making, or causing or procuring to be made, any interest, 
 solicitation, 'petition, request, recommendation, or negotiation, in or about 
 
 (h) e.g., postmasters. Bourke v. Blake, touching or concerning the trust and duty 
 
 7 Ir. C. L. R. 348. of any office or employment under the 
 
 (c) See Grenville v. Atkins, 9 B. & C. Crown, or the East India Company, by any 
 462. British subject there resident, is to be 
 
 [d) By the East India Company Act, deemed a misdemeanor. This Act appears 
 1793 (33 Geo. III. c. 52), s. 66, the making to be superseded by 49 Geo. III. c. 126, 
 or entering into or being a party to any supra. See the Government of India Act, 
 corrupt bargain or contract, for the giving 1858 (21 & 22 Vict. c. 106). 
 up or obtaining, or in any other manner
 
 CHAP. II.] Sale of Offices Act, 1809. 623 
 
 or in anywise touching, concerning, or relating to, any nomination, 
 appointment, or deputation to, or resignation of, any such office, commis- 
 sion, place, or employment, as aforesaid, or under any pretence for using 
 or having used any interest, solicitation, petition, request, recommenda- 
 tion, or negotiation, 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 
 profit, or make, or cause, or procure to be made, any promise, agree- 
 ment, covenant, contract, bond, or assurance, or by any way, means, 
 or device, contract or agree, or give or pay, or cause or procure 
 to be given or paid, any money, fee, gratuity, loan of money, reward or 
 profit, for any solicitation, petition, request, recommendation, or negotia- 
 tion whatever, made or to be made, that shall in anywise touch, concern, 
 or relate to any nomination, appointment, or dej)utation 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 persons or person as aforesaid, 
 to any such nomination, appointment, deputation, or resignation ; 
 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 negotiate 
 in any manner, for any person or persons, in any matter that shall in 
 anywise touch, concern, or relate to, any such nomination, appointment, 
 deputation, or resignation aforesaid, or for the obtaining, directly or 
 indirectly, the consent or consents, 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 sect. 5, '. . . If any person or persons shall open or keep any house, 
 room, office or place for the soliciting, transacting or negotiating in any 
 manner whatever any business relating to vacancies in, to the sale or 
 purchase of, or appointment, nomination, or deputation to, or resignation, 
 transfer, or exchange of any offices, commissions, places, or employment 
 whatever, in or under any further department, then, and in every such 
 case, every such person, and also every other person who shall wilfully 
 and knowingly aid, abet, or assist therein shall be deemed and adjudged 
 guilty of a misdemeanor.' 
 
 By sect. 6, any person advertising any office, place, &c., or the name 
 of any person as broker, &c., or printing any advertisement or proposal 
 for such purposes, is liable to a penalty of £50. 
 
 Sect. 9 provides that the Act shall not extend to any office excepted 
 from the Act of 1551, nor to any office which was legally saleable before 
 the passing of this Act, and in the gift of any person by virtue of any 
 office of which such person is or shall be possessed under any patent or 
 appointment for his life (e). 
 
 e) Ss. 7, 8, and the rest of s. 9 were repealed in 1872 (S. L. R. No. 2).
 
 624 Of Buying and Selling Public Offices, [book viii. 
 
 Sect. 10 provides that the Act shall not extend to prevent or make 
 void any deputation to any office, in any case in which it is lawful to 
 appoint a deputy, or any agreement, &c., lawfully made in respect of 
 any allowance or payment to such principal or deputy respectively, out of 
 the fees or profits of such office (/). 
 
 By sect. 11, annual reservations, charges, or payments, out of fees 
 or profits of any office, to any person who shall have held such office, in 
 any commission, or appointment of any person succeeding to such office, 
 and agreements, &c., for securing such reservations, charges, or payments, 
 are also excepted ; provided that the amount of the reservations, &c., 
 and the circumstances and reasons under which they shall have been 
 permitted, shall be stated in the commission or instrument of appoint- 
 ment of the successor (g). 
 
 By sect. 14, offences against the Acts of 1551 and 1809, by any 
 governor, lieutenant-governor, or person having the chief command, 
 civil or military, in his Majesty's dominions, colonies, or plantations, 
 or his secretary, may be prosecuted and determined in the High Court of 
 Justice in London or Middlesex (h), in the same manner as any crime, 
 &c., committed by any person holding a public employment abroad 
 may be prosecuted under the provisions of the Criminal Jurisdiction 
 Act, 1802 (42 Geo. III. c. 85) (i). 
 
 Where by an agreement, reciting that the plaintiff carried on the 
 business of a law stationer, and was sub-distributor of stamps, collector 
 of assessed taxes, and that being desirous of giving up his said business, 
 he had agreed with the defendant for the sale of the same for the sum of 
 £300, it was witnessed that, in consideration of the sum of £300, the 
 plaintifE agreed to sell and the defendant agreed to buy the said business 
 of a law stationer so carried on by the plaintiff, and all his goodwill and 
 interest therein, and that the plaintiff should not at any time afterwards 
 carry on the business of a law stationer, or collect any of the assessed 
 taxes, but would use his utmost endeavours to introduce the defendant 
 to the said business and offices ; it was held that the agreement was a 
 contract for the sale of the offices of sub-distributor of stamps and 
 collector of assessed taxes, and illegal within the Acts of 1551 and 1809. 
 It was one entire contract, and the defendant could not be called upon to 
 pay, except upon the performance by the plaintiff of the whole consider- 
 ation. According to the plain words of the agreement, a part of the 
 consideration was the agreement by the plaintiff to recommend the 
 defendant to the offices, which was prohibited by the statutes (j). 
 
 Where a British subject, being a lieutenant in a regiment in the East 
 India service, and divers other officers in the said regiment agreed with 
 A. G., that the said lieutenant and other officers should subscribe and 
 pay to the said A. G., being a major and their senior in the said regiment, 
 and that he should accept from them a certain sum of money in consider- 
 ation of his resigning his said position as major in the said regiment, 
 and creating a vacancy of major therein, and the money was paid to A. G., 
 
 (/) Ante, p. 621. Bench at Westminster, vide ante, p. 31. 
 
 (g) S. 12 was repealed in 1872 (S. L. R. (?) Ante, p. 609. S. 15 was repealed in 
 
 No. 2). 1872- (S. L. R. No. 2). 
 
 (h) In the place of the Court of King's (/) Hopkins v. Prescott, 4 C. B. 578.
 
 Chap ii.] Of Buying and Selling Public Offices. 625 
 
 and he resigned his said position in pursuance of the said agreement ; 
 it was held that the agreement was illegal, under sect. 4 of the Act of 
 1809, and that a bond given in pursuance of it was void {k). 
 
 The sale of an East India Director's nomination to a cadetship was 
 within sect. 3 of that Act, although by the practice of the Company- 
 such nomination is given only in the form of a presentation of the party 
 by the director to the Court of Directors, ' provided he shall appear to ' 
 them ' eligible for that station,' and he must afterwards be examined 
 by the committee appointed for that purpose, and passed : and although 
 the nomination only gives the party, when examined and passed, a right 
 to go out to India, which he must do at his own expense, and obtain a 
 commission on his landing ; but before that time he receives no pay from 
 the Company, and is not under their control. For the object of the 
 enactment was to prevent all corrupt bargains for the sale of patronage 
 in matters of public concernment ; and with that view it is immaterial 
 whether that to which the nomination is sold can be described with most 
 critical correctness by any of the terms, ' office, commission, place, 
 or employment.' And a cadetship may be described in an indictment 
 under the Act as an ' office, commission, place, and employment ' [1). 
 
 A., an attorney, who held the offices of clerk of the peace for a liberty, 
 clerk to the commissioners of land and assessed taxes, clerk to the 
 commissioners of sewers, clerk to the magistrates, clerk to the deputy- 
 lieutenants, steward of divers manors, and coroner to the said liberty, 
 entered into articles of partnership with B., by which, after reciting that 
 he held many offices, &c., and that it had been agreed that they should 
 enter into partnership ' in the said business and in the emoluments of 
 the said offices, &c., upon the terms thereinafter expressed,' it was agreed 
 that they should enter into partnership for twenty years, and that ' all 
 the profits and emoluments arising from the said offices,' &c., during the 
 said partnership should be considered as partnership property, and 
 distributed accordingly ; it was also agreed that if A. died within the term 
 then, during such period as no son of A. should be a partner in the said 
 business, B. should be interested in one moiety of the said business, and 
 the executors of A. should be entitled to the profits of the other moiety 
 of the said business, to be applied as part of his personal estate ; and it 
 was held that the agreement was not a contract for the sale of an office 
 within the Acts of 1551 and 1809 (m). 
 
 Where a count of an indictment for a misdemeanor in the sale of 
 the office of a chaplain in the East Indies, alleged that the defendants 
 unlawfully and corruptly did contract with D. N. to procure the 
 appointment of a certain office and employment under the appointment 
 and control of the East India Company, to wit, the office and employment 
 of a chaplain in India, of a person duly qualified for the said office to be 
 named by the said D. N. in that behalf ; it was held that the count was 
 bad ; for the contract or agreement must be to receive money or 
 
 (k) Graeme v. Wroughton, 11 Ex. 146. Government of India (2nd ed.), 154. 
 
 (I) R. V. Charretic, 13 Q.B. 447. As to (m) Sterry v. Clifton, 9 C. B. 110. It 
 
 appointments in India, see the Government was also held tliat the latter clause was not 
 
 of India Acts, 1858 (21 & 22 Vict. c. 106), a violation of 22 Geo. II. c. 46, s. 11, re- 
 
 and 1861 (24 & 25 Vict. c. 104). Ilbert, pealed by 7 & 8 Vict. c. 73. 
 
 VOL. I. 2 S
 
 626 
 
 Of Buying and Selling Public Offices, [book viii. 
 
 profit, and the word ' corruptly ' is not sufficient to bring it within the 
 Act (n). 
 
 The Act of 1809 did not extend to purchases and exchanges of com- 
 missions in his Majesty's forces, at the regulated prices ; or to anything 
 done in relation thereto by authorised regimental agents not advertising 
 and not receiving money, &c., in that behalf. But officers receiving, 
 or paying, or agreeing to pay, more than the regulated prices, or paying 
 agents for negotiating, on conviction by a court-martial, forfeited their 
 commissions, and were cashiered. 
 
 By ' The Regimental Exchange Act, 1875 ' (38 & 39 Vict. c. 16), sect. 2, 
 ' his Majesty may, from time to time, by regulation, authorise exchanges 
 to be made by officers in his Majesty's regular forces from one regiment or 
 corps to another regiment or corps, on such conditions as to his Majesty 
 may for the time being seem expedient, and nothing contained in the 
 Army Brokerage Acts (o) shall extend to any exchanges made in manner 
 authorised by anv regulation of his Majesty for the time being in force.' 
 
 By an Act of 1688 (1 Will. & M. c. 21), it is made unlawful for any 
 custos rotulorum or other person who has the right to nominate, elect, or 
 appoint a clerk of the peace (p) to sell the place or take any bond or 
 assurance or to have any reward, fee, money, or profit, directly or 
 indirectly, to him or to any other person for nominating, &c. If the 
 appointing authority sells or the clerk buys the place each forfeits his 
 office and double the sum or value of what is given or received, recover- 
 able by action by a common informer, sect. 7 (/?). The clerk must, on 
 taking office, swear that he has not given nor will give anything for his 
 appointment (sect. 8). 
 
 By the Clerk of Assize (Ireland) Act, 1821 (1 & 2 Geo. IV. c. 54), the Act 
 of 1809 (q) is extended 'to prevent the sale or brokerage of the office of 
 clerk of assize or nisi jjrius or judges' registrar in Ireland in as full and 
 ample manner as if these offices had been mentioned in the Act of 1809 
 to all intents and purposes whatsoever ' (sect. 7). 
 
 By the Sheriffs Act, 1887 (50 & 51 Vict. c. 55, s. 19), ' a sheriff shall 
 not let to farm his county or any part thereof.' 
 
 By sect. 27, ' A person shall not directly or indirectly by himself or by 
 any person in trust for him or for his use buy, sell, let, or take to farm 
 the office of under-sheriff, deputy sheriff, bailiff, or any other office or place 
 appertaining to the office of sheriff, nor contract for j)romise or grant for 
 any valuable consideration whatever any such office or place, nor give 
 promise or receive any valuable consideration whatever for any such 
 office or place. Any person acting in contravention of the section not 
 being an under-sheriff, deputy sheriff, bailiff, or sheriff's officer is to be 
 punished as if he were such ' (r). 
 
 (w) Sanio V. R., 2 Cox, 178. 
 
 (o) Defined by s. 3 as meaning 5 & G 
 Edw. VI. c. 16, and 49 Geo. III. c. 126, 
 arite, pp. 620, 621. 
 
 (p) The oflfice would seem to be within 
 5 & 6 Edw. VI. c. 16. The appointment 
 to the office is now made in counties in 
 
 England by the joint committee of justices 
 and tlie county council (51 & 52 Vict. c. 41, 
 s. 83), and in boroughs by the town council 
 (45 & 46 Vict. c. 50, s. 154). 
 
 iq) Ante, p. 621. 
 
 (r) As to punishment, see 50 & 51 Vict, 
 c. 55, s. 29, mile, p. 607.
 
 ( 626a ) 
 
 CANADIAN NOTES. 
 
 OF BUYING AND SELLING PUBLIC OFFICE. 
 
 By Statute — Selling or Purchasing Office. — Code sec, 162. 
 Receiving or Giving Reward for Interest, etc., About Public Office. 
 -Code sec. 163. 
 Punishment. — Code sec. 1052.
 
 ( 627 ) 
 
 CHAPTER THE THIRD. 
 
 BRIBERY AND CORRUPTION. 
 
 Sect. I. — Bribery of Public Officers. 
 
 Bribery is the receiving or offering any undue reward by or to any 
 person whatsoever, in a public office, in order to influence his behaviour 
 in office, and incline him to act contrary to the known rules of honesty 
 and integrity (a). ' Whenever a person is bound by law to act without 
 any view to his private emolument, and another by a corrupt contract 
 I engages such person on condition of the payment of money or other 
 lucrative consideration to act in a manner which he shall prescribe, 
 both parties are by such contract guilty of bribery ' (6). 
 
 It is an indictable misdemeanor at common law to bribe or to attempt 
 to bribe (c) any person holding a public office, and for any person in an 
 official ]iosition corruptly to use the power or interest of his position for 
 rewards or promises, by asking for or accepting a bribe. Thus a clerk to 
 the agent for French prisoners of war was indicted for taking bribes from 
 the prisoners in order to obtain the exchange of some of them out of their 
 turn {d). 
 
 It is immaterial whether the office is an office of the State (e), or in a 
 public department {/), oris judicial (g), or ministerial (h), or municipal (i), 
 or parochial (/). 
 
 As to bribery of jurymen, see ' Embracery,' ante^ p. 598. As 
 to bribery, to obtain a public office, see 1 Hawk. c. 67, s. 3, and 
 ante, p. 619. As to bribery in connection with elections, see jjost, 
 p. 636. By 31 Eliz. c. 6, penalties are imposed with reference to 
 bribery and corruption in the election, presentation, or nomination of 
 
 ((/) 3 Co. Inst. 149. 1 Hawk. c. 07, s. 2. bribe a cabinet minister to give Mie de- 
 
 4 Bl. Com. 139. 3 Steph. Hist. Cr. L. fendant an office in Jamaica). 
 
 250. The older definitions limit the offence (/) R. v. Cassano, 5 E.sp. 23 1 (Customs), 
 
 to judicial officers: and the old form of R. v. Beale, ubi supra. 
 
 tlie judicial oath expressly bound the (g) 3 Co. Inst. 147. Earl of Maccles- 
 
 judges not to take any gift from any person field's case, 16 St. Tr. 767. R. v. Steward, 
 
 who had a plea pending before them. See 2 B. & Ad. 12. R. v. Vaughan, 4 Burr. 
 
 Bodmin case, 10 M. & H. 124,' Willcs, J. 2494, 2500, Lord Mansfield. R. r. Hanison. 
 
 {b) 2 Dou5^1as, Election Cases, 400. 1 East, P.C. (Coroner). 
 
 (c) ' In many cases, especiallj' in biibery (h) R. v. Ricliardson [1890], 111 Cent, 
 at elections to Parliament, tlie attempt is Cr. Ct. Sess. Pap. 612. R. v. Lehwesa 
 a crime if it is completed on his side who [1904], 140 Cent. Cr. Ct. Sess. Pap. 731 
 offers it.' R. v. Vaughan, 4 Burr. (coiLstables). 
 
 2494, 2500, Ld. Mansfield. Vide ante, (i) R. v. Plympton, 2 Ld. Raym. 1377. 
 
 p. 145. R. V. Mayor of Tiverton, 8 ]\Iod. 186. R. v. 
 
 (d) R. V. Beale [1798], 1 East, 183, cit. Steward, 2 B. & Ad. 12 (corporate offices). 
 And see R. v. Vaughan, 4 Burr. 2494. R. (j) R. v. Lancaster, 16 Cox, 737 (assist- 
 V. Pollman, 2 Camp. 229. ant overseer). R. v. Joliffe, 1 East, 154 n. ; 
 
 (e) R. V. Vaughan, ubi supra (attempt to 4 T. R. 285 (overseers). 
 
 2 s 2
 
 628 Of Bribery and Corruption. [bookviii. 
 
 fellows, scholars, &c., in cliurches, colleges, scliools, hospitals, halls, or 
 societies, and to simony and corrupt institution to or resignation of 
 benefices. Bribery is now an extradition crime (//). 
 
 Sect. II. — Corruption in Municipal Affairs. 
 
 Corruption.— By the Public Bodies (Corrupt Practices) Act, 1889 
 (52 & 53 Vict. c. 69), sect. 1— 
 
 (1) ' Every person who shall, by himself, or by or in conjunction with 
 any other person, corruptly solicit or receive, or agree to receive for himself 
 or for any other person, any gift, loan, fee, reward, or advantage {k) 
 whatever, as an inducement to, or reward for, or otherwise on account of 
 any member, officer, or servant of a public body, as in this Act defined (/), 
 doing, or forbearing to do anything in respect of any matter or trans- 
 action whatsoever, actual or proposed, in which the said public body is 
 concerned shall be guilty of a misdemeanor." 
 
 (2) ' Every person who shall by himself or by or in conjunction with 
 any other person, corruptly give, promise, or offer any gift, loan, fee, 
 award, or advantage whatsoever, to any person whether for the benefit 
 of that person, or of another person, as an inducement to, or reward for, 
 or otherwise, on account of any member, officer, or servant of any public 
 body, as in this Act defined, doing, or forbearing to do, anything in 
 respect of any matter or transaction whatsoever, actual or proposed, in 
 which such public body as aforesaid is concerned, shall be guilty of a 
 misdemeanor.' 
 
 Punishment. — By sect. 2, ' Any person, on conviction, for offending 
 as aforesaid, shall, at the discretion of the Court before which he is 
 convicted — - 
 
 a. be liable to be imprisoned for any period not exceeding two years, 
 with or without hard labour, or to pay a fine not exceeding £500, 
 or to both such imprisonment and such fine ; and 
 h. in addition, be liable to be ordered to pay to such body, and in such 
 manner as the Court directs, the amount or value of any gift, loan, 
 fee, or reward received by him, or any part thereof ; and 
 
 c. be liable to be judged incapable of being elected or appointed to any 
 public office (m) for seven years from the date of his conviction, and 
 to forfeit any such office held by him at the time of his conviction, and 
 
 d. in the event of a second conviction for a like offence, he shall, in 
 addition to the foregoing penalties, be liable to be adjudged forever 
 incapable of holding any public office (m) and to be incapable for 
 seven years of being registered as being an elector, or voting at an 
 election, either of members to serve in Parliament or of members 
 of any public body, and the enactments for preventing the voting 
 and registration of persons declared, by reason of corrupt practices, 
 to be incapable of voting, shall apply to a person adjudged in 
 pursuance of this section to be incapable of voting ; and 
 
 e. if such person is an officer or servant in the employ of any public 
 body, upon such conviction, he shall, at the discretion of the Court, 
 
 (jj) 6 Edw. VII. c. 15. (Z) Ibid. 
 
 {k) Defined s. 7, post, p. G29. (m) Ibid. 
 
 1
 
 CHAP. III.] Corruption of Agents in Business. 629 
 
 be liable to forfeit his right and claim to any compensation or 
 pension to which he would otherwise have been entitled/ 
 
 Savings as to Offences under Other Laws. — By sect. 3 (1) 'Where an 
 offence under this Act is also punishable under any other enactment or 
 at common law, such offence may be prosecuted and punished either 
 under this Act, or under the other enactment, or at common law, but so 
 that no person shall be punished twice for the same offence ' (n). 
 
 (2) ' A person shall not be exempt from punishment under this 
 Act by reason of the invalidity of the appointment or election of a person 
 to a public office/ 
 
 By sect. 4, ' A prosecution for an offence under this Act shall not be 
 instituted except by or with the consent of the Attorney-General,' i.e. 
 the Attorney or Solicitor-General for England or Ireland and the Lord 
 Advocate as respects Scotland (subsect. 2) (o). 
 
 By sect. 6, ' A Court of general or quarter sessions shall in England 
 have jurisdiction to inquire and hear and determine an offence under this 
 Act.' 
 
 By sect. 7, ' The expression " public body " means any council of a 
 county or council of a city or town, any council of a municipal borough, 
 also any board, commissioners, select vestry, or other body which has 
 power to act under and for the purposes of any Act relating to local 
 government or the public health or to poor law, or otherwise to administer 
 money raised by rates in pursuance of any public general Act, but does not 
 include any public body as above defined existing elsewhere than in the 
 United Kingdom. The expression " public office" means any office or 
 employment of a person as member, officer, or servant of such public body. 
 The expression " person " includes a body of persons, corporate or in- 
 corporate (p). The expression "advantage" includes any office or dignity 
 and any forbearance to demand any money or money's worth or valuable 
 thing, and includes any aid, vote, consent, or inffiience, or pretended aid, 
 vote, consent, or influence, and also includes any promise or procurement 
 of or agreement or endeavour to procure, or the holding out of any 
 expectation of any gift, loan, fee, reward, or advantage as before 
 defined ' (7). 
 
 Sect. III. — Corruption of Agents in Business, &c. 
 
 Punishment of Corrupt Transactions with Agents. — By the Prevention 
 
 of Corruption Act, 1906 (6 Edw. VII. c. 34) (/), by sect. I, 
 
 '(1) If any agent corruptly accepts or obtains, or agrees to accept 
 or attempts to obtain, from any person, for himself or for any other 
 person, any gift or consideration as an inducement or reward for 
 doing or forbearing to do, or for having after the ])assing of this Act 
 done or forborne to do, any act in relation to his principal's affairs or 
 business, or for shewing or forbearing to shew favour or disfavour 
 to any person in relation to his principal's affairs or business ; or 
 
 (re) Vide ante, p. 6. (g) S. 8 adapts the Act to Scotland, 
 
 (o) S. 5 as to costs is repealed by 8 Edw. S. 9 relates to proceedings in Ireland. 
 
 VII. c. 15, post, Bk. xii. c. v. (r) The Act was passed August 4, 1906, 
 
 (p) Vide ante, p. 3. and came into force on January 1, 1907.
 
 630 Of Bribery and Corruftion. [book viii. 
 
 If any person corruptly gives or agrees to give or offers any gift or 
 
 consideration to any agent as an inducement or reward for doing 
 
 or forbearing to do, or for having after the passing of this Act 
 
 done or forborne to do, any act in relation to his principal's affairs 
 
 or business, or for shewing or forbearing to shew favour or disfavour 
 
 to any person in relation to his principal's affairs or business ; or 
 
 If any person knowingly gives to any agent, or if any agent knowingly 
 
 uses with intent to deceive his principal, any receipt, account, or 
 
 other document in respect of which the principal is interested, 
 
 and which contains any statement which is false or erroneous or 
 
 defective in any material particular, and which to his knowledge 
 
 is intended to mislead the principal ; 
 
 he shall be guilty of a misdemeanor, and shall be liable on conviction 
 
 on indictment to imprisonment, with or without hard labonr, for a 
 
 term not exceeding two years, or to a fine not exceeding five hundred 
 
 pounds, or to both such imprisonment and such fine, or on summary 
 
 conviction to imprisonment, with or without hard labour, for a term not 
 
 exceeding four months, or to a fine not exceeding fifty pounds, or to both 
 
 such imprisonment and such fine. 
 
 (2) For the purposes of this Act the expression " consideration " 
 includes valuable consideration of any kind ; the expression " agent " 
 includes any person employed by or acting for another ; and the 
 expression "principal" includes an employer. 
 
 (3) A person serving under the Crown or under any corporation or 
 any municipal, borough, county, or district council, or any board of 
 guardians, is an agent within the meaning of this Act ' (s). 
 
 Prosecution of Offences. — By sect. 2, '(1) A prosecution for an 
 offence under this Act shall not be instituted without the consent, in 
 England of the Attorney-General or Solicitor-General, and in Ireland of 
 the Attorney-General or Solicitor-General for Ireland. 
 
 (2) The Vexatious Indictments Act, 1859 (22 & 23 Vict. c. 17), as 
 amended by any subsequent enactment {t), shall apply to offences under 
 this Act as if they were included among the offences mentioned in section 
 one of that Act, 
 
 (3) Every information for any offence under this Act shall be upon 
 oath {u). 
 
 (5) A Court of quarter sessions shall not have jurisdiction to inquire of, 
 hear, and determine prosecutions on indictments for offences under this Act. 
 
 (6) Any person aggrieved by a summary conviction under this Act 
 may appeal to a Court of quarter sessions.' 
 
 Sea Fishery Apprentices. — By the Merchant Shipping Act, 1894 
 (57 & 58 Vict. c. 60), s. 398, ' If any person (a) receives any money or 
 valuable consideration from the person to whom an apprentice in the 
 sea-fishing service is bound, or to whom a sea-fishing boy(i') is bound 
 
 [s) S. 1 extends to Scotland, subject to (m) Sub-s. 4 as to costs is superseded by 
 
 a provision tliat proceedings with a view to 8 Edw. VII. c. 15, post, Bk. xii. c. v. 
 summary conviction are to lie before the (v) i.e., a boy of 13 or under 16 bound 
 
 sheriff (s. 3). by indenture or agreement (s. 393). 
 
 [i) See post, Bk. ii. p. 1927.
 
 CHAP. III.] Corruftion of Agents in Business. 631 
 
 by any agreement, or from any one on that person's behalf, or from the 
 apprentice or boy or any one on the apprentice's or boy's behalf in 
 consideration of the apprentice or boy being so bound ; or (6) makes or 
 causes any such payment to be made, that person shall in respect of each 
 offence be guilty of a misdemeanor whether the apprentice or boy weis 
 or was not validly bound,'
 
 ( 632a ) 
 
 CANADIAN NOTES. 
 
 BRIBERY AND CORRUPTION. 
 
 Sec. 1. — Bribery of Public Officer. 
 
 Accepting or Obtaining Office Corruptly. — Code see. 156. 
 Taking or Giving Bribe. — Code see, 157. 
 
 Sec. 2. — Corruption in Municipal Affairs. 
 
 Pimishrnent. — Code see. 161. 
 
 Limitation of Prosecution. — Code see. 1140(&). 
 
 The receiving of a sum of money from contractors with the muni- 
 cipal corporation by the officer of the corporation having the supervi- 
 sion of the contractors' work as a payment made to corruptly influence 
 him in the performance of his official duties, constitutes the offence 
 of bribery by sec. 161 of the Criminal Code of Canada. Re Cannon, 
 14 Can. Cr. Cas. 186.
 
 ( 633 ) 
 
 CHAPTER THE FOURTH. 
 
 OF OFFENCES WITH REFERENCE TO THE REGISTRATION OF ELECTORS AND 
 VOTING, ETC., AT ELECTIONS. 
 
 Sect. I.— Offences in Connection with the Preparation of 
 Electoral Registers. 
 
 Wilful neglect or breach of duty by officials under the Acts relating 
 to the registration of electors appears not to be indictable (a) ; being 
 in most if not all cases specifically and summarily punishable under the 
 Acts (6). 
 
 By the Parliamentary Registration Act, 1843 (6 & 7 Vict. c. 18), s. 41, 
 a revising barrister has power to administer an oath to all persons exam- 
 ined before him, ' and all parties whether claiming or objecting or objected 
 to, and all persons whatsoever may be examined on oath touching the 
 matters in question ; and every person taking an oath or affirmation under 
 this Act who shall wilfully swear or affirm falsely shall be deemed guilty 
 of perjury.' 
 
 By the County Voters Registration Act, 1865 (28 & 29 Vict. c. 36), 
 s. 11, 'Any person falsely or fraudulently signing any such declara- 
 tion (c), in the name of any other person, whether such person shall 
 be living or dead ; and every person transmitting as genuine any 
 false or falsified declaration, knowing the same to be false or falsified, 
 and any person knowingly and wilfully making any false state- 
 ment of fact in such declaration, shall be guilty of a misdemeanor, 
 and punishable by fine or imprisonment for a term not exceeding 
 one year, and the revising barrister shall have power to impound any 
 such declaration.' 
 
 By the Parliamentary and Municipal Registration Act, 1878 (41 & 42 
 Vict. c. 26), s. 25, ' If any person falsely or fraudulently signs any 
 such declaration [as last aforesaid] (d), or any declaration either as 
 claimant or witness in respect of a claim to vote as a lodger in the name 
 
 (a) R. V. Hall [1891], 1 Q.B. 141, ante, p. correctly described on the county voters' 
 11. list, or who has received an objection 
 
 (b) See 2 & 3 Will. IV. c. 45, s. 76 (penal founded on the second column of the list, 
 action) ; tt & 7 Vict. c. 18, ss. 43, 52, 97 ; The declaration may be made before a 
 30 & 31 Vict. c. 58, s. 28; 30 & 31 Vict. commissioner of oaths or a justice of the 
 c. 102, ss. 28, 29 ; 31 & 32 Vict. c. .58, ss. 28, peace. 
 
 29; 32 & 33 Vict. c. 41, s. 10; 41 & 42 Vict. {d) i.e., in s. 24. viz. a declaration as to 
 
 c. 26, ss. 10, 26, 36 ; 48 & 49 Vict. c. 3, misdescription of tlie name, place of abode, 
 
 8. 9 (3) ; 48 & 49 Vict. c. 15, s. 16. or qualitication of the voter, or other errors 
 
 (c) As is mentioned in s. 10 of the Act, in the voters' list for a parliamentary 
 by a person whose place of abode is not borough or burgess list.
 
 634 Of Offences with Reference to Registration, [book viii. 
 
 of any other joerson whether that person is living or dead, or in a fictitious 
 name, or sends as genuine any false or falsified declaration knowing the 
 same to be false or falsified, or knowingly and wilfully makes any false 
 statement of fact in any declaration of the nature aforesaid, he shall be 
 guilty of a misdemeanor, and punishable by fine or by imprisonment 
 for a term not exceeding one year, and the revising barrister shall have 
 power to impound such declaration.' 
 
 Sect. II.— Official Misconduct with Reference to Election.s. 
 (a) Misconduct hy the Returning Officer cmd his Staff. 
 
 Wilful delay, neglect, or refusal duly to return any person who ought 
 to be returned to Parliament is dealt with under sect. 48 of the Parliamen- 
 tary Elections Act, 1868 (31 & 32 Vict. c. 125), without prejudice to any 
 power of Parliament to punish the officer (e). 
 
 Wilful misfeasance by a returning officer or presiding ofiicer or clerk 
 in the execution of his office would seem to be a misdemeanor indict' 
 able at common law ; in addition to the penalties incurred under sect. 
 11 of the Ballot Act, 1872 (35 & 36 Vict. c. 33), and sect. 61 (1) of the 
 Corrupt, &o., Practices Prevention Act, 1883 (46 & 47 Vict. c. 51). 
 
 By sect. 50 of the Representation of the People Act, 1867 (30 & 31 
 Vict. c. 102), ' No returning officer for any county or borough, nor his 
 deputy, nor any partner or clerk of either of them shall act as agent for 
 any candidate in the management or conduct of his election as a member 
 to serve in Parliament for such county or borough and if any returning 
 officer, his deputy, the partner, or clerk of either of them shall so act, he 
 shall be guilty of a misdemeanor ( /'). 
 
 Mayors. — The duties of mayors as to elections for Parliament are 
 prescribed by the Acts above stated. Their duties as to municipal 
 elections are prescribed by the Municipal Corporations Act, 1882 (45 
 & 46 Vict. c. 50) (g). By sect. 75 they incur liability to a fine recoverable 
 by action for neglecting or refusing to conduct or declare an election. 
 
 (6) Neglect or Delay in Delivering Parliamentary Election Writs. 
 
 The Parliamentary Writs Act, 1813 (53 Geo. III. c. 89), enacts (s. 1) 
 that the messenger, or pursuivant of the great seal, or his deputy, shall, 
 after the receipt of such writs, forthwith carry such of them as shall 
 be directed to the sheriffs of London or Middlesex, to the respective 
 officers of such sherifTs, and the other writs to the general post-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 deputation the postmaster is thereby required to make), 
 
 (e) Rogers on Elections (18th ed.), Vol. Cony, 5 East, 372, where it was held that 
 
 ii. p. 81. May, Pari. Pr. (11th ed.). 2 vohintary absence from an election was not 
 
 Douglas, Election Cases, (2nd ed.), 177. indictable unless presence was necessary to 
 
 (/ ) This section is applied by s. 1 1 of the constitute a legal meetmg of the corpora- 
 Ballot Act, 1872, to any returning officer tion for the election. That Act was re- 
 or officer appointed by him in pursuance pealed as to boroughs subject to the Muni- 
 of that Act, and to his partner' or clerk. cipal Corporations Act, 1882 (45 & 40 Vict. 
 
 {g) These duties were formerly regulated c. 50), by s. 5 of that Act ; and repealed in 
 
 by 11 Geo. I. c. 4, s. G, on which see R. v. toto in 1887. (S. L. R.)
 
 CHAP. IV.] Of Official Misconduct with Reference to Elections, 635 
 
 who, on receipt thereof, shall give an acknowledgment in writing, ex- 
 pressing 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 despatch all such writs free of postage, by the first post or mail, 
 after the receipt thereof, under covers directed to the proper officers, to 
 whom the said writs shall be respectively directed, accompanied with 
 proper directions to the postmaster 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 
 receipt of every such writ, and setting forth the day and the hour the same 
 was delivered by such postmaster or deputy, and which memorandum 
 shall also be signed by such postmaster or deputy, who is required to 
 transmit the same by the first or second post afterwards to the post- 
 master general or his deputy at the general post-office in London, who 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 acknow- 
 ledgment, signed by the messenger, to the intent that the same may be 
 inspected or produced upon all proper occasions by any person interested 
 in such elections. 
 
 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 after the passing of the Act (July 2, 1813) 
 send to the postmaster-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 such offices ; or in case 
 any such office shall be in the cities of London, Westminster, or the 
 borough of Southwark, or within five miles thereof, shall send such 
 account to the messenger of the great seal (h). 
 
 By sect. 6, ' Every person concerned in the transmitting or delivery 
 of any such writ as aforesaid who shall wilfully neglect or delay to deliver 
 or transmit any such writ, or accept any fee, or 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 ' (i). 
 
 {h) Ss. 2, .3. The portions omitted from or gratuity for conveyance or delivery of 
 ss. 2, 3 were repealed in 1873 (36 & 37 Vict. the writs. So much of the section a„s 
 e. 91, s. 2). S. 4 wa.s repealed bv the Great commuted fees formerly payable wa.s re- 
 Seal Offices Act, 1874 (37 & 38 Vict. c. 81 ). pealed in 1873 (3(5 & 37 Vict. c. 91). 
 which makes provision for the transfer of S. L. R. 
 
 the duties of the messenger or pursuivant (/) This was the rule under the old law. 
 
 of the great seal to an officer to be ap- Coombe v. Pitt, 1 W. Bl. 523. For old 
 
 pointed by the Lord Chancellor (ss. 4, 12). decisions on election petitions, see Douglas, 
 
 S. 5 forbids the messenger of the great seal Election Cases (2nd ed.), 1802. 
 and his deputies to receive or take any fee
 
 636 Of Offences with Reference to Elections, [book viii, 
 
 Sect. III. — Corrupt and Illegal Practices at Elections. 
 
 (a) Definitions of Corrupt Practices, &c. 
 
 Parliament. — The statute law relating to corrupt and illegal practices 
 at Parliamentary elections is now embodied in the Corrupt and Illegal 
 Practices Prevention Acts, 1883 and 1895, and the enactments scheduled 
 thereto, and in the Pubhc Meetings Act, 1908 (8 Edw. VII. c. 66), s. 1. 
 
 Definitions. — ^By the Corrupt and Illegal Practices Prevention Act, 
 1854 (17 & 18 Vict. c. 102), s. 38, ' Throughout this Act, in the construction 
 thereof, except there be something in the subject or context repugnant 
 to such construction, . . . the word "election" shall mean the election 
 of any member or members to serve in Parliament : and the words 
 "returning officer" shall apply to any person or persons to whom, by virtue 
 of his or their office under any law, custom, or statute, the execution of 
 any writ or precept doth or shall belong for the election of a member or 
 members to serve in Parliament, by whatever name or title such person 
 or persons may be called ; . . . and the word "voter" shall mean any 
 person who has or claims to have a right to vote in the election of a 
 member or members to serve in Parliament.' 
 
 By the Corrupt and Illegal Practices Prevention Acb, 1883 (46 & 47 
 Vict. c. 51). s. 64, ' In this Act unless the context otherwise requires — 
 
 The expression " election " means the election of a member or 
 members to serve in Parliament. 
 
 The expression " election petition " means a petition presented in 
 pursuance of the Parliamentary Elections Act, 1868 (31 & 32 Vict. c. 125), 
 as amended by this Act. 
 
 The expression " election Court " means the judges presiding at the 
 trial of an election petition or, if the matter comes before the High Court, 
 that Court. 
 
 The expression " person " includes an association or body of persons 
 corporate or incorporate, and where any act is done by any such association 
 or body, the members of such association or body who have taken part 
 in the commission of such act shall be liable to any fine or punishment 
 imposed for the same by this Act. 
 
 The expression " indictment " includes information. 
 The expression " costs " includes costs and charges and expenses.' 
 Corrupt Practice. — By the Corrupt and Illegal Practices Prevention 
 Act, 1883 (46 & 47 Vict. c. 51), s. 3, ' The expression " corrupt practice " 
 as used in this Act, means any of the following offences : namely, 
 treating (/) and undue influence (k) as defined in this Act, and bribery (?). 
 and personation (m) as defined by the enactments set forth in part iii. 
 of the third schedule to this Act, and aiding, abetting, counselling, and 
 procuring the commission of the offence of personation, and every offence 
 
 (j) Post, p. 641. (0 Post, p. 638. 
 
 (/t) Post, p. 642. (m) Post, p. 642.
 
 CHAP. IV.] Of Corrupt and Illegal Practices. 637 
 
 which is a corrupt practice within the meaning of this Act shall be a 
 corrupt practice within the meaning of the Parliamentary Elections Act, 
 1868 (31 & 32 Vict. c. 125), supra. 
 
 Municipal Elections. — The law as to corrupt practices in municipal 
 elections is contained in the Municipal Corporations Act, 1882, as 
 amended in 1884. 
 
 By the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), part iv. 
 (Corrupt Practices), s. 77, ' In this part, bribery, treating, undue influence, 
 and personation, include respectively anything done, before, at, after, or 
 with respect to a municipal election which, if done before, or after, or with 
 respect to a parliamentary election, would make the person doing the 
 same liable to any penalty, punishment, or disqualification for bribery, 
 treating, undue influence, or personation as the case may be under any 
 Act for the time being in force with respect to parliamentary elections ' (n). 
 
 By the Municipal Election, Corrupt, &c,. Practices Prevention Act, 
 1884 (47 & 48 Vict. c. 70), s. 2 (1), ' The expression " corrupt practices " 
 means in this Act any of the following offences, namely, bribery, treating, 
 undue influence, and personation, as defined in the enactments set forth in 
 part i. of the third schedule to this Act (o), and aiding, abetting, counsel- 
 ling, and procuring the commission of the offence of personation.' 
 
 Subsect. (2), 'A person who commits any corrupt practice in reference 
 to a municipal election shall be guilty of a like offence, and shall on 
 conviction be liable to the like punishment and be subject to the like 
 incapacities as if the corrupt practice had been committed at a 
 parliamentary election.' 
 
 The statutory provisions as to corrupt practices at municipal elections 
 apply to elections of the mayor, aldermen, or councillors, auditors, Sec, 
 of a municipal borough, of improvement commissioners (p), to county 
 council elections {q), to elections in the City of London (r), subject to the 
 provisions of a local Act (50&51 Vict.c. xiii.), and of metropolitan borough 
 councillors (s), councillors of urban (t) and rural (u) districts, and of 
 rural parishes (v), and guardians of urban districts (tv), and in London (x). 
 
 Punishment. — By 46 & 47 Vict. c. 51, s. 6 (1), ' A person who commits 
 any corrupt practice other than personation or aiding, abetting, counsel- 
 ling or procuring the commission of the ofTence of personation, shall be 
 guilty of a misdemeanor, and on conviction on indictment, shall be liable 
 to be imprisoned, with or without hard labour, for a term not exceeding 
 one year, or to be fined any sum not exceeding £200.' 
 
 (2) 'A person who commits the offence of personation, or of aiding, 
 abetting, counselling or procuring the commission of that offence (//), 
 
 (n) S.s. 78-80, 82-84 of part iv. are re- & O. February 26, 1903. 
 pealed and replaced by the Municipal {<) 50 & 57 Vict. c. 73, .s. 48 (3). and 
 
 Elections Corrupt, &c.. Practices Preven- Stat. R. & O. (1898) No. 1. 
 tion Act, 1884 (temp.). (m) Ibid. Stat. R. & O. (1898) No. 2. 
 
 (o) The scheduled enactments are those (v) Ibid. Slat. R. & O. (1901) No. 2. 
 
 set out under the different oflences named, («>) Ibid. ss. 20. 23, 28 : 59 & 00 Vict. 
 
 post, pp. G38-647. c. 1 : Stat. R. & 0. (1898) No. 4. In 
 
 (p) 47 & 48 Vict. c. 70, sched. 1. rural districts the rural district councillors 
 
 (q) 51 & 52 Vict. c. 41, s. 75 (1). Ex are also guardians of the poor. 
 parte Walker, 20 Q.B.D. 384. (x) Ibid. Stat. R. & O. (1898) No. 15. 
 
 (r) 47 & 48 Vict. c. 70, s. 30. (y) See Rogers on Elections (18th ed.), 
 
 (s) 02 & 03 Vict. c. 14, s. 2, and Stat. R. Vol. ii. p. 371.
 
 638 Of Offences with Beference to Elections, [book viii. 
 
 shall be guilty of felony, and any person convicted thereof on indictment 
 shall be punished by imprisonment for a term not exceeding two years, 
 together with hard labour/ 
 
 Subsect. (3) provides for disqualification for seven years of any 
 person convicted of a corrupt practice, in addition to the punishment 
 above provided. 
 
 (6) Bribery at Elections. 
 
 Common Law. — ' Bribery at elections for members of Parliament 
 must undoubtedly always have been a crime at common law,' and 
 consequently punishable by indictment or information (z). 
 
 The ofience consists in corruptly and illegally giving rewards or 
 making promises of rewards of money or money's worth in order to 
 procure votes for members to serve in Parliament (a). Thus giving 
 refreshments to voters before they vote in order to induce them to vote 
 for a particular candidate, is bribery at common law (6). 
 
 Bribery in connection with the election to a municipal (o) or 
 parochial (d) office appears to be a misdemeanor at common law. 
 
 Statute. — The statutory definition of bribery (e) applies both to 
 parliamentary (/) and to municipal elections {g). 
 
 By the Corrupt and Illegal Practices Prevention Act, 1854 (17 & 18 
 Vict. c. 102), s. 2 (A), ' The following persons shall be deemed guilty of 
 bribery, and shall be punishable accordingly — 
 
 (1 ) ' Every person who shall, directly or indirectly, by himself, or by 
 any other person on his behalf (i), give, lend, or agree to give or lend, or 
 shall offer (/), promise (k), or promise to procure, or to endeavour to 
 procure, any money, or valuable consideration, to or for any voter, or to 
 or for any person on behalf of any voter, or to or for any other person, 
 in order to induce any voter to vote, or refrain from voting, or shall 
 
 (2) R. V. Pitt, 3 Bmr. 1335, 1338, Lord tinned by the Expiring Laws Continuance 
 
 Mansfield. He added that by 2 Geo. II. Act {vide 8 Edw. VII. c. 18). 
 c. 24 (rep.), 'the legislature never meant to (i) Where a friend of the candidate gave 
 
 take away the common law crime but to an elector five guineas to vote, and took 
 
 add a penal action.' See R. v. Hollis, 20 from him a note for that sum, but at the 
 
 St. Tr. 1225, for precedent of an informa- same time gave a counter note to deliver 
 
 tion for bribery at a parliamentary election. up the first note when the elector had 
 
 And see Rogers on Elections (18th ed.), voted, the gift was held absolute and to be 
 
 Vol. ii. p. 294. bribery within 2 Geo. 11. c. 24. Sulston r. 
 
 {a) R. V. Pitt, uhi supra. Norton, 3 Burr. 1235. Cf. Cooper v. Slade, 
 
 (b) Hughes v. Marshall, 2 C. & J. 118. G H. L. C. 746. As to bribery by giving 
 
 (c) R. V. Plympton, 2 Ld. Raym. 1377. cards to electors which were taken to 
 
 (d) R. V. Lancaster, 16 Cox, 737 (assist- another person, who paid money to the 
 ant overseer of the pooi). Wills, J. electors, see Webb v. Smith, 4 Bing. (N. C.) 
 
 (e) In R. V. Pitt, 3 Burr. 1335, 1339, it 373. 
 
 was held that the statute against bribery (j) Acceptance is not necessary to consti- 
 
 (2 Geo. II. c. 24) Avas in aid of the common tute the offence. Coventry case [1869], 
 
 law and did not supersede it. Cf. Coombo 1 O'M. & H. 107. 
 
 or Combe v. Pitt, 3 Burr. 1423, 1586. R. (k) A letter was written to an out-voter. 
 
 V. Heydon, 3 Burr. 1359, 1387. Pugh r. requesting him to come to a borough, and 
 
 Curgerwen, 3 Wils. (K.B.) 35, and cases record his vote for S. A postscrii^t added, 
 
 collected in 1 Hawk. c. 67, s. 13. ' Your railway expenses will be paid.' Tlie 
 
 (/) Vide infra. voter did come and vote as requested : his 
 
 {g) 47 & 48 Vict. c. 70, s. 2, ante, p. 637. travelling expenses were paid. Held, that 
 
 (h) This section is included in sched. 3 of the promise and payment constituted only 
 
 the Corrupt and Illegal Practices Preven- one act of bribery within this section. 
 
 tion Act, 1883, which is annually con- Cooper i^. Slade, 6 H. L. C. 746.
 
 CHAP. IV.] Of Bribery. 639 
 
 c-orruptly (l) do any such act as aforesaid, on account of such voter havint^ 
 voted or refrained from voting at any election (II) : 
 
 (2) ' Every person who shall, directly or indirectly, by himself or by 
 any other person on his behalf, give or procure, or agree to give or procure, 
 or offer, promise, or promise to procure, or to endeavour to procure, any 
 office, place, or employment (m) to or for any voter, or to or for any person 
 on behalf of any voter, or to or for any other person, in order to induce 
 such voter to vote, or refrain from voting, or shall corruptly do any such 
 act as aforesaid, on account of any voter having voted or refrained from 
 voting at any election : 
 
 (3) ' Every person who shall, directly or indirectly, by himself or by any 
 other person on his behalf (n), make any such gift, loan, offer, promise, 
 procurement, or agreement as aforesaid, to or for any person, in order to 
 induce such person to procure, or endeavour to procure, the return of any 
 person to serve in Parliament, or the vote of any voter at any election (o) : 
 
 (4) ' Every person who shall, upon or in consequence of any such 
 gift, loan, offer, promise, procurement, or agreement, procure or engage, 
 promise, or endeavour to procure the return of any person to serve in 
 Parliament, or the vote of any voter at any election : 
 
 (5) ' Every person who shall advance or pay, or cause to be paid, any 
 money to or to the use of any other person with the intent that such 
 money or any part thereof shall be expended in bribery at any election, 
 or who shall knowingly pay or cause to be paid any money to any person 
 in discharge or repayment of any money wholly or in part expended in 
 bribery at any election.' (Here follows a proviso excepting legal 
 expenses bona fide incurred.) 
 
 Sect. 3 (p). ' The following persons shall also be deemed guilty of 
 bribery, and shall be punishable accordingly — 
 
 (1) ' Every voter who shall, before or during any election, directly 
 or indirectly, by himself or by any other person on his behalf, receive, 
 agree, or contract for any money, gift, loan, or valuable consideration, 
 office, place, or employment for himself or for any other person, for 
 voting or agreeing to vote, or for refraining or agreeing to refrain from 
 voting, at any election : 
 
 (2) * Every person who shall, after any election, directly or indirectly, 
 by himself or by any other person on his behalf, receive any money or 
 valuable consideration on account of any person having voted or refrained 
 from voting, or having induced any other person to vote or to refrain 
 from voting, at any election. ..." 
 
 By the Representation of the People Act, 1867 (30 & 31 Vict. c. 102), 
 
 (I) See Rogers on Elections (18th ed.), or the recipient of the bribe never meant to 
 Vol. ii. Y>. 300. vote as desired. In Harding v. Stokes 
 
 (II) Caldicott V. Worcester Election |1837], 2 M. & W. 233, an action under 
 Commissionors, 21 Cox, 404, 409. 5 & G Will. IV. c. 76, s. 54 (rep.), for cor- 
 
 (w) See Lichfield case, 1 O'M. & H. 27, rupting a voter in a municipal election, the 
 
 and Rogers on Elections (18th ed.). Vol. ii. offence was held to be complete when the 
 
 !'• 302. bribe was olTercd and accepted, and the 
 
 {n) See Cooper v. Sladc, 5 H. L. C. 746. promise made to vote as desired, even if 
 
 (o) In Henslowj\ Fawcett, 3 A. & E. 51, the promise were broken or was never 
 
 an action for penalties under 2 Geo. II. meant to be kept. 
 
 c. 24, s. 7 (rep.), for giving money to induce (p) Also included in sched. 3 of the Cor- 
 
 a man to vote, it was held that the penalty rupt, &c.. Practices Prevention Acts, 1883 
 
 was incurred even if the vote was not given and 1884, supra.
 
 640 Of Offences with Reference to Elections. [book viiI. 
 
 s. 49, ' Any person, either directly or indirectly, corruptly paying any 
 rate on behalf of any ratepayer for the purpose of enabling him to be 
 registered as a voter, thereby to influence his vote at any future election, 
 and any candidate or other person, either directly or indirectly, paying 
 any rate on behalf of any voter for the purpose of inducing him to vote 
 or refrain from voting, shall be guilty of bribery, and be punishable 
 accordingly ; and any person on whose behalf, and with whose privity 
 any such payment as in this section is mentioned, is made, shall also be 
 guilty of bribery, and punishable accordingly ' {q). For punishment 
 see 46 & 47 Vict. c. 51, s. 6, ante, p. 637. 
 
 Most of the decisions relating to bribery are on election petitions 
 and not on indictments for the offence. Where a test ballot was resorted 
 to in order to determine which of three candidates should stand, it was 
 held that bribery at such test ballot was within sect. 2, subsect. 3 of the 
 Act of 1854 (r). It is bribery to make payments to a voter for loss of 
 time while going to deliver his vote {s) ; or corruptly to pay rates for 
 the purpose of enabling a ratepayer to be registered and influencing his 
 vote at a future election {t), or to make payment corruptly for attend- 
 ance at a revising Court {u), or to give money to induce a voter to vote 
 under colour of a bet {v). It has never been decided that a wager upon 
 an election is bribery per se, but if made corruptly there can be little 
 doubt that it would be so (w). A corrupt promise of refreshments to 
 voters to induce them to vote is bribery {x). And the giving of money 
 ostensibly for the purpose of charity may be an act of bribery if done 
 corruptly, of which the excessive or indiscriminate nature of the gifts 
 may be evidence (y). So also it seems payment of money to induce 
 a person to personate a voter is bribery (2). A voter may be bribed 
 though he is disqualified (a). It is immaterial at what time before the 
 election the act of bribery is committed if it be done with a view to 
 influence a voter at a coming election (6). 
 
 It seems that payment of money to a voter after the election is over 
 for having voted is not bribery unless there was a corrupt promise before 
 the election to pay him (c). In 17 & 18 Vict. c. 102, s. 2 (1), the word 
 ' corruptly ' is inserted only as to payments after elections. {Vide ante, 
 p. 639.) 
 
 iq) As to Scotland, see 31 & 32 Vict. (x) Bodmin case [1869], 1 O'M. & H. 
 
 c. 48, s. 49 ; 44 & 45 Vict. c. 40, s. 2 (17). 124. Montgomery case, 4 O'M. & H. 
 
 (r) Brett v. Robinson, L. R. 5 C. P. 503. 69. 
 
 (s) Taunton case [1869], 1 O'M. & H. (y) Windsor case, 2 O'M. & H. Boston 
 
 183. Simpsons. Yeend, 38 L. J. Q.B. 313. case, 2 O'M. & H. 161. See Rogers on 
 
 {t) 30 & 31 Vict. c. 102, s. 49, supra. Elections (18th ed.). Vol. ii. p. 310. 
 Cheltenham case [1869], 1 O'M. & H. 64. (2) Coventry case, 1 O'M. & H. 105. 
 
 (w) Hastings case [1869], 1 O'M. &H. 219. (a) Guildford case, 1 O'M. & H. 14, 
 
 (v) Under 2 Geo. II. c. 24 (rep.), laying Willes, J. 
 a wager with a voter that he did not vote (6) Hastings case, 1 O'M. & H. 219. 
 
 for a particular candidate was held bribery. (c) See Coojjer v. Slade, 6 H. L. C. 746. 
 
 1 Hawk. c. 67, s. 10, note (4), citing anon. Lord Wensleydale. The election judges 
 
 Lofft, 552, and referring also to Allen v. have differed on this subject. See Brad- 
 
 Hearn, 1 T. R. 56, where a wager between ford case, 1 O'M. & H. 36, Martin, B. 
 
 two voters, with respect to the event of an Stroud case, 2 O'M. & H. 184, Bramweli, 
 
 election, laid before the poll began, was B., in favour of the proposition in the text, 
 
 held to be illegal. Harwich case, 3 O'M. & H. 71, Lush, J., 
 
 (w) See Rogers on Elections (18th ed.), contra. As to the law under 2 Geo. II. 
 
 Vol. ii. 321, where Allen v. Hearn, 1 T. R. c. 24, see Lord Huntingtower v. Gardiner, 
 
 56, and other cases are collected. 1 B. & C. 297.
 
 CHAP. IV.] Of Bribery and Treating. 641 
 
 A parliamentary election was about to take place at C. ; S. was one of 
 the candidates. In the committee-room of S. the question was discussed 
 whether paying the expense of bringing up out-voters was legal. S., 
 after referring to a law-book, said that it was, but limited it to the payment 
 of expenses out of pocket. A circular had been previously prepared and 
 printed, requesting out-voters to come up and vote for S. Upon S. 
 making this declaration of his opinion, a clerk to an agent of S. (without 
 any express direction from S. or from the agent) wrote at the bottom of 
 each circular, ' Your railway expenses will be paid.' A voter who resided 
 at H. received one of the circulars with this added note ; he came to C, 
 voted for S., and afterwards received the sum of 8.<?., the exj)enses to which 
 he had bona -fide been put by his journey. It was held, that the words 
 added to the circular must be treated as written by the authority of S. ; 
 that the promise and payment were forbidden by 17 & 18 Vict, c, 102, s. 2, 
 ante, p. 638, and that for the purposes of that statute they must be treated 
 as ' corruptly ' made (d). If a man employs an agent to corrupt voters, 
 and that agent in carrying such general instructions into effect employs 
 subordinate agents within the scope of the authority received from the 
 principal, it would seem that the principal, wdth reference to the express 
 terms of this statute, as well as upon general principles of law, will be 
 guilty of a misdemeanor (e). 
 
 Bribery is not triable at quarter sessions (17 & 18 Vict. c. 102, s. 10). 
 
 Voting by Agents, &c. — By the Representation of the People Act, 
 1867 (30 & 31 Vict. c. 102), s. 11, ' No elector who within six months before 
 or during any election for any county or borough shall have been retained, 
 hired, or employed for all or any of the purposes of the election for reward 
 by or on behalf of any candidate at such election as agent, canvasser, clerk, 
 messenger, or in other like employment, shall be entitled to vote at such 
 election, and if he shall so vote he shall be guilty of a misdemeanor ' (/). 
 
 (c) Treating. 
 
 By the Corrupt, &c., Practices Prevention Act, 1883 (46 & 47 Vict. 
 c. 51), s. 1, (1) ' Any person who cornqjtly by himself or by any other j^erson, 
 either before, during or after an election, directly or indirectly gives 
 or provides, or pays wholly or in part the expense of giving or providing 
 any meat, drink, entertainment or provision to or for any person for the 
 purpose of corruptly influencing that person or any other person to give or 
 refrain from giving his vote at the election, or on account of such person or 
 any other person having voted or refrained from voting, or being about to 
 vote or refrain from voting, at such election, shall be guilty of treating. 
 
 (2) * And every elector who corruptly accepts or takes any such meat, 
 drink, entertainment or provision, shall also be guilty of treating.' This 
 is extended to municipal elections (47 & 48 Vict. c. 70, s. 2, sched. 3, 
 part i.). For punishment see 46 & 47 Vict. c. 51, s. 6, ante, p. 637. The 
 offence is not triable at quarter sessions (17 & 18 Vict. c. 102, s. 10). 
 A corrupt promise of refreshments to voters to induce them to vote has 
 been held bribery {g). 
 
 [d) Cooper v. Sladc, 6 H. L. C. 746. {g) Bodmin case [1869], 1 O'M. & H. 124, 
 
 (e) R. V. Leatliam, 3 L. T. 504. Willes, J. Montgomery case, 4 0' JI. & H. 
 (/) Adapted to divided boroughs by 169. Salford case, 1 Ci'M. & H. 41. See 
 
 48 & 49 Vict. c. 23, s. 15. Rogers on Elcctions{18th ed.), Vol.ii.p.333. 
 
 VOL. I. 2 T
 
 642 Of Offences with Reference to Elections. [book viil 
 
 (d) Undue Influence. 
 
 By the. Corrupt, &c., Practices Prevention Act, 1883, sect. 2, ' Every 
 person who shall directly or indirectly, by himself or by any other 
 person on his behalf make use of or threaten to make use of any force, 
 violence, or restraint, or inflict, or threaten to inflict by himself or by 
 any other person any temporal or spiritual injury, damage, harm or 
 loss upon or against any person in order to induce or compel such 
 person to vote or refrain from voting, or on account of such person 
 having voted or refrained from voting at any election, or who shall 
 by abduction, duress or any fraudulent device or contrivance, impede 
 or prevent the free exercise of the franchise of any elector, or shall 
 thereby compel, induce or prevail upon any elector either to give or to 
 refrain from giving his vote at any election, shall be guilty of undue 
 influence' (h). This section is extended to municipal, &c., elections 
 (47 & 48 Vict. c. 70, s. 2, and sched. 3, part i.). For punishment see 
 46 & 47 Vict. c. 51, s. 6, ante, p. 637. The offence is not triable at quarter 
 sessions (*'). 
 
 (e) Personation. 
 
 It does not seem to be clear whether personation of a voter at an 
 election is an offence at common law (/). By the Ballot Act, 1872 (35 & 
 36 Vict. 0. 33), s. 24 (k), ' the following enactments shall be made with 
 respect to personation at parliamentary and municipal elections : 
 
 ' A person shall, for all purposes of the law relating to parliamentary (l) 
 and municipal elections be deemed to be guilty of the offence of 
 personation who at an election for a county or borough, or at a municipal 
 election (;/?), applies for a ballot paper in the name of some other person, 
 whether that name be that of a person living or dead (n), or of a fictitious 
 person (o), or who, having voted once at any such election, applies at 
 the same election for a ballot paper in his own name. . . .' 
 
 ' It shall be the duty of the returning officer to institute a prosecution 
 against any person w^hom he may believe to have been guilty of person- 
 ation, or of aiding, abetting, counselling, or procuring the commission of 
 
 (h) It is intimidation to threaten the c. 18). 
 deprivation of that which it would be bri- (/) Including elections of members for 
 
 bery to promise the enjoyment of. West- universities (s. 31). 
 
 bm-y case, 1 O'M. & H. 52. It is also (m) i.e., an election of any person to 
 
 intimidation to threaten a withdrawal of serve the office of councillor, auditor, or 
 
 custom or dismissal from employment with assessor of a borough subject to the 
 
 intent to influence the vote of a voter. R. Municipal Corporation Acts, 35 & 36 
 
 V. Barnwell, 5 W. R. 558. Blackburn Vict. c. 33, s. 29 ; 45 & 46 Vict. c. 50. In 
 
 case, 1 O'M. & H. 204. R. v. Turner, 12 Cox, 313, on an indictment 
 
 (/) 46 & 47 Vict. c. 51, s. 53, post, p. C48. under this section for an offence at a muni- 
 
 (/) In R. V. Bent, 1 Den. 157 : 2 C. & K. cipal election, it was ruled not to be 
 
 179, it seems to have been considered that necessary to produce the charter of the city, 
 personation at a municipal election was not (n) Under 14 & 15 Vict. c. 105, s. 13, it 
 
 an offence at common law. This opinion was held that there could be no personation 
 
 was doubted in R. v. Clarke [1900], 2 Ir. of a dead voter. Whiteley v. Chapell, 11 
 
 Rep. 304, Palles, C.B. See also R. v. Cox, 307. 
 Thompson, 2 M. & Rob. 355. (o) A person may have two names and 
 
 (A-) Included in sched. 3, part iii. of the may vote in that name by which he is 
 
 Corrupt, &c. Practices Prevention Act, 1883, described on the register. R. v. Fox [1887], 
 
 and annually continued (see 8 Edw. VII. 16 Cox, 166.
 
 CHAP. IV.] Personation and False Answers. 643 
 
 the ofEence of personation by any person, at the election for which he is 
 returning officer, [and the costs and expenses of the prosecutor and the 
 witnesses in such case, together with compensation for their trouble and 
 loss of time, shall be allowed by the Court in the same manner in which 
 Courts are empowered to allow the same in cases of felony] ' (p). 
 
 ' The provisions of the Kegistration Acts {q), specified in the third 
 schedule to this Act, shall in England and Ireland respectively apply 
 to personation under this Act in the same manner as they apply to a 
 person who knowingly personates and falsely assumes to vote in the 
 name of another person as mentioned in the said Acts, . . / By 46 & 47 
 Vict. c. 51, s. 6, personation is made a felony. As to punishment see 
 ante, p. 637. The offence is not triable at quarter sessions [r). 
 
 By 22 Vict. c. 35, s. 9 (rep.), if, pending or after any election of coun- 
 cillors, auditors, or assessors, any person shall personate, or induce any other 
 person to personate, any person entitled to vote at such election, &c., he 
 might be summarily convicted by two justices. H., pending an annual 
 election of councillors, gave a nomination paper signed by one B. to F., 
 and asked him to take it to a schoolroom and vote. F. said it was not 
 his name that was on it. H. told him to vote for W. and T., and said he 
 was to take the paper and put it down before a gentleman he would see 
 sitting, and that they would not say anything to him. F. took the paper, 
 and put it into the hands of the presiding officer at the schoolroom for 
 the reception of votes for the said ward ; and the officer, being so required, 
 asked F., ' Are you the person whose name is signed as B. to the voting 
 paper now delivered by you ? ' and F. answered, ' No.' B.'s name was at 
 the time on the burgess roll. The voting paper was not filed, nor was the 
 vote of B. recorded in consequence of the paper being so handed in. 
 Two justices convicted H. for inducing F. to personate B. at the said 
 election, and the sessions, on ajjpeal, confirmed the conviction, subject to 
 the opinion of the Court of Queen's Bench, whether H. had, under the 
 above facts, committed the alleged offence ; and it was urged that, as 
 F. did not vote, and on being asked, at once declared that he was not B., 
 he had not been guilty of personation, and therefore H. had not been 
 guilty of inducing him to commit it. But it was held that if a man goes 
 up to a voting place and represents himself as another person, it is a 
 false personation. Here F. gave in a voting paper, and so represented 
 himself to be another person, and thereby the personation was 
 complete (.s). 
 
 (/') False Answers by Voters. 
 
 By sect. 81 of the Parliamentary Registration Act, 1843 (6 & 7 
 Vict. c. 18), ' In all elections whatever of a member or members of 
 
 (/>) Words ill brackets repealed as to are extended to personation at municiiml 
 
 England, by 8 Edw. VII. c. 15, s. 10, post, elections by 4.5 & 46 Vict. c. 50, s. 86. 
 
 Bk. xii. c. V. (r) 4(5 & 47 Vict. c. 51, s. 5.3, post, p. 648. 
 
 (7) 6 & 7 Vict. c. 18. ss. 85-89; 13 & (a) R. r. Hague, 9 Cox, 412, The con- 
 
 14 Vict. c. 69, S3. 92 96, both inclusive, viction merely alleged that H. ' unlawfully 
 
 These enactments provide for taking the and knowingly did induce F. to personate 
 
 offender into custody and taking him B. ' : and it was held that it was good, and 
 
 before a magistrate. The powers of detect- that it was not necessary to state the 
 
 ing personation and arresting personators means of the inducement. 
 
 2x2
 
 644 Of Offences with Reference to Elections. [book viit. 
 
 Parliament for any county, riding, parts, or division of a county, or 
 for any city or borough in England and Wales no inquiry shall be 
 permitted at the time of polling as to the right of any person to vote 
 except only as follows, that is to say, that the returning officer {t) or 
 his respective deputy shall if required on behalf of any candidate (w), put 
 to any voter at the time of his tendering his vote and not afterwards, 
 the following questions or either of them : — 
 
 1. Are you the same person whose name appears as A. B. on the 
 
 register of voters, now in force for the county of [or for the 
 
 riding, parts or division of the county of ] or for the city 
 
 [or borough] of [as the case nmy he] ? 
 
 2. Have you already voted either here or elsewhere at this election 
 
 for the county of [or for the riding, parts or of the 
 
 county of ] or for the city [or borough] of [as the case may 
 
 he]^ 
 
 And if any person shall wilfully (v) make a false answer to either of the 
 questions aforesaid he shall be deemed guilty of a misdemeanor and shall 
 and may be indicted and punished accordingly ; and the returning officer 
 or his deputy . . . shall, if required on behalf of any candidate at the time 
 aforesaid administer an oath to any voter in the followmg form : — 
 
 You do swear [or affirm, as the case may be] that you are the same 
 person whose name appears as A. B. in the register of voters now in force 
 
 for the county of • [or for the riding, parts or 
 
 division of the county of or for the city [or borough] of [as 
 
 the case may be], and that you have not before voted either here or else- 
 where at the present election for the county of — [or for the 
 
 riding, parts, or division of the county of or for the city 
 
 [or borough] of , [as the case may be]. So help you God ' (w). 
 
 By sect. 59, sub-sect. (1) of the Municipal Corporations Act, 1882 
 (45 & 46 Vict. c. 50), ' At an election of councillors the presiding officer 
 shall, if required by two burgesses, or by a candidate or his agent, put to 
 every person offering to vote at the time of his presenting himself to vote, 
 but not afterwards, the following questions or either of them : — 
 
 {a) Are you the person enrolled on the burgess [or ward] roll now in 
 force for this borough [or ward] as follows ? [read the whole entry from 
 the roll], 
 
 (6) Have you already voted at the present election ? [add in case of 
 an electiofifor several wards, in this or any other loard] ' (x). 
 
 By sub-sect. (3), ' If any person wilfully make a false answer thereto, 
 he shall be guilty of a misdemeanor ' (y). 
 
 By sect. 13 (4) of the Eedistribution of Seats Act, 1885 (48 & 49 Vict. 
 
 (0 Or liis lawful deputy. 35 & 36 Vict. v. Bowler, C. & M. 559. R. v. Ellis, C. & 
 
 c. 33, ss. 1, 10. M. 564. R. v. Dodsworth, 2 M. & Rob. 72. 
 
 (u) e.g., by his agent or a person acting R. v. Irving, 2 M. & Rob. 75, note (o). R. 
 
 as such. R. V. Spalding, C. & M. 568. v. Harris, 7 C. & P. 253. R. v. Lucy, C. & 
 
 (v) See post, p. 645. M. 310. As to Ireland see 13 & 14 Vict. c. 
 
 (if) This section takes the place of 2 & 3 69, s. 88. 
 
 Will. IV. c. 45, s. 58. The oath against {x) This section takes the place of 4 & 5 
 
 bribery was abolished in 1854 (17 & 18 Will. IV. c. 76, s. 34. 
 
 Vict. c. 102). The question as to qualifica- (y) Tlois section does not apply to the 
 
 tion in 2 & 3 Will. IV. c. 45, s. 58, is no city of London. As to declaration before 
 
 longer required. As to that question, see R. polHng, see 30 Vict. c. 1, ss. 6, 7.
 
 CHAP. IV.] False Answers at Elections. 645 
 
 c. 23), ' In a borough divided into divisions, the election for two or more 
 of such divisions shall be deemed to be the same election within the mean- 
 ing of the enactments relating to personation (z) and to voting, and the 
 question which may be asked of voters at the poll shall be, •' Have you 
 
 already voted here or elsewhere at the election for the borough of , 
 
 either in this or any other division ? " ' 
 
 By sect. 10 of the Ballot Act, 1872 (35 & 36 Vict. c. 33), 'any presiding 
 officer and any clerk appointed by the returning officer to attend at 
 a polling station, shall have the power of asking questions and adminis- 
 tering the oath authorised by law to be asked of and administered to 
 voters. . . / 
 
 An indictment against a voter under 2 & 3 Will. IV. c, 45, s. 58 (a), 
 for giving a false answer at an election seems to have been insufficient 
 if it merely stated that the voter gave the answer at an election, 
 and did not aver the writ for liolding the election, or that the election 
 was duly held (b). 
 
 On an indictment under 2 & 3 WiU. IV. c. 45, s. 58, it was held that 
 the word 'wilfully' must be for giving a false answer at the poll, construed 
 in the same way, and supported by the same sort of evidence, as in an 
 indictment for perjury. To be untrue is not enough ; for to be wilful it 
 must have been false to the knowledge of the party at the time (c). 
 
 The first four counts of an indictment upon sect. 34 of the Municipal 
 Corporations Act, 1835 (d), stated that the defendant, upon delivering 
 in a voting paj)er, in the name of a burgess entitled to vote at the 
 election, was asked by the presiding officer the three questions in the 
 terms of the Act, and then alleged, * to which questions (each of the 
 two first) the defendant then and there falsely and fraudulently answered, 
 "I am." ' Williams, J., after consulting Patteson, J., held that these 
 four counts were bad for omitting the word ivilfully. * Wilfully to 
 make a false answer to the question ' proposed was the definition of the 
 offence by the legislature itself, and it was a safe and certain rule that 
 the words of the statute must be pursued (e). The prisoner was indicted 
 for falsely answering a question at a municipal election under the same 
 section. The prisoner's father, W. G., had been a burges sin St. Albans 
 and those names remained on the overseer's lists ; but he had been absent 
 from home for a considerable time ; and the prisoner, whose name was 
 also W., resided in the same house, and paid the parish rates, &c. At a 
 municipal election the j)risoner offered to vote, and being asked, ' Are 
 you the person whose name appears as W. G, on the burgess roll 
 now in force ? ' answered ' Yes.' There was only one W. G. on the roll. 
 Wightman, J., held that there was no case against the prisoner (/). 
 
 (2) Ante, p. G42. ic) R. v. Ellis, C. & M. 564. 
 
 (a) Superseded by the above enactments (rf) 5 & G Will. IV. c. 76, repealed in 
 
 and repealed by the Ballot Act, 1872 (Sf) & 1882 (45 & 46 Vict. c. 50), and replaced by 
 
 'MS Vict. c. 33), itself a temporary Act s. 59, ante, p. 644. 
 
 (continued by 8 Edw. VII. c. 18). (e) R. v. Bent, 1 Den. 157. 
 
 (6) R. V. Bowler, C. & M. 559. R. v. (/ ) R. r. Goodman, 1 F. & F. 502. 
 Ellis, C. & M. 564.
 
 646 Of Offences with Reference to Elections. [bookviii. 
 
 {cj) Illegal Practices. 
 
 Sects. 7-12 of the Corrupt and Illegal Practices Prevention Act, 1883, 
 and sects. 1, 2 of the Corrupt Practices Prevention Act, 1895 (58 & 59 
 Vict. c. 40) {(j) deal with illegal practices, and sects. 7-13 of the Act of 
 1883 with illegal payments or hirings (A). These are all punishable on 
 summary conviction subject to an appeal to quarter sessions (s. 10) 
 and to the power to convict of an illegal practice on an indictment for 
 a corrupt practice (s. 52, 'post, p. 649). Illegal practices, &c.. at 
 municipal elections are dealt with by sects. 4-18 of the Municipal 
 Elections (Corrupt, &c.. Practices) Act, 1884 (47 & 48 Vict. c. 70). 
 
 (Ii) Offences Relating to Nomination and Voting Papers. 
 
 By the Ballot Act, 1872 (35 & 36 Vict. c. 33) (/), sect. 3, ' every 
 person who 
 
 (1) Forges or fraudulently defaces or fraudulently destroys any 
 nomination paper, or delivers to the returning officer any 
 nomination paper, knowing the same to be forged ; or 
 
 (2) Forges or counterfeits or fraudulently defaces or fraudulently 
 destroys any ballot paper or the official mark on any ballot 
 paper ; or 
 
 (3) Without due authority supplies any ballot paper to any person ; 
 or 
 
 (4) Fraudulently puts into any ballot box any paper other than 
 the ballot paper which he is authorised by law to put in ; or 
 
 (5) Fraudulently takes out of the polling station any ballot paper ; 
 or 
 
 (6) Without due authority destroys, takes, opens, or otherwise 
 interferes with any ballot box or packet of ballot papers then 
 in use for the purposes of the election : 
 
 shall be guilty of a misdemeanor, and be liable, if he is a returning officer 
 or an officer or clerk in attendance at a polling station, to imprisonment 
 for any term not exceeding two years, with or without hard labour, and 
 if he is any other person, to imprisonment for any term not exceeding 
 six months, with or without hard labour.' 
 
 Any attempt to commit any offence specified in this section shall 
 be punishable in the manner in which the offence itself is punishable. 
 
 In any indictment or other prosecution for an offence in relation 
 to the nomination papers, ballot boxes, ballot papers, and marking 
 instruments at an election, the property in such papers, boxes, and 
 instruments may be stated to be in the returning officer at such elections, 
 as well as the property in the counterfoils (j). 
 
 On the trial of an indictment for fraudulently placing ballot papers 
 
 (g) This Act makes it an illegal practice (?) Continued annually. See 8 Edw. 
 
 to make or publish for the purpose of VII. c. 18. 
 
 affecting the return of a candidate at a (;;') Infringement of the secrecy of the 
 
 parliamentary election, a false state- ballot by officials and agents at polling 
 
 ment of fact in relation to the personal stations is summarily punishable (s. 4). 
 
 character or conduct of the candidate. Voters cannot be compelled to disclose how 
 
 (h) See Rogers on Elections (18th ed.), they voted (s. 12). 
 Vol. ii. c. xiii. 
 
 J
 
 CHAP. IV.] Of Indictment, Procedure, &c. 647 
 
 in a ballot box at a municipal election contrary to sub-sect. 4 of sect. 3 
 a sealed packet was produced under the order of a county court judge, 
 obtained under sched. 1, rules 40, 41, part ii. r. 64, of the Ballot Act, 
 and the counterfoils and marked register and voting papers produced 
 therefrom were given in evidence and the face of the voting papers 
 inspected : Held, that the evidence was properly admitted (A:). 
 
 Municipal Elections. — By the Municipal Corporations Act, 1882 
 (45 & 46 Vict. c. 50), s. 74, ' If any person forges or fraudulently defaces 
 or fraudulently destroys any nomination paper, or delivers to the town 
 clerk any forged nomination paper, knowing it to be forged, he 
 shall be guilty of a misdemeanor, and shall be liable to imprisonment 
 for any term not exceeding six months, with or without hard labour. 
 
 ' (2) An attempt to commit such an offence shall be punishable as the 
 offence is punishable.' 
 
 By sect. 58 of that Act, sect. 3 of the Ballot Act, 1872, supra, is applied 
 to contested municipal elections (l). 
 
 (i) Offences After an Election. 
 
 False Declaration as to Election Expenses. — 46 & 47 Vict. c. 51, s. 
 33, provides that a declaration as to expenses shall be made by the 
 candidate, and a return of such expenses by his agent ; and by sub-sect. 
 7, ' If any candidate or election agent knowingly makes the declaration 
 required by this section falsely he shall be guilty of an offence, and on 
 conviction thereof on indictment shall be liable to the punishment for 
 wilful and corrupt perjury ; such offence shall also be deemed to be a 
 corrupt practice within the meaning of this Act ' (m). 
 
 Improper Withdrawal of Election Petition.— By 46 & 47 Vict. c. 51, 
 s. 41, sub-sect. 4, ' If any person makes any agreement or terms, or enters 
 into any undertaking in relation to the withdrawal of an election 
 petition, and such agreement, terms or undertaking is or are for the 
 withdrawal of the election petition in consideration of any payment, or 
 in consideration that the seat shall at any time be vacated, or in consider- 
 ation of the withdrawal of any other election petition, or is or are (whether 
 lawful or unlawful) not mentioned in the aforesaid affidavits (n), he shall 
 be guilty of a misdemeanor, and shall be liable on conviction on indict- 
 ment to imprisonment for a term not exceeding 12 months, and to a fine 
 not exceeding £200 ' (o). 
 
 (/) Indictment and Procedure. 
 
 Wide powers are given to Courts for the trial of election petitions 
 to punish summarily persons guilty at elections of corrupt and illegal 
 practices, which do not fall within the scope of this work (;;). 
 
 By the Corrupt Practices Prevention Act, 1863 (26 & 27 Vict. c. 29), 
 s. 6, ' In any indictment or information for bribery or undue influence, 
 
 (k) R. V. Boaidsall, 1 Q.B.U. 452. petition : s. 41, sub-ss. 1-3, 5. As to dec 
 
 (0 S. 20 of the Ballot Act, 1872, was tion costs and jietitions, see Rogers on 
 
 repealed by ss. 5, 2fiO of the Act of 1882. Elections (18tli ed.), Vol. ii. p. 215. 
 
 (w) A like provision is made as to muni- (o) A similar provision is made as to 
 
 cipal elections by 47 & 48 Vict. c. 70, s. 21 municipal elections by 47 & 48 Vict. c. 70, 
 
 (5)- s. 26 (4). 
 
 (n) To be filed on application to the (p) See Rogers on Elections (18th ed.), 
 
 Election Court for leave to withdraw the Vol. ii. c. vi.
 
 648 Of Offences with Reference to Elections. [book viii. 
 
 and in any action or proceeding for any penalty for bribery, treating, 
 or undne influence, it shall be sufficient to allege that the defendant was 
 at the election at or in connection with which the offence is intended to 
 be alleged to have been committed guilty of bribery, treating, or undue 
 influence (as the case may require) ; and in any criminal or civil pro- 
 ceedings in relation to any such offence the certificate of the returning 
 officer in this behalf shall be sufficient evidence of the due holding of the 
 election (r), and of any person therein named having been a candidate 
 thereat/ 
 
 This section is extended by 46 & 47 Vict. c. 51, s. 53, infra, to indict- 
 ments for corrupt practices as defined ante, p. 636. On an indictment 
 for personation at an election held before this Act, it was ruled that the 
 election writ or an examined copy must be put in evidence {s). It is 
 not necessary under the present law to allege in the indictment or prove 
 that the presiding officer at the polling station at which the personation 
 is charged to have occurred was duly appointed {t). 
 
 An indictment for a corrupt practice which does not specifically 
 describe it is bad for generality if challenged before verdict (w). 
 
 By 46 & 47 Vict. c. 51, sect. 53 (1), ' Sects. 10, 12 and 13 {v), of the 
 Corrupt Practices Prevention Act, 1854 (17 & 18 Vict. c. 102), and sect. 
 6 [iv) of the Corrupt Practices Prevention Act, 1863, supra (which relate 
 to prosecutions for bribery and other offences under those Acts), shall 
 extend to any prosecution on indictment for the offence of any corrupt 
 practice within the meaning of this Act, and to any action for any 
 pecuniary forfeiture for an offence under this Act, in like manner as if such 
 offence were bribery wdthin the meaning of those Acts, and such indict- 
 ment or action were the indictment or action in those sections 
 mentioned, and an order under the said sect. 10 may be made on the 
 defendant, but the Director of Public Prosecutions, or any person insti- 
 tuting any prosecution in his behalf or by direction of an election Court, 
 shall not be deemed to be a private prosecutor nor required under the 
 said sections to give any security." 
 
 (2) ' On any prosecution under this Act, whether on indictment or 
 summarily, and whether before an election Court or otherwise, and in 
 any action for a pecuniary forfeiture, under this Act, the person prose- 
 cuted or sued, and the husband or wife of such person, may, if he or she 
 think fit, be examined as an ordinary witness in the case ' (w). 
 
 (r) See Reed i\ Lamb [1860], G H. & N. duce books, papers, &c., necessary for 
 
 75. R. V. Clarke, 1 F & F. 654. arriving at the truth of the things to be 
 
 (s) R. v. Vaile, 6 Cox, 470, Crompton, J. inquired into by them; and provides that all 
 
 (t) R. V. Garvey, 16 Cox, 253. persons ' shall answer all questions put to 
 
 {u) R. V. Norton, 16 Cox, 59, Pollock, B. them by the commissionei's touching the 
 
 It seems to be good after verdict. R. i\ matters to be inquired into by them, and 
 
 iStroulger, 17 Q.B.D. 327. shall produce all books, papers, deeds and 
 
 (v) S. 10 denies jurisdiction to quarter writings required of them, and in their 
 
 sessions. Ss. 10, 12, 13 are repealed as to custody or under their control, according to 
 
 costs in England by 8 Edw. VII. c. 5, s. 10, the tenor of the summons: provided always 
 
 post, Bk. xii. c. v. that no statement made by any person in 
 
 {w) Vide jx)st, Bk. xiii. c. v. 15 & 16 answer to any questions put by such com- 
 
 Vict. c. 57, s. 8, empowers election com- missioners shall, except in cases of indict- 
 
 missioners to summon any person whose ment for perjury committed in such answers, 
 
 evidence they may deem material to the be admissible in evidence in any proceeding, 
 
 inquiry, and to require any person to pro- civil or criminal.' See R. v. Leatham, 30 
 
 J
 
 CHAP, iv.i Of Indictment and Trial. 649 
 
 (3) ' On any such 23rosecution or action as aforesaid it shall be sufficient 
 to allege that the person charged was guilty of an illegal practice, pay- 
 ment, employment, or hiring within the meaning of this Act, as the case 
 may be, and the certificate of the returning officer at an election, that 
 the election mentioned in the certificate was duly held, and that the person 
 named in the certificate was a candidate at such election, shall be sufficient 
 evidence of the facts therein stated.' 
 
 By sect. 52, ' Any person charged with a corrupt practice, may, if 
 the circumstances warrant such finding, be found guilty of an illegal 
 practice (which offence shall for that purpose be an indictable offence), 
 and any person charged with an illegal practice may be found guilty 
 of that offence notwithstanding that the act constituting the offence 
 amounted to a corrupt practice, and a person charged with illegal 
 pa}Tnent, employment, or hiring may be found guilty of that offence 
 notwithstanding that the act constituting the offence amounted to a 
 corrupt or illegal practice/ 
 
 In an action for bribery at an election, the register of voters at an 
 election, made in pursuance of 6 & 7 Vict. c. 18, ss. 48, 49, was held to be 
 a document of such a public nature as to be admissible upon its mere 
 production by the returning officer, and an examined or certified copy 
 was held admissible [x). 
 
 "Where a book, which was in writipg, and duly signed, contained the 
 register of voters, Byles, J., held, that though there ought to be a copy 
 of the list printed in a book and duly signed, in order to constitute 
 a proper register, yet this register, though irregular, was valid and 
 admissible in evidence (y). 
 
 15 & 16 Vict. c. 57, s. 8 (p. 648, note {w) ), does not prevent the putting 
 in evidence on an information for bribery a document produced before 
 commissioners, for the proviso to that section applies only to statements 
 made {z). 
 
 Trial of Offences.— By 46 & 47 Vict. c. 51, s. 43 (subsects. 1-3), pro- 
 vision is made for the attendance of the Director of Public Prosecutions 
 at the trial of election petitions. Sub-sect. 4 provides for the summary 
 trial by the election Court of any person prosecuted by the Director for 
 corrupt or illegal practices, but in the case of a ' corrupt ' practice the 
 Court must give the person charged the option of being tried by a jury. 
 
 By sub-sect. 5, ' Where a person is so j)rosecuted for any such offence, 
 and either he elects to be tried by a jury or he does not appear before the 
 Court, or the Court thinks it in the interests of justice expedient that he 
 
 L. J. Q.B. 205. The section Is extended 1851 (14 & 15 Vict. c. 99), and the Evidence 
 
 by 31 & 32 Vict. c. 125, s. 50, to commis- Amendment Act, 1853 (10 & 17 Vict. c. 83), 
 
 sioners to inquire into corrupt practices at but subject to and witli Ihc exceptions 
 
 elections. By 17 & ISVict.c. 102,s. 55, 'On contained in such several Acts, provided 
 
 the trial of any action for recovery of any always, that any such evidence sliall not 
 
 pecuniary penalty under this Act, the thereafter be used in any indictment or 
 
 parties to such action, and the husbands criminal proceeding under this Act against 
 
 and wives of such parties respectively, the party giving it.' 
 
 shall be competent and compellable to give (.r) Reed v. Lamb, H. & N. 75. 
 
 evidence in the same manner as parties, (//) R. v. Clarke, 1 F. & F. G54. R. f. 
 
 and their husbands and wives are compe- Colebourne, ibid. 
 
 tent and com])ellable to give evidence in (z) R. v. Leathani, 30 L. J. Q.B. 203. 
 actions and suits under the Evidence Act.
 
 650 Of Offences with Reference to Elections, [book viii. 
 
 should be tried before some other Court, the Court, if of opinion that the 
 evidence is sufficient to put the said person upon his trial for the oSence, 
 shall order such person to be prosecuted on indictment, or before a Court 
 of Summary Jurisdiction as the case may require for the said offence, 
 and in either case may order him to be prosecuted before such Court 
 as may be named in the order, and for all purposes preliminary and of and 
 incidental to such prosecution the offence shall be deemed to have been 
 committed within the jurisdiction of the Court so named ' (a). 
 
 (6) ' Upon such order being made, (a) if the accused person is present 
 before the Court and the offence is an indictable offence, the Court shall 
 commit him to take his trial, or cause him to give bail to appear and take 
 his trial for the said offence.' . . . 
 
 (c) ' if the accused person is not present before the Court, the Court 
 shall, as circumstances require, issue a summons for his attendance, or 
 a warrant to apprehend him and bring him before a Court of summary 
 jurisdiction, and that Court, if the offence is an indictable offence (b), 
 shall, on proof only of the summons or warrant and the identity of the 
 accused, commit him to take his trial, or cause him to give bail to appear 
 and take his trial for the said offence ' . . . (c). 
 
 Sect. 45 provides for the institution of prosecutions by the Director 
 of Public Prosecutions, and sect. 46 for the removal of any incapacity 
 proved to have been brought about by perjured evidence. 
 
 By sect. 50, ' Where an indictment as defined by this Act {vide ante, p. 
 636), for any offence under the Corrupt Practices Prevention Acts, or this 
 Act is instituted in the High Court or is removed into the High Court by 
 a writ of certiorari issued at the instance of the Attorney-General, and the 
 Attorney-General suggests on the part of the Crown that it is expedient 
 for the purposes of justice that the indictment should be tried in the 
 Central Criminal Court, or if a special jury is ordered, that it should be 
 tried before a judge and jury at the Royal Courts of Justice, the High 
 Court may, if it think fit, order that such indictment shall be so tried 
 upon such terms as the Court may think just, and the High Court may 
 make such orders as appear to the Court necessary or proper for carrying 
 into effect the order for such trial.' 
 
 Limitation of Time. — By sect. 51 (1), ' A proceeding against a person 
 in respect of the offence of a corrupt or illegal practice or any other offence 
 under the Corrupt Practices Prevention Acts or this Act, shall be com- 
 menced within one year after the offence was committed, or, if it was 
 committed in reference to an election with respect to which an inquiry is 
 held by election commissioners, shall be commenced within one year after 
 the offence was committed, or within three months after the report of 
 such commissioners is made, whichever period last expires, so that it be 
 commenced within two years after the offence was committed, and the 
 time so limited by this section shall, in the case of any proceeding under 
 the Summary Jurisdiction Acts for any such offence whether before an 
 election Court or otherwise, be substituted for any limitation of time 
 contained in the last mentioned Acts.' 
 
 (a) See R. v. Shellard, 23 Q.B.D. 273. (c) Provisions identical with this section 
 
 R. V. Ripley, 17 Cox, 120. are made as to municipal elections, 47 & 48 
 
 (6) See R. v. Shellard, tihi supra. Vict. c. 70, s. 28.
 
 CHAP. IV.] Of Trial and Evidence. 651 
 
 (2) ' For the purposes of this section the issue of a summons, warrant, 
 writ, or other process shall be deemed to be a commencement of a pro- 
 ceeding when the service or execution of the same on or against the 
 alleged offender is prevented by the absconding or concealment or act of 
 the alleged offender, but, save as aforesaid, the service or execution of 
 the same on or against the alleged offender, and not the issue thereof, 
 shall be deemed to be the commencement of the proceeding/ 
 
 By sect. 55 (2), ' The enactments relating to charges before justices 
 against persons for indictable offences shall, so far as is consistent with 
 the tenor thereof, apply to every place where an election Court orders a 
 person to be prosecuted on indictment, in like manner as if the Court were 
 a justice of the peace.' (See 11 & 12 Vict. c. 42 : 30 & 31 Vict. c. 35.) 
 
 By sect. 56 (1), ' Subject to any rules of Court any jurisdiction vested 
 by this Act in the High Court may, so far as it relates to indictments or 
 other criminal proceedings, be exercised by any judge of the King's Bench 
 Division, and in other respects may either be exercised by one of the 
 judges for the time being on the rota for the trial of election petitions, 
 sitting either in Court or at chambers, or may be exercised by a master 
 of the Supreme Court of Judicature in manner directed by and subject 
 to an appeal to the said judges.' 
 
 It is, however, provided that a master shall not exercise jurisdiction 
 to grant exceptions or excuses. The Court has power to make rules 
 regulating procedure and practice. 
 
 By sect. 57 (1), ' The Director of Public Prosecutions, in performing 
 any dutv under this Act, shall act in accordance with the regulations 
 under the Prosecution of Offences Act, 1879 (42 & 43 Vict. c. 22) {d), 
 and subject thereto, in accordance with the directions (if any) given to him 
 by the Attorney-General, and any assistant or representative of the 
 Director of Public Prosecutions in performing any duty under this Act, 
 shall act in accordance with the said regulations and directions, if any, 
 and with the directions given to him by the Director of Public 
 Prosecutions ' [e). 
 
 Evidence— Certificate ol Indemnity.— By sect. 59 (1), ' A person 
 who is called as a witness respecting an election before any election Court 
 shall not be excused from answering any question relating to any offence 
 at or connected with such election on the ground that the answer thereto 
 may criminate or tend to criminate himself, or on the ground of privilege. 
 
 Provided that — 
 
 (a) A witness who answers truly all questions which he is required 
 by the election Court to answer shall be entitled to receive a certificate 
 of indemnity under the hand of a member of the Court stating that such 
 witness has so answered ; and 
 
 (6) An answer by a person to a question put by or before any election 
 Court shall not, except in the case of any criminal proceeding for perjury 
 in respect of such evidence (/) be in any proceeding, civil or criminal, 
 admissible in evidence against him. 
 
 (d) As amended by the Prosecution of Q.B. G05, and 8 Edw. VII. c 15, post, 
 Offences Act, 1908 (8 Edw. VII. c. 3), post, Bk. xii. c. v. 
 
 Vol. ii. p. 1924.. (/) A witness before such a commission 
 
 (e) As to costs, see R. v. Law [1900], 1 of inquiry was, after giving his evidence
 
 652 Of Offences with Reference to Elections, [book viil. 
 
 (2) Where a person has received such a certificate of indemnity in 
 relation to an election, and any legal proceeding is at any time instituted 
 against him for any offence under the Corrupt Practices Prevention Acts 
 or this Act, committed by him previously -to the date of the certificate, 
 at or in relation to the said election, the Court having cognizance of the 
 case shall, on proof of the certificate, stay the proceeding, and may in their 
 discretion award to the said person such costs as he may have been put 
 to in the proceeding. 
 
 (3) Nothing in this section shall be taken to relieve a person receiving 
 a certificate of indemnity from any incapacity under this Act, or from any 
 proceeding to enforce such incapacity (other than a criminal prosecution). 
 
 (4) This section shall apply in the case of a witness before any election 
 commissioners in like manner as if the expression " election Court " in this 
 section included election commissioners. 
 
 (5) Where a solicitor or person lawfully acting as agent for any party 
 to an election petition respecting any election for a county or borough 
 has not taken any part or been concerned in such election, the election 
 commissioners inquiring into such election shall not be entitled to examine 
 such solicitor or agent respecting matters which came to his knowledge 
 by reason only of his being concerned as solicitor or agent for a party to 
 such petition.' 
 
 By sect. 60, ' An election Court or election commissioners, when 
 reporting that certain persons have been guilty of any corrupt or illegal 
 practice, shall rej)ort whether those persons have or not been furnished 
 with certificates of indemnity, and such report shall be laid before the 
 Attorney-General (accompanied, in the case of commissioners, with the 
 evidence on which such report was based), with a view to his instituting 
 or directing a prosecution against such persons as have not waived 
 certificates of indemnity, if the evidence should in his opinion be sufficient 
 to support a prosecution.' 
 
 Municipal Elections.— By 47 & 48 Vict. c. 70, s. 30, ' Subject to the 
 other provisions of this Act, the procedure for the prosecution'of a corrupt 
 or iUegal practice, or any illegal payment, employment, or hiring, com- 
 mitted in reference to a municipal election, and the removal of any 
 incapacity incurred by reason of a conviction or report relating to any 
 such offence, and the duties of the Director of Public Prosecutions in 
 relation to any such offence, and all other proceedings in relation thereto 
 (including the grant to a witness of a certificate of indemnity, shall be the 
 same as if such offence had been committed in reference to a parliamentary 
 election ; and sects. 45 & 46 and sects. 50-57, both inclusive, and sects. 
 
 before it, indicted for perjury committed 
 before a judge, on the trial of an election 
 petition in respect of the same election with 
 reference to which he was examined before 
 the commissioners. Statements made by 
 such witness, in answer to questions put by 
 the commissioners relative to corrupt prac- 
 tices at such election, were given in evi- 
 dence against him to prove the indictment 
 for perjury. Held, that the exception in 
 the proviso to 26 & 27 Vict. c. 29, s. 7, 
 which provided an exception in the case of 
 
 indictments for perjury as to cases of in- 
 dictments for perjury, must be considered 
 to mean perjury committed in answer to 
 questions put by the commissioners on the 
 inquiry, and not to perjury generally, and 
 therefore that the above evidence was not 
 admissible. R. v. Buttle, L. R. 1 C. C. R. 
 248. The words of 46 & 47 Vict. c. 51, 
 s. 59, are ' except in the case of any criminal 
 proceeding for perjury,' and this would 
 seem to destroy the effect of R. v. Slater, 
 8 Q.B.D. 267.
 
 CHAP. IV.] Of Municipal Elections. 653 
 
 59 and 60 of the Corrupt and Illegal Practices Prevention Act, 1883 
 (46 & 47 Vict. c. 51) (g), shall apply accordingly as if they were re-enacted 
 in this Act, with the necessary modifications, and with the following 
 additions :— 
 
 a. Where the Director of Public Prosecutions considers that the 
 circumstances of any case require him to institute a prosecution before 
 any Court other than an election Court, for any offence other than a 
 corrupt practice committed in reference to a municipal election in any 
 borough, he may, by himself or his assistant, institute such prosecution 
 before any Court of summary jurisdiction in the county in which the said 
 borough is situate, or to which it adjoins, and the offence shall be deemed 
 for all purposes to have been committed within the jurisdiction of such 
 Court ; 
 
 b. General rules for the purposes of part iv. of the Municipal Corpora- 
 tions Act, 1882 (45 & 46 Vict. c. 50), shall be made by the same authority 
 as rules of Court under the said sections (h) ; and 
 
 c. The giving or refusal to give a certificate of indemnity to a witness 
 by the election Court shall be final and conclusive ' (^). 
 
 (g) Vide ante, pp. 651, 652. piinted in Stat. E. & 0. Revised (ed. 1904), 
 
 (h) i.e., by the rule making authority Vol. xii.. Supreme Court E., p. 656. 
 
 for the Supreme Court, 46 & 47 Vict. c. 51, (?) See Rogers on Elections (18th ed.), 
 
 s. 56. The rules made April 17, 1883, are Vol. iii.
 
 ( 654a ) 
 
 i 
 
 CANADIAN NOTES. 
 
 OF OFFENCES WITH REFERENCE TO THE REGISTRATION OF ELECTORS AND 
 VOTING, ETC., AT ELECTIONS. 
 
 Dominion Elections. 
 
 See Revised Statutes of Canada (1906), eh. 6, sees 247-307 
 inclusive. 
 
 Sec. 1. — Offences in Connection with the Preparation of Elections 
 
 Lists. 
 Dominion Election Act. 
 
 Refusal or omission by provincial officer to record changes on 
 
 list of voters. See R.S.C. ch. 6, sec. 247. 
 Refusal of provincial custodian to transmit to clerk of Crown in 
 Chancery copies of lists. See R.S.C. ch. 6, sec. 248. 
 
 Sec. 2. — Official Misconduct with Reference to Elections. 
 
 (a) Misconduct hy Returning Officer and his Staff. — See R.S.C. 
 
 ch. 6, sec. 249. 
 Neglect of duty by officials. See R.S.C. ch. 6, sec. 250. 
 Refusal to furnish returning officer with documents. See R.S.C. 
 
 ch. 6, sec. 251. 
 Election officers acting as agents. See R.S.C. ch. 6, sec. 252. 
 Improper varying of oath of qualification. R.S.C. ch. 6, sec. 253. 
 Illegally refusing a ballot to an elector in Prince Edward Island. 
 
 R.S.C. ch. 6, sec. 254. 
 Delay, neglect or refusal of returning officer to return election 
 
 candidate. R.S.C. ch. 6, sec. 257. 
 Failure to maintain secrecy during poll. R.S.C. ch. 6, sec. 258. 
 
 Sec. 3. — Corrupt and Illegal Practices at Elections. 
 
 (a) Definition of Corrupt Practices. — See R.S.C. ch. 6, sec. 278. 
 (6) Bribery at Elections. 
 
 Giving money, etc., to procure votes. R.S.C. ch. 6, sec. 265; 
 amended, 7 & 8 Edw. VII. ch. 9, sec. 29. 
 
 Giving or promising employment. R.S.C. ch. 6, sec, 265. 
 
 Gifts or promises. R.S.C. ch. 6, sec. 265. 
 
 Advancing money to be used in bribing. R.S.C. ch. 6, sec. 265. 
 
 Demanding bribe of candidate or agent. R.S.C. eh. 6, sec. 265.
 
 6546 Election Offences. [book viii. 
 
 Bribery at Elections. — Continued. 
 
 Eeceiving money, etc., before, during or after an election. R.S.C. 
 
 ch. 6, sec. 265. 
 Bribery of candidates. R.S.C. ch. 6, sec. 265. 
 Paying for conveyances of voters to polls. R.S.C. ch, 6, sec. 270 ; 
 
 amended, 7 & 8 Edw. VII. ch. 9, sec. 30. 
 Disqualification of voters for receiving payment for conveyances. 
 
 7 & 8 Edw. VII. ch. 9, sec. 31. 
 
 (c) Treating. 
 
 By candidate. R.S.C. ch. 6, sec. 266. 
 
 During election. R.S.C. ch. 6, see. 267. 
 
 On nomination or polling day. R.S.C. ch. 6, sec. 268. 
 
 (d) Undue Influence. 
 
 Undue influence. R.S.C. ch. 6, sec. 269. 
 False pretences. R.S.C. ch. 6, sec. 269. 
 Personation. R.S.C. ch. 6, sec. 272. 
 
 Subornation of. R.S.C. ch. 6, sees. 273, 274. 
 Voting of prohibited persons. R.S.C. ch. 6, sec. 275. 
 
 (e) False Answers hy Voters. — R.S.C. ch. 6, sec. 274, 
 (/) Illegal Practices. 
 
 Defacing proclamation, etc. 7 & 8 Edw. VII. ch. 9, sec. 24. 
 Refusal to obey summons of returning officer. R.S.C. ch. 6, 
 
 sec. 256. 
 Weapons, carrying, etc. R.S.C. ch. 6, see. 260. 
 Weapons, refusing to give up. R.S.C. ch. 6, sec, 259. 
 Spirituous liquors, selling, etc., on polling day. R.S.C. ch. 6, 
 
 sec. 261. 
 Payments, making otherwise than through agents. R.S.C. ch. 6, 
 
 sec. 262 ; amended, 7 & 8 Edw. VII. ch. 9, sec. 28. 
 Making untrue statements as to election expenses. R.S.C. ch. 6, 
 
 sees. 263, 264. 
 False statements of withdrawal of candidates. R.S.C. ch. 6, 
 
 sec. 276. 
 Canvassing by person not residing in Canada. 7 & 8 Edw. VII. 
 
 ch. 9, sec. 33. 
 Printing advertisements, etc., without printer's address. 7 & 8 
 
 Edw. VII. ch. 9, sec. 34. 
 Contributions by companies, etc., to political purposes. 7 & 8 
 
 Edw. VII. ch. 9, sec. 36. 
 (gr) Offences Relating to Ballot Papers. 
 Ballot papers, forgery of, illegal supplying of, fraudulently put- 
 ting in box, taking out of polling station, destroying, removing 
 
 from box, illegally initialling, etc. R.S.C, ch, 6, sec, 255; 
 
 amended, 7 & 9 Edw. VII. ch. 9, sec. 26.
 
 CHAP. IV.] Provincial Election Acts. 654c 
 
 Offences Relating to Ballot Papers. — Continued. 
 
 False statement as to candidate. 7 & 8 Edw. VII. eh. 9, see. 35. 
 Displaying or disclosing marked ballots. R.S.C. ch. 6, sec. 258 ; 
 amended, 7 & 9 Edw. VII. ch. 9, sec. 27. 
 
 (h) Offences After an Election. 
 
 Delay, neglect or refusal of returning officer to return elected 
 candidate. R.S.C. ch. 6, sec. 257. 
 
 Default of agent in delivering statements of expenses to return- 
 ing officer. R.S.C. ch. 6, sec. 263. 
 
 Furnishing untrue statements of election expenses. R.S.C. ch. 6, 
 sec. 264. 
 
 (i) Indictment and Procedure. 
 Jurisdiction — 
 
 Magistrate having. R.S.C. ch. 6, sec. 300. 
 
 Quarter Session's Court incompetent. R.S.C. eh. 6, sec. 306. 
 Warrants of Arrest, etc. — 
 
 Information. R.S.C. ch. 6, sees. 284, 294, 298. 
 
 Security for costs. R.S.C. ch. 6, sec. 285. 
 
 Allegations necessary. R.S.C. ch. 6, sees. 286, 293. 
 
 Detention of offender. R.S.C. ch. 6, sec. 295. 
 
 Issue of. R.S.C. ch. 6, sec. 296. 
 
 Execution of warrant. R.S.C. ch. 6, sees. 296, 299. 
 
 Summons to Offender — 
 Issue of. R.S.C. ch. 6, see. 302. 
 Disobedience to. R.S.C. ch. 6, sec. 303. 
 
 Procedure — 
 
 Criminal Code to apply. R.S.C. ch. 6, sec. 301. 
 Determination of action. R.S.C. ch. 6, sec. 304. 
 Appropriation of fines. R.S.C. ch. 6, sec. 305. 
 Costs, may be awarded to prosecutor. R.S.C. ch. 6 sees 
 291, 292. 
 
 Evidence — 
 
 Husband and wife, as to. R.S.C. ch. 6, sec. 287. 
 No privilege or excuse from answering questions. R.S.C. 
 eh. 6, sec. 288. 
 
 Production of election writs not required. R.S.C. ch. 6, 
 sec. 289. 
 
 Clerk of Crown in Chancery must produce ballots if required. 
 R.S.C. ch. 6, see. 290. 
 
 Limitation of time for prosecutions. R.S.C. ch. 6, sec. 307.
 
 65J:f/ Election Offences. [book viii. 
 
 Provincial Election Acts. 
 
 Alherta.—See 9 Edw. VII. ch. 3. 
 
 Registration offences. Sees. 82-87. 
 
 Preservation of peace at elections. Sees. 241-291 and sec. 296. 
 British Columbia. 
 
 Provincial elections. Sec. 3 & 4 Edw. VII. (B.C.), ch. 17, sees. 
 166-188 and 197-208; see also amendment in 6 Edw. VII. 
 ■ ch. 18. 
 
 Municipal elections. 8 Edw. VII. ch. 14, sees. 94-105. 
 Manitoba.— ^ee R.S.M. (1902), ch. 3, sees. 239-295 and 305-306. 
 New Brunswick. — Consolidated Statutes (1908), vol. 1, ch. 3. 
 Nova Scotia.— See 9 Edw. VII. eh. 6 ; sees. 10 and 83-120 and 123. 
 
 O^itario. 
 
 Provincial. See 8 Edw. VII. ch. 3, sees. 167-202 -and 207. 
 
 Municipal. See 3 Edw. VII. ch. 19, sees. 193-197 and 245-258. 
 Quebec— See 3 Edw. VII. ch. 9, sees. 156 and 181-229. 
 Saskatchewan. — See 8 Edw. VII. ch. 2. 
 
 Registration offences 83-88. 
 
 Preservation of peace, etc. Sees. 209-259 and 264.
 
 ( 655 ) 
 
 BOOK THE NINTH. 
 
 OF OFFENCES AGAINST THE PERSONS, STATUS AND REPUTATION 
 
 OF INDIVIDUALS. 
 
 CHAPTER THE FIRST. 
 
 OF HOMICIDE. 
 PART I.— MURDER AND FELO DE SE. 
 
 Sect, I. — Definition and Punishment of Murder. 
 
 Definition. — Murder (a) is a felony at common law. Its essential 
 elements are not defined by statute except by the provision in sect. 6 of 
 the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), that ' it 
 shall be sufficient in any indictment for murder to charge that the 
 defendant did feloniously, wilfully, and of his malice aforethought, kill 
 and murder the deceased.' 
 
 Murder is the unlawful killing, by any person of sound memory and 
 discretion, of any person under the King's peace, with malice afore- 
 thought (6), either exj)ress or implied by laiv (c). This maUce aforethought 
 which distinguishes murder from other species of homicide {d) is not 
 limited to particular ill will against the person slain, but means that the 
 fact has been attended with such circumstances as are the ordinary 
 symptoms of a wicked, depraved, and malignant spirit ; a heart regardless 
 of social duty, and deliberately bent upon mischief (e). Any formed 
 design of doing mischief may be called malice ; and therefore not only 
 killing from premeditated hatred or revenge against the person killed ; 
 but also, in many other cases, killing accompanied with circumstances 
 that shew the heart to be previously wicked, is adjudged to be kiUing 
 of malice aforethought, and consequently murder ( /'). 
 
 («) By 24 & 25 Vict. c. 100, s. 8, every s. 3 (I), 
 
 offence which before July 1, 1828, would (6) Or malice prepensed, malice pre- 
 
 have amounted to petit treason, sliall be pen-see, malitia proecogilata. 
 
 deemed to be murder only, and no greater (c) 3 Co. Inst. 47, 51. 1 Hale, 425, 449, 
 
 ofiEence ; and all persons guilty in respect 450. Fost. 256. 1 Hawk. c. 31, s. 3. 
 
 thereof, whether as principals or as acces- 4 Bl. Com. 198. 1 East, P. C. 214. R. v. 
 
 sories, shall be dealt with, indicted, tried, Mawgridge, Kel. (J.) 119,127. R. r. Oneb}', 
 
 and piuiishcd as principals and accessories 2 Ld. Rayni. 1487. The older definitions 
 
 in murder. As to petit treason, see Fost. are discussed Stephen Dig. Cr. L. (fitlicd.) 
 
 323, 327, 33(), 376 ; 1 Hawk. c. 32 ; 4 Bl. art. 244, and p. 407; and see Archb. Cr. PI. 
 
 Com. 203 ; 25 Edw. III. st. 5 ; Pollock & (23rd ed.) 782. 
 
 Maitland Hist. Eng. Law, ii. p. 502. The [d) 4 Bl. Cora. 198. R. v. Gastineaux, 
 
 merger of this offence in murder has ren- 1 Leach, 417. 
 
 dered it unnecessary to repeat the full (e) Fost. 256, 262. 
 
 account of it given in earher editions of this (/) 1 Hawk. c. 31, s. 19. Fost. 257. 
 
 work. This section was taken from 9 Geo. 1 Hale, 451-455. 
 IV. c. 31, s. 2 (E) ; and 10 Geo. IV. c. 34,
 
 656 
 
 Of Homicide. 
 
 [BOOK IX. 
 
 MaKce may be either express or implied by law. Express malice is, 
 when one person kills another with a sedate deliberate mind and formed 
 design evidenced by external circumstances, which disclose the inward 
 intention ; as lying in wait, antecedent menaces, former grudges, and 
 concerted schemes to do the deceased some bodily harm (g). And malice 
 is implied hy law from any deliberate cruel act committed by one 
 person against another, however sudden {h). Thus where a man kills 
 another suddenly without any, or without considerable provocation, the 
 law implies malice ; considering that no person, unless of an abandoned 
 heart, wovdd be guilty of such an act upon a slight or no apparent 
 cause {i). So if a man wilfully poisons another the law presumes malice, 
 though no particular enmity can be proved {j). And in cases of kilhng by 
 a wilful act of such nature as shews the person by whom it is committed to 
 be an enemy to all mankind, the law will infer a general malice from such 
 depraved inclination to mischief {k). As a general rule, all homicide 
 
 (g) 1 Hale, 451. 4 Bl. Com. 199. 
 
 (/t) 1 East, P. C. 215. R. v. Fairbrother, 
 1 Cr. App. R. 233. 
 
 (?) 4 Bl. Com. 200. 
 
 (j) 1 Hale, 455. 4 Bl. Com. 200. 
 
 (k) 1 Hale, 455. 1 Hawk. c. 29, s. 12. 
 4 Bl. Com. 200. 1 Easfc, P. C. 231. Ma- 
 litia, in its proper or legal sense, is different 
 from that sense which it bears in common 
 speech. In common acceptation it signi- 
 fies a desire of revenge, or a settled anger 
 against a particular person : but this is not 
 the legal sense ; and Holt, C. J., says : 
 ' Some have been led into mistake by not 
 well considering what the passion of malice 
 is ; they have construed it to be a rancour 
 of mind lodged in the person killing for 
 some considerable time before the commis- 
 sion of the fact, which is a mistake, arising 
 from the not well distinguishing between 
 hatred and malice. Envy, hatred and 
 malice are three distinct passions of the 
 mind.' Kel. (J) 126. In the Roman law, 
 inaliiia appears to have imported a mixture 
 of fraud, and of that which is opposite to 
 simphcity and honesty. Cicero speaks of 
 it (De Nat. Deor. Lib. 3, s. 30) as ' versuta 
 et faJlax nocendi ratio ; ' and in another 
 work (De Offic. Lib. 3, s. 18) he says, ' mihi 
 quidem etiam verce licereditates non honestce 
 videntur, si sint malitiosis (i.e. according to 
 Pearce, a malo animo profectis) hlanditiis 
 officiorum, non veritate sed simulatione, 
 qiKesitce.' And see Dig. Lib. 2, Tit. 13, 
 Lex 8, where, in speaking of a banker, or 
 casliier giving his accounts, it is said, ' Ubi 
 exigitur argentarius rationes edere, tunc puni- 
 fur cum dolo malo non exhibet . . . Dolo 
 malo autem non edidit,et qiU malitiose edidit 
 et qui in totum non edidit.^ Amongst us 
 mahce is a term of law importing directly 
 ■ndckedness, and excluding a just cause or 
 excuse. Thus Coke, in his comment on the 
 words per malitiam, says, ' If one be ap- 
 pealed of murder, and it is found by verdict 
 that he killed the party se defendendo, this 
 shall not be said to be per malitiam, because 
 
 he had a just cause.' 2 Co. Inst. 384. And 
 where the statutes speak of a prisoner on 
 his arraignment standing inute of malice, 
 the word clearly cannot be understood in 
 its common acceptation of anger or desire 
 of revenge agamst another. Thus where 
 25 Hen. VIII. c. 3, says, that persons 
 arraigned of petit treason, &c., standing 
 ' mute of malice or froward mind,' or chal- 
 lenging, &c., shall be excluded from clergy, 
 the word malice, explained by the accom- 
 panying words, seems to signify a wicked- 
 ness or frowardness of mind in refusing to 
 submit to the course of justice ; ui opposition 
 to cases where some just cause may be 
 assigned for the silence, as that it proceeds 
 from madness, or some other disability or 
 distemper. And in the statute 21 Edw. L, 
 De malefactoribus in parcis, trespassers are 
 mentioned who shall not yield themselves 
 to the foresters, &c., but ' immo malitiam 
 suam prosequendo et continuando,' shall fly 
 or stand upon their defence. And where 
 the question of maUce has arisen in cases 
 of homicide, the matter for consideration 
 has been (as will be seen in the course of 
 the present and subsequent chapters) 
 whether the act were done with or \^ithout 
 just cause or excuse ; so that it has been 
 suggested (Chappie, J., MS. Sum.) tliat 
 what is usually called mahce implied by the 
 law would perhaps be expressed more 
 intelligibly and famiharly to the under- 
 standing if it were called malice in a legal 
 sense. Mahce, ' in its legal sense, denotes 
 a wrongful act done intentionally without 
 just cause or excuse.' M'Pherson v. 
 Daniels, 10 B. & C. 272, Littledale, J., and 
 approved in R. v. Noon, 6 Cox, 137, by 
 Cresswell, J., as the more intelligible ex- 
 pression. ' We must settle what is meant 
 by the term mahce. The legal import of 
 this term differs from its acceptation in 
 common conversation. It is not, as in 
 ordinary speech, only an expression of 
 hatred and ill-will to an individual, but 
 meaas any wicked or mischievous intention 
 
 J
 
 CHAP. I.] 
 
 Definition of Murder. 
 
 657 
 
 is presumed to be malicious, and murder, until the contrary appears, 
 from circumstances of alleviation, excuse, or justification [l] ; and it 
 is incumbent upon the prisoner to make out such circumstances to the 
 satisfaction of the Court and jury, unless they arise out of the evidence 
 produced against him (m). A defence grounded upon violent provocation 
 will not avail, however grievous the provocation, if there was an interval 
 of reflection, or a reasonable time for the blood to cool before the deadly 
 purpose was effected. And provocation is no answer if express malice be 
 proved. Thus if a man, having received provocation, deliberately and 
 advisedly threatens vengeance against the other, as by declaring that he 
 will have his blood, or the like, and afterwards carries his design into 
 execution, he is guilty of murder ; although the killing followed so soon 
 after the provocation that the law might, apart from evidence of such 
 express malice, have imputed the act to unadvised passion (n). But 
 where fresh provocation intervenes between preconceived malice and the 
 death, it ought clearly to appear that the killing was upon the antecedent 
 malice ; for if there is an old quarrel between A. and B., and they are 
 reconciled again, and then, upon a new and sudden falling out, A. kills 
 B., this is not murder (o). But if it appears that the reconciliation 
 was but pretended or counterfeit, and that the hurt done was upon the 
 score of the old malice, then such killing will be murder {p). 
 
 Where knowledge of some fact is necessary to make a killing murder, 
 and several persons are concerned in the killing, those who have the 
 knowledge will be guilty of murder, and those who have it not of man- 
 slaughter only. Thus if A. assaults B. of malice, and they fight, and A.'s 
 
 of the mind. Thus in the crime of murder, 
 which is always stated in the indictment 
 to be committed with maUce aforethought, 
 it is neither necessary in support of such 
 indictment to shew that the prisoner had 
 any enmity to the deceased, nor would 
 proof of absence of ill-will furnish tlie 
 accused with any defence, when it is proved 
 that the act of killing was intentional, and 
 done without any justifiable cause.' R. v. 
 Harvey, 2 B. & C. 268, Best, J. Malice 
 does not mean the same thing in criminal 
 as in civil cases. In criminal cases motive 
 is usually an essential ingredient in the 
 definition of an offence or in determining 
 the appropriate punishment, whereas in 
 civil cases the law is more concerned with 
 the fact of an injury than witii the motive 
 for causing it. Quinn v. Leathern [1901], 
 A. C. 495. In criminal cases, except of defa- 
 mation, malice usually denotes intention, 
 deliberation, or wantonness as distin- 
 guished from negligence or inadvertence. 
 .See R. V. Senior [1899], 1 Q.B. 283, and 
 R. V. Ellwood, 1 Cr. Ai)p. R. J81. 
 
 (/) 4 Bl. Com. 201. In R. v. (ireenacrc, 
 8 C. & P. .35, Tiiidal, C.J., said, ' where it 
 appears that one person's death has lieen 
 occasioned by the hand of another, it be- 
 hoves that other to shew from evidence, or 
 by inference from the circumstances of the 
 case, that the offence is of a mitigated 
 character, or docs not amount to the crime 
 VOL, I. 
 
 of murder.' Coleridge and Coltman, JJ., 
 'proesentihus. 
 
 (m) Post. 255. 4 Bl. Com. 201. 1 East, 
 P. C. 224. On an indictment for murder 
 it appeared that the deceased died of a 
 wound inflicted in her chest with a knife ; 
 there was no evidence of any dispute ; the 
 prisoner asserted that she had killed herself, 
 and this was his defence. The jury found 
 the prisoner guilty, ' but we believe it was 
 done without premeditation.' Byles, J., 
 refused to receive this verdict, and told the 
 jury that ' to reduce the crime to man- 
 slaughter, it must be shewn that there was 
 provocation at the time, and provocation 
 of a serious nature. The prosecutor is not 
 bound to prove that the homicide was com- 
 mitted from malice prepense. If the liomi- 
 eide be proved, the law presumes malice ; 
 and although that may be rebutted by 
 evidence, no such attempt has been made 
 here. The defence is that the woman took 
 her own life. The question for you is, did 
 the prisoner take his wife's life or not ? If 
 he did, it was murder.' R. v. Maloney, 
 9 Cox, (). See R. v. Fairbroiher, 1 Cr. 
 App. R. 233. 
 
 («) 1 East, P.C. 224. 
 
 (o) 1 Hale, 452. It is not to be pre- 
 sumed in such a case that the parties 
 fought upon the old grudge. 1 Hawk, 
 c. 31, s. 30. 
 
 (p) 1 Hale, 452. 
 
 2 U
 
 658 Of Homicide. [book iX. 
 
 servant come to aid his master, and B. is killed, A. is guilty of murder ; 
 but the servant, if he knew not of A/s malice, is guilty of manslaughter 
 only iq). 
 
 Judgment and Execution* — By the Offences against the Person Act, 
 1861, sect. 1. ' Whosoever shall be convicted of murder shall suffer 
 death as a felon ' (r). This has been modified by the Children Act, 1908, 
 as to murder by persons under 16 (s). 
 
 Sect. 2. Upon every conviction for murder the Court shall pronounce 
 sentence of death, and the same may be carried into execution, and all 
 other proceedings upon such sentence and in respect thereof may be had 
 and taken, in the same manner in all respects as sentence of death might 
 have been pronounced and carried into execution, and all other proceed- 
 ings thereupon and in respect thereof might have been had and taken, 
 before the passing of this Act (6 Aug,, 1861,) upon a conviction for any 
 other felony for which the prisoner might have been sentenced to suffer 
 death as a felon ' (t). 
 
 By the Capital Punishment Amendment Act, 1868 (31 & 32 Vict, 
 c. 24) (u), s. 2, judgment of death to be executed on any prisoner sentenced 
 on any indictment or inquisition for murder, shall be carried into effect 
 within the walls of the prison in which the offender is confined at the time 
 of execution. The Act directs that certain persons shall be present at 
 the execution, &c. 
 
 By the Sheriffs Act, 1887 (50 & 51 Vict. c. 55), s. 13 (1), ' Where judg- 
 ment of death has been passed upon a convict at any Court of assize 
 or any sessions of oyer and terminer or gaol delivery held for any county 
 or riding or division or other part of a county {v), the sheriff of such 
 county shall be charged with the execution of such judgment, and may 
 carry such judgment into execution in any prison which is the common 
 gaol of his county or in which the convict was confined for the purpose 
 of safe custody prior to his removal to the place where such Court was 
 held, and shall, for the purpose of such execution, have the same 
 jurisdiction and powers over and in the prison in which the judgment 
 is to be carried into execution, whether such prison is or is not situate 
 within his county, and over the officers of such prison, as he has by law 
 over and in the common gaol of his county and the officers thereof, 
 or would have had if the Prison Act, 1865, and the Prison Act, 1877 (w), 
 had not passed, and shall be subject to the same responsibility and 
 duties as if the said Acts had not passed. 
 
 (2) This section shall be in addition to and not in derogation of any 
 
 power authorised to be exercised by order in Council under the Winter 
 
 Assizes Act, 1876 (x), and the Spring Assizes Act, 1879 (y) or either of them, 
 
 and of the provisions of the Central Criminal Court (Prisons) Act, 1881 (z). 
 
 (q) 1 Hale, 446. Plowd. 100. victions in a county for offences in a county 
 
 (r) Taken from 9 Geo. IV. c. 31, s. 3. of a city, see 51 C4eo. III. c. 100, s. 1 ; 14 
 
 (s) See s. 103 of that Act, ante, p. 205. & 15 Vict. c. 55, s. 23. As to execution of 
 
 (t) This section was new in 1861. As to persons sentenced at assizes for Cheshire, 
 
 former law, vide ante, p. 206, and Greaves' see 30 & 31 Vict. c. 36, s. 4. 
 
 Grim. Law Cons. Acts (2nd ed.), 30. (w) See 40 & 41 Vict. c. 21, s. 30. 
 
 (m) Wluoh, with certain modifications, (x) 39 & 40 Vict. c. 57. 
 
 extends to Scotland and Ireland (see ss. (y) 42 & 43 Vict. c. 1. , 
 
 13, 14). (2) 44 & 45 Vict. c. 64. 
 
 {v} As to execution of sentences on con-
 
 CHAP. I.] Punishmeiit of Murder. 659 
 
 In the case of prisoners sentenced to death for murder at the winter 
 or spring assizes, the sentence may be executed in any prison in which 
 the prisoner was confined for safe custody before his removal to the place 
 where the assizes were held at which he was convicted. Sentences of 
 death for murder at the Central Criminal Court are executed at the prison 
 ordered by the judge or if no order is made, at the prison in which the 
 prisoner is confined (a). 
 
 By 24 & 25 Vict. c. 100, s. 3, ' The body of every person executed 
 for murder shall be buried within the precincts of the prison in which 
 he shall have been last confined after conviction, and the sentence of 
 the Court shall so direct ' (6). 
 
 By 31 & 32 Vict. c. 24, s. 6, ' The body of every offender executed 
 shall be buried within the walls of the prison within which judgment 
 of death is executed on him, provided that if one of his Majesty's 
 principal Secretaries of State is satisfied on the representation of the 
 visiting justices of a prison that there is not convenient space within the 
 walls thereof for the burial of offenders executed therein, he may, by 
 writing under his hand, appoint some other fit place for that purpose, 
 and the same shall be used accordingly (c). 
 
 By sect. 15, ' The omission to comply with the provisions of this Act 
 shall not make the execution of the judgment of death illegal in any case 
 in which such execution would otherwise have been legal.' 
 
 By sect. 5, ' The coroner of the jurisdiction to which the prison 
 belongs wherein judgment of death is executed on any offender shall 
 within twenty-four hours after the execution hold an inquest on the body 
 of the offender and the jury at the inquest shall inquire into and ascertain 
 the identity of the body and whether judgment of death was duly 
 executed on the offender. . . . 
 
 Execution under Sentence of the High Court. — On the removal by 
 certiorari after conviction of an indictment for murder committed in 
 Pembrokeshire and tried in Herefordshire, the Court of King's Bench, 
 after overruling certain exceptions to the indictment and conviction, held 
 that the prisoner might be sentenced in the Court of King's Bench and 
 executed by the marshal at Kennington (d). 
 
 Tn R. V. Garside (e), the prisoners were convicted of murder at Chester, 
 and sentenced to be executed the next Friday ; and were in the custody 
 
 {«) 42 & 43 Vict. c. 1, s. 3, and Orders in Kent-street. Cf. Sissingliur.st Hcjuso case, 
 
 Council under that Act and 39 & 40 Vict. 1 Hale 4H1. 
 
 o. 57. (e) 2 A. & E. 266. Cf. R. r. Antrobus, 
 
 (b) Founded on 2 & 3 Will. IV. c. 75, 2 A. & E. 788. In this case it seems to 
 s. 16, and 4 & 5 Will. IV. c. 20, s. 2. have been ruled that the Attorncy-CJeneral 
 
 (c) By s. 7 power is given to the Secre- as of right could obtain a habeas corpus 
 tary of State to make rules, &c., to be ob- and certiorari to remove into the King's 
 served on the execution of judgment of Bench a conviction and judgment at the 
 death. See Regulations of .Tunc 5, 1902, assizes for murder and (he bodies of the 
 Stat. R. & 0. (1904 ed.) vol. x, tit. ' Prism ' prisoners. The prisoners were also given 
 (E), p. 65. three days to shew cause why execution 
 
 (id) R. V. Athos, 1 Str. 553. 8 Mod. should not be awarded. One prisoner 
 
 136. 1 Hale, 464, note (r). Cf. R. v. ])leaded ore lenns (as he miglit, R. v. Dean, 
 
 Taylor, 6 Burr. 2793, where the prisoners 1 Leach, 476) that he was not the actual 
 
 are stated by tiie reporter to have been in murderer, and was entitled to a pardon for 
 
 the custody of the marshal, and executed giving information, in accordance with a 
 
 at St. Thomas a Waterincs at the end of proclamation in the Onzellc. 
 
 2 r2
 
 660 Of Homicide. [bookix. 
 
 of the constable of Chester Castle in that castle which was within the 
 ambit of the city, bnt was part of the county of Chester. A question 
 arose, whether, since the passing of the Law Terms Act, 1830 (/), the 
 sheriffs of the city or the sheriffs of the county were bound to execute 
 the sentence {g) ; and both parties refusing to do it, the prisoners had 
 been from time to time respited. The Attorney-General moved for a 
 certiorari to remove the record of the conviction and the judgment, 
 and for a habeas corpus to bring up the prisoners, in order that execution 
 might be awarded by the King's Bench, and said he considered himself 
 entitled to the writs as of right : but from respect to the Court, and for 
 his own justification in the course he adopted, he stated the grounds of 
 his application, and cited many cases to shew that he was entitled to the 
 writs as of course, and that the Court of King's Bench might direct 
 execution to be done by the sheriff of the county of Chester, or the 
 sheriffs of the city, by the sheriff of Middlesex, or by the marshal of the 
 King's Bench ; and the writs were forthwith granted by the Court. 
 
 The Court refused to hear an application by the sheriff of Middlesex 
 that he should not be ordered to execute the prisoners, but ultimately 
 awarded execution to be done by the marshal of the Marshalsea, assisted 
 by the sheriff of Surrey (A). 
 
 Sect. II.— Felo de se. 
 
 Self-murder has been regarded as a peculiar instance of malice directed 
 to the destruction of a man's own life, by inducing him deliberately to 
 put an end to his existence, or to commit some unlawful malicious act, 
 the consequence of which is his own death ii). If one man persuades 
 another to kill himself, the adviser is guilty of murder {j). A man who 
 kills another, upon his desire or command, is in the judgment of law 
 as much a murderer as if he had done the killing out of his own head {k). 
 It is said that in sucli a case the person killed is not looked upon as a felo 
 de se, inasmuch as his assent, being against the laws of God and man, is 
 void (l). But where two persons agree to die together, and one of them at 
 the persuasion of the other, buys poison and mixes it, and both drink of it, 
 and he who bought and made the potion survives by using proper remedies 
 and the other dies ; it is said to be the better opinion, that he who dies 
 shall be adjudged a felo de se, because all that happened was originally 
 
 (/) 11 Geo. IV. and 1 Will. IV. c. 70. (*) 1 Hawk. c. 9, s. 4. 4 Bl. Com. 189. 
 
 See ss. 13, 14, 15. S. 14, wliich abolished Hales v. Petit, Plowd. 261 (b). See 45 & 
 
 the jurisdiction of tlie courts palatine of 46 Vict. c. 19, as to the interment of per- 
 
 Chester, was repealed in 1873 (36 & 37 sons found /eto rfe se. 
 
 Vict. c. 91). Ij) If present when the other kills him- 
 
 (g) By the Chester Courts Act, 1867 self. If absent, he is accessory before the 
 
 (30 & 31 Vict. c. 36), s. 4, the sheriff fact. E. v. Russell, 1 Mood. 356. By a 
 
 of the county of Chester is charged with, Bill introduced into Parliament in 1908, it 
 
 and is to carry into effect within the county was proposed to make persons accessory 
 
 all sentences of death passed at any assizes before the fact to, or aiders and abettors in, 
 
 for the said county, any statute, law, cus- suicide not guilty of murder but punish- 
 
 tom, or usage to the contrary notwith- able for a distinct offence, 
 
 standing. Previous provision had been (k) 1 Hawk. c. 27, s. 6. R v. Sawyer, 
 
 made in 1835 by 5 & 6 Will. IV., repealed Old Bailey, May, 1815, MS. R. v. Dyson, 
 
 in 1874 (37 & 38 Vict. c. 35). R. & R. 523. 
 
 (h) 2 A. & E. 276, 277. Cf. the Sissing- (I) 1 Hawk. c. 27, s. 6. 
 hurst House case, 1 Hale, 461. 
 
 1
 
 CHAP. I.] Felo de se. 661 
 
 owing to his own wicked purpose, and the other only put it in his power 
 to execute it in that particular manner (w). If a man, attempting to kill 
 another, misses his blow and kills himself (n), or intending to shoot at 
 another, mortally wounds himself by the bursting of the gun (o), he is 
 considered to be felo de se ; his own death being the consequence of an 
 unlawful malicious act towards another. It has also been said that if A. 
 strikes B. to the ground, and B. draws a knife and holds it up in his own 
 defence, and A. in haste falling upon B. to kill him, falls upon the knife, 
 and be thereby killed, A. is felo de se (p) ; but this has been doubted {q). 
 
 A husband and wife being in extreme poverty and great distress of 
 mind, the husband said, ' I am weary of my life, and will destroy myself,' 
 upon which the wife replied, ' Then I will die with you/ The man 
 prayed the wife to go and buy ratsbane and they would drink it together. 
 She did so and mixed it with some drink, and they both partook of it. 
 The husband died, but the wife, by drinking salad oil, which caused 
 sickness, recovered, and was tried for the murder of her husband (r), and 
 acquitted, but solely on the ground that, being the wife of the deceased, 
 she was under his control ; and inasmuch as the proposal to commit 
 suicide had been first suggested by him, it was considered that she was 
 not a free agent, and therefore the jury, under the direction of the judge 
 who tried the case, pronounced her not guilty (s). 
 
 The prisoner was indicted for the murder of a woman by drowning 
 her. The prisoner and the deceased had cohabited for several months and 
 she was pregnant by him. They were in a state of extreme distress, and 
 had no place of shelter. They went to Westminster Bridge to drown 
 themselves in the Thames, They got into a boat, talked together for 
 some time, the prisoner standing with his foot on the edge of the boat, 
 and the woman leaning upon him. The prisoner then found himself 
 in the water ; but whether by actually throwing himself in, or by 
 accident, did not appear. He struggled to get back into the boat again, 
 and then found that the woman was gone ; he then endeavoured to save 
 her, but could not get to her, and she was drowned. In his statement 
 before the magistrate he said that he intended to drown himself, but 
 dissuaded the woman from following his example. Best, J., told the jury, 
 that if they believed the prisoner only intended to drown himself, and 
 not that the woman should die with him, they should acquit the prisoner ; 
 but that if both went to the water for the purpose of drowning themselves 
 together, each encouraged the other in the commission of a felonious act, 
 and the survivor was guilty of murder. He also told the jury, that 
 
 (/«) 1 Hawk. c. 27, s. 6. Kcilvv. 136: (r) Anon. [1604] Moore (K.B.) 754; 72 
 
 72 E. R. 307. E. R. 884. The report begins, ' en home et 
 
 (n) 1 Hale, 413. se feme ayant lonqe (emps rive incontinent 
 
 (o) 1 Hawk. c. 27, s. 4. ensemble,' and stales that a special verdict 
 
 ip) 3 Co. Inst. 54. Dalt. c. 44. was found, but docs not state the decision. 
 
 (7) Hale (1 P. C. 413) considers that B. In former editions a doubt was e.\i)rcssed 
 
 is not guilty at all of the death of A., not whether the two were husband and wife, 
 
 even se dcfendendo, as he did not strike, based on a mistranslation of the word 
 
 only held up the knife ; and that A. is not ' incontinent.' 
 
 felo se de, but that it is homicide by mis- (s) The report in Moore does not state 
 
 adventure. In 1 Hawk. c. 27, s. 5, it any acquittal. The rest of this pa.s.sage is 
 
 seems to be considered that B. should be taken from the statement of the case in R. 
 
 adjudged to have killed A. se defendendo. r. Alison, 8 C. k P. 418, Patteson, -1.
 
 662 Of Homicide. [book ix. 
 
 although the indictment charged the prisoner with throwing the deceased 
 into the water, yet if he were present at the time she threw herself in, and 
 consented to her doing it, the act of throwing was to be considered as the 
 act of both, and so the case was reached by the indictment. The jury 
 stated that they were of opinion that both the prisoner and the deceased 
 went to the water for the purpose of drowning themselves, and the 
 prisoner was convicted. And, upon a case reserved, the judges were 
 clear that if the deceased threw herself into the water by the encourage- 
 ment of the prisoner, and because she thought he had set her the example 
 in pursuance of their previous agreement, he was a principal in the 
 second degree, and was guilty of murder ; but as it was doubtful whether 
 the deceased did not fall in by accident, it was not murder in either of 
 them, and the prisoner was recommended for a pardon {t). 80 where 
 upon an indictment for the murder of a woman, it appeared that the 
 prisoner and the deceased, who passed as husband and wife, being in 
 very great distress, both agreed to take poison, and each took a quantity of 
 laudanum, in the presence of the other, and both lay down on the same bed 
 together, wishing to die in each other's arms, and the woman died, but the 
 prisoner recovered ; Patteson, J., told the jury that, ' supposing the parties 
 in this case mutually agreed to commit suicide, and one only accomjjlished 
 that object, the survivor will be guilty of murder in point of law ' {u). 
 
 A person could not formerly be tried as an accessory before the fact, 
 for inciting another to commit felo de se, if that person committed felo 
 de se (v). But 24 & 25 Vict. c. 94, s. 1 (iv), removes this difficulty, as it 
 abolishes for practical purposes the distinction between principals in 
 the first and second degree and accessories (x). 
 
 An attempt to commit felo de se is not an attempt to commit murder 
 within 24 & 25 Vict. c. 100, s. 15 {j)ost, p. 841), but is a misdemeanor at 
 common law (y). The question for the jury is whether the defendant 
 had a mind capable of contemplating the act. and whether in fact he 
 did intend to take his own life, and drunkenness, while in this as in other 
 cases no excuse, is a material factor to determine whether the defendant 
 really meant to kill himself (z). 
 
 Sect. III. — The Party Killing, and the Party Killed. 
 
 The Party Killing. — The person committing a crime must be a 
 free agent, and not subject to actual force at the time the act is done. 
 Thus if A. by force takes the arm of B., in which is a weapon, and 
 therewith kills C, A. is guilty of murder, but B. is not. But the iise of 
 moral force is no legal excuse, f^.g'. by threats of duress or imprisonment toB., 
 or even assault to the peril of B.'s hfe, in order to compel him to kill C. (a). 
 If A. procures B., an idiot or lunatic, to kUl C, A. is guilty of the murder 
 
 \l} R. V. Dvson, R. & R. 523. (r) R. v. Jessop, 16 Cox, 207, Field, J. 
 
 («) R. V. Mson, 8 C. & P. 418, Patteson, (.y) R. v. Burgess, 32 L. J. M. C. 55 
 
 J. Cf. R. V. Jessop, 16 Cox, 204, Field, J. (C. C. R.). Vide ante, p. 140. It is punish- 
 
 R. V. Stormonth, 61 J. P. 729, Ridley, J. R. able by fine and (or) imprisonment 
 
 V. Abbott, 67 J. P. 151, Kennedy, J. R. v. (without hard labour) (ante, p. 249), and is 
 
 Decring,Lincoln Assizes, November 2, 1907. triable at quarter sessions. 
 
 (v) R. V. Russell, 1 Mood. 356. R. v. (c) R. f. Doody, 6 Cox,463, Wightman, J. 
 
 Leddington, 9 C. & P. 79, Alderson, B. (a) 1 Hale, 434. Dalt. c. 145. 1 East, 
 
 (!(.) Ante, p. 130. P.C. 225, 294. 
 
 ■
 
 CHAP. I.] The Party Killing and the Party Killed. 663 
 
 as principal, and B. is merely an instrument (6). So if A. lays a trap or 
 pitfall for B., whereby B. is killed, A. is guilty of murder, the trap or 
 pitfall being only the instrument of death (c). 
 
 If a person takes poison himself, not knowing it to be poison at the 
 persuasion of another who knows it is poison, the latter is a principal in 
 the first degree in murder though not present at the taking {d). 
 
 A girl of thirteen was indicted for the murder of an infant ten weeks 
 old. It was argued that it was not proved that the girl had capacity 
 to commit the crime, or had acted with deliberate malice. Pollock, 
 C. B., said, ' The crimes of murder and manslaughter are, in some in- 
 stances, very difficult of distinction. The distinction which seems most 
 reasonable consists in the consciousness that the act done was one which 
 would be likely to cause death. No one could commit murder without 
 that consciousness. The jury must be satisfied before they could find the 
 prisoner guilty [of murder] that she was conscious, and that her act was 
 deliberate. They must be satisfied that she had arrived at that maturity 
 of intellect which was a necessary condition of the crime charged ' (e). 
 
 The Party Killed, — Murder may be committed upon any person 
 within the King's peace. Therefore, to kill an alien enemy within 
 the realm except in the actual exercise of war ( /'), is as much murder as 
 to kill a born Englishman (r/). 
 
 An infant in its mother's womb, not being in rerum natura, is not con- 
 sidered as a person who can be killed within the description of murder ; and 
 if a woman being quick or great with child, takes any potion to cause an 
 abortion, or if another gives her any such potion, or if a person strikes her, 
 whereby the child within her is killed, it is not murder or manslaughter (/?), 
 but is punishable under 24 & 25 Vict. c. 100, s. 58, post, p. 829 {i). 
 
 Where a child, born alive, afterwards dies by reason of potions or 
 bruises received in the womb, those who administered the potion or 
 caused the bruise seem to be guilty of murder (i). On an indictment 
 for manslaughter it appeared that the prisoner, who practised midwifery, 
 was called in to attend a woman in labour, and when the head of the 
 child became visible, the prisoner, being grossly ignorant of the art which 
 he professed, and unable to deliver the woman with safety to herself 
 and the child (as might have been done by a person of ordinary skill), 
 broke and compressed the skull of the infant, and thereby occasioned 
 its death immediately after it was born. It was argued that the child 
 being en ventre sa mere at the time the wound was given, the prisoner 
 
 (6) 1 East, P. C. 228. 1 Hawk. c. 31, {g) 4 Bl.lCom. 198. To kilfone attaint 
 
 s. 7. Ante, p. 104. in a qvcfmunire was held not homicide, 
 
 (c) 4 Bl. Com. 3.5. Y. B. 24 Hen. I., B. Coron. 197 ; but 5 Eliz. 
 
 (d) 1 Hale, 431. Vaux's case, 4 Co. c. 1, declared it to be unlawful. 
 Rep. 44 h ; 70 E. R. 992. Mr. Greaves has {h) 1 Hale, 433. " 
 
 a note ' provided that the party taldng it (/) 3 Co. Inst. 50. 1 Hawk. c. 31, s. 10. 
 
 knew not that it was poison.' The indict- 4 Bl. Com. 198. 1 East, P.C. 227. Contra, 
 
 ment in Vaux has wc5c/en5, (£-c. Where the 1 Hale, 433, and Staundf. 21; but the 
 
 party knew that the thing taken was poison reason on which the opinions of the two 
 
 and voluntarily took it on the persuasion of last writers seem to be founded, namel}% 
 
 another, tlie latter would in such case be the difficulty of ascertaining the fact cannot 
 
 at the trial an accessory before the fact. be considered as satisfactory, unless it be 
 
 Vide ante, \\. \\(). supposed that such fact can never be 
 
 (e) R. V. Vamplew, 3 F. & F. 520. clearly established. See Exod. c. xxi. v. 22, 
 (/^) 1 Hale, 433. 23.
 
 664 Of Homicide. [book ix. 
 
 could not be guilty of manslaughter ; but, upon a case reserved, a 
 conviction of manslaughter was held right (;'). 
 
 Upon an indictment against a woman for the murder of her child, 
 Maule, J., told the jury that if a person intending to procure abortion does 
 an act which causes a child to be born alive so much earlier than the 
 natural time that it is born in a state much less capable of living, and 
 afterwards dies in consequence of its exposure to the external world, the 
 person who by her misconduct so brings the child into the world, and puts 
 it thereby into a situation in which it cannot live, is guilty of murder {k). 
 
 To be the subject of murder, a child must be actually born. On an 
 indictment against a mother for the murder of her child, Littledale, J., told 
 the jury, ' the being born must mean that the whole body is brought into 
 the world, and it is not sufficient that the child respires in the progress 
 of the birth ' {I). Upon an indictment containing a count for murder by 
 stabbing, and a count charging that before the child was completely 
 born the prisoner stabbed it with a fork, and that it was born, and then 
 died of the stab, it was proved that a puncture was found on the child's 
 skull, but when that injury was inflicted did not appear, and some 
 questions were asked as to whether the child had breathed. Parke, J., 
 said, ' The child might breathe before it was born ; but its having breathed 
 is not p.ufficiently life to make the killing of the child murder ; there must 
 have been an independent circulation in the child, or the child cannot 
 be considered as alive for this purpose (m). 
 
 One count charged that the prisoner, being pregnant with a female 
 child, ' did bring forth the same alive/ and then charged the murder of 
 the child by choking it with a handkerchief ; and another count charged 
 the murder in the same way of a certain illegitimate child, ' then lately 
 before born of the body ' of M. T. There was strong evidence to prove 
 that the child had been wholly produced alive from the prisoner's body, 
 and that she had strangled it ; but it was also clearly proved by the 
 surgeon, who examined the body of the child, that it must have been 
 strangled before it had been separated from the motlier by the severance 
 of the umbilical cord, and the surgeon further stated that a child has, 
 after breathing fully, an independent circulation of its own, even while 
 still attached to the mother by the umbilical cord, and that in his judg- 
 ment the child in question had breathed fully after it had been wholly 
 produced, and had therefore an independent circulation of its own, 
 before and at the time it was strangled, and was then in a state to carry 
 on a separate existence. Erskine, J., directed the jury, that if they were 
 satisfied that the child had been wholly produced from the body of the 
 prisoner alive, and that the prisoner wilfully strangled the child after it 
 
 (j) R. V. Senior, 1 Mood. 346 ; 1 Lewin, (?) R. v. Poulton, 5 C. & P. 329. 
 
 183 n. See R. v. Brown, 62 J. P. 521. (m) R. v. Enock, 5 C. & P. 539. R. v. 
 
 The murder of bastard children was Wright, 9 C. & P. 754, Gurney, B. The 
 
 specially punished by 21 Jac. I. c. 27, true test of separate existence in the theory 
 
 which, with an Irish Act on the same sub- of the law (whatever it may be in medical 
 
 ject, was repealed in 1813 (43 Geo. Ill, science) is the answer to the question, 
 
 c. 58). Concealment of birth is now pun- ' whether the child is caiTyizig on its being 
 
 ished under 24 & 25 Vict. c. 100, s. 60. without the help of the mother's circula- 
 
 post, p. 773. tion.' R. v. Pritchard, [1901] 17 T. L. R. 
 
 (fc) R. V. West, 2 C. & K. 784 ; 2 Cox, 310, Wright, J. R. v. Izod, 20 Cox, 690, 
 
 500. Channell, J.
 
 CHAP. I.] Of the Means of Killing, or Caasing Death. 665 
 
 had been so produced and while it was alive, and while it had, according 
 to the evidence of the surgeon, an independent circulation of its own, 
 he was of ojDinion that the charge in the said counts was made out, 
 although the child, at the time it was so strangled, still remained attached 
 to the mother by the navel-string. Upon a case reserved, a conviction 
 of murder was held right (w). But if a child is actually wholly produced 
 alive it is not necessary that it should have breathed to make it the subject 
 of murder (o). By a bill introduced in the session of 1909 it is proposed 
 to make it felony to destroy an infant during birth under circumstances 
 which would have made the act murder if the child were fully born (p). 
 
 Sect. IV. — Of the Means of Killing ; and of Causing Death by 
 Malicious and Intentional Neglect of Duty (q). 
 
 The killing may be effected by poisoning (/•), striking, starving, 
 drowning, and a thousand other forms of death, by which human nature 
 may be overcome (s). It has been generally considered that there must 
 be some actual corporal damage to the party ; and that 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, such killing is not 
 murder (t). But on principle there seems no reason for holding that 
 deliberate frightening to death is not at least manslaughter (u), and if a 
 man does an act, the probable consequence of which may be, and even- 
 tually is, death, such killing may be murder ; although no blow is struck 
 by himself, and no killing may have been j)rimarily intended (v) : 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 (ic) ; or where a 
 harlot being delivered of a child, left it covered only with leaves in an 
 orchard, where it was killed by a kite (x) ; or where a child was placed in 
 a hogsty, where it was eaten (y). In these cases, and also where a child 
 was shifted by parish officers from parish to parish, till it died from want 
 of care and sustenance, it was considered that the acts so done, wilfully 
 and deliberately, were evidence of malice aforethought (z). 
 
 (n) R. V. Trilloe, 2 Mood. 2G0. R. v. p. 588. In R. v. Towers, 12 Cox, 5;3(>, an 
 
 Crutchley, 7 C. & P. 814. R. v. Reeves, indictment for manslaughter of an infant, 
 
 9 C. & P. 25. R. V. Sellis, 7 C. & P. 850, it appeared that the prisoner liad assaulted 
 
 where, per Coltman, J., the fact of the a woman carrying the infant, and had so 
 
 child having breathed is not a decisive frightened the infant that it died in about 
 
 proof that it was born alive : it may have six weeks. Denman, J., held thatfrighten- 
 
 iireathed, and yet died before birth. R. v. ing a child to death would be manslaughter, 
 
 Handlev, 13 Cox, 79. but apparently considered that this would 
 
 (o) li. V. Brain, G C. & P. 349. not be so as to an adult. He left it to 
 
 (p) Vide post, p. 829. the jury to say whether the assault on 
 
 (7) For cases of manslaughter by neglect the woman was the direct cause of the 
 
 of duty, see poM, 789 rt acq. death of the infant. The prisoner was 
 
 (/•) See 11 Co. Rep. 32 «. Kel. (J) 32, acquitted. Sec R. v. Evans, /'os/, p. GGCin. 
 
 125 : Fost. G8, G9. 1 East, P. C. 225, 251. [v) 4 BI. Com. 197. 
 
 1 Hale, 455. Barr. Obs. on Stat. 524. (w) 1 Hawk. c. 31, s. 5. 1 Hale, 431, 
 
 {.<!) 4B1 Com. 196. 1 Hale, 432. 1 Hawk. 432. 
 
 c. 31, s. 4. MorinidimillefifjurcE. {x) 1 Hale, 431. 1 Hawk. c. 31, s. G. 
 
 (/) 1 Hale, 429. 1 East, P. C. 225. R. (y) 1 East, P. C. 226. 
 
 V. JIurton, 3 F. & F. 492. Byles, J. [z) Palm. 545. 
 
 (m) See Mayne, Tnd. Or. L. (ed. 1896)
 
 666 Of Ho7mcide. [book ix. 
 
 In R. V. Evans (a) the indictment charged that the prisoner killed his 
 wife (1) by beating ; (2) by throwing her out of the window ; and (3 and 4) 
 that he beat her and threatened to throw her out of the window and to 
 murder her ; and that by such threats she was so terrified that, through 
 fear of his putting his threats into execution, she threw herself out of the 
 window, and of the beating and the bruises received by the fall died. 
 There was strong evidence that the death of the wife was occasioned by 
 the blows she received before her fall : but Heath, Gibbs, and Bayley, JJ., 
 were of opinion that if her death was occasioned partly by the blov/s and 
 partly by the fall, yet if she was constrained by her husband's threats of 
 further violence, and from a well-grounded apprehension of his doing such 
 further violence as would endanger her life, he was answerable for the 
 consequences of the fall, as much as if he had thrown her out of the 
 window himself. The prisoner however was acquitted ; the jury being 
 of opinion that the deceased threw herself out of the window from her 
 own intemperance, and not under the influence of the threats (6). 
 
 In R. V. Curley (bh), the prisoner and the deceased woman were in 
 a small flat together ; quarrelling was heard to take place, and the 
 deceased was heard to call for help from the window of the back room. 
 She fell out of the window and was killed: PhiUimore, J., directed the 
 jury {inter alia) : ' If fearing or reasonably fearing violence or further 
 violence from this man she went to the window to call for assistance 
 ... if she without any intention of jumping out overbalanced and fell 
 then the man would be responsible, but that would be manslaughter. 
 A conviction on this direction was affirmed on appeal. 
 
 Upon a trial for manslaughter it appeared that the prisoner and the 
 deceased had some dispute, and the deceased's boat being alongside the 
 schooner in which the prisoner was, the prisoner pushed it with his foot, 
 and the deceased stretched out over the bow of the boat to lay hold of a 
 barge, to prevent the boat drifting away, and losing his balance fell 
 
 (a) Old Bailey, 1812. MS. Bayley, J. indictment for causing a bodily injury dan- 
 See Steph. Dig. Cr. Law (6th ed.), art. 241. gerous to life by casting the prosecutrix 
 Where an indictment for manslaughter out of a window upon the ground, she 
 alleged that the deceased was riding on stated that she fell out of the window acci- 
 horseback, and that the prisoner assaulted dentally ; that the prisoner beat her with 
 and struck him with a stick, and that the his fists, and was about to inflict other 
 deceased, from a well-grounded apprehen- injuries upon her, when she went to the 
 sion of a further attack, which would have window to call for assistance, and fell out 
 endangered his life, spurred his horse, of it on to the ground. In opening the 
 whereby it became frightened, and threw case, it v/as stated that the evidence would 
 the deceased, &c., and it was proved that be conflicting, whether the prosecutrix was 
 the prisoner struck the deceased with a thrown or jumped out of tlie \vindow, but 
 small stick, and that he rode away, the that it would be immaterial, for if the 
 I^risoner riding after him, and on the prisoner, by his violence, compelled her to 
 deceased spurring his horse it winced and throw herself out, he would be guiltv. 
 threw him : it was held, on the authority Alderson, B., said, ' I do not think it will 
 of the above case, that the case was be sufficient to prove that she jumped 
 proved. R. v. Hickman, 5 C. & P. 151, from the window to escape from liis vio- 
 Park, J. See R. v. Grimes, 15 N. S. W. lence. You must go further than that. 
 Law, 209, in which the prisoners were held and satisfy the jury that he intended at 
 to have been rightly convicted of murder- the time to make her jump out.' See 
 ing a man whom they brutally assaulted the cases in note (a). 
 
 in a railway carriage, who, thinking his life (bh) Cent. Cr. Ct. 4 March, 1909 ; 2 Cr. 
 
 in danger, jumped out and was killed. App. R. 109. The direction is taken from 
 
 (b) In R. V. Donovan, 4 Cox, 399, on an the shorthand notes of the trial. 
 
 11 ^1
 
 CHAP. I.] Causing Death by Neglect of Duty. 667 
 
 overboard, and was drowned. Park, J., after consulting Patteson, J., 
 said, that they were of opinion that, if the case had rested on this evidence, 
 it would not have amounted to manslaughter (c). Upon an indictment 
 for murder by drowning, by the deceased slipping into the water in 
 endeavouring to escape from an assault made with intent to murder or 
 rob, it was proved that the body was found in the river, and it bore marks 
 of violence, but not sufficient to occasion death, which appeared to have 
 been caused by drowning, and there were marks of a struggle on the 
 banks of the river, Erskine, J., told the jury that a man might throw 
 himself into a river under such circumstances as rendered it not a voluntary 
 act, by reason of force applied either to the body or the mind; and it then 
 became the guilty act of him who compelled the deceased to take the 
 step, but the apprehension must be of immediate violence, and well 
 grounded from the circumstances by which the deceased was surrounded ; 
 and that the jury must be satisfied not that there was no other way of 
 escape, but that it was such a step as a reasonable man might take (d). 
 By Neglect of Duty. — The prisoner had delivered herself of a child 
 by night upon a road, and had left it on the side of the road without any 
 clothing or covering to protect it from the inclemency of the weather, 
 where it died from the cold, and she had wholly concealed the birth of the 
 child till she was apprehended. Coltman, J., told the jury, ' If a party 
 so conduct himself with regard to a human being, which is helpless and 
 unable to provide for itself, as must necessarily lead to its death, the 
 crime amounts to murder. But if the circumstances are not such that 
 he must have been aware that the result would be death, the crime would 
 be manslaughter, provided the death were caused by an unlawful act, 
 but not such as to imply a malicious mind. There have been cases where 
 it has been held that persons leaving a child exposed, and without any 
 assistance, and under circumstances where no assistance was likely to be 
 rendered, were guilty of murder. It will be for you to consider whether 
 the prisoner left the child in such a situation that to all reasonable 
 apprehension she must have been aware that the child must die, or 
 whether there were circumstances that would raise a reasonable expecta- 
 tion that the child would be found by some one else, and preserved ; 
 because then it would only be the crime of manslaughter. If a person 
 were to leave a child at the door of a gentleman, the probability would 
 be so great that it would be found, that it would be too much to say that 
 it was murder, if it died ; if, on the other hand, a child were left in an 
 unfrequented place, what inference could be drawn but that the party left 
 it there in order that it might die ? This is a sort of intermediate case, 
 and therefore it is for you to say whether the prisoner had reasonable 
 ground for believing that the child would be found and preserved {e). 
 
 (c) R. V. Waters, G C & P. 328, Park of dust and ashes, and leavin<; it tliere cx- 
 and Patteson, JJ. It afterwards appeared posed to the cold air, by means of whioli 
 that the prisoner was not the man who exposure the oliild became frozen and died, 
 pushed the boat away. R. r. Waters, 1 Den. .35(5. The point in 
 
 (d) R. V. Pitts, C. & M. 284. this ca.se was, that it was consistent witli 
 
 (e) R. V. Walters, C. & M. 164, and MS. all that was stated in the count that the 
 C. S. G. See R. v. Stockdale, 2 Lew. 220. child might be capable of taking care of 
 In one case a prisoner was con%'icted of itself ; but it was held that if she had been 
 manslaughter for assaulting her infant sufficiently old, or strong enough so to do, 
 female child, and throwing it upon a heap the death could not have arisen from the
 
 668 Of Homicide. [book ix. 
 
 A man and his wife were indicted for the murder of a boy who was 
 bound as a parish apprentice to the man. Both the prisoners had used 
 the apprentice in a most cruel and barbarous manner, and had not 
 provided him with sufficient food and nourishment : but the surgeon 
 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., considered the case 
 defective 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 executed (/). 
 
 The prisoner, upon his apprentice, who had been sent to Bridewell 
 for misbehaviour, returning to him in a lousy and distempered condition, 
 did not take such care of him as his condition required, and which he 
 might have done ; the apprentice not having been suffered to lie in a 
 bed, on account of the vermin, but being made to lie on the boards for 
 some time without covering, and without common medical care. The 
 medical witnesses were of opinion that the boy's death was most 
 probably occasioned by his ill-treatment in Bridewell, and the want of 
 care when he went home ; and 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 being 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 Kecorder 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 Gould, J., and 
 Hotham, B., that if they thought otherwise, yet, as it appeared that the 
 prisoner's conduct towards his apprentice was highly blamable and 
 
 act of the prisoner, and therefore the defect the series of cruel usage the boy had re- 
 was cured by the verdict. It is a novel ceived, and in which the wife had been as 
 doctrine in criminal cases that a defective active as her husband, might not have so 
 indictment is cured by verdict. Hale says far broken his constitution as to promote 
 (2 P. C. 193), 'None of the statutes of the debility, and co-operate along with the 
 jeofails extend to indictments, and there- want of proper food and nourishment to 
 fore a defective indictment is not aided bring on his death, when the surgeon was 
 by verdict, and no authority is known for seized with a fainting fit, and, being taken 
 such a doctrine in other cases ' (but vide post out of court, did not recover sufficiently to 
 Bk. xii. c. ii.). The indictment was attend again upon the trial. The judge, 
 right; for it alleged the acts of the prisoner after observing that, upon the evidence, as 
 which caused the death, and that is all it then stood, he could not leave it to the 
 that it ever was necessary to do in such an jury to consider, whether the wounds, &c., 
 indictment. C. S. G. inflicted on the boy, had contributed to 
 (/ ) R. V. Squire, Stafford Lent Assizes, cause his death, said, that if any physician 
 1799, MS. After the surgeon had deposed or surgeon were present who had heard the 
 that the boy died from debility, and for trial, he might be examined as to the point 
 want of proper food and nourishment, and intended to be inquired into ; but no such 
 not from the wounds, &c., which he had person bemg present, he delivered his 
 received, the learned judge was proceeding opinion to the jury, as stated in the text 
 to inquire of him wliether, in his judgment. 
 
 J
 
 CHAP. I.] Causing Death by Neglect of Duty. 669 
 
 improper, they might, under all these circumstances, find him guilty of 
 manslaughter ; which they accordingly did {g). 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 (h). 
 
 On an indictment for the manslaughter of an apprentice by neglecting 
 to provide him sufficient meat and drink, &c., it appeared that the 
 deceased was bound to the prisoner by indenture, by which he covenanted 
 to find him clothes and victuals ; and, according to the evidence of 
 some medical men, that his death was produced by uncleanliness and 
 want of food. Patteson, J., told the jury that, ' by the general law the 
 master was not bound to provide medical advice for his servant (i) ; 
 yet that the case was different with respect to an apprentice, and that a 
 master was bound during the illness of his apprentice to provide him with 
 proper medicines ; and that if they thought that the death of the deceased 
 was occasioned, not by the want of food, &c., but by want of medicines, 
 then, in the absence of any charge to that effect in the indictment, 
 the prisoner would be entitled to be acquitted ' (/). An indictment for 
 manslaughter alleged in one count that the deceased was the apprentice 
 of the prisoner, and that it was his duty to provide sufficient food 
 for her as such apprentice, and that he neglected to do so, &c., by 
 means of which she died ; and (in another count) that the deceased was 
 the servant of the prisoner, and that it was his duty to provide her with 
 food, &c. An invalid indenture of apprenticeship was put in, and it 
 appeared that the deceased had always been treated as an apprentice by 
 the prisoner, and had performed such duties as an apprentice would have 
 performed, but the prisoner being a farmer these duties were the same as 
 those performed by ordinary farmer's servants. It was objected that the 
 first count was not proved, as the indenture was invalid ; and that the 
 relation of master and servant never existed, for an invalid contract of 
 apprenticeship could not be converted into a hiring and service ; that the 
 foundation of this indictment was that the prisoner was legally bound 
 to provide maintenance for the deceased, and here it was clear he could 
 neither have been compelled to support her as an apprentice or as 
 a servant. Patteson, J,, held, that the prisoner, having treated the 
 deceased as his servant, could not turn round and say she was not 
 his servant at all (Jc). Where the first count stated that the deceased 
 
 {g) R. V. Self, O. B. 1770, MS., Gould, certainly cannot be drawn from this state- 
 
 J. 1 East, P. C. 22G. ment of the case. The same opinion, how- 
 
 {/<) Upon this case. East (1 P. C. 227 n) ever, is stated in the Old BaiJey Sessions 
 
 says : ' I have been the more particular in Papers, to have been thrown out by the 
 
 stating the ground of the decision in this Recorder in Wade"s case.' 
 
 case, because Gould, J.'s, note of the case, (i) See Sellen v. Norman, 4 C. & P. 80. 
 
 from whence this is taken, is evidently (;) R. v. Smith, 8 C. & P. 153. See 24 
 
 different from another report (1 Leach & 25 Vict. c. 100. s. 2f) ; 38 & 39 Vict. c. 
 
 137) of the opinion of the judges in this 86, s. 6, post, p. 910. 
 
 case, from whence it might be collected, (it) R. v. Davies, Hereford Summer As- 
 
 that there could be no gradation of guilt in sizes, 1831, MS. C. S. G. In sui)port of this 
 
 a matter of this sort, where a master, by decision it may be observed, that although 
 
 his ill-conduct or negligence, had occa- a son could not be punished for the murder 
 
 sioned or accelerated the death of his a})- of his father as for petit treason, under 25 
 
 prentice, but tliat he must either be found Edw. III. s. 5, c. 2, unless by a reasonable 
 
 guilty of murder or acquitted ; a conclu- construction he came under the word ser- 
 
 sion, which, whether well or ill founded, vant, yet if he were bound apprentice to his
 
 670 Of Homicide. [book ix. 
 
 was the apprentice of the prisoner, and it was his duty to provide the 
 deceased with proper and necessary nourishment, medicine, medical 
 care and attention, and charged the death to be from neglect, &c. ; and 
 the second count^that charged the deceased ' so being such apprentice as 
 aforesaid/ was killed by the prisoner by over-work and beating ; and 
 the only evidence given to shew that the deceased was an apprentice 
 was that the prisoner had stated that he was his apprentice ; Patteson, 
 J., held that there was sufficient evidence to support the second count, 
 but not the first {I). 
 
 If a mistress culpably neglects to supply proper food and lodging to 
 her servant, when the servant is so enfeebled in body or mind as to be 
 helpless and unable to take care of herself, or is so under the dominion and 
 restraint of the mistress as to be unable to withdraw herself from her 
 control ; and the death of the servant is caused or accelerated by such 
 neglect, the mistress is liable to be convicted of manslaughter (m). 
 
 In R. V. Saunders (n), a married woman was charged with the murder 
 of her illegitimate child, aged three years, by omitting to give it proper 
 food. The prisoner had married J. S. ; the deceased was her illegitimate 
 child, born before the marriage. In the judgment of medical witnesses 
 the death had proceeded from the want of proper food. For the prose- 
 cution reference was made to R. v. Squire (o), and to sect. 71 of the Poor 
 Law Amendment Act, 1834 (4 & 5 Will. IV. c. 76) ; and it was sub- 
 mitted that the mother of an illegitimate child was bound to take care of 
 her child, and might be guilty of murder if its death arose from neglect. 
 Alderson, B., said, ' The prisoner is indicted as a married woman : if her 
 husband supplied her with food for this child, and she wilfully neglected 
 to give it to the child, and thereby caused its death, it might be murder 
 in her (o). In these cases the wife is in the nature of the servant of the 
 husband : it does not at all turn u])on the natural relation of mother : 
 to charge her you must shew that the husband supplied her with food to 
 give to the child, and that she wilfully neglected to give it. There is no 
 distinction between the case of an apprentice and that of a bastard child, 
 and the wife is only the servant of the husband, and, according to the 
 case before Lawrence, J., {y), can only be made criminally responsible 
 by omitting to deliver the food to the child, with which she had been 
 
 father or mother, or was maintained by receives insufficient food, and his health is 
 them, or did any necessary service for injured, and death supervenes, the master 
 them, though he did not receive wages, he is not criminally responsible.' The facts of 
 might have been indicted by the descrip- this case would have supported an indict- 
 tion of servant. 1 Hawk. c. 32, s. 2. ment on 24 & 25 Vict. c. 100, s. 26, fosi, 
 1 East, P. C. 33G j and a near relation, as a p. 910. It seems veiy well worthy of con- 
 sister, might be a servant within the sidei'ation whether, where death results 
 statute, if she acted as such. R. v. Ed- from the commission of an offence within 
 wards, Stafford Assizes. MS. coram Law- that section, the case is not one of man- 
 rence, J. C. S. G. slaughter, on the principle laid down in R. 
 
 (I) R. V. Crumpton, C. & M. 597. v. Senior [1899], 1 Q.B. 293, post, p. 674. 
 
 (m) R. V. Smith, 34 L. J. M. C. 153, Erie, {n) 7 C. & P. 277. In a note to this case 
 
 O.J., said : ' It is undisputed law that if a it is suggested that a statute, 18 Eliz. c. 3, 
 
 person who has the custody of another who s. 2 (now repealed), would hardly have been 
 
 is helpless, leaves that other with insuf- needed if a mother were liable at comnion 
 
 ficient food, and so causes his death, he is law for the entire maintenance of her child, 
 
 criminally responsible. But it is also clear (o) Ante, p. 668. 
 
 that if a person having the exercise of free {p) In R. v. Squire, ante, p. 668. 
 will, chooses to stay in a place where he 
 
 I
 
 CHAP. I.] Causing Death by Neglect of Duty. 671 
 
 supplied by her husband (q). The omission to provide food is the omission 
 of the husband, and the crime of the wife can only be the omitting to 
 deliver the food to the child after the husband has provided it ' (r). 
 
 Under the Poor Law Amendment Act, 1834 (4 & 5 Will. IV. c. 76), 
 s. 41, the mother of an illegitimate child, so long as she is unmarried or a 
 widow, is bound to maintain this child as part of her family until the child 
 is 16 ; and by sect. 57, a man who marries a woman who has legitimate 
 or illegitimate children is liable to maintain them as part of his family 
 till they are 16. So that the marriage, while it continues, suspends 
 the liability of the mother (s). But the marriage does not extinguish 
 affiliation orders made on the putative father of any such child (t). 
 
 The obligation to maintain legitimate children is recognised at common 
 law and enforceable by statute (u). 
 
 In R. V. Bubb (v), an indictment for murder alleged that M. H., an infant 
 of tender age, was a daughter of R. H., and was living with R. H. and 
 E. B., and under their care and control, and unable to provide for or take 
 care of herself, and that it was the duty of the prisoners to i^rovide for and 
 administer to M. H. sufficient food for the support of her body, and that 
 the prisoners feloniously, &c., did refuse and neglect to give and administer 
 to M. H. sufficient food for the support of her body ; whereby she became 
 mortally sick and died (v). B. was the sister of H.'s deceased wife, and 
 on her death had gone to live with H., and became the manager of his 
 household. H. was absent from home except from Saturday night until 
 Monday morning, but always provided ample food for the whole family. 
 H.'s children were healthy till B. undertook their management, but she 
 
 {q) In R. V. Bubb, 4 Cox, 457, Williams 1718 (5 Geo. I. c. 8). Vagrancy Act, 1824 
 
 J., considered this statement too wide, aa (5 Geo. IV. c. 83), .s. 3. 45 & 46 Vict. c. 75, 
 
 it was not limited to cases where death or s. 21. There may be cases where a wife 
 
 serious bodily injury was contemplated. may be liable to maintain her children 
 
 See 8 Edw. VII. c. 07, s. 12, post, p. 913. during her husband's lifetime, as where the 
 
 (»•) The decision was given upon the husband has deserted her, or she has a 
 
 opening statement of counsel. It did not separate maintainance (see Cliristian's note 
 
 appear whether the wife was living with to 1 Bl. Com. 448), and it may be worthy of 
 
 the husband, nor whether he had the consideration whether where the liusband 
 
 means of maintaining the child. In It. v. is incapable of work, but she is cajmble of 
 
 forsyth (Chester Assizes, July 25, 1899 : maintaining her children, slie is not legally 
 
 Archb. Cr. PI. 23rd ed. 784), Kennedy, J., bound so to do ; and as tlie overseers of 
 
 following this case and R. v. Squire, ruled every f)arish are bound by law to provide 
 
 that where husband and wife are living necessary support in cases of emergency, 
 
 together, the legal obligation to maintain it may well be doubted whether cases may 
 
 is on the husband, and that the wife cannot not occur where the wife would be leyall;/ 
 
 be convicted of manslaughter by neglect to bound to apply for relief to the parish olH- 
 
 supply food or medical aid. As to the cers. Suppose a husband were ill in bed, but 
 
 liability of a husband living apart from his the wife were well, and the children starv- 
 
 wife, see R. v. Connor [1908], 1 K.B. 26. ingfor want of food, could it be fairly con- 
 
 (C. C. R.) tended that she was under no legal ol)liga- 
 
 (,s) This seems to be the ratio decidendi tion to apply for relief for them, and that 
 
 in R. V. Saunders, ante, p. 070. See now if one of them died for want of food, she 
 
 45 & 40 Vict. c. 75, s. 21. was not criminally responsible ? See 
 
 (t) Sotheran v. Scott, Q.B.D. 518. Urmston v. Ncwcomen, 4 A. & E. 899, and 
 
 Hardy v. Atherton, 7 Q.B.D. 204 ; which R. v. Mabbett, post, p. 073, C. S. G. 
 
 override Lang v. Spicer, 1 M. & W. 129. (v) 4 Cox, 457. The grand jury ro- 
 
 As to the obligation at common law to turned a bill for murder against E. B., and 
 
 maintain bastard children, see 1 Bl. Com. for manslaughter against R. H.. and a bill 
 
 446, 448. Harris v. JctTel, 1 Ld. Raym. 68 ; for manslaughter in the same form, mutatis 
 
 (Jomh., 356. mutandis, as the bill for murder was then 
 
 (w) Poor Law Act, 1601 (43 Eliz. c. 2), preferred agaiiist the latter, and B. was 
 
 s. 6. Poor Relief (Deserted Children) Act, tried first.
 
 672 Of Homicide. [book ix. 
 
 systematically neglected them, especially the deceased, and, notwith- 
 standing the remonstrances of the neighbours, persisted in withholding 
 sufficient food, for want of which the child gradually wasted away, and 
 died of actual starvation. Williams, J., told the jury that ' the indict- 
 ment alleges, first, a duty on the part of the prisoner to supply the necess- 
 aries of life to the child ; it alleges, secondly, a malicious neglect or 
 omission to perform that duty ; and it alleges, thirdly, that the omission 
 or neglect caused the death of the child. Now, first, with respect to the 
 j^roposition that it was the duty of the prisoner to provide food necessary 
 to sustain the life of the child. It is quite clear that the circumstance 
 of the prisoner being aunt of the child, or being resident in the same house 
 with the child, was not sufficient to cast upon her the duty of providing 
 food for it. But if the prisoner undertook the charge of attending to 
 the child, and of taking that care of it which its tender age required, a 
 duty then arose to perform those duties properly ; and if the prisoner, 
 being in the capacity, as it were, of a servant or nurse, and having the 
 charge of attending and taking care of the child, was furnished with the 
 means of doing so properly, then the duty arose, which is charged in this 
 indictment, of giving it sufficient food, and if the prisoner neglected to 
 perform that duty, beyond all question she is criminally responsible. 
 It remains for me to explain to what extent she is responsible. If the 
 omission or neglect to perform the duty was malicious, then the indictment 
 would be supported, and the crime of murder would be made out against 
 the prisoner ; but if the omission or neglect were simply culpable, but 
 not arising from a malicious motive on the part of the prisoner, then it 
 would be your duty to find her guilty of manslaughter only. And here 
 it becomes necessary to explain what is meant by the expression malicious, 
 which is thus used. If the omission to supply necessary food was accom- 
 panied with an intention to cause the death of the child, or to cause some 
 serious bodily harm to it, then it would be malicious in the sense imputed 
 to it by this indictment, and in a case of this kind it is difficult, if not 
 impossible, to understand how a person who contemplated doing serious 
 bodily injury to the child by the deprivation of food, could have meditated 
 anything else than causing its death. You will, therefore, probably 
 consider that the question resolves itself into this : Did the prisoner 
 contemplate, by the course she pursued, the death of the child ? If she 
 did, and death was caused by the course she pursued, then she is guilty 
 of murder. But if you are not satisfied that she contemplated the death 
 of the child, then, although guilty of a culpable neglect of duty, it would 
 amount only to the crime of manslaughter. If, on the other hand, you 
 should think either that she did not undertake the duty of supplying 
 the child with proper food, or that she did not culpably neglect that duty, 
 then you will acquit her' {w). 
 
 On the trial of H. for the manslaughter of the same child, in addition 
 to the facts proved on the trial of B., it was proved that when H. was at 
 
 [w) ' The indictment also alleged the was fully discussed between Williams, J., 
 
 duty to provide clothing and the neglect Campbell, C.J., and Mr. Greaves, on a re- 
 
 thereof ; but as the child is alleged to have view of the previous cases.' C. S. G. See 
 
 died of " actual starvation " alt relating to R. v. Conde, 10 Cox, 547. R. v. Macdonald 
 
 the clothing has been omitted. This and [1904], Queensland St. Rep. 151. R. v. 
 
 the next case miderwent the most careful Brooks [1902 j, 5 Canada Cr. Cas. 372. 
 consideration, and the law on the subject
 
 CHAP. I.] Causing Death by Neglect of Duty, 673 
 
 home B. treated the children better than on other occasions ; and that 
 he had uniformly behaved kindly to them, and especially to the deceased. 
 Williams, J., told the jury that ' this case differs from the last in this 
 very essential particular, that here there is a duty directly cast upon the 
 prisoner to provide sufficient food for the child if he has sufficient means 
 for doing so, and inasmuch as it is proved that the j)risoner had such 
 means, there can be no doubt but that the law threw upon him the duty 
 of preserving the child's life by j^roviding it with proper food. But the 
 peculiarity of the case is this, that inasmuch as we must take it that B. 
 was guilty, she could not have been so, unless the prisoner had provided 
 her with sufficient means for feeding the child, and it must be taken as 
 an admitted fact in this case that the prisoner did take such steps as, but 
 for B.'s misconduct, would have preserved the child's life. Then the 
 question is how is the charge shaped against the prisoner ? If B. neg- 
 lected her duty by depriving the child of food for any purpose, and the 
 prisoner was conscious of it, and nevertheless chose to let her persevere in 
 that course, he thus became himself an instrument, as it were, of depriving 
 the child of sufficient food, and he would be guilty upon this indictment. 
 If, therefore, you think he was conscious that B. deprived the child 
 of food to such an extent as to render it dangerous to the child's 
 life, and, being so conscious, instead of preventing her from continuing in 
 this course, he allowed her to do so, and was culpably negligent of the 
 obvious duty cast upon him, then he is guilty of manslaughter, because 
 then substantially he would have neglected to provide the child with 
 proper food ' (x). 
 
 Where parent, child, and servant reside in the same house, the duty 
 of the parent is to provide food for the child, and the duty of the servant 
 is to supply the food, when so provided by the parent, to the child, an 
 indictment therefore charging both with the same duty cannot be sup- 
 ported ; but there ought to be separate indictments charging each in 
 respect of the duty incumbent on each (y). 
 
 Upon an indictment against husband and wife for the murder of their 
 infant child, it appeared that the child's death was produced by English 
 cholera, and that insufficient food had a tendency to produce that com- 
 plaint ; the husband was in work, but he spent the money he obtained on 
 himself ; and the wife did not appear to have any money or food to give 
 to the child. Martin, B., consulted Erie, J., and they were of opinion 
 that it was the duty of all persons having children, when they themselves 
 cannot support them, to endeavour to obtain the means of getting them 
 support, and if they wilfully abstain from going to the union, where by 
 law they have a right to support, and their children die in consequence, 
 they are criminally responsible for it : but there ought to be a distinct 
 abstaining to go for several days ; and if a married woman neglects for 
 four or five days to go to the union for the purpose of getting support for 
 a child, she knowing that such neglect would be likely to produce the 
 death of the child, it is manslaughter (2). 
 
 (x) R. V. Hook, 4 Cox, 457. in the present form would not suffice.' 
 
 (y) ' This was agreed between WilHams, C. S. G. See 8 Edw. VII. c. 67, s. 12 (4), 
 
 J., and Mr. Greaves in R. r. Bubb, ante, -post, p. 912. 
 
 p.G71,on an indictment before 14&15Vict. (z) R. v. Mabbett, 5 Cox, 339. See the 
 
 c. 100. But qu., whether one indictment latter part of note (m), ante, p. 671. 
 
 VOL. I. 2 X
 
 674 Of Homicide. [book ix. 
 
 By sect. 12 (1) of the Children Act, 1908 (8 Edw. VII. c. 67), that 
 section is to apply in the case of a parent, who, being without means to 
 maintain the child, fails to provide for its maintenance mider the Poor 
 Law, in like manner as if theparent had otherwise neglected the child (a). 
 
 Where a woman took charge of the illegitimate child of her dead 
 daughter, and the child died for want of proper nourishment, Brett, J., 
 told the jury that mere neghgence would not be sufficient to convict 
 the prisoner. There must be negligence so great that they must be of 
 opinion that the prisoner was reckless whether the child died or not. 
 Her omission to send the child to the workhouse would not be sufficient. 
 The question was whether she was wickedly careless. She might have 
 been very careless, and ought to have done more than she did, but the 
 case must be judged according to the state and condition of life of the 
 prisoner, and the jury must say whether she had let the child die by 
 wicked negligence or not (6). 
 
 Medical Aid. — By sect. 37 of the Poor Law Amendment Act, 1868 
 (31 & 32 Vict. c. 122) (c), when any parent wilfully neglected to provide 
 medical aid for his child, being in his custody and under the age of fourteen 
 years, whereby the health of such child was seriously injured, he was 
 guilty of an offence punishable summarily before justices. Where frt)m 
 a conscientious religious conviction that in answer to prayer God would 
 heal the sick, and in obedience to the tenets of a sect called the Peculiar 
 People, and not from any intention to avoid the performance of his duty 
 to his child or to break the law, the parent of a sick child, being one of 
 such sect, while furnishing it with all necessary food and nourishment, 
 refused to call in medical aid though well able to do so, and the child in 
 the opinion of the jury died from not having such medical aid, it was held 
 manslaughter {d). But in order to convict of manslaughter, it was 
 necessary to prove that the neglect caused or accelerated the death and 
 not merely that it might have done so (e). 
 
 In R. V. Senior (/), which arose, after the repeal of sect. 37 of the Poor 
 Law Amendment Act, 1868, and under sect. 1 of the Prevention of Cruelty 
 to Children Act, 1894 {g), the prisoner was charged with the manslaughter 
 of his infant child, of which he had the custody. He was one of the 
 Peculiar People, and objected on religious grounds to calling in medical 
 
 (ft) In R. V. Connor [1908], 2 K.E. 26, a absolute duty, whatever the conscientious 
 
 man Uving apart from lus wife and earning or superstitious opinions of people may be, 
 
 wages, did not send any money to his wife. to provide medical aid for their children. 
 
 His children living with the wife were It is found that the prisoner thought it 
 
 partly provided for by an aunt. Upon a was irreligious to do it, but the law does 
 
 case reserved, the Court held that the not allow him to break its provisions ; ho 
 
 omispion on the husband's part to send any must obey it whatever his opinions about 
 
 money for his cliildren was wilful neglect the law may be ; ' et -per Mellor, J. ' The 
 
 within s. 1 of the Prevention of Cruelty to statute by " wilfully neglect " means in- 
 
 Children Act, 1904. See also Cole v. Pen- tentionally, or purposely omit to call in 
 
 dleton, 60 J. P. 359, and see 8 Edw. VII. medical aid.' See R. v. Senior [1899], 1 
 
 c. 67 s. 38 (2), fost, p. 921. Q.B. 283, 291. 
 
 [1] R. V. NichoUs, 13 Cox, 75. (e) R. v. INIorby, 8 Q.B.D. 571. 
 
 (c) This section was repealed in 1889, (/) [1899] 1 Q.B. 283. See also R. v. 
 and is now represented by 8 Edw. VII. c. Cook, 62 J. P. 712. 
 
 67 s. 12 (1) post, p. 913. {g) Repealed, but re-enacted 1904 (4 
 
 (d) R. V. Downes, 1 Q.B.D. 25 : 13 Cox, Edw. VII. c. 15, s. 1), and now embodied in 
 111. There Bramwell.B., said: 'The statute 8 Edw. VII. c. 67, s. 12, fosl, pp. 913, 
 referred to has imposed a positive and 921,
 
 N 
 
 CHAP. I.J Causing Death hy Neglect of Duty. 675 
 
 aid or to the use of medicine, and he had wilfully and deliberately 
 abstained from providing medical aid for his child, though he knew it tobe 
 dangerously ill, but otherwise he had done all that he could for the child. 
 The prisoner had the necessary means to provide medical aid, and it 
 would have prolonged, and probably saved, the child's hfe. Upon a case 
 reserved it was held that the prisoner had wilfully neglected the child in a 
 manner likely to cause injury to its health, within the meaning of sect. 1 
 of the Prevention of Cruelty to Children Act, 1894 [gcj), and having 
 thereby caused or accelerated its death, he was guilty of manslaughter {h). 
 
 The prisoner was tried for the murder of her daughter : the case for 
 the prosecution was that the prisoner, having great ill-will against the 
 deceased, had purposely neglected to procure a midwife, or other propei- 
 person, to attend her daughter when she was taken in labour, and that 
 by reason thereof she died in childbirth ; she was about eighteen years of 
 age and unmarried. The prisoner had married a second husband, and 
 after the marriage the daughter had lived with them for some time, 
 and then went out to service, occasionally returning to hve with them 
 when she was out of place ; at last she returned to her step-father's 
 house on a Tuesday, and continued there till the Saturday following, 
 when she died. It was objected that the prisoner was under no legal 
 obligation to procure or try to procure the attendance of a midwife. 
 WilUams, J., directed the jury to consider whether it was established by 
 the evidence that the death was attributable to the prisoner's neglect to 
 use ordinary dihgence in procuring the assistance of a midwife, or other 
 proper attendant, and if it was so established, then to consider whether 
 by so neglecting she intended to bring about the death of her daughter ; 
 and if so, the jury were to convict her of murder ; but if not, of man- 
 slaughter. The jury convicted her of manslaughter ; and it was held that 
 there was not an omission of any duty rendering the prisoner liable to be 
 convicted. Assuming that if she had used ordinary care she would have 
 procured the attendance of a midwife ; that she knew where a midwife 
 could be found ; and that if the midwife had been summoned she would 
 have attended ; her skill must have been paid for, and there was no 
 evidence that the prisoner had the means at her command of paying for 
 that skill. The midwife would probably have attended without being 
 paid. Yet the prisoner could not be criminally responsible for not asking 
 for that aid, which, perhaps, might have been given without compensa- 
 tion. Aid of this kind was not always required in childbirth, and 
 sometimes no ill consequences resulted from its absence {i). 
 
 The mere failure on the part of a woman to make proper provision 
 for her expected confinement, resulting in the complete birth and 
 
 (>jg) Repealed, but re-enacted 1904 (3 down, Kennedy, J., held that it wa^ not 
 
 Edw. VII. c. 15, s. 1), and now embodied necessary to shew that the prisoner actu- 
 
 in 8 Edw. VII. c. 67, .s. 12, jjost, p. 913. ally had money at the time she failed in 
 
 {h) Ru.ssell, L.C.J., said he was not sati';- her duty to provide food and medicine, if 
 
 ficd that there was not sufficient evidence it was shewn that she had previously re- 
 
 at common law to justify a conviction. ceived money, and that under the circum- 
 
 (i) R. r. Shepherd, L. k C. 147. In R. stance? she would naturally be expected to 
 
 I'. Jones, 19 Cox, 678, where a woman was have some of the money still unspent at 
 
 indicted for the manslaui^htcr of an infant the time when the child was alleged tn have 
 
 she had taken to nurse for a lump sum paid been neglected. 
 
 2x2
 
 676 Of Homicide. [BOOKix 
 
 subsequent death of a child, is not sufficient in itself to warrant a con- 
 viction of manslaughter. 
 
 Where on an indictment of a woman for the murder of her infant it 
 appeared that the infant was found dead in a bag and that the mother 
 had not made any preparation for its birth, she was held not guilty of 
 manslaughter, although she knew she was about to be delivered, and 
 wilfully abstained from taking the necessary precautions to preserve 
 the life of the child after its birth, and the child died in consequence of 
 that neglect (/). 
 
 In R. V. Handley {k), the prisoner was indicted for the wilful murder of 
 her new-born child, and Brett, J., directed the jury (1) that if the prisoner 
 either before or after the birth of the child had made up her mind that 
 the child should die, and, after it was born alive, left it to die, and it did 
 so in consequence, she would be guilty of murder ; or (2) that if she 
 made up her mind to conceal the birth, and did attempt to conceal it by 
 methods which would probably end in its death, and they did end in 
 death, she would be guilty of murder, even though she did not intend 
 murder ; or (3) that she would be guilty of manslaughter if she had deter- 
 mined that none but herself should be present at its birth, for the purpose 
 of temporary concealment, and had caused the death of the child by 
 wicked negligence after its birth. 
 
 In R. V. Izod (?), Channell, J., refused to accept the proposition that 
 failure on the part of a woman to make proper provision for her expected 
 confinement, resulting in the complete birth and subsequent death of a 
 child, rendered her guilty of manslaughter, and he directed the jury that 
 to support a verdict of manslaughter there must be some evidence of 
 neglect after the child had been completely born. 
 
 The prisoner was indicted for the manslaughter of her child, and it 
 appeared that she had been delivered of the child whilst on the seat of a 
 privy, and that the child had breathed. The prisoner was seventeen 
 years old, subject to epileptic fits, and this was her first child. Erie, J., 
 told the jury, ' The question in this case is, whether there was any negli- 
 gence on the part of the mother in not providing for the safety of her 
 offspring. It is but reasonable to presume that the child dropped from 
 her whilst she was on the privy. Now, if you think that she had the means 
 and the power of procuring such assistance as might have saved the life 
 of the child, by neglecting to do so she would be clearly guilty of man- 
 slaughter. But it is proper that you should take into your consideration 
 that the prisoner is very young ; that this was her first child ; that she 
 was subject to epileptic fits, and that the probability is that the child could 
 have survived but a few moments after its immersion in the soil ' {m). 
 
 Where a chUd is very young and not weaned, the mother is criminally 
 responsible if the death arose from her not suckling the child when she 
 was capable of doing so (n). 
 
 If a person, who stands in the place of a parent, inflicts corporal 
 
 (?) R. V. Knights, 2 F. & F. 46, Cockbmn, (/) E. v. Izod, 20 Cox, 690. 
 
 C.J., and Williams, J. (wl R. v. Middleship, 5 Cox, 275. 
 
 {k) 13 Cox, 79, Brott, J. See R. v. (n) R. ^'- Edwards, 8 C. & P. 611, Patte- 
 
 Piitchard [1901], 17 T. L. R. 310, Wright, son, J.
 
 CHAP. I.] Causing Death hy Neglect of Duty. 677 
 
 punishment on a child, and compels it to work for an unreasonable 
 number of hours, and beyond its strength, and the child dies of a disease 
 hastened by such ill-treatment, it will be murder if the treatment was of 
 such a nature as to indicate malice ; but if such person believed that the 
 child was shamming illness, and was really able to do the work required, 
 it will only be manslaughter, although the punishment were violent and 
 excessive (o). 
 
 A person is criminally responsible if, having undertaken to provide 
 necessaries for another, who is so aged and infirm that he is incapable of 
 doing so for himself, he neglects such undertaking, with the result that 
 death ensues ; or if having confined another he neglects to su2)ply him 
 with necessaries, whereby the other dies. An indictment for murder 
 stated that the deceased was of great age, and was residing in the house 
 and under the care and control of the prisoner, and that it was his duty to 
 take care of and find her sufficient meat, &c., and then alleged her death 
 to have been caused by confining her against her will, and not providing 
 her with meat and other necessaries. It appeared that the deceased 
 was seventy-four years of age, and that upon the death of her sister, with 
 whom she had lived, was taken away by the prisoner, he saying she was 
 going home to live along with him till affairs were settled, and he would 
 make her happy and comfortable ; and that on another occasion the 
 prisoner had said that in consideration of a transaction, which he men- 
 tioned, he had undertaken to keep the deceased comfortable as long as she 
 lived. After some time the deceased was waited on by the prisoner and 
 his wife, and remained locked in the kitchen alone, sometimes by the 
 prisoner and sometimes by his wife, for hours together ; and on several 
 occasions had complained of being confined. In the cold weather no fire 
 was discernible in the kitchen, and for some time before her death the 
 deceased was continually locked in the kitchen, and not out of it at all. 
 An undertaker's man stated that, from the appearance of the body, 
 he thought she had died from want and starvation. A surgeon proved 
 that the immediate cause of death was water on the brain ; that the 
 appearance of all parts of the body betokened the want of proper 
 food and nourishment, that there was great emaciation of the 
 body, and that the water on the brain might have been produced 
 by exhaustion. Patteson, J., told the jury, ' If the prisoner was 
 guilty of wilful neglect, so gross and wilful that you are satisfied 
 he must have contemplated the death of the deceased, then he will 
 be guilty of murder {])) ; if, however, you think only that he was so 
 careless that her death was occasioned by his negligence, though he did 
 not contemplate it, he will be guilty of manslaughter. The cases which 
 have happened of this description have been generally cases of children 
 and servants, where the duty has been apparent. This is not such a case ; 
 but it will be for you to say whether from the way in which the prisoner 
 treated her, he had not by way of contract, in some way or other, taken 
 upon him the performance of that duty, which she, from age and infirmity 
 
 (o) R. t'. Chccscman, 7 C. & P. 455, injury to the health, or body of the party. 
 
 Vauffhan, J., post, p. 7(59. it is murder ; an WilHams, J., and Mr. 
 
 (p) This position is too narrow. If the Greaves agreed in R. v. Bubb, ank\ p. 071. 
 
 prisoner intends either death, or grievous C. S. G.
 
 678 Of Homicide, tBook ix. 
 
 was incapable of doing/ After reading the evidence as to the contract, 
 the learned judge added, ' This is the evidence on which you are called 
 on to infer that the prisoner undertook to provide the deceased with 
 necessaries ; and though, if he broke that contract, he might not be 
 liable to be indicted during her life [q), yet if by his negligence her death 
 was occasioned, then he becomes criminally responsible * (r). 
 
 The prisoner, a woman of full age, who had no means of her own, 
 lived with and was maintained by her aged aunt, and no one else lived 
 with them. For the last ten days of her life the deceased was quite 
 unable to attend to herself or to move about or do anything to procure 
 assistance. During this time the prisoner lived in the house at the cost 
 of the deceased, and took in the food supplies by the tradesmen, but 
 apparently did not give any to the deceased, nor did she promise for her 
 any nursing or medical attendance or inform any one of the condition 
 of the deceased, although she could easily have done so, and no one but 
 the prisoner had any knowledge of the condition in which her aunt was. 
 The prisoner was convicted of manslaughter, and upon a case reserved it 
 was held that it was the duty of the prisoner, under the circumstances, 
 to supply her aunt with svifficient food to maintain life ; and that the 
 death of her aunt having been accelerated by neglect of this duty, she was 
 properly convicted (s). 
 
 Upon an indictment for manslaughter it appeared that the prisoner 
 four years previously had separated from his wife, by mutual consent, 
 the prisoner allowing her 2^. M. a week, which had been in general 
 regularly paid, and the last payment was on the Sunday preceding her 
 death. On the Tuesday she was turned out of her lodgings, being at that 
 time suffering from diarrhoea. On the Wednesday she was in a house in 
 a state of great illness, when the prisoner passed by, and was told he must 
 take his wife away, as she could not shelter there. The prisoner replied, 
 ' Turn her out ; I won't be pestered with her,' and then walked away. 
 The same evening, which was wet and dark, she was seen by a constable 
 wandering about seeking shelter. He took her to the house where the 
 prisoner lodged, and told him the state of his wife, who was ill and without 
 lodging, and explained to him that it was incumbent on him to provide 
 her with lodging and relief. He replied that he had no lodging for her ; 
 that she was a nasty beast, and he could not live with her. He shut the 
 window and went away. On the Thursday the prisoner offered to pay 
 for a bed for her at a public house, and she went to bed. On the Friday 
 she died. The deceased was labouring under a complication of diseases, 
 which must have speedily resulted in death. The surgeon stated that 
 he considered the period of her existence had been abridged in consequence 
 of her not having had shelter on the Wednesday night. Gurney, B., told 
 the jury that there was no ground for any charge against the prisoner for 
 having caused her death from want of food, as he had regularly paid her 
 
 iq) In R. V. Pelham, 8 Q.B. 959, Patte- (r) R. v. Marriott, s' C. & P. 425, Patte- 
 
 son, J., said as to this dictum, ' I was son, J. 
 
 speaking of the particular facts before me ; (s) R. v. Instan [1 893], 1 Q.B. 450. Cf. per 
 
 certainly I did not mean to lay down that RusselV, C.J., in R. v. Senior, fl899], 1 Q.B. 
 
 there could be no indictment at all if there 283, 292, ante, p. 675, note (h). 
 was no death.'
 
 CHAP, i.] Causing Death hy Savage Animals. 679 
 
 allowance to her, and he might have been compelled to pay her a larger 
 sum if that had not been sufficient. Under ordinary circumstances he 
 might have refused to have anything to do with her, but when she was 
 ill and without shelter on a cold and wet night, the question assimied a 
 different aspect, and it was whether they could certainly conclude that his 
 refusal to give her shelter at that time had the effect of causing her death 
 to occur sooner than that event would have happened in the ordinary 
 course of nature {t). 
 
 As to neglect, abandonment, or ill-treatment of the helpless not 
 followed by fatal results, see jjost. Chapter VIII. p. 907. 
 
 By Perjury. — It has been said that at common law, it was murder to 
 bear false witness against another with an express premeditated design 
 to take away his life, if the innocent person was condemned and executed 
 (m). But this proposition is of doubtful authority. In 1692 a bill was 
 introduced in Parliament to make it a capital offence to commit or 
 suborn perjury m a capital case, but the bill did not pass into law {v). 
 In the last instance of a prosecution for murder by perjury, the 
 prisoners having been convicted, judgment was respited, in order that the 
 point of law might be more fully considered upon a motion in arrest of 
 judgment [iv). The Attorney-General, however, declining to argue the 
 point, the prisoners were discharged of that indictment ; but it seems 
 that there are good grounds for supposing that the Attorney- 
 General 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 apprehension that the point of law was not 
 maintainable {x). 
 
 By Savage Animals. — If a man has a heast 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 (y) ; and it is 
 agreed by all that such a person is guilty of a very gross misdemeanor 
 (2) ; and if a man purposely turns such an animal loose, knowing its nature, 
 it is as much murder (a) as if he had incited a bear or a dog to worry 
 people ; and this, though he did it merely to frighten them, and make 
 what is called sport (6). 
 
 (/) R. V. Plummer, 1 C. & K. GOO. The grounds for such an opinion, and that 
 
 prisoner was acquitted, otherwise the ques- nothing should be concluded from the 
 
 tion whether he was bound to provide waiving of that prosecution ; and in 1 East, 
 
 shelter for his wife would have been re- P. C. 333, note {a), the autlior states that 
 
 served. Cf. R. v. Connor, ante, p. 674 he had heard Lord Jlansfield make the 
 
 note (a). same observation, and say, that the 
 
 (m) Britt. c. 52. Bract, lib. 3, c. 4. 1 Hawk. opinions of several of the judges at that 
 
 c. 31,s. 7. 3 Co. Inst. 91. 4B1. Cora. 196. time, and his own, were stronalv in support 
 
 (v) 19 St. Tr. 813. of the indictment. See also 19"St. Tr. 810, 
 
 (w) R. V. !Macdaniel, Berry, and Jones, and Deut. o. xix., v. 16 et seq. 
 
 [1756], Fost. 131. 19 St. Tr. 746, 810-814. (ij) 4 Bl. Com. 197. 
 
 1 I.«ach, 44. This trial took place in 1756. (2) 1 Hawk. c. 31, s. 8. 
 
 The prisoners were indicted for murder (a) Cf. the Jewish law. Exod. c. xxi. 
 
 upon a conspiracy of the kind mentioned v. 29. 
 
 in the text against one Kiddcn, who had (b) 4 Bl. Com. 197. Hale (1 P. C. 431) 
 
 been convicted and executed for a robbery says, that lie had heard that it had been 
 
 upon the highway, upon the evidence of ruled to be murder, at the assizes held at 
 
 Berry and Jones. St. Albans for Hertfordshire, and the 
 
 (x) 4 Bl. Com. 196, note {(f), wliere owner hanged for it ; but that it was but 
 
 Blackstone, J., says, that he had good an hearsay.
 
 680 Of Homicide. [book ix. 
 
 On an indictment for manslaughter it appeared that the deceased, a 
 child about eight years old, was killed by a kick from the prisoner's horse 
 which had been in his possession about four years, and was a very 
 vicious and dangerous animal, and had kicked and injured several persons, 
 and some of these instances had been brought to the prisoner's knowledge, 
 and he otherwise knew of the propensities of the horse. The deceased, 
 with some other children, was on a common, and when on or very near 
 a public path crossing the common, a vicious horse belonging to the 
 prisoner and turned loose by him to graze on the common, kicked at the 
 deceased, struck her on the head, and killed her. It was a question 
 whether the deceased was on the path at the time she was kicked. The 
 question was left to the jury whether the death of the child was caused 
 by the culpable negligence of the prisoner, and they were told that they 
 might find culpable negligence if the evidence satisfied them that the 
 horse was so vicious and accustomed to kick as to be dangerous, and that 
 the prisoner knew that it was so, and with that knowledge turned it loose 
 on the common, through which there were to his knowledge open paths 
 on which the public had a right to pass. The jury found the prisoner 
 guilty of having caused the death by his culpable negligence, but that 
 the evidence did not satisfy them one way or the other whether the child 
 at the time she was kicked was on the path or beyond it. Upon a case 
 reserved, Erie, C.J., said, ' I am of opinion that this conviction should 
 be affirmed. The prisoner turned upon a common where there was a 
 public footway a very dangerous animal, knowing what its proj)ensities 
 were, and it is found by the jury that the prisoner was guilty of culpable 
 negligence in so doing, and that the death of the child was caused by the 
 culpable negligence of the prisoner. That under ordinary circumstances 
 would be sufficient to sustain a conviction for manslaughter ; but the 
 point contended for by the prisoner is, that the child was not on the path 
 at the time when she was kicked, and her death caused thereby ; and 
 the jury were unable to say whether she was on the footway or beyond 
 at the time. For the purpose of the judgment I assume that the child 
 Was not on the footway, but very near it. In point of reason I think 
 that the prisoner ought to be held responsible in this case, and that it is 
 not a ground of acquittal that the child had strayed off the pathway." 
 (After citing Barnes v. Ward, 9 C. B. 414), he continued, * The principle 
 of that case extends to a case like this, where a child walking on a public 
 highway accidentally deviated into the neighbouring land, and met 
 with her death from the kick of a vicious horse close to the public way.' 
 . . . ' The public take a highway on the terms on which it is granted to 
 them by the grantor, and, as between them and the grantor, must use 
 the way subject to its risks ; but the public are entitled to use the way 
 without being subject to dangers like that in the present case. It was 
 injurious to persons using the pathway in question to turn on the common 
 a vicious animal of this kind. The judgment is confined to the fact of 
 the child being near to the path at the time, and that, having accidentally 
 strayed from the pathway, but being very near to it, her death was caused 
 by the culpable negligence of the prisoner, I do not wish to sanction the 
 notion that, because a person may not be civilly liable for an act of negli- 
 
 i
 
 CHAP. I.] Causing Death hy Want of Medical Skill. 681 
 
 gence, he is therefore not criminally liable. It is not necessary to discuss 
 that proposition now ; however, I do not accede to it' (c). 
 
 By Want of Medical or Surgical Skill. — If a physician or surgeon, even 
 though he is not a regular or licensed one (d), acting with due care and 
 skill, gives his patient a potion or plaster, intending to do him good, 
 and, contrary to the expectation of such physician or surgeon, it kills him, 
 this is neither murder nor manslaughter, but misadventure (e). 
 
 Upon an indictment for manslaughter by causing the death by thrust- 
 ing a round piece of ivory against the rectum, and thereby making a 
 wound through the rectum, it appeared that upon examination of the 
 body after death, a small hole was discovered perforated through the 
 rectum. The prisoner had attended the deceased, but there was no 
 evidence to shew how the wound had been caused, and questions were 
 put in order to shew that it might have been the result of natural causes, 
 and it was proposed to shew that the prisoner had had a regular medical 
 education, and that a great number of cases had been successfully treated 
 by him. Hullock, B. (stopping the case), ' This is an indictment for man- 
 slaughter, and I am really afraid to'let the case go on, lest an idea should 
 be entertained that a man's practice may be questioned whenever an 
 operation fails. In this case there is no evidence of the mode in which 
 this operation was performed ; and even assuming for the moment that 
 it caused the death of the deceased, I am not aware of any law which says 
 that this party can be found guilty of manslaughter. It is my opinion 
 that it makes no difference whether the party be a regular or irregular 
 surgeon ; indeed, in remote parts of the country, many persons would 
 be left to die, if irregular surgeons were not allowed to practise. There 
 is no doubt that there may be cases where both regular and irregular 
 surgeons might be liable to an indictment, as there might be cases where, 
 from the manner of the operation, even malice might be inferred. All 
 that the law-books (;/) have said has been read to you, but they do not 
 state any decisions, and their silence in this respect goes to shew what the 
 uniform opinion of lawyers has been upon this subject. As to what is 
 said by Lord Coke, he merely details an authority, a very old one, without 
 expressing either approbation or disapprobation ; however, we find that 
 Lord Hale has laid down what is the law on this subject. That is copied 
 by Blackstone, J., and no book in the law goes any further. It may be 
 that a person not legally qualified to practise as a surgeon may be liable 
 to penalties, but surely he cannot be liable to an indictment for felony. 
 It is quite clear you may recover damages against a medical man 
 for want of skill ; l)ut as my Lord Hale (g) says, " God forbid that any 
 mischance of this kind should make a person guilty of murder or man- 
 slaughter." Such is the opinion of one of the greatest judges that ever 
 adorned the Bench of this country ; and his proposition amounts to this, 
 that if a person, hona-fide and honestly exercising his best skill to cure a 
 
 (c) R. V. Dant, L. & C 567. As to lia- & P. 407, note (o). 
 
 bility of the owners of animals, see 1 Beven, (e) 4 Bl. Com. 197. 1 Hale, 429. And 
 
 Negligence (3icl cd.), pp. 517-540. see R. v. Macleod, 12 Cox, 534. 
 
 {d) 1 Hale, 429. See cases cited, infra. (/) 4 Bl. Com. 197. 1 Hale, 429. ' Co. 
 
 But see Britton, c. 5. 4 Co. Inst. 251. R. Inst. 251. 
 
 V. Simpson, liancaster, 1829 ; Wilcock's L. (y) 1 Hale, 429. 
 Med. Prof. Apjiend. 227 ; 1 Lew. 172 ; 4 C.
 
 682 Of Homicide. [Bookix. 
 
 patient, performs an operation, whicli causes the patient's death, lie is 
 not guilty of manslaughter. In the present case no evidence has been 
 given respecting the operation itself. It might have been performed 
 with the most proper instrument and in the most proper manner, and yet 
 might have failed. Mr. L. has himself told us that he performed an 
 operation, the propriety of which seems to have been a sort of vexata 
 quoestio among the medical profession ; but still it would be most dangerous 
 for it to get abroad that, if an operation performed either by a licensed 
 or unlicensed surgeon should fail, that surgeon would be liable to be 
 prosecuted for manslaughter ' (h). 
 
 In R. V. Williamson (i), the prisoner, who was indicted for the murder 
 of Mrs. D., was not a regularly educated accoucheur, but was a person 
 who had been in the habit of acting as a man-midwife among the lower 
 classes of people. Mrs. D. had been delivered by the prisoner on a Friday, 
 and on the Sunday following an unusual appearance took place, which 
 the medical witnesses stated to be a prolapsus uteri ; this the prisoner 
 mistook for a remaining part of the placenta, which had not been brought 
 away at the time of the delivery : he attempted to bring away the 
 prolapsed uterus by force, and in so doing he lacerated the uterus, and tore 
 asunder the mesenteric artery ; this caused the death of the patient ; 
 and it appeared, from the testimony of a number of medical witnesses, 
 that there must have been great want of anatomical knowledge in the 
 prisoner. It was proved that the prisoner had safely delivered many other 
 women. Ellenborough, C.J., said, ' There has not been a particle of 
 evidence adduced which goes to convict the prisoner of the crime of 
 murder, but still it is for you to consider whether the evidence goes as far 
 as to make out a case of manslaughter. To substantiate that charge, 
 the prisoner must have been guilty of criminal misconduct, arising 
 either from the grossest ignorance, or the most criminal inattention. 
 One or other of these is necessary to make him guilty of that criminal 
 negligence and misconduct which is essential to make out a case of 
 manslaughter. It does not appear that in this case there was any want 
 of attention on his part ; and from the evidence of the witnesses on his 
 behalf, it appears that he had delivered many women at different times, 
 and from this he must have had some degree of skill ' (7). 
 
 In R. V. St. John Long {h), upon an indictment for manslaughter by 
 feloniously rubbing Miss C. with a dangerous liquid, it appeared that two 
 of the family had died of consumption, but that Miss C. had enjoyed good 
 health, Mrs. C. having heard that the prisoner had said that unless 
 Miss C. put herself under his care she would die of consumption in two or 
 three months, placed her under his course of treatment. The prisoner 
 rubbed a mixture on different parts of the bodies of his patients, and this 
 was applied to Miss C. by the prisoner's direction, A wound appeared 
 on Miss C's back, to which the prisoner's attention was directed, and he 
 
 {h) R. V. Van Butchell, 3 C. & P. 629, confinements with perfect success, and that 
 
 Hullock, B., anfl Littledale, J. the deceased wished him to attend her in 
 
 (i) 3 C. & P. 635. her last conflnement. See 4 C. & P. 407 
 
 {j) In addition to the facts above stated, (n). 
 
 it was proved that the prisoner had at- {k) 4 G. & P. 398. 
 tended the deceased in seven previous 
 
 ]
 
 I 
 
 CHAP. I.] Causing Death by Want of Medical Shill. 683 
 
 stated that this proceeded from the inhaling, and that unless those ap- 
 pearances were produced he could expect no beneficial result. Miss C. 
 was suffering much from sickness, and the prisoner said it was of no 
 consequence, but a benefit ; and that those symptoms, combined with 
 the wound, were proof that his system was taking due effect. Miss C. 
 having got worse, the prisoner said that in two or three days she would be 
 better in health than she had ever been in her life. At this interview 
 the wound, which had extended, was shewn to the prisoner. He also 
 stated on that day, and on Monday, the 16th, that Miss C, was doing 
 uncommonly well. On Tuesday, the 17th, she died. An eminent 
 surgeon proved that on the Monday her back was extensively inflamed, 
 and in the centre was a spot, as large as the palm of the hand, black, 
 and dead, and in a mortified state, and he thought that some very j)ower- 
 fully stimulating liniment had been applied to her back ; that applying 
 a lotion of a strength capable of causing the appearances he saw, to a 
 person of the age and constitution of the deceased, if in perfect health, 
 was likely to damage the constitution and produce disease and danger. 
 The appearances on the back were quite sufficient to account for her 
 death. On the most careful examination of the body, after death, no 
 latent disease or seeds of disease were discovered. It was submitted, 
 for the defence, that, in point of law, this was nothing like a case of 
 manslaughter, and 1 Hale, P. C. 429, 4 Bl. Com. b. 4, c. 14, and R. v. Van 
 Butchell (/), were cited and rehed on. Park, J., said, ' I am in this diffi- 
 culty ; I have an opinion, and my learned brother differs from me ; 
 I must, therefore, let the case go to the jury.' Garrow, B., said, ' In R. 
 V. Van Butchell the learned judge had very good ground to stop the case, 
 as there was no evidence as to what had been done. I make no dis- 
 tinction between the case of a person who consults the most eminent 
 physician, and the cases of those whose necessities or whose folly may 
 carry them into any other quarter. It matters not whether the individual 
 consulted be the president of the College of Physicians, the president 
 of the College of Surgeons, or the humblest bone-setter of the village ; 
 but be it one or the other, he ought to bring into the case ordinary care, 
 skill, and diligence. Why is it that we convict in cases of death by 
 driving carriages ? Because the parties are bound to have skill, care, 
 and caution. I am of opinion that, if a person, who has ever so much 
 or so little skill, sets my leg, and does it as well as he can, and does it 
 badly, he is excused ; but suppose the person comes drunk, and gives 
 me a tumbler full of laudanum, and sends me into the other world, is it 
 not manslaughter ? And why is that ? Because I have a right to have 
 reasonable care and caution.' Park, J., in summing up, said, ' The learned 
 counsel truly stated in the outset that whether the party be licensed 
 or unlicensed is of no consequence, except in this respect, that he may be 
 subject to pecuniary penalties for acting contrary to charters or Acts of 
 Parliament ; but it cannot affect him here.' (After citing 1 Hale, 429, 
 as an authority in point, the learned judge proceeded), ' I >gree with my 
 learned brother that what is called mala praxis in a medical person is a 
 misdemeanor ; but that depends upon whether the practice he has used 
 
 (I) Supra, pp. fiSl, 682.
 
 684 Of Homicide. [book ix. 
 
 is so bad that everybody will see that it is mala praxis. The case at 
 Lancaster (w) differs from this case. I have communicated with Tindal, 
 C.J., who tried that case, and he informed me that the man was a black- 
 smith, and was drunk, and so completely ignorant of the proper steps, 
 that he totally neglected what was absolutely necessary after the birth 
 of the child. That certainly was one of the most outrageous cases that 
 ever came into a court of justice. I would rather use the words of Lord 
 Ellenborough in E.. V. Williamson ' (w). (His lordship read them.) 'And 
 this is important here, for though he be not licensed, yet experience may 
 teach a man sufficient ; and the question for you will be, whether 
 the experience this individual acquired does not negative the supposition 
 of any gross ignorance or criminal inattention V (After setting the 
 authority of Hale, P. C. 429, against the dictum of Lord Coke, 
 4 Inst, 251, and citing the observations of Hullock, B., in R. v. Van 
 Butchell (o) with approbation, his lordship proceeded), 'With respect to 
 the application of the mixture, if he commanded the servant to use it, 
 it is the same as if he used it himself. Perhaps from the evidence you 
 will think that the act caused the death ; but still the question recurs as 
 to whether it was done either from gross ignorance or criminal inattention. 
 No one doubts Mr. B.'s skill, but that is not quite the question ; it is not 
 whether the act done is the thing that a person of Mr. B.'s great skill 
 would do, but whether it shews such total and gross ignorance in the person 
 who did it, as must necessarily produce such a result. On the one hand, 
 we must be careful and most anxious to prevent people from tampering 
 in physic, so as to trifle with the life of man ; and, on the other, we must 
 take care not to charge criminally a person who is of general skill, 
 because he has been unfortunate in a particular case.' ' If you think 
 there was gross ignorance or scandalous inattention in the conduct of the 
 prisoner, then you will find him guilty ; if you do not think so, then 
 your verdict will be otherwise ' {p). 
 
 Upon a similar indictment against the same person {q) for causing 
 the death of Mrs. L., it appeared that she put herself under his care on 
 October 6, at which time she was in very good health, to be cured of a 
 complaint she had in her throat. On the 3rd she had applied a small 
 blister to her throat, but the wound occasioned by it was nearly well on 
 the 6th. On the 7th, 8th, 9th, and 10th she went to the prisoner's, and 
 on the evening of the 10th complained to her husband of a violent burning 
 across her chest, in consequence of which he looked at it, and found a 
 great redness across her bosom, darker in the centre than at the other 
 parts ; she also complained of great chilliness, and shivered with cold, and 
 passed a very restless and uncomfortable night. On the 11th she was 
 very unwell all the day, the redness was more vivid, and the spot in the 
 centre darker, round the edges white and puffed up, and there was a dirty 
 white discharge from the centre. Cabbage leaves had been applied. 
 On the 12th the redness on the breast and chest was, if anything, greater. 
 
 (m) Probably R.??. Ferguson,! Lew. 181. of the prisoner, and were satisfied with his 
 
 (m) Sufyra, p. 682. skill and diligence. Verdict guilty, 
 (o) Supra, pp. G81, 682. (q) R. v. St. John Long (No. 2), 4 C. & 
 
 (p) For the defence twenty-nine wit- P. 423, Bayley and Bolland, BB., and 
 
 n esses were called, who had been patients Bosanquet, J.
 
 CHAP. I.] Causing Death by Want of Medical Skill. 685 
 
 In consequence of the symptoms, the husband went to the prisoner, who 
 asked why Mrs. L. had not come to inhale and go on with the rubbing ; 
 the husband replied it was impossible, she was so ill ; she had been con- 
 stantly unwell since the night of the 10th, and was suffering a great deal of 
 pain and sickness. The prisoner said it would soon go off, it was generally 
 the case. He was told of the shivering and chilliness, and that some hot 
 wine and water had been given to relieve her ; he said hot brandy and 
 water would have been better, and to put her head under the bed-clothes. 
 He was told that her chest and breast looked very red and very bad ; he 
 said that was generally the case in the first instance, but it would go off 
 as she got better, and that the husband need not be uneasy about it, as 
 there was no fear or danger. In the course of the day the cabbage leaves 
 had been removed, and a dressing of spermaceti ointment put on the 
 chest instead. In the evening the prisoner came and saw Mrs. L. and 
 looked at her breast, and observing the dressing said those greasy plasters 
 had no business there, and she ought to have continued the cabbage leaves. 
 He then asked for a towel, and began dabbing it on the breast, particu- 
 larly in the centre, where the discharge came from. He said that old 
 linen was the best thing to heal a wound of that kind. But she might use 
 the dressing if she liked it, he saw no objection, and when it skinned over 
 he would rub it again. He never saw her afterwards ; she died on the 
 8th of November. A surgeon proved that on October 12 he found a very 
 extensive wound covering the whole anterior part of the chest, which, in 
 his opinion, might be produced by any strong acid : the skin was des- 
 troyed ; the centre of the wound was darker, and in a higher state of 
 inflammation than the other parts ; he considered the wound very 
 dangerous to life when he first saw it : the centre spot, and the upper joart 
 became gangrenous in about a week ; and in his opinion Mrs. L. died of 
 the wound, and according to his judgment it was not necessary or proper 
 to produce such a wound to prevent any difficulty in swallowing, and he 
 did not know of any disease in which the production of such a wound 
 would be necessary or proper. The body was internally and externally in 
 perfect health, except a little narrowness at the entrance of the oesophagus. 
 Another surgeon stated that he thought that a man of common 
 prudence or skill would not have applied a liquid which in two days would 
 produce such extensive inflammation, though all irritating external 
 applications sometimes exceeded the expectations of the medical attend- 
 ant ; but he should say that such conduct was a proof of rashness and 
 of ignorance. It was submitted that this was not manslaughter, but 
 homicide per infortunium ; that where the mind is pure, and the intention 
 benevolent, and there are no personal motives, such as a desire of gain, 
 if an operation be performed which fails, the party is not responsible ; 
 and that the indictment, which in substance charged that the death was 
 occasioned by the external application, was not supported. There was 
 no count imputing ignorance or want of skill, or hastiness, or roughness 
 of practice. Bayley, B., ' I agree with Lord Hale (r), and do not think 
 that there is any difference between a licensed and unlicensed surgeon. 
 It does not follow that in the case of either, an act done may not amount 
 
 (»■) 1 Hale, 429.
 
 686 Of Homicide. [book ix. 
 
 to manslaughter. There may be cases in which a regular medical man 
 may be guilty ; and that is all that Lord Hale lays down. And that may 
 be laid out of the question in this case. But the manner in which the 
 act is done, and the use of due caution, seem to me to be material. Foster, 
 J., p. 263, speaking of a person who happens to kill another by driving 
 a cart or other carriage, says, " If he might have seen the danger, and did 
 not look before him, it will be manslaughter for ivant of due circumspec- 
 tion." And there is also a passage in Bracton to the like effect. But 
 all that I mean to say now is, that there being conflicting authorities, 
 and the impression on our minds not being in your favour, I propose to 
 reserve the point. As to the indictment not being supported by the 
 evidence, one of the allegations is that the prisoner feloniously applied 
 a noxious and injurious matter. And there is no doubt, if the jury 
 should be of opinion against the prisoner, that the facts proved will be 
 sufficient to warrant their finding that the prisoner feloniously did the 
 act ; for if a man, either with gross ignorance or gross rashness, administers 
 medicine and death ensues, it will be clearly felony.' It was then ob- 
 jected that in this case, as in larceny, there must be a trespass proved. 
 It was not proved that any fraud had been practised by the prisoner to 
 get the patient under his care ; nor had there been any avaricious seeking 
 after fees : if there had been it might have been evidence to shew the 
 existence of trespass. In R. v. Van Butchell {s), the case was stopped 
 because there was no evidence of how the operation was performed, and 
 here there was not any evidence to shew the mode in which the applica- 
 tion was made. Bayley, B., ' In this case we may judge of the thing by 
 the effect produced, and that may be evidence from which the jury may 
 say whether the thing which produced such an effect was not improperly 
 applied.' BoUand, B., ' When you pass the line which the law allows, 
 then you become a trespasser.' Bayley, B., 'If I had a clear opinion 
 in your favour, or if my brothers had, or if we had any reason to think 
 that other judges were of a different opinion, it would become our duty to 
 give our opinion here, and prevent the case from going to the jury : but 
 feeling as I do, notwithstanding all I have heard to-day, and myself and 
 my brothers having had our attention directed to the law before we came 
 here, I think it right that the case should go to the jury; I think that if 
 the jury shall find a given fact in the way in which I shall submit it to them, 
 it will constitute the crime of feloniously administering, so as to make it 
 manslaughter. I do not charge it on ignorance merely, but there may 
 have been rashness ; and I consider that rashness will be sufficient to 
 make it manslaughter. As for instance, if I have a toothache, and a 
 person undertakes to cure it by administering laudanimi, and says, " I 
 have no notion how much will be sufficient," but gives me a cup full, 
 which immediately kills me ; or if a person prescribing James's powder 
 says, " I have no notion how much should be taken," and yet gives me 
 a tablespoonful, which has the same effect ; such person acting with 
 rashness will, in my opinion, be guilty of manslaughter. With respect to 
 what has been said about a willing mind in the patient, it must be re- 
 membered that a prosecution is for the public benefit, and the willingness 
 
 (s) Supra, pp. G81, G82. 
 
 f
 
 CHAP. I.] Causing Death hy Want of Medical Skill. 687 
 
 of the patient cannot take away the offence against the public' In 
 summing up, Bayley, B., said, ' The points for your consideration are, 
 first : whether Mrs. L. came to her death by the application of the liquid ; 
 secondly, whether the prisoner, in applying it, has acted feloniously or 
 not. To my mind it matters not whether a man has received a medical 
 education or not ; the thing to look at is, whether, in reference to the 
 remedy he has used, and the conduct he has displayed, he has acted with 
 a due degree of caution, or, on the contrary, has acted with gross and 
 improper rashness and want of caution. I have no hesitation in saying 
 for your guidance, that if a man be guilty of gross negligence in attending 
 to his patient after he has applied a remedy, or of gross rashness in the 
 application of it, and death ensues in consequence, he will be liable to 
 conviction for manslaughter.' ' If you shall be of opinion that the 
 prisoner made the application with a gross and culpable degree of rash- 
 ness, and that it was the cause of Mrs. L.'s death, then, heavy as the 
 charge against him is, he will be answerable on this indictment for the 
 offence of manslaughter. There was a considerable interval between 
 the application of the liquid and the death of the patient ; yet if you 
 think that the infliction of the wound on the 10th of October was the 
 cause of the death, then it is no answer to say that a different course of 
 treatment by Mr. C. might have prevented it. You will consider these 
 two points : first, of what did Mrs. L. die ? You must be satisfied that 
 she died of the wound, which was the result of the application made on 
 the 10th of October ; and then, secondly, if you are satisfied of this, 
 whether the appHcation was a felonious application ; this will depend 
 upon whether you think it was gross and culpable rashness in the prisoner 
 to apply a remedy which might produce such effects in such a manner 
 that it did actually produce them. If you think so then he will be 
 answerable to the full extent ' (t). 
 
 Any person, whether he is a properly qualified medical practitioner 
 or not, who professes to deal with the hfe or health of others, is bound 
 to have competent skill to perform the task that he holds himself out 
 to perform, and bound to treat his patients with care, attention, 
 and assiduity, and if a patient dies for want thereof, is guilty of 
 manslaughter (u). 
 
 Where a herb doctor was charged with causing death by improperly 
 
 (t) The prisoner was acquitted. There cisc of it a reasonable degree of care and 
 
 was no negligence or inattention in the skill. He does not undertake, if he is an 
 
 prisoner after the applications, as he did attorney, that at all events j'ou shall gain 
 
 not know where Mrs. L. was until October your cause ; nor does a surgeon undertake 
 
 12, and after that time she was attended that he will perform a cure, nor does he 
 
 by Mr. C. See R. v. Macleod, 12 Cox, 534, undertake to use the highest possible dc- 
 
 where the prisoner administered morphia gree of skill ; there may be persons who 
 
 without weighing it, ; and R. v. Zfsifert, have higher education and greater advan- 
 
 148 C. C. C. Sess. Pap. 630, where a prisoner tages than he has ; but he undertakes to 
 
 administered cocaine to a woman who, un- bring a fair, reasonable, and competent 
 
 known to him, was suffering from a weak degree of skill. Sec R. v. Ferguson, 1 Lew. 
 
 heart. 181. R. v. Spilling, 2 M. & Rob. 107. R. 
 
 (u) R. t'. Spiller, 5 C. & P. 333, Bolland, v. Noakes, 4 F. & F. 920, where a chemist 
 
 B., and Bosanquet, J. In Lanphier v. made a mistake, and, under the circum- 
 
 Phipos, 8 C. & P. 475, Tindal, C.J., said, stances, it was held not to be negligence. 
 
 ' Every person who enters into a learned Vide I Beven, Negligence (3rd cd.), 7, 1150. 
 profession undertakes to bring to the exer-
 
 688 Of Homicide. [book ix. 
 
 administering medicines, Pollock, C.B., told the jury that ' it is no crime 
 for any one to administer medicine, but it is a crime to administer it 
 so rashly and carelessly as to produce death ; and in this respect there is 
 no difference between the most regular practitioner and the greatest 
 quack ' {v). An unskilled practitioner is guilty of negligence if he 
 prescribes dangerous medicines of the use of which he is ignorant {w). 
 
 Where the deceased had once been operated upon for cancer, and the 
 disease again appeared in his face, and the prisoner, a blacksmith, told 
 him he could cure him, and the deceased consented to place himself in 
 his hands, and he put some kind of oil on his face, and then applied 
 some kind of powder which caused the greatest agony, and death ensued 
 in nine days. After the prisoner had been employed there was a line of 
 demarcation around the tumour, and all the tissues were destroyed, 
 as if some powerful caustic had been applied, and the general symptoms 
 shewed poisoning by some irritant poison. On a post-mortem examination 
 marks were found of extensive inflammation in the bowels and numerous 
 ulcerations, which were the effects of mercury applied to the tumour ; 
 and the deceased died from the effects of corrosive sublimate, which was 
 sometimes applied to wounds, but not to cancer. The deceased must 
 have died of the cancer, but his death was accelerated by the application 
 of the sublimate. Watson, B., directed the jury to find the prisoner 
 guilty if they considered he took upon himself the responsibility of 
 attending to a patient suffering under cancer, when he was not qualified 
 for the purpose. If he used dangerous applications, he was bound to bring 
 skill in their use ; and he thought that the prisoner's education and 
 employment made the use of these dangerous substances almost amount 
 to want of skill. The jury must, however, say whether what the prisoner 
 did produced or accelerated the death ; or (and) whether the prisoner 
 in their opinion had acted with neglect in using such remedies [x). 
 
 A prisoner, formerly a butcher, who had practised as a surgeon for 
 many years without any legal qualification, was indicted for the man- 
 slaughter of a man on whom he had performed an operation for a disease 
 in the bone. The only question was whether the practice of the prisoner 
 in the particular case amounted to gross and culpable negligence. Several 
 medical men having proved that the treatment pursued by the prisoner 
 exhibited the grossest and most culpable ignorance, it was proposed for 
 the defence to call witnesses to prove that the prisoner had treated them 
 for similar complaints successfully, and R, v. Williamson {y) was relied 
 upon. Maule, J., refused to allow the witnesses to be examined, saying, 
 * In E.. V. Williamson the witnesses were asked generally causa scientOB. 
 Neither on the one hand nor the other can other cases be gone into. The 
 
 (v\ R. V. Crick, 1 F. & F. 519. See R. v. manslaughter.' 
 Webb, 1 M. & Rob. 40.5 : 2 Lew. 196, where {w) R. v. Markuss, 4 F. & F. 356. R. v. 
 Lyndhurst, C.B., said, ' I agree that in Chamberlain, 10 Cox, 486. R. v. Bull, 
 these cases there is no difference between a 2 F. & F. 201, where Cockburn, C. J., said, 
 licensed physician or surgeon, and a person 'If a person takes upon himself to admin- 
 acting as physician or surgeon without a ister a dangerous medicine, it is his duty 
 licence. In either case, if a party, having to administer it with proper care, and if 
 a competent degree of skill and knowledge, he does it with negligence, he is guilty of 
 makes an accidental mistake in his treat- manslaughter.' 
 ment of a patient, through which mistake {x) R. v. Crook, 1 F. & F. 521. 
 death ensues, he is not thereby guilty of (y) Supra, p. 682.
 
 CHAP. 1. 1 Causing Death hy Infection, Rape, <&c. 
 
 689 
 
 attention of the jury must be confined to the present case.' And in 
 summing up the learned judge said, ' If a medical or any other man caused 
 the death of another intentionally, that would be murder ; but where a 
 person not intending to kill a man, by his gross negligence, unskilfulness, 
 and ignorance caused the death of another, then he would be guilty of 
 culpable homicide ; and the question for the jury is, whether the deceased 
 died from the effects of the operation performed on him by the prisoner, 
 and whether the treatment pursued by the prisoner in the case of the 
 deceased was marked by negligence, unskilfulness, and ignorance ' {z). 
 
 In R. V. Noakes {a), a mistake on the part of a chemist in putting a 
 poisonous liniment into a medicine bottle, instead of a liniment bottle, 
 in consequence of which the liniment was taken by the customer internally 
 with fatal results, was held not to amount to such criminal negligence as 
 to warrant a conviction for manslaughter, the mistake having been made 
 under circumstances which rather threw the prisoner off his guard. 
 
 On an indictment for manslaughter against a medical man by 
 administering poison in mistake for another drug the prosecution must 
 shew that the poison got into the mixture in consequence of his gross and 
 culpable negligence, and it is not sufficient to shew merely that the 
 prisoner, who dispensed his own drugs, supplied a mixture which 
 contained a large quantity of poison (6). 
 
 By Infection. — The question is raised by Hale, whether, if the person 
 infected with the plague should go abroad with the intention of infecting 
 another, and another should thereby be infected and die, this would not 
 be murder ; but it is admitted that, if no such intention should evidently 
 appear, it would not be felony, though a great misdemeanor (c). 
 
 Persons who go about in public when suffering from infectious disease 
 may be indicted at common law {d), or summarily punished under the 
 Public Health Acts (e). 
 
 By Rape. — In R. v. Ladd ( /'), the question was raised but not 
 decided, whether an indictment for murder could be maintained for 
 killing a female infant by ravisJiing her ; but there is no doubt that it 
 may. The prisoner was indicted for the murder of a child under ten, 
 and it appeared that he had had connection with her and given her the 
 venereal disease ; and Wightman, J., told the jury that if they were 
 of opinion that the prisoner had had connection with her, and she died 
 from its effects, then the act being, under the circumstances of the case, 
 a felony in point of law, this would of itself be such malice as would 
 justify them in finding him guilty of murder (g). 
 
 (2) R. V. Wliitehead, 3 C. & K. 202. 
 
 (a) 4 F. & F. 920. 
 
 (b) R. V. Spencer, 10 Cox, 525. 
 
 (c) 1 Hale, 432. See R. v. Greenwood, 
 iri/ra. 
 
 (d) R. V. Vantandillo, 4 M. & Sel. 73; 
 16 R. R. 389. 
 
 (e) See Bk. xi. c. iii. post,Vo\.u. p. 1843. 
 _ (/) 1 Leach, 9G : 1 East, P. C. 22G. The 
 judges to whom the case was referred gave 
 no opinion upon the point, as the indict- 
 ment was defective. 
 
 {g) R. V. Greenwood, 7 Cox, 404. The 
 VOL. I. 
 
 report proceeds, ' Tlin jiay retired, and, 
 after sonic time, returned into Court, say- 
 ing that they were satisfied tliat he liad had 
 eoimection, and that her dcatii residted 
 therefrom, but were not agreed as to find- 
 ing him guilty of murder. \\'ightma!i, J., 
 told them that, under these circumstances, 
 it was o]icn to them to find the prisoner 
 guilty of manslaughter, and that they 
 might ignore the doctrine of constructive 
 malice if they thought fit. The jury found 
 a verdict of manslaughter.' Sed qucere. 
 C. S. G. 
 
 2 Y
 
 690 Of Homicide. [bookix. 
 
 Sect. V. — Time op Death — Treatment of Wounds — Killing Person 
 Labouring under Disease. 
 
 Time of Death. — No person can be convicted of the murder or 
 manslaughter of another, who does not die within a year and a day after 
 the stroke received, or cause of death administered, in the computation 
 of which the whole day upon which the hurt was done is to be reckoned 
 the first (k). 
 
 Treatment of Wounds. — Questions occasionally arise as to the 
 treatment of the wound or hurt received by the party killed. On an 
 indictment for murder it appeared that the deceased had been waylaid 
 and assaulted by the prisoner and severely cut across one of his fingers by 
 an iron instrument, and the surgeon urged him to submit to amputation, 
 but he refused, though he was told that his life would be in great hazard ; 
 and it was dressed day by day for a fortnight ; when lockjaw came on, 
 induced by the wound in the finger, and the finger was then amputated, 
 but too late ; and the lockjaw ultimately caused death. The surgeon 
 thought it most probable that the life would have been saved if the finger 
 had been amputated in the first instance ; and it was contended that it 
 was the obstinate refusal to submit to amputation that was the cause of 
 the death. Maule, J., told the jury that if the prisoner wilfully, and 
 without any justifiable cause, inflicted the wound, which was ultimately 
 the cause of the death, he was guilty of murder ; that it made no difference 
 whether the wound was in its own nature instantly mortal, or whether 
 it became the cause of death by reason of the deceased not having adopted 
 the best mode of treatment ; the real question was whether in the end 
 the wound was the cause of death [i). This ruling accords with the 
 judgment and dictum given in the earlier authorities {j). 
 
 On an indictment against a principal in the second degree for murder 
 by shooting in a duel, after the examination of the first medical witness, 
 who stated his opinion that the operation (of which no account is given 
 in the report) was the only chance of saving the life of the deceased ; 
 counsel for the prisoner were proceeding to cross-examine him as to the 
 nature and seat of the wound, to shew that the opinions he had expressed 
 of its danger and the necessity of the operation were not correct. Erie, 
 J., said : ' I presume you propose to call counter-evidence and impeach 
 the propriety of the operation ; but I am clearly of opinion that if a 
 dangerous wound is given, and the best advice is taken, and an operation 
 performed under that advice, which is the immediate cause of death, the 
 party giving the wound is criminally responsible.' It was proposed to 
 shew that the opinion formed by the medical men was grounded upon 
 erroneous premises, and that no operation was necessary at all, or at least 
 that an easier and much less dangerous operation ought to have been 
 adopted ; and it was submitted that a person is not criminally responsible 
 where the death is caused by consequences which are not physically 
 
 [h) R. V. Dyson [1908], 2 K. B. 454, ac- R. v. Wall, 28 St. Tr. 51, 145, MacDonald, 
 
 cepting the law as laid down in 1 Hawk. C.B. Stephen Dig. Cr. L. (6th ed.) art. 241. 
 
 c. 31, S.9; 4Bl.Com. 197: and 1 East, P. C. {j) 1 Hale, 428. Rew's case, Kel. (J), 
 
 343, 344. 26. See Stephen Dig. Cr. L. (6th ed.) art. 
 
 (0 R. V. Holland, 2 M. & Rob. 351. See 241, and R. v. Ryan, 16 W. R. 319.
 
 CHAP, i.] Treatment of Wounds, &c. 691 
 
 the consequences of the wound, but can only be connected with the 
 first wound by moral reasonings ; as here that which occasioned death 
 was the operation, which supervened upon the wound, because the 
 medical men thought it necessary. Erie, J., said, ' I am clearly of 
 opinion, and so is my brother Rolfe, that where a wound is given, 
 which, in the judgment of competent medical advisers, is dangerous, 
 and the treatment which they bona fide adopt is the immediate cause of 
 death, the party who inflicted the wound is criminally responsible, and 
 of course those who aided and abetted him in it. I so rule on the present 
 occasion ; but it may be taken, for the purpose of future consideration, 
 that it having been proven that there was a gunshot wound, and a 
 pulsating tumour arising therefrom, which, in the bona fide opinion of 
 competent medical men, was dangerous to life, and that they considered 
 a certain operation necessary, which was skilfully performed; and was 
 the immediate and proximate cause of death ; the counsel for the prisoner 
 tendered evidence to shew this opinion was wrong, and that the wound 
 would not have inevitably caused death, and that by other treatment 
 the operation might have been avoided, and was therefore unnecessary. 
 I will reserve this point for the consideration of the judges, although I 
 have no doubt upon the subject. To admit this evidence would be to 
 raise a collateral issue in every case as to the degree of skill which the 
 medical men possessed ' (k). 
 
 Where the deceased had been severely kicked on the stomach, and 
 brandy had been given her by a surgeon to restore her, and part of it had 
 gone the wrong way into the lungs, and might, perhaps, have caused the 
 death, the prisoner was convicted of manslaughter, and Coleridge, J., 
 said the case was like that where a dangerous wound was given, and an 
 operation was performed [l). 
 
 The prisoner had a fight with the deceased and struck bim on the jaw, 
 breaking it in two places, which rendered an operation necessary. 
 Chloroform was administered, and the ^^^-tie'it died under its 
 administration. It was not disputed that if the chloroform had not been 
 administered the man would not have died. Mathew, J., after consulting 
 Field, J., held that since the chloroform had been properly administered 
 by a regular medical practitioner, the fact that the death primarily 
 resulted from its use could not affect the criminal responsibility of the 
 accused, and told the jury that if an injury was inflicted by one man on 
 another which compelled the injured man to take medical advice, and 
 if death ensued from or in the course of an operation advised by the 
 medical man, the assailant was responsible in the eye of the law. The jury 
 must be satisfied that the prisoner injured the deceased ; that he rightly 
 consulted a competent medical man ; that an operation was recommended 
 for which the administration of chloroform was necessary ; and that the 
 deceased died from that administration {)>i). 
 
 Death from Disease supervening upon Blows. — It would seem that 
 where a fatal disease is set up by a felonious act, the person who did the 
 act may be guilty of homicide. In Brintons, Ltd., v. Turvey {n), Lord 
 
 {k) R. V. Pym, 1 Cox. 339. (m) R. v. Davis, 15 Co.x, 174. 
 
 (/) R. V. Mclntyro, 2 Cox, 379. (n) [1905] A. C. 230, 235. 
 
 2 Y 2
 
 692 Of Homicide. [book ix. 
 
 Halsbury said, ' An injmy to the head has been known to set up septic 
 pneumonia, and many years ago, I remember when that incident had 
 in fact occurred, it was sought to excuse the person who inflicted the 
 blow on the head, from the consequences of his crime, because his victim 
 had died of pneumonia and not as it was contended of the blow on the 
 head. It does not appear to me that by calling the consequences of an 
 accidental injury a disease, one alters the nature of the consequential 
 results of the injury that has been inflicted ' (o). 
 
 Killing a Person labouring under Disease. — If a man is sick of 
 some disease, which, by the course of nature, might possibly end his life 
 in half a year, and another gives him a wound or hurt which hastens his 
 death, by irritating and provoking the disease to operate more violently 
 and speedily, this is murder or other homicide, according to the circum- 
 stances, in the party by whom such hurt or wound was given. For the 
 person wounded does not die simply ex visitatione Dei, but his death is 
 hastened by the hurt which he received ; and the offender is not allowed 
 to apportion his own wrong (/)). 
 
 Where a husband was indicted for the manslaughter of his wife 
 by accelerating her death by blows, and it appeared that she was at the 
 time in so bad a state of health that she could not possibly have lived more 
 than a month or six weeks under any circumstances : Coleridge, J., 
 told the jury that if a person inflicted an injury upon a person labouring 
 under a mortal disease, which caused that person to die sooner than he 
 otherwise would have done, he was liable to be found guilty of man- 
 slaughter, and the question for them was whether the death of the 
 wife was caused by the disease under which she was labouring, or 
 whether it was hastened by the ill usage of the prisoner {q). 
 
 Sect. VI. — Provocation. 
 
 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 furor 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 instant the fact which he would 
 extenuate is committed (r). All the circumstances of the case must lead 
 
 (o) Cf. R. t\ Dyson [1908], 2 K.B. 454 partly by a blow, and partly by a predis' 
 
 C. C. R., an indictment for manslaughter, posing circumstance, it was impossible so 
 
 where it was proved that the deceased (a to apportion the operations of the several 
 
 child) died of meningitis supervening on causes as to be able to say with certaifity 
 
 cruel treatment. that the death was immediately occasioned 
 
 (p) Hale (1 P. C. 428) says that thus he by any one of them in particular.' This 
 
 had heard that learned and wise judge, ruling is questioned in Roscoe Cr. Ev. 
 
 Rolle, J., frequently direct. In R. v. John- {13th ed.) 616, and as it would seem wdth 
 
 son, 1 Lew. 164, on an indictment for veiy good reason, as it is contrary to the 
 
 manslaughter in causing a death by a blow other authorities upon this point. C. S. G. 
 
 on the stomach, on a surgeon stating that See R. v. Martin, 5 C. & P. 128, Parke, B., 
 
 a blow on the stomach in this state of and Stephen Dig. Cr. L. (6th ed.) art. 241. 
 
 things, arising from passion and intoxica- (q) R. v. Fletcher, C41oucester Spr. Ass. 
 
 tion, was calculated to occasion death, but 1841. MSS. C. S. G. See R. v. Murton, 
 
 not so if the party was sober, Hullock, B., 3 F. & F. 492. R. v. Webb, 1 M. & Rob. 
 
 is said to have directed an acquittal, say- 405 ; 2 Lew. 196. 
 
 ing, ' that where the death was occasioned (r) Fost. 315. 
 
 I
 
 CHAP. I.] Provocation. 693 
 
 to the conclusion that the act done, though intended or calculated to 
 cause death or great bodily harm, was not the result of cool deliberate 
 judgment and previous malignity of heart, but solely imputable to human 
 infirmity (s). For there are many trivial, and some considerable provo- 
 cations, which are not permitted to extenuate an act of homicide, or 
 rebut the conclusion of malice, to which the other circumstances of the 
 case may lead. 
 
 Words of Provocation. — In K. v. Taylor {t), Lord Mansfield said: ' It 
 is settled that words are not a sufficient provocation, but blows are a 
 sufficient provocation to lessen the crime into manslaughter/ In K. v. 
 Kothwell (w), where the prisoner was indicted for the wilful murder of 
 his wife, Blackburn, J., in summing up, said : ' As a general rule of law, 
 no provocation of words will reduce the crime of murder to that of 
 manslaughter, but under special circumstances there may be such a 
 provocation of words as will have that effect ; for instance, if a husband 
 suddenly hearing from his wife that she had committed adultery, and 
 he, having had no idea of such a thing before, were thereupon to kill 
 her, it might be manslaughter. Now, in this case, words spoken by the 
 deceased just previous to the blows inflicted by the prisoner were these : 
 " Aye ; but I '11 take no more for thee, for I will have no more children 
 of thee. I have done it once, and I'll do it again." Now, what you 
 will have to consider is, would these words, which were spoken just 
 previous to the blows, amount to such a provocation as would in an 
 ordinary man, not in a man of violent or passionate disposition, provoke 
 him in such a way as to justify him in striking her as the prisoner 
 did ? ' {v). 
 
 In R. V. Jones {w), the prisoner was charged with the murder of his 
 wife by cutting her throat with a razor. The prisoner and his wife had 
 been living apart, and the prisoner asked her to come and live with him, 
 but she refused, saying, 'No. If I want 3.9. I can get it off K., and I 
 can sleep with him.' Bucknill, J., after referring to R. v. Roth well, swpra, 
 told the jury that the great majority of the authorities were agreed that 
 words were not a sufficient provocation, but that they could, if they 
 thought fit, find that these words amounted to a provocation. 
 
 The earlier authorities indicate some uncertainty on the question how 
 far, if at all, words are sufiicient provocation, and the question is involved 
 with the further question as to the nature of the weapon used, and the 
 character of the blow given. 
 
 In Lord Morley's case (x), where it was decided that if A. gave slighting 
 words to B., and B. thereupon immediately killed her, such killing would 
 be murder in B., it is also stated to have been held, that words of menace 
 or bodily harm would amount to such a provocation as would reduce the 
 offence of killing to manslaughter. But in another report of the same 
 
 (s) 1 East, P. C. 232. killing from the guilt of murder. Nor are 
 
 (<) 5 Burr. 279.3, 279G. indecent provoking actions or gestures cx- 
 
 (u) 12 Cox, 145. pressive of contempt or reproach, without 
 
 (v) And see 1 East, P. C. 233. In Fos- an assault upon the person.' 
 
 t«r'8 Crown Law, p. 290, it is stated, ' words (iv) [1008] 148 Cent. Crim. Ct. Sess. Pap. 
 
 of reproach, how grievous soever, are not a 673 : 72 J. P. 215. 
 
 provocation, sufficient to free the party (x) 1 Hale, 450. 6 St. Tr. 769.
 
 694 Of Homicide. [book ix. 
 
 case this latter position is not to be found {y) ; and it has been stated 
 that such words ought at least to be accompanied by some act, denoting 
 an immediate intention of following them up by an actual assault (2). 
 
 A woman called a man, who was sitting drinking in an alehouse, ' a son 
 of a wJiore,' 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 manslaughter. 2. Admit- 
 ting 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 shooting 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 a pardon was recommended (a). 
 
 A., passing by the shop of B., distorted his mouth, and smiled at him, 
 and B. killed him : this was held murder ; for it was no such provoca- 
 tion as would abate the presumption of malice in the party killing (b). 
 
 D. was sentenced for a gross libel to be flogged from Newgate to 
 Tyburn, and as he was returning from Tyburn, F., a barrister, asked him, 
 in a jeering way, whether he had run his heat that day ; he replied in 
 scurrilous words ; whereon F. ran him into the eye with a small cane 
 in his hand, and of this wound D. died, and F. was executed for his 
 murder (c) 
 
 If, on a quarrel between husband and wife, the husband strikes his 
 wife thereupon with a pestle, so that she dies presently, it is murder ; 
 and the wife's chiding will not be a provocation to extenuate it to 
 manslaughter (d). 
 
 If A. is passing along the street, and B., meeting him (there being a 
 convenient distance between A. and the wall), takes the wall of him, and 
 thereupon A. kills B., this is a murder ; but if B. had jostled A., his 
 jostling would have been a provocation, reducing the offence to 
 manslaughter (e). 
 
 If a party, being provoked by another making use of contemptuous 
 or insulting actions or gestures, gives the other a box on the ear, or strikes 
 him with a stick or other weapon not likely to kill, and kills him unluckily 
 and against his intention, it will be only manslaughter (/). 
 
 It seems that if A. uses indecent language to B., and B. thereupon 
 strikes A., but not mortally, and then A. strikes B. again, and then B. 
 kills A., the stroke by A. is a new provocation, and the conflict a sudden 
 falling out ; and on those grounds the killing is only manslaughter (g). 
 
 (y) Kcl. (J) 55. considerable violence and insult in the 
 
 (2) 1 East, P. C. 233. jostlino;. 
 
 (a) 1 Hale, 456. (/) Fost. 291. 1 East, P. C. 233. 1 
 
 (b) Brain's case, 1 Hale, 455. Cro. Eliz. Hawk. c. 31, s. 33. 1 Hale, 456. R. v. 
 778. Kel. (J). 131. Woodhead, 1 Lew. 163. These authorities 
 
 (c) R. V. Francis, 3 Mod. 68, in R. v. also include words, but the ratio decidendi 
 Danger field. depends on the weapon used. 
 
 (d) Crompt. f. 120 (a). Kel. (J) 64. 1 (g) 1 Hale, 456, where it is said, that 
 Hale, 457. Because the pestle is an instru- this was held to be manslaughter, accord- 
 ment likely to endanger life. 1 East, P. C. ing to the proverb, ' the second blow makes 
 235. the affray ; ' and Hale says that this was 
 
 (e) 1 Hale, 455. This case supposes the opinion of himself and some others.
 
 CHAP. I.] Provocation. 695 
 
 Provocation by Assault. — Though an assault made with violence 
 or circumstances of indignity upon a man's person, and resented imme- 
 diately by the party acting in the heat of blood upon that provocation, 
 and killing the aggressor, will reduce the crime to manslaughter (A), yet 
 it must by no means be understood that the 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 (t). Violent acts of resentment, 
 bearing no proj)ortion to the provocation or insult, are barbarous, pro- 
 ceeding rather from brutal malignity than human frailty ; and barbarity 
 will often make malice (/). 
 
 Upon an indictment for murder it appeared that upon the evening 
 before the death the prisoner and the deceased had been quarrelling, 
 and that the deceased had used very aggravating language, as well 
 as very indecent and insulting gestures to the prisoner. The deceased 
 was found dead the next morning with a wound in the throat, which 
 had caused her death, and had been inflicted by some sharp instrument, 
 such as a razor. Within a short distance of the deceased there was lying 
 a sweeping-brush in such a position that it might be supposed to have 
 fallen from the hand of the deceased, supposing that a scuffle had taken 
 place before the fatal wound had been inflicted. Pollock, C.B., in 
 summing up, said, ' It is true that no provocation by words only (k) 
 will reduce the crime of murder to that of manslaughter, but it is equally 
 true that every provocation by blows will not have this effect, particularly 
 when, as in this case, the prisoner appears to have resented the blow by 
 using a weapon calculated to cause death. Still, however, if there be a 
 provocation by blows, which would not of itself render the killing man- 
 slaughter, but it be accompanied by such provocation by means of words 
 and gestures as would be calculated to produce a degree of exasperation 
 equal to that which would be produced by a violent blow, I am not pre- 
 pared to say that the law will not regard these circumstances as reducing 
 the crime to that of manslaughter only ' {I). 
 
 There being an affray in the street, S., a soldier, ran hastily towards 
 the combatants. A woman seeing him run in that manner, cried out, 
 ' You will not murder the man, will you ? ' S. replied, ' What is that to do 
 with you, you bitch ? ' The woman thereupon gave him a box on the ear. 
 and S. struck her on the breast with the pommel of his sword. The woman 
 then fled ; and S., pursuing her, stabbed her in the back. Holt, C.J., 
 thought that this was murder, a single box on the ear from a woman not 
 being a sufficient provocation to kill in such a manner, after S. 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, the killing was held to be no more 
 than manslaughter {m), as the smart of the man's wound, and the 
 
 (h) Kel. (.1) 135. 4 Bl. Com. 191. 1 40(5. 
 East, P. C. 233. Lanure's case, 1 Hale, (k) Vide ante, p. 693. 
 
 45fi. (/) R. V. Sherwood, 1 C. & K. 556. R. v. 
 
 (f) See R. V. Lynch, 5 C. & P. 324, per Smith. 4 F. & F. 1066. 
 Lord Tenterden, C.J., 73o«/, p. 708. (w) Stcdman's case, Post. 292. MS. 
 
 (j) Per Lord Holt in Keate's case, Comb. Tracy and Denton, 57. 1 East, P. C. 234.
 
 696 Of Homicide. IBOOk ix. 
 
 effusion of blood, might possibly have kept his indignation boihng to the 
 moment of the fact (n). 
 
 Upon an indictment for murder by strangling, it appeared that the 
 prisoner had said, ' We quarrelled about some money I had won from him ; 
 he wanted it back, and I would not give it to him ; he struck me, and I 
 knocked him down ; he got up, and I knocked him down again, and 
 kicked him, and then I put a rope round his neck, and dragged him into 
 the ditch/ Patteson, J., said to the jury, ' If you even believe the pris- 
 oner's statement, that will not prevent the crime from being murder, 
 and reduce it to manslaughter. If two persons fight, and one of them 
 overpowers the other, and knocks him down, and then puts a rope round 
 his neck, and strangles him, that is murder. The act is so wilful and 
 deliberate that nothing can justify it ' (o). 
 
 Where a sergeant in the army laid hold of a fifer, and insisted upon 
 carrying him to prison : the fifer resisted, and whilst the sergeant had 
 hold of him to force him, he drew the sergeant's sword, plunged it into his 
 body, and killed him. The sergeant had no right to make the arrest, 
 except under the articles of war ; and the articles of war were not given 
 in evidence. BuUer, J., considered it in two lights : first, if the sergeant 
 had authority ; and, secondly, if he had not, on the account of the cool- 
 ness, deliberation, and reflection with which the stab was given. The 
 jury found the prisoner guilty {p). 
 
 A drummer and a private soldier were pressed by one M. to enlist him, 
 and gave him a shilling for that purpose ; but they had no authority to 
 enhst anybody. M. wanted afterwards to go away ; but they would not 
 let him, and a crowd collected. The dnmimer drew his sword, stood in 
 the doorway of the room where they were, and swore he would stab any 
 one who offered to go away. The landlord, however, got by him ; and 
 the landlord's son seized his arm in which the sword was, and was wresting 
 the sword from him, when the private, who had been struggling with 
 M., came behind the son, and stabbed him in the back. He was indicted 
 for stabbing with intent to murder, &c., and it was urged for the prisoner, 
 that the soldiers had a right to enlist M., and to detain him ; and that if 
 death had ensued, the offence would not have been murder ; but, upon 
 the point being saved, the judges were all of a contrary opinion (q). 
 
 Two soldiers came at eleven o'clock at night to a publican's, and 
 demanded beer, which he refused. An hour and a half later, when the 
 door was opened, one of them rushed in, the other remaining without, 
 and renewed his demand for beer ; to which the landlord returned the 
 same answer ; and on his refusing to depart, and insisting on having 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 
 
 (n) Fost. 292. See R. v. Tranter, 16 St. and for want of proof of this, held the con- 
 
 Tr. 1 ; 1 Str. 499. viction WTong. See Holt's case, 2 Leach, 
 
 (o) R. V. Shaw, 6 C. & P. 372, Patteson, 593. See Buckner's case, Sty. 467 ; 82 
 
 J. E. R. 867. The articles of war are now 
 
 (p) R. V. Withers [1784], MS. Bayley, judicially noticed, 44 & 45 Vict. c. 58, 
 
 J., and 1 East, P. C. 233. The judges, on ss. 69, 70. 
 
 being consulted, were unanimous that the {q) R. v. Longden, R. & R. 228, MS, 
 
 articles of war should have been produced, Bayley, J,
 
 CHAP. I.] Provocation. 697 
 
 on the head with some sharp instrument from the other soldier, who had 
 remained without, which occasioned his death a few days afterwards. 
 Buller, J., held this to be murder in both, notwithstanding the previous 
 struggle between the landlord and one of them. For the landlord did no 
 more in attempting to put the soldier out of his house at that time of the 
 night, and after the warning he had given him, than he lawfully might ; 
 which was no provocation for the cruel revenge taken ; more especially 
 as there was reasonable evidence of the prisoners having come the second 
 time with a dehberate intention to use personal violence, in case their 
 demand for beer was not complied with {r). 
 
 In cases of provocation, not amounting to assault, the material 
 question is, whether malice must be inferred from the sort of punishment 
 inflicted, from the nature of the instrument used, and from the manner 
 of the chastisement (s) ; for if, on any sudden provocation of a sligha 
 nature, one person beats another 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 {t). 
 
 One F., a soldier, was in a public-house, and asked a girl to drink with 
 him : upon which one A. S., with whom he had cohabited, seized his pot, 
 abused him very much, and threw down his beer. F. then caught the 
 pot from her, and struck her twice on the head with it : the blood gushed 
 out, and she was taken to a hospital, where the wound was examined, 
 and did not appear dangerous, being about a quarter of an inch deep : 
 but it produced an erysipelas, which caused an inflammation of the brain, 
 and the woman died. The witness, who saw the blows, did not think the 
 prisoner intended to do the woman any grievous bodily harm. Gibbs, 
 C.B., after telling the jury that if the disease which caused the death 
 originated from the wound, it was the same as if the wound had caused 
 the death ; that the primary cause was to be considered [tt) ; went on to 
 say that the aggravation, though not constituting a provocation which 
 would extenuate the giving a deadly blow, would palliate the giving a 
 moderate blow ; and left it to the jury whether those blows were such as 
 were likely to be followed by death, or by a disease likely to terminate in 
 death. The jury thought that the blows were not of this kind, and the 
 prisoner was found guilty of manslaughter only (w). 
 
 If, 'without adequate provocation, a person strikes another with a 
 deadly weapon, likely to occasion death, although he had no previous 
 malice against the party, yet he is to be presumed to have had such 
 malice at the moment from the circumstances, and he is guilty of 
 murder {v). Where, therefore, a boy, twelve years old, who had been 
 in the habit of going to a cooper's shop and taking away chips, was told 
 one morning by the cooper's apprentice not to come again ; he however 
 went again in the afternoon, and the apprentice spread his arms out to 
 prevent his reaching the spot where he usually gathered the chips, on which 
 the boy started off, and in passing a work bench, took up a whittle (a sharp- 
 er) R. V. Willoughby [1791], MS. and I («) Vide ante, p. 691. 
 East, P. C. 288 ; and seeR. v. Brennan, 4 (u) R. v. Freeman, 0. B. January, 1814, 
 Canatla Cr. Cas. 41. MSS. Bavley, J. 
 
 (5) 1 East, P. C. 235, 238, 239. (v) R.'v. Langstaffe, 1 Lew. 162, Hul- 
 
 (I) 4 Bl. Com. 199. See the pestle cage, lock, B, 
 ante, p. 694.
 
 698 Of Homicide. [book ix. 
 
 pointed steel knife with a long handle) and threw it at the apprentice, 
 and the blade of the whittle entered his body, to the depth of four inches, 
 and caused his death ; the jury having found him guilty upon an indict- 
 ment for manslaughter, Hullock, B., observed, that had he been indicted 
 for murder, the evidence would have sustained the charge {w). So where 
 on an indictment for wounding it appeared that W. and two women met the 
 prisoner at midnight on the highway, and some words passed between them, 
 when W. struck the prisoner, who then made a blow with a knife, it was 
 held that unless the prisoner apprehended robbery or some similar offence, 
 or danger to life or some serious bodily harm, not simply being knocked 
 down, he would not be justified in using the knife in self-defence {x). 
 
 Nature of the Instrument used. — The nature of the instrument 
 used was much considered in Rowley's case {y) : 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 of a mile, and struck the 
 other boy upon the head, upon which he died (2). This was ruled man- 
 slaughter, because done in a sudden heat of passion ; but upon this case 
 Foster, J., makes the following remarks (a) : — ' Surely the provocation 
 was not very grievous. The boy had fought 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 his strength against the 
 child, had despatched him with a hedge 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, Coke is totally 
 silent. But Croke (b) sets the case in a much clearer light, and at the 
 same time leads his readers into the true grounds of the judgment. His 
 words are, " Royley struck the child with a little cudgel, of which stroke 
 he afterwards died." I think it may be fairly collected from Croke's 
 manner of speaking and Godbolt's report (c), that the accident happened 
 by a single stroke with a cudgel not likely to destroy, and that death did not 
 immediately ensue. The stroke was given in heat of blood, and not with 
 any of the circumstances which import malice, and therefore man- 
 slaughter. I observe that Lord Raymond lays great stress on this 
 circumstance : that the stroke ivas with a cudgel, not likely to kill ' (d). 
 
 And where the prisoner had struck a boy, his servant, with one of his 
 clogs, because he had not cleaned them, it was held to be only manslaughter, 
 because the prisoner could not, from the instrument he had used, have had 
 any intention to take the boy's life (e). 
 
 (iv) R. V. Langstaffe, supra. (b) Cro. Jac. 296 ; 79 E. R. 254. 
 
 (.r) R. V. Hewlett, 1 F. & F. 91, Crowder, (c) Godb. 182 ; It is there said to have 
 
 J. been a ' rod,' meaning probably a small 
 
 iy) 12 Co. Rep. 87 ; 77 E. R. 1364. wand or switch. 
 
 (z) In 1 Hale, 453, the words are, 'and (d) 2 Ld. Raym. 1498. Ante,p.6M, note 
 
 strikes C. that he dies.' Foster, J., in (/). See R. i'. Welsh, 11 Cox, 336, and R. v. 
 
 citing the case, says, that the father, after Hazel, 1 Leach, 368 ; 1 East, P. C. 236, 
 
 running three-quarters of a mile, beats the post, p. 700. 
 
 other boy, ' who dieth of this beating.' (e) R. v. Turner, cited in Comb. 407, 408, 
 
 Fost. 294. and 1 Ld. Raym. 143, 144. 2 Ld. Raym. 
 
 (a) Fost. 294. 1498. The clog was small ; and Holt, 
 
 I 
 
 II
 
 CHAP. I.] Provocation. 699 
 
 On an indictment for wounding with a tin can, with which the prisoner 
 had struck the prosecutor four times on the head, Alderson, B,, directed 
 the jury to consider, ' whether the instrument employed was, in its 
 ordinary use, likely to cause death ; or, though an instrument unlikely, 
 under ordinary circumstances, to cause death ; whether it was used in such 
 an extraordinary manner as to make it likely to cause death, either bv 
 continued blows or otherwise ? A tin can, in its ordinary use, was 2iot 
 likely to cause death or grievous bodily harm ; but if the prisoner struck 
 the prosecutor repeated blows on the head with it, you will say, whether 
 he did this merely to hurt the prosecutor, and give him pain, as by giving 
 him a black eye or a bloody nose, or whether he did it to do him some 
 substantial grievous bodily harm. When a deadly weapon, such as a 
 knife, a sword, or gun, is used, the intent of the party is manifest ; but 
 where an instrument like the present is used, you must consider, whether 
 the mode in which it was used satisfactorily shews that the prisoner 
 intended to inflict some serious or grievous bodily harm with it ' (/"). 
 
 Upon an indictment for murder, it appeared that a body of persons 
 were committing a riot, and the constables interfering for the purpose 
 of dispersing the crowd, and apprehending the offenders, the mob 
 offered resistance, and one of the constables was beaten severely. The 
 prisoners all took part in the violence used ; some by beating him with 
 sticks, some by throwing stones, and others by striking him with their 
 fists ; of this aggregate violence, the constable afterwards died. Alderson, 
 B,, said, ' The principles on which this case will turn, are these : — If a 
 person attacks another without justifiable cause, and from the violence 
 used death ensues, the question which arises is, whether it be murder or 
 manslaughter ? If the weapon used were a deadly weapon, it is reason- 
 able to infer that the party intended death ; and if he intended death, 
 and death was the consequence of his act, it is murder. If no weapon 
 was used, then the question usually is, was there excessive violence ? 
 If the evidence as to this be such as that the jury think there was an inten- 
 tion to kill, it is murder ; if not, manslaughter. Thus, if there were 
 merely a blow with a fist, and death ensued, it would not be reasonable 
 to infer that there was an intention to kill ; in that case, therefore, 
 it is manslaughter. But if a strong man attacks a weak one, though no 
 weapon be used, or if, after such injury by beating, the violence is still 
 continued, then the question is whether this excess does not shew a general 
 brutality, and a purpose to kill, and if so, it is murder. Again, if the 
 weapon used be not deadly, e.g. a stick, then the same question as above 
 will arise as to the purpose to kill ; and in any case if the nature of the 
 violence, and the continuance of it be such, as that a rational man would 
 conclude that death must follow from the acts done, then it is reasonable 
 for a jury to infer that the party who did them intended to kill, and to 
 find him guilty of murder. Again, it is a principle of law, that if several 
 persons act together in pursuance of a common intent, every act done in 
 furtherance of such intent by each of them is, in law, done by all. The 
 
 C.J., said, that it was an unlikely thing to endanger life, it seems that the intention of 
 
 kill the boy. See R. r. Wiggs, 1 Leach, 378 the party to kill will be imiilicd from that 
 
 (n), post, p. 768. If, however, the instru- circumstance, 
 
 ment used is so improper as manifestly to {/) R. v, Howlett, 7 C. & P. 274.
 
 700 Of Homicide. [book ix. 
 
 act, however, must be in pursuance of the common intent. Thus, if 
 several were to intend and agree together to frighten a constable, and one 
 were to shoot him through the head, such an act would affect the 
 individual only by whom it was done. Here, therefore, in considering 
 this case, you must determine, whether all these prisoners had the common 
 intent of attacking the constables ; if so, each of them is responsible for 
 all the acts of all the others done for that purpose ; and if all the acts 
 done by each, if done by one man, would together shew such violence, and 
 so long continued, that from them you would infer an intention to kill the 
 constable, it will be murder in them all. If you would not infer such 
 purpose, you ought to find them guilty only of manslaughter ' {g). 
 
 Slight Provocation. — In some instances slight provocations have been 
 considered to extenuate the guilt of homicide, upon the ground that the 
 conduct of the party killing upon such provocations may fairly be attri- 
 buted to an intention to chastise, rather than to a cruel and implacable 
 malice. But it must appear that the punishment was not administered 
 with brutal violence, nor greatly disproportionate to the ofience ; and 
 that the instrument was not such as, from its nature, was likely to 
 endanger life {li). 
 
 If it may be reasonably collected from the weapon made use of, or 
 from any other circumstance, that the party intended to kill, or to do 
 some great bodily harm, such homicide will be murder. Accordingly, 
 where a parker, finding a boy stealing wood in his master's ground, 
 bound him to his horse's tail and beat him, and the horse taking fright, 
 and running away, the boy w^as dragged on the ground till his shoulder 
 was broken, whereof he died : it was ruled murder : for it was not only 
 an illegal, but a deliberate and dangerous act ; the correction was 
 excessive and savoured of cruelty (^). 
 
 Where a person whose pocket had been picked, encouraged by a 
 concourse of people, threw the pickpocket into 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, the 
 offence was ruled to be only manslaughter {j). 
 
 Where A. finding a trespasser upon his land, in the first transport of 
 his passion, beat him and unluckily killed him, and it was held to be man- 
 slaughter {h), it must be understood that he beat the trespasser, not with 
 a mischievous intention, but merely to chastise him, and to deter him 
 from repeating the trespass. For if A. had knocked his brains out with 
 a bill or hedge stake, or had killed him by an outrageous beating with an 
 ordinary cudgel, beyond the bounds of a sudden resentment, it would have 
 been murder (I) . M. having been greatly annoyed by persons trespassing 
 upon his farm, repeatedly gave notice that he would shoot anyone who 
 did so, and at length discharged a pistol at a trespasser, and wounded 
 him in the thigh, which led to erysipelas, and the man died : M. was 
 convicted of murder (m). 
 
 [g) R. V. Macklin, 2 Lew. 225. (j) R. v. Fray, Old Bailey, 1785. 1 
 
 {h) Fost. 291. Hawk. c. 31, s. 38. 1 East, P. C. 236. 
 
 {i) Halloway's case, Cro. Car. 131. {k) \ Hale, 473. 1 East, P. C. 237. 
 
 Palm. 545. 1 Hawk. c. 31, s. 42. W. {I) Fost. 291. 
 
 Jones, 198. Kel. (.J) 127. 1 East, P. C. («i) R. i;. Moir, Roscoe Ci. Ev. (13th ed.) 
 
 237. Fost. 292. 647, Tenterden, C. J. See this case as
 
 CHAP. I.] Provocation. 701 
 
 As trespass against the property of another is not such provocation as 
 will warrant the owner in making use of a deadly or dangerous weapon ; 
 more particularly if such violence is used after the trespass has ceased. 
 But if the beating is with an instrument, or in a manner not likely to kill, 
 it will only amount to manslaughter : and it is lawful to use against a 
 trespasser, who comes without any colour, to take the goods of another, 
 such force as is necessary to make him desist {n). 
 
 A man is not authorised to fire a pistol on every forcible and 
 nocturnal intrusion or invasion of his dwelling-house. In R. v. Meade (o) 
 M., who was indicted for murder, had made himself obnoxious to some 
 boatmen, by giving information of smuggling transactions, in which some 
 of them had been engaged ; and they, in revenge, ducked him, and were 
 in the act of throwing him into the sea, when he was rescued by the police ; 
 the boatmen, however, as he was going away, called to him that they 
 would come at night, and pull his house down. In the middle of the 
 night a great number of persons came about his house, singing songs of 
 menace, and using violent language, indicating that they had come with 
 no friendly or peaceable intention. M., under apprehension, as he alleged, 
 that his life and property were in danger, fired a pistol, by which one of 
 the party was killed. Holroyd, J., said to the jury, ' A civil trespass will 
 not excuse the firing a pistol at a trespasser, in sudden resentment or 
 anger. If a person take forcible possession of another man's close, so 
 as to be guilty of a breach of the peace, it is more than a trespass ; so if 
 a man with force invades and enters into the dwelling of another ; 
 but a man is not authorised to fire a pistol on every intrusion or invasion 
 of his house : he ought, if he has a reasonable opportunity, to endeavour 
 to remove him without having recourse to the last extremity : but the 
 making an attack upon a dwelling, and especially at night, the law regards 
 as equivalent to an assault upon a man's person, for a man's house is his 
 castle : and, therefore, in the eye of the law, it is equivalent to an assault ; 
 but no words or singing are equivalent to an assault, nor will they authorise 
 an assault in return. If you are satisfied that there was nothing but 
 the song, and no appearance of further violence : if you believe that 
 there was no reasonable ground for apprehending further danger, but 
 that the pistol was fired for the purpose of killing, then it is murder. 
 There are cases where a person, in the heat of blood, kills another, that the 
 law does not deem it murder, but lowers the offence to manslaughter ; 
 as, where a party coming up, by way of making an attack, and, without 
 there being any previous apprehension of danger, the party attacked, 
 instead of having recourse to a more reasonable and less violent mode 
 of averting it, having an opportunity so to do, fires on the impulse of the 
 moment. If you are of opinion that the prisoner was really attacked, 
 and that the deceased and his party were on the point of breaking in, or 
 likely to do so, and execute the threats of the day before, he was, perhaps, 
 justified in firing as he did ' {f). 
 
 stated in R. v. Price, 7 C. & P. 178. Moir (n) 1 Hale, 474, 486. 1 East, P. C. 288. 
 
 had gone home to fetch his pistols after he (o) 1 Lew. 184. 
 
 found the deceased trespassing, and the {p) In R. v. Symondson, GO J. P. 645, 
 deceased persisted in trespassing, and on an indictment for manslaughter, Ken- 
 some angry words passed before the pistol nedy, J., told the jury ' With reference to 
 was discharged. the defence that the prisoner was acting in
 
 702 Of Homicide. [book ix. 
 
 A person must only use so much force as is reasonably necessary in 
 order to turn a mere trespasser out of his house. Upon an indictment 
 for manslaughter, it appeared that the prisoner, upon returning home, 
 found the deceased in his house, and desired him to withdraw, but he 
 refused to go : upon this, words arose between them, and the prisoner, 
 becoming excited, proceeded to use force, and, by a kick which he gave 
 to the deceased, caused his death. Alderson, B., said : ' A kick is not 
 a justifiable mode of turning a man out of your house, though he be a 
 trespasser. If a person becomes excited, and gives another a kick, it is 
 an unjustifiable act. If the deceased would not have died but for the 
 injury he received, the prisoner, having unlawfully caused that injury, 
 is guilty of manslaughter ' [q). 
 
 Upon an indictment for manslaughter, it appeared that a man and 
 his servant had insisted upon placing corn in the prisoner's barn, which 
 she refused to allow ; they exerted force : a scuffle took place, in which 
 the prisoner received a blow on the breast, whereon she threw a stone 
 at the deceased, the master, which killed him. Holroyd, J., said : ' The 
 case fails, as it appears the deceased received the blow in an attempt to 
 invade the prisoner's barn against her will. She had a right to defend 
 her barn, and to employ such force as was reasonably necessary for that 
 purpose ; and she is not answerable for any unforeseen accident that may 
 have happened in so doing ' (r). 
 
 Where a man finds another in the act of adultery with his wife, and 
 kills him or her (s) in the first transport of passion, he is only guilty of 
 manslaughter {t), for the provocation is grievous, such as the law 
 reasonably concludes cannot be borne in the first transport of passion. But, 
 killing an adulterer deliberately, and upon revenge, would be murder {u). 
 So it seems that if a father were to see a person in the act of committing 
 an unnatural offence with his son, and were instantly to kill him, it 
 would be only manslaughter ; but if he only hears of it from others, and 
 goes in search of the person afterwards, and kills him, when there has 
 been time for the blood to cool, it will be murder (y). 
 
 Upon an indictment for murder, Rolfe, B., in summing up, said, 'To 
 take away the life of a woman, even your own wife, because you suspect 
 that she has been engaged in some illicit intrigue, would be murder' {w). 
 
 Where a man was charged with the murder of his son-in-law, who had 
 assaulted the prisoner's daughter in his presence in a violent manner, 
 although not in a manner to endanger life, Cockburn,C.J., seemed to think 
 that the offence might be reduced to manslaughter, and the prisoner was 
 found guilty of that offence only (x). 
 
 defence of his property, in my judgment, («) R. v. Pearson. 2 Lew. 216, Parke, B. 
 the infliction of death must be to prevent {t) Manning's case, T. Raym. 212. 1 
 no ordinary crime, it must be a crime of a Ventr. 158. The Court directed the burn- 
 serious and also felonious nature. You ing in the hand to be inflicted gently, be- 
 must not shoot a trespasser merely because cause there could not be a greater provoca- 
 he is a trespasser. If he shews an inten- tion. 
 tion to accomplish a felonious purpose hy («) Posl, p. 706. 
 
 force, extreme measures may be used.' See [v) R. v. Fisher, 8 C. & P. 182, Park, J., 
 
 R. V. Dennis, 69 J. P. 256. Parke, B., and Law, Recorder. 
 
 (?) R. V. Wild, 2 Lew. 214. R.v.Brennan, (ic) R. v. Kelly, 2 C. & K. 814. 
 
 4 Canada Cr. Cas. 41. (x) R. v. Harrington, 10 Cox, 370. 
 
 (r) R. V. Hinchcliffe, 1 Lew. 161. 
 
 I
 
 CHAP. I.] Provocation. 703 
 
 On the indictment of a husband for murdering his wife, it appeared 
 that words had passed between them, and that the husband took a knife, 
 and in a struggle stabbed the wife. For the defence, witnesses were 
 called to shew that the wife had been in the habit of making violent 
 attacks upon her husband, seizing him by the neckerchief and twisting 
 it tight so as almost to strangle him, and cause the bystanders to interfere 
 and also that the prisoner had abscesses on his neck, which would render 
 him particularly sensitive to such assaults. Byles, J., after consulting 
 Bramwell, B., admitted the evidence, but said it must be confined to 
 explaining the nature of this particular attack (y). 
 
 Provocation no Defence where Express Malice. — The plea of provoca- 
 tion will not avail where express malice is proved (z). 
 
 The prisoner, with the deceased, who was his brother, and some 
 neighbours, were drinking in a friendly manner at a public-house ; till, 
 growing warm in liquor, but not intoxicated, the prisoner and the deceased 
 played at cudgels by agreement. The prisoner in the cudgel-play gave the 
 deceased a smart blow on the temple. The deceased thereupon grew 
 angry ; and throwing away his cudgel, closed in with the prisoner, and 
 they fought a short space in good earnest : but the company interposing 
 they were soon parted. The prisoner then quitted the room in anger ; 
 and when he got into the street, he was heard to say, ' Damnation seize 
 me if I do not fetch something, and stick him ! ' And being reproved 
 for using such expressions, he answered, ' 1 11 be damned to all eternity 
 if I do not fetch something and run him through the body ! ' In about 
 half an hour the prisoner returned. The door of the room being open into 
 the street, the prisoner stood leaning against the door-post, his left hand 
 in his bosom, and a cudgel in his right. The deceased invited him into 
 the company ; but the prisoner answered, ' I will not come in.' 'Why 
 will you not ? ' said the deceased. The prisoner replied, ' Perhaps you 
 will fall on me and beat me.' The deceased assured him he would not ; 
 and added, ' Besides, you think yourself as good a man as me at cudgels, 
 perhaps you will play at cudgels with me.' The prisoner answered, 
 ' I am not afraid to do so, if you will keep off your fists.' Upon these 
 words the deceased got up and went towards the prisoner, who dropped 
 the cudgel as the deceased was coming up to him. The deceased took 
 up the cudgel, and with it gave the prisoner two blows on the shoulder. 
 The prisoner immediately put his right hand into his bosom, and drew 
 out the blade of a tuck sword, crying, ' Damn you, stand off, or I '11 stab 
 you ; ' and immediately, without giving the deceased time to step back, 
 made a pass at him with the sword, but missed him. The deceased there- 
 upon gave back a little ; and the prisoner shortening the sword in his 
 hand, leaped forward toward the deceased and stabbed him to the heart, 
 and he instantly died. The judges unanimously agreed that there were 
 in this case so many circumstances of deliberate malice and deep revenge 
 on the defendant's part, that his offence could not be less than wilful 
 murder. He vowed he would fetch something to stick him, to run him 
 through the body. Whom did he mean by him ? Every circumstance 
 
 (t/) R. V. Hopkins, 10 Cox, 229. ante, p. 65G. 
 
 (e) See R. v. Sattler, D. & B., 539, and
 
 704 Of Homicide. [book ix. 
 
 in the case shewed that he meant his brother. He returned to the com- 
 pany, provided, to appearance, with an ordinary cudgel, as if he intended 
 to try skill and manhood a second time with that weapon : but the 
 deadly weapon was all the while carefully concealed under his coat ; 
 which most probably he had changed for the purpose of concealing the 
 weapon. He stood at the door, refusing to come nearer, but artfully 
 drew on the discourse of the past quarrel ; and as soon as he saw his 
 brother disposed to engage a second time at cudgels, he dropped his 
 cudgel and betook him to the deadly weapon, which till that moment 
 he had concealed. He did indeed bid his brother stand off : but he gave 
 him no opportunity of doing so before the first pass was made. His 
 brother retreated before the second : but he advanced as fast, and took 
 the revenge he had vowed. The circumstance of the blows before the 
 sword was produced, which probably occasioned the doubt, did not alter 
 the case, nor did the precedent quarrel ; because, all circumstances 
 considered, he appeared to have returned with a deliberate resolution 
 to take a deadly revenge for what had passed : and the blows were 
 plainly a provocation sought of his part, that he might execute the wicked 
 purpose of his heart with some colour of excuse (a). 
 
 It was considered that the blows with the cudgel were a provocation 
 sought by the prisoner, to give occasion and pretence for the dreadful 
 vengeance which he meditated : and where the provocation is sought by 
 the party killing, and induced by his own act, in order to afford him a 
 pretence for wreaking his malice, it will in no case extenuate the killing (6). 
 Thus where A. and B. having fallen out, A. said he would not strike, but 
 would give B. a pot of ale to strike him ; upon which B. did strike, 
 and A. killed him, it was held to be murder (c). So where A. and B. 
 were at some difference ; A. bade B. take a pin out of his (A.'s) sleeve, 
 intending to take the occasion to strike or wound B. ; B. accordingly 
 took out the pin, and A. struck him and killed him ; and this was ruled 
 murder : first, because it was no provocation when B. did it by the consent 
 of A. ; and, secondly, because it appeared to be a malicious and deliberate 
 artifice, by which to take occasion to kill B. {d). 
 
 Where upon an indictment for maliciously wounding imder 9 Geo. IV. 
 c. 31 (rep.), it appeared that some words passed between the prisoner 
 and a third person, after which he walked up and down the passage of the 
 house with a sword-stick in his hand, with the blade open, and was heard 
 to say, ' If any man strikes me I will make him repent it.^ He was 
 desired to put up the stick, which he refused to do ; and shortly after the 
 prosecutor, ignorant of what had occurred, but perceiving the prisoner 
 was creating a disturbance, struck the prisoner twice with his fists, when 
 the prisoner stabbed him. Parke, B., told the jury, ' If a person receives 
 a blow, and immediately avenges it with any instrument that he may 
 happen to have in his hand, then the offence will be only manslaughter, 
 provided the blow is to be attributed to the passion of anger arising from 
 that previous provocation ; for anger is a passion to which good and bad 
 
 (a) Mason's case, Fost. 132. 1 East, (c) 1 Hawk. c. 31, s. 24. 
 
 P. C. 239. {d) 1 Hale, 457. 
 
 (6) 1 East, P. C. 239. 
 
 I
 
 CHAP. I.] Provocation. 705 
 
 men are both subject. But the law requires two thmgs : first that there 
 should be that provocation ; and secondly, that the fatal blow should be 
 clearly traced to the influence of passion arising from that provocation (e). 
 There is no doubt here, but that a violent assault was committed ; but the 
 C[uestion is, whether the blow given by the prisoner was produced by the 
 passion of anger excited by that assault ? If you see that a person 
 denotes, by the manner in which he avenges a previous blow, that he is 
 not excited by a sudden transport of passion, but under the influence of 
 that wicked disposition, that bad spirit, which the law terms "malice," 
 in the definition of wilful murder, then the offence would not be man- 
 slaughter. Suppose, for instance, a blow were given, and the party 
 struck beat the other's head to pieces by continued, cruel, and repeated 
 blows ; then you could not attribute that act to the passion of anger, 
 and the offence would be murder. And so, if you find that before the 
 stroke is given, there is a determination to punish any man, who gives a 
 blow, with such an instrument as the one which the prisoner used : because 
 if you are satisfied that before the blow was given the prisoner meant 
 to give a wound with such an instrument, it is impossible to attribute 
 the giving such wound to the passion of anger excited by that blow ; 
 for no man who was under proper feelings, none but a bad man of a 
 wicked and cruel disposition, would really determine beforehand to resent 
 a blow with such an instrument ' {f). 
 
 On a trial for murder, where the deceased had died from a stab given by 
 the prisoner, in a contest with the deceased, Bosanquet, J., told the jury, 
 ' The question for you, on a careful consideration of the whole evidence, 
 will be, whether the prisoner was guilty of either murder or manslaughter, 
 or whether the circumstances of the case were such as to entitle him to an 
 acquittal ; whether he is guilty of murder or manslaughter, or whether 
 his act was justifiable or excusable. Upon the question of whether it 
 amounts to murder you have to consider this ; did the prisoner enter 
 into a contest with an unarmed man, intending to avail himself of a deadly 
 weapon ? For if he did, it will amount to murder. But if he did not 
 enter into the contest with an intention of using it, then the question will 
 be, did he use it in the heat of passion in consequence of an attack made 
 upon him ? If he did, then it will be manslaughter. But there is another 
 c^uestion, did he use the weapon in defence of his life ? Before a person 
 can avail himself of that defence, he must satisfy the jury that that defence 
 was necessary ; that he did all he could to avoid it ; and that it was 
 necessary to protect his own life, or to protect himself from such serious 
 bodily harm as would give a reasonable apprehension that his life was in 
 immediate danger. If he used the weapon, having no other means of 
 resistance, and no means of escape, in such case, if he retreated as far as 
 he could, he will be justified ' (r/). 
 
 This direction was followed in R. v. Symondson (A), an indictment 
 for manslaughter, where one of the defences was that the prisoner was 
 acting in defence of his own life. 
 
 (e) R. V. Kirkham, 8 C. & P. ll.'i. Cole- [g) R. v. Smith, 8 C. & P. 1(50, Bosan- 
 
 ridge, J. Cf. R. v. Eagle, 2 F. & F. 827. quet and Coltman, J.J., and Bolland, B. 
 
 (/) R. V. Thomas, 7 C. & P. 817, Parke, [h) 60 J. P. 645, Kennedy, J. 
 B. 
 
 VOL. I. 2 Z
 
 706 Of Homicide. [book ix. 
 
 On an indictment for murder it ajjpeared that the prisoner and his 
 wife, who had been to look for him, came home about midnight ; he was 
 not sober, and she upbraided him for staying out so late : he took some 
 money out, and she said he could treat other persons and not her ; he 
 then took down a sword from a shelf, pulled it out of the sheath, and struck 
 her on the back with the flat part of it ; her daughter ran to the door ; 
 the mother attempted to follow her, and her daughter took hold of her 
 hand to pull her through ; the father, according to the daughter's first 
 account, went to his wife at the door, and ran the sword into her left side ; 
 but it appeared that she could not see the actual thrust : a wound nine 
 inches long was found in the left side which caused the death. She 
 stated in her husband's presence that he had done it with a sword. The 
 authorities cited ante, p. 656, having been referred to, Cresswell, J., after 
 referring to them said : ' This is expressed more intelligibly by Littledale, 
 J., Avho says that " malice, in its legal sense, denotes a wrongful act, done 
 intentionally, without just cause or excuse " {i). Therefore, if you think 
 the prisoner used the weapon wilfully, then that is such malice as the law 
 requires. The great question for your consideration is whether the wound 
 was given wilfully. If done by the accident of the woman rushing on the 
 sword, the prisoner would not be responsible. If you can find any 
 evidence that he used the sword carelessly, and that, without intending 
 to inflict a wound, he caused it, then he is guilty of manslaughter ; but if 
 he used it intending to inflict a wound, then he is guilty of murder. When 
 there is a contest the law makes great allowances for blows and a personal 
 encounter, but not for words (/). If, therefore, in consequence of words, 
 the prisoner was provoked, and intended to do the deceased a grievous 
 injury, that is no justification or alleviation of the offence. There is no 
 evidence of any conflict or of any provocation in law. If the prisoner 
 used the sword intending to do a serious injury, that is such evidence of 
 malice as the law holds to be murder. If the deceased rushed upon it, 
 then it was an accident, and he is not guilty. If the wound was inflicted 
 in a struggle without any intention on the part of the prisoner to use 
 it, then there was such a careless use of it as to make him guilty of 
 manslaughter ' [k). 
 
 Provocation will not Avail if there is time for Cooling. — In every 
 case of homicide upon provocation, how great the provocation may have 
 been, if there has been sufficient time for passion to subside and reason to 
 interpose, such homicide will be murder {I). Thus even where a man 
 finds another in the act of adultery with his wife, though it would be only 
 manslaughter if he should kill the adulterer in the first transport of passion, 
 yet if he kills him deliberately, and upon revenge after the fact and 
 sufficient cooling time, it would undoubtedly be murder (m). ' 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 him an adequate remedy, thither he ought to resort : 
 
 (j) See note {k), ante, p. 656. (wi) Fost. 296. 1 East, P. C. 234, 251. 
 
 (j) Vide ante, p. 693. See ante, p. 49, and R. v. Fisher, note [v), 
 
 (k) R. V. Noon, 6 Cox, 137. p. 702. 
 {I) Fost. 296.
 
 IL 
 
 CHAP. I.] Provocation. 707 
 
 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 ' (n). 
 AVith respect to the interval of time to be allowed for passion to subside, 
 it is much more easy to lay down rules for determining what cases 
 are without the limits, than how far exactly those limits extend (o). 
 The immediate question 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 circum- 
 stance whatever it appears that the party reflected, deliberated, or cooled 
 ^t any time before the fatal stroke was given ; or if in legal presumption 
 there was time or opportunity for cooling ; the killing is murder, as being 
 attributable to malice and revenge, rather than to human frailty {f). 
 It was at one time held that the question whether the blood has had time 
 to cool or not was a question for the Court and not for the jury {q). But 
 doubt is thrown on this view by the following cases : — 
 
 On an indictment for murder, it appeared that the prisoner and the 
 deceased, who had been upon terms of intimacy for three or four years, 
 had been drinking together at a public-house till about twelve o'clock at 
 night ; about one they were together in the street, and had some words, 
 and a scuffle ensued, during which the deceased struck the prisoner in the 
 face with his fist, and gave him a black eye. The prisoner called for the 
 police, and on a policeman coming, went away ; he, however, returned 
 again, between five and ten minutes afterwards, and stabbed the deceased 
 with a knife on the left side of the abdomen : the knife, a common bread- 
 and-cheese knife, was one that the prisoner was in the habit of carrying 
 about with him, and he was rather weak in his intellect, but not so much 
 so as not to know right from wrong. Tenterden, C.J., said to the jury : 
 ' It is not every slight provocation, even by a blow, which will, when the 
 party receiving it strikes with a deadly weapon, reduce the crime from 
 murder to manslaughter ; but it depends upon the time elapsing between 
 the blow and the injury ; and also whether the injury was inflicted 
 with an instrument at the moment in the possession of the party, or 
 whether he went to fetch it from another place. It is uncertain, in this 
 case, how long the prisoner was absent ; the witness says from five to ten 
 minutes, according to the best of his knowledge. Unless attention is 
 particularly called to it, it seems to me that evidence of time is very 
 uncertain ; the prisoner may have been absent less than five minutes ; 
 there is no evidence that he went anywhere for the knife. The father 
 says it was a knife he carried about with him ; it was a common knife, 
 such as a man in the prisoner's situation in life might have ; for aught 
 that appears he might have gone a little way from the deceased and then 
 returned, still smarting under the blow he had received. You will also 
 take into consideration the previous habits and connection of the deceased 
 and the prisoner with respect to each other ; if there had been any old 
 grudge between them, then the crime which the prisoner committed 
 might be murder. But it seems they had been long in habits of intimacy, 
 and on the very night in question, about an hour before the blow, they 
 
 {«) Fost. 206. St. Tr. 29-48 ; 2 Str. 760. 
 
 (o) 1 East, P. C. 251. {q) R. v. Fisher, 8 C. & P. 182, Park. J , 
 
 (p\ R. V. Oneby, 2 Ld. Raym. 1485 ; 17 Parke, B., and Law, Recorder. 
 
 2z 2
 
 708 Of Homicide. [book ix. 
 
 had been drinking in a friendly way together. If you think that there 
 was not time and interval sufficient for the passion of a man proved to 
 be of no very strong intellect, to cool, and for reason to regain her 
 dominion over his mind, then you will say that the prisoner is guilty 
 only of manslaughter. But if you think that the act was the act of a 
 wicked, malicious and diabolical mind (which, under the circumstances, 
 I should think you hardly would), then you will find him guilty of 
 murder ' (r). 
 
 The prisoner and the deceased, who were strangers, met at a public- 
 house with others, and sat there drinking and wrangling until midnight, 
 when they were all turned out. In consequence of some trivial quarrel 
 about a game, the deceased struck the prisoner a blow on the face with 
 his open hand, saying, ' that if he did not like it he might return it.' The 
 prisoner said he was not in a fit state to fight, and the men stood wrang- 
 ling some interval of time, which was described by some of the witnesses 
 as ' about ten minutes/ Then the two men shook hands and parted, 
 the prisoner going towards home. When he had gone about thirty 
 yards he stopped, turned round, and cried out, ' Now I am on the high- 
 way ; if anybody wants anything I am ready for him.' The deceased 
 appeared to have taken this as a kind of challenge to himself, and at 
 all events accepted it as such, and went after the prisoner, who had stood 
 still. Almost immediately afterwards the deceased was heard to cry out, 
 ' I am stabbed,' and was found lying on the ground, his jacket off, and in 
 the hands of the prisoner who was standing by ; and a mortal wound in 
 his abdomen, which was no doubt inflicted by the prisoner, who said, ' I 
 shouldn't have done it if he hadn't hit me on the face.' When the dying 
 deposition of deceased was taken, he declared that on the second occasion 
 he had not struck the prisoner ; and when the prisoner said to him, 
 ' Didn't you knock me down ? ' the dying man denied it. Hannen, J., 
 in the course of his summing up to the jury, said : ' In the present instance 
 the evidence as to the time which had elapsed is left in some uncertainty ; 
 but several witnesses say it was " about ten minutes." It is for you to 
 form your own conclusion as to what took place in the interval, as to 
 which you can only draw inferences from the circumstances ; and though 
 there is no express evidence of a renewal of the aggression on the part of 
 the deceased (and the evidence is rather against the supposition, especially 
 as the prisoner did not accuse him of it at the time), it is beyond a doubt 
 that he followed the prisoner with the intention of renewing the attack, 
 and his jacket was found ofi. It is for you to draw such inferences from 
 this as you think warranted by the evidence. If you come to the con- 
 clusion that the prisoner, after the blow had been given, had time for 
 his blood to cool, and that when he stopped on the road he had the inten- 
 tion in his mind to use the knife in the event of the deceased following 
 him, and uttered the words he used with the object of inducing the 
 deceased to follow him, there would be evidence of imphed malice to 
 sustain the charge of murder. But if you come to the conclusion that 
 the prisoner had not such intention in his mind, and that he did not utter 
 the words with such intention, that they were idle words of bravado, 
 
 (?) R. V. Lynch, 5 C. & P. 32-4.
 
 CHAP. I.] Provocation. 709 
 
 not of challenge, and that he used the knife on some fresh and sudden 
 provocation, ensuing from the deceased following him and renewing 
 the assault upon him, then there is evidence to reduce the crime to 
 manslaughter ' (s). 
 
 The deceased was requested by his mother to turn the prisoner out 
 of her house, which after a short struggle with the prisoner he effected, 
 and in doing so he gave him one kick. The prisoner said he would make 
 him remember it, and instantly went to his own lodgings, from two to 
 three hundred yards distant, passed through his bedroom and a kitchen 
 into a pantry, and returned thence hastily back again. Within five 
 minutes after the prisoner had left the deceased, the latter followed him 
 to give him back his hat, which had been left behind, and they met about 
 ten yards from the j^risoner's lodgings. They stopped for a short time, 
 when they were heard talking together, but without any words of anger ; 
 after they had walked on together for about fifteen yards, the deceased 
 gave the prisoner his hat, when the latter exclaimed with an oath, that 
 he would have his rights, and instantly stabbed the deceased with a knife 
 or some sharp instrument, in two places, giving him a mortal wound. 
 As soon as he had stabbed him the second time, he said he had served 
 him right, and instantly ran back to his lodgings, passed hastily through 
 his bedroom and the kitchen to the pantry, and thence back to his bed- 
 room, where he undressed himself and went to bed. Shortly afterwards 
 he was apprehended, and no knife or other instrument found upon him. 
 In the pantry the prisoner had four. The several knives were found the 
 next morning in their usual places in the pantry Tindal, C.J., told 
 the jury that the question for them was, whether the wound was given 
 by the prisoner while smarting under a provocation so recent and so strong 
 that the prisoner might not be considered at the moment the master of 
 his own understanding : or whether there had been time for the blood 
 to cool, and for reason to resume its seat, before the wound was given. 
 That in determining this question, the most favourable circumstance 
 for the prisoner was the shortness of time between the original quarrel 
 and the stabbing ; but, on the other hand, the weapon was not at hand 
 when the quarrrel took place, but was sought for from a distant place. 
 It would be for them to say whether the prisoner had shewn thought, 
 contrivance, and design in the mode of possessing himself of the weapon, 
 and again replacing it immediately after the blow was struck ; for the 
 exercise of contrivance and design denoted rather the presence of 
 judgment and reason than of violent and ungovernable passion {t). 
 
 From the cases which have been stated in the former part of this 
 section, it appears that malice will be presumed, even though the act be 
 perpetrated recently after the provocation received, 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 acting in so outrageous a manner upon a slight provocation 
 must have entertained a general, if not a particular malice, and have 
 previously determined to inflict such vengeance upon any pretence that 
 offered (w). 
 
 (s) R. I'. Seltcn, 11 C<ix, G74. (a) 1 East. P. C. 252. 
 
 (<) R. V. Hay ward, G C. & P. 1.57.
 
 710 Of Homicide. [book ix. 
 
 Sect. VII. — Mutual Combat {v). 
 
 Where words of reproach or other sudden provocations have led 
 to blows and mutual combat, and death has ensued, the important 
 question is, whether the occasion was altogether sudden, and not the 
 result of preconceived anger or malice ; for the killing, though in mutual 
 combat, will not admit of alleviation, if the fighting were upon malice (w). 
 
 Thus a person who killed another in a deliberate duel is guilty of 
 murder ; for wherever two in cold blood meet and fight on a precedent 
 quarrel, and one of them is killed, the other is guilty of murder [x), 
 and cannot extenuate the killing by alleging that he was first struck by 
 the deceased ; or that he had often declined to meet him, and was 
 prevailed upon to do it by his importunity ; or that it was his intent only 
 to vindicate his reputation {y) ; or that he meant not to kill, but only to 
 disarm his adversary (2). He was deliberately engaged in an act, highly 
 unlawful, in defiance of the law, and he must at his peril abide the con- 
 sequences. Upon this principle, wherever two persons quarrel overnight 
 and appoint to fight the next day, or quarrel in the morning and agree to 
 fight in the afternoon, or at any time afterwards so considerable that 
 in common intendment it must be presumed that the blood was cooled, 
 the person killing will be guilty of murder (a). And where, upon a quarrel 
 happening at a tavern, M, objected to fighting at that time, on account of 
 the disadvantage he should have by reason of the height of his shoes, and 
 presently afterwards went into a field and fought, the circumstance was 
 relied on as shewing that he did not fight in the first passion (6). So 
 wherever there is an act of deliberation, and a meeting by compact, such 
 mutual combat will not excuse the party killing from the guilt of murder ; 
 as where B. challenged A., and A. refused to meet him, but in order to 
 evade the law, told B. that he should go the next day to a certain town 
 about his business, and accordingly B. met him the next day in the road 
 to the same town and assaulted him, whereupon they fought, and A. 
 killed B., it is said that A. seems guilty of murder ; but the same con- 
 clusion would not follow, if it should appear by the whole circumstances 
 that he gave B. such information accidentally, and not with a design to 
 give him an opportunity of fighting (c). Upon the same principle, if A. 
 and B. meet deliberately to fight, and A. strikes B., and pursues B. so 
 closely that B., in safeguard of his own life, kills A., this is murder in B. ; 
 because their meeting was a compact, and an act of deliberation, in 
 pursuance of which all that follows is presumed to be done {d). 
 
 {v) Many of the earlier cases under this (a) 1 Hawli. c. 31, s. 22. 1 Hale, 453. 
 
 head were decided by reference to what (6) Bromwich's case, 1 Lev. 180. 1 Sid. 
 
 was called chance medley or chaude melee. 277. 82 E. R. 1103. Bromwich was in- 
 
 See 22 Hen. VIII. c. 14, s. 4, repealed in dieted for aiding and abetting Lord Morley 
 
 1828 by 9 Geo. IV. c. 31. 1 Hawk. c. 30, in the murder of Hastings. 
 
 s. 1. Fost. 275. 1 Hale, 453. (c) 1 Hawk. c. 31, s. 25. 
 
 (iv) 1 East, P. C. 241. (d) 1 Hale, 452, 480, who says, ' Thus is 
 
 {x) R. V. Young, 8 C. & P. 644, Vaughan, Mr. Dalton, c. 93, p. 241 (new ed. c. 145, 
 
 J., and Alderson, B. R. v. Cuddy, 1 C. & p. 471) to be understood.' But a qticere is 
 
 K. 210. Barronet's case, 1 E. & B. 1. added in 1 Hale, 452, whether if B. had 
 
 (y) As where he had been threatened really and truly declined the fight, run 
 
 that he should be posted for a coward. 1 away as far as he could, and offered to 
 
 Hale, 452, and see R. v. Rice, 3 East, 581. yield, and yet A., refusing to decline it, 
 
 (2) 1 Hawk. c. 31, s. 21. had attempted his death, and B. after this
 
 CHAP. I.] Mutual Combat. 711 
 
 Not only the principal in a duel in cold blood who actually kills the 
 other, but also his second, and the second of the person killed are guilty 
 of murder (e). On an indictment charging M, with the murder of F. and, 
 the prisoner as present, aiding and assisting in the murder, the death was 
 shewn to have occurred in a duel, in which M. was one of the principals and 
 the prisoner was said to have acted as second to the deceased. The jury 
 were directed that where two persons go out to fight a deliberate duel, 
 and death ensues, all persons who are present on the occasion, encouraging 
 or promoting the death, will be guilty of abetting the principal offender, 
 and that, without giving them any particular name, all persons who were 
 present aiding, assisting, and abetting that deliberate duel were within 
 the terms of the indictment (/). 
 
 Mere presence is not sufficient ; but if those present sustain the 
 principals by their advice or presence, or if they go for the purpose of 
 encouraging and forwarding the unlawfvd conflict, although they do not 
 say or do anything, yet if they are present and assisting and encouraging 
 at the moment when the pistol is fired, they are guilty of murder (g). 
 
 If, upon a sudden quarrel, the parties fight upon the spot, or if they 
 presently fetch their weapons, and go into a field and fight, and one of them 
 is killed, it will be but manslaughter, because it may be presumed that the 
 blood never cooled {h). And it has been observed, with regard to sudden 
 rencounters, that when they are begun, the blood, previously too much 
 heated, kindles afresh at every pass or blow ; and in the tumult of the 
 passions, in which mere instinct, self-preservation, has no inconsiderable 
 share, the voice of reason is not heard : therefore the law, in condescension 
 to the infirmities of flesh and blood, has extenuated the offence (/). 
 
 P. with one party, and W. with another party, dined at a tavern ; 
 and on coming out P. and W. quarrelled and drew their swords, and W. 
 ran P. through the body, and he died. There was no evidence of any 
 unfair advantage taken by W. ; nor could the witnesses say more than 
 that they heard them quarrelling, saw their swords drawn, and the 
 sword through P.'s body ; and it appeared that the parties did not know 
 each other before. When P. fell, W. took him by the nape of the neck, 
 
 had killed A. in his own defence, it would necessity in self-defence, because the ncoes- 
 
 excuse hira from the guilt of murder ; ad- sity which was induced from his own faulty 
 
 mitting clearly that if the running away and illegal act, namely, the agreement to 
 
 were only a pretence to save his own life, fight, was in the first instance deliberately 
 
 but was really designed to draw out A. to foreseen and resolved upon, in defiance of 
 
 kill him, it would be murder. This quctre the law.' 1 East, P. C. 285. 
 
 of Hales is discussed in 1 East. P. C. 284, (e) 1 Hale, 442, 453. 1 Hawk. c. 31, 
 
 et seq., and it is observed that Blackstone s. 31. R. v. Young. 8 C. & P. 641, Vaughan 
 
 (4 Bl. Com. 185) expressly puts the same J., and Alderson, B. Hale (I P. C. 443, 
 
 case of a duel as Hale, but without sub- 453), referring to 22 Edw. III. Coron. 202, 
 
 joining the same doubt ; and that it was considered that the law was strained too 
 
 considered as settled law in Major Oneby's far in the case of the second of the person 
 
 case. 2 Str. 766 ; 17 St. Tr. 29 ; 2 Ld. killed. 
 
 Raym. 1485, 1489. East, after reasoning {/) R. v- Cuddy, 1 C. & K. 210, Williams, 
 
 in favour of the extenuation of the crime J., and Rolfe, B. 
 
 of the duellist so declining to fight, proceeds (</) R. v. Young, -supra. Cf. R. r. Coney, 
 
 thus : ' Yet still it niav be dou])tful whether, 8 Q.B.D. 534. 
 
 admitting the full force of this reasoning, {h) 1 Hale, 453. 1 Hawk. c. 31, s. 29. 
 
 the offence can be less than manslaughter, 3 Co. Inst. 51. 
 
 or whether in such case the party can alto- (i) Fost. 138, 296. 
 
 gether excuse himself upon the foot of
 
 712 Of Homicide. [bookix. 
 
 dashed his head upon the ground, and said, ' Damn you, you are dead ! ' 
 Jenner, B., told the jnry that this was only manslaughter : the jury, 
 however, were disposed to find it murder, because of the dashing the head 
 against the ground, &c. : but Alhbone, J., repeated to them that it was 
 manslaughter only, and they found accordingly (/). 
 
 B, and C. differed at a club as to the best means of procuring game. 
 
 C. said, ' If you have anything more to say, you will find me in Berkeley 
 Row/ The conversation then dropped, and they stayed together at 
 least half an hour ; and B. during that time conversed with a gentleman 
 who sat next him : C. settled the bill, but made a mistake which might 
 arise from agitation. C. then went out, and D. followed him, of whom C. 
 asked if he had been short with B. in what he said last to him ; to which 
 
 D. answered, ' No." B. then came out and said to C, ' I want to speak 
 to you ' ; upon which they both called the waiter, and were shewn into a 
 small room, and the waiter left a candle in the room. B. asked C. if he 
 meant the conversation upon game to Sir C. or to him ; upon which C. 
 said, ' If you have anything to say we had better shut the door, or we 
 shall be heard," and he shut the door. On turning from the door he saw 
 B.^s sword half drawn, and B. said, ' Draw, draw ! " C. drew, and thrust 
 at B. ; and after one or two thrusts, C. received a mortal wound, of which 
 he died. An indictment was preferred for murder ; but upon the trial 
 the peers (123) were unanimous that it was manslaughter only (k). 
 
 The deceased, a French prisoner, had stolen a tobacco-box from one of 
 a party of French prisoners who were gambling, and was chastised by 
 some of the party for his conduct, and a clamour was raised against him. 
 As he passed the prisoner, who was sitting at a table and much 
 intoxicated, the prisoner got up, and with great force pushed the deceased 
 backwards upon the ground. The deceased got up again and struck the 
 prisoner two or three blows with his doubled fist in the face, and one blow 
 in the eye ; upon which the prisoner pushed the deceased backwards 
 again in the same manner, and gave him, as he lay on his back upon the 
 ground, two or three stamps with great force with his right foot on the 
 stomach and belly ; and afterwards, when the deceased arose on his seat 
 and was sitting, gave him a strong kick in the face ; the blood came out 
 of the mouth and nose of the deceased, and he fell backwards, and died 
 on the next day. The stamps upon the stomach and belly were the cause 
 of his death. The prisoner was convicted of murder, on the ground that 
 the violence which caused the death was not excused by heat of blood : 
 but on a case reserved the offence was held to be manslaughter only (Z). 
 
 If A. uses j)rovoking language or behaviour towards B., and B. strikes 
 him, upon which a combat ensues, in which A is killed, this is man- 
 slaughter ; for the affray was sudden and the fight upon equal terms ; 
 and in combats, upon sudden c^uarrels, it matters not who gave the first 
 blow (m). But even in such cases malice may be inferred. Yet if the 
 party killing began the attack with circumstances of undue advantage {n). 
 The party assaulted must be put on an equal footing in point of 
 
 (j) R, V. Walters, 12 St. Tr, 113. Bayley, J. 
 
 [k) R. V. Lord Byron flTCS], 19 St. Tr. (m) Fost. 295. 1 Hale, 456. 
 
 1177. (n) Fost. 295, 
 
 (0 R. V. Aves, R. & R. 1G6, and MS.
 
 CHAP. I.] Mutual Combat. 713 
 
 defence ; at least at the onset : and this more particularly where the 
 attack is made with deadly or dangerous weapons (o). Thus if B. draw 
 his sword and make a pass at A., the sword of A. being then undraw^n, 
 and thereupon A. draw his sword and a combat ensue, in which A. is 
 killed, this will be murder ; for B., by making the pass, while his adver- 
 sary's sword was undrawn, shews that he sought his blood : and A/s 
 endeavour to defend himself, which he had a right to do, will not excuse 
 B. (;j) ; but if B. had forborne till his adversary had drawn too it had been 
 no more than manslaughter (q). 
 
 In Mawgridge's case (r), words of anger happening, M. threw a bottle 
 with great force at the head of C, and immediately drew his sword. C. 
 returned a bottle at the head of M., and wounded him ; whereupon M. 
 stabbed C. This was ruled to be murder ; for M,, in throwing the bottle, 
 shewed an intention to do some great mischief ; and his drawing im- 
 mediately shewed that he intended to follow his blow ; and it was lawful 
 for C, being so assaulted, to return the bottle. 
 
 Even if the parties are upon an equal footing when the combat begins, 
 malice may be implied from the violent conduct which the party killing 
 pursued in the first instance ; more especially where there is time for 
 cooling, and such expressions are used as manifest deliberation ; as in 
 the case of Major Oneby {s). 
 
 He was indicted for the murder of G. ; and a sj)ecial verdict was 
 found, containing the following statement. The prisoner being in 
 company with the deceased and three other persons at a tavern, in a 
 friendly manner, after some time, began playing at hazard ; when R., 
 one of the company, asked if one would set him three half-crowns ; 
 whereupon the deceased, in a jocular manner, laid down three half-pence, 
 telling E.. he had set him three pieces ; and the prisoner at the same time 
 set R-. three half-crowns, and lost them to him. Immediately after which, 
 in an angry manner, he turned about to the deceased, and said, it was 
 an impertinent thing to set half-pence, and that he was an imper- 
 tinent puppy for so doing, to which the deceased answered, whoever called 
 him so was a rascal. Thereupon the prisoner took up a bottle, and with 
 great force threw it at the deceased's head ; but did not hit him, the 
 bottle only brushing some of the powder out of his hair. The deceased 
 in return immediately tossed a candlestick or bottle at the prisoner, 
 which missed him ; upon which they both rose up to fetch their swords, 
 which then liung uji in the room, and the deceased drew his sword ; 
 but the prisoner was j)revented from drawing his by the company. 
 The deceased thereupon threw away his sword ; and the company 
 interposing, they sat down again for the sj)ace of an hour. At the 
 expiration of that time the deceased said to the prisoner : * We have 
 had hot words, but you were the aggressor ; but I thhik we may pass it 
 over ' ; and at the same time offered his hand to the prisoner, who made 
 
 (o) 1 East. V. V. 242. this case was holden to be good law by all 
 
 (p) Fost. 29"). 1 Hawk. c. 31, s. 27. the judges of England, at a conference in 
 
 {q) 1 Hawk. c. 31, s. 28. Fost. 295. the case of INIajor Oneby, in/ra. 
 
 (r) R. V. Mawgiidge, Kel. (J) 119, 128, {s) 2 Str. 766; 2 Ld. Raym. 1485; 17 
 
 129. 1 East, P. C. 270 ; cited in Fost. 295, St. Tr. 29. 
 
 296, where it is said that the judgment in
 
 714 Of Homicide. [BooKix. 
 
 answer, ' No, damn you ; I will have your blood/ After which, the 
 reckoning being paid, all the company, except the prisoner, went out of 
 the room to go home ; and he called to the deceased, saying, ' Young man ! 
 come back ; I have something to say to you ' ; whereupon the deceased 
 returned into the room, and the door was closed, and the rest of the com- 
 pany excluded ; but they heard a clashing of swords, and the prisoner 
 gave the deceased the mortal wound. It was also found, that at the 
 breaking up of the company the prisoner had his great coat thrown over 
 his shoulders, and that he received three slight wounds in the fight ; and 
 that the deceased, being asked upon his death-bed, whether he received 
 his wound in a manner among sword-men called fair, answered, ' I think 
 I did/ It was further found that, from the throwing of the bottle, there 
 was no reconciliation between the prisoner and the deceased. Upon 
 these facts all the judges were of opinion that the prisoner was guilty of 
 murder ; he having acted upon malice and deliberation, and not from 
 sudden passion. It should probably be taken, upon the facts found in 
 the verdict and the opinion of the Chief Justice, that, after the door had 
 been shut, the parties were upon an equal footing in point of preparation 
 before the fight began in which the mortal wound was given. The main 
 point then on which the judgment turned, was the evidence of express 
 malice, after the interposition of the company, and that the parties had 
 all sat down again for an hour. Under those circumstances the Court 
 were of opinion that the prisoner had had reasonable time for cooling ; 
 after which, upon an offer of reconciliation from the deceased, he had 
 made use of that bitter and deliberate expression, that he would have 
 his blood. And again, the prisoner remained in the room after the rest 
 of the company retired, and calling back the deceased by the contemp- 
 tuous appellation of young man, on pretence of having something to say 
 to him, altogether shewed such strong proof of deliberation and coolness 
 as precluded the presumption of passion having continued down to the 
 time of the mortal stroke. Though even that would not have availed the 
 prisoner under these circumstances ; for it must have been implied, 
 according to Mawgridge's case, that he acted upon malice ; having in the 
 first instance, before any provocation received, and without warning or 
 giving time for preparation on the j)art of G., made a deadly assault 
 upon him. 
 
 If, after an interchange of blows on equal terms, one of the parties, 
 suddenly, and without any such intention at the commencement of the 
 affray, snatches up a deadly weapon and kills the other party with it, 
 such killing will be only manslaughter. But if a party, under colour 
 of fighting upon equal terms, uses from the beginning of the contest a 
 deadly weapon without the knowledge of the other party, and kills 
 the other party with such weapon ; or if, at the beginning of the contest 
 he j)repares a deadly weapon, so as to have the power of using it in 
 some part of the contest, and uses it accordingly in the course of the 
 combat, and kills the other party with the weapon ; the killing in both 
 these cases will be murder. The prisoner and L. quarrelled and went 
 out to fight. After two rounds, which occupied little more than two 
 minutes, L. was found to be stabbed in a great many places ; and of 
 one of those stabs he almost instantly died. It appeared that nobody
 
 CHAP, i.i Mutual Combat. 715 
 
 could have stabbed him but the prisoner, who had a clasped knife before 
 the affray. Bay ley, J., told the jury, that if the prisoner used the knife 
 privately from the beginning ; or if before they began to fight he placed 
 the knife so that he might use it during the affray, and used it accord- 
 ingly, it was murder ; but that if he took to the knife after the fight 
 began, and without having placed it to be ready during the affray, it 
 was only manslaughter. The jury found the prisoner guilty of murder (t). 
 
 Upon an indictment for maliciously cutting, it appeared that the 
 prisoner had cut the prosecutor in a fight that took place between them , but 
 ]io instrument was seen either before or at the time in the prisoner's hands ; 
 Bayley, J., said : ' When persons fight on fair terms, and merely with 
 fists, where life is not likely to be at hazard, and the blows passing between 
 them are not likely to cause death, if death ensues, it is manslaughter ; 
 and if persons meet originally on fair terms, and after an interval, blows 
 having been given, a party draws in the heat of blood a deadly instrument, 
 and inflicts a deadly injury, it is manslaughter only. But if a party 
 enters into a contest dangerously armed, and fights under an unfair 
 advantage, though mutual blows pass, it is not manslaughter, but murder. 
 If you are of opinion that the prisoner entered into the contest, being 
 unduly armed with an instrument calculated to produce the effects charged 
 in the indictment, and with the instrument ready in this hand, in order 
 that he might resort to it with any of the alleged intents, then he is guilty. 
 For if death had ensued it would have been murder ' (u). 
 
 J. T., a Scotch soldier, and two other Scotchmen, were drinking 
 together in an alehouse, when some servants to the owner of the house, who 
 were also drinking in another box, abused the Scotch nation, and used 
 several provoking expressions towards T. and his company, on which T. 
 struck one of the servants with a small rattan cane, not bigger than a man's 
 little finger, and another of the Scotchmen struck the same servant with 
 his fist ; the servant who was struck went out of the room into the yard, 
 to fetch his fellow-servants to turn T. and his company out of the room ; 
 and, in the meantime, an altercation ensued between T. and the deceased, 
 who was the owner of the house, but not the occupier, and who had come 
 into the room after the servant went into the yard. He insisted that 
 T. should pay for his liquor and go out of the house ; and T., after some 
 further altercation, was going away, when the deceased laid hold of him 
 by the collar, and said he should not go away till he had paid for the 
 liquor ; and then threw him down against a settle. T. then paid for 
 the liquor ; whereupon the deceased laid hold of him again by the collar, 
 and shoved him out of the room into the passage; and T. then said 
 that he did not mind killing an Englishman more than eating a mess 
 of crowdy. The servant, who had been originally struck with the cane, 
 then came and assisted the deceased, who had hold of T.'s collar ; and 
 together they violently pushed him out of the door of the alehouse ; 
 whereupon T. instantly turned round, drew his sword, and gave the 
 deceased the mortal wound. This was adjudged manslaughter {v). 
 
 (t) R. V. Anderson, (). B. December, (ii) R. v. Wliiteley, 1 Lew. 173, Bay- 
 
 ]81(). RicliarcLs, B., and the Recorder, ley, .J. 
 
 tlioucrht tlie direction rii;lit. MS. Bayley, (v) R. r. Taylor, 5 Burr. 2793, an appeal 
 
 J. See R. V. Kessal, 1 C. fi P. 437, 1 East, of murder. 1 Hawk. c. 31, s. 39. 
 P. C. 243.
 
 716 Of Homicide. [book ix. 
 
 The prisoner, a shoemaker, lived near the deceased. One afternoon 
 the prisoner, very drunk, passed accidentally by the house of the deceased's 
 mother, while the deceased was thatching an adjacent barn. They 
 entered into conversation ; but on the prisoner's abusing the mother and 
 sister of the deceased, very high words arose on both sides, and they 
 placed themselves in a posture to fight. The mother of the deceased, 
 hearing them quarrel, came out of her house, threw water over the prisoner, 
 hit him in the face with her hand, and jjrevented them from boxing. 
 The prisoner went into his own house ; and in a few minutes came out 
 again, and sat himself down upon a bench before his garden gate, at a 
 small distance from the door of his house, with a shoemaker's knife in 
 his hand, with which he was cutting the heel of a shoe. The deceased, 
 having finished his thatching, was returning, in his way home, by the 
 prisoner's house ; and on passing the prisoner, as he sat on the bench, 
 the deceased called out to him, ' Are not you an aggravating rascal ? ' 
 The prisoner replied, ' What will you be, when you are got from your 
 master's feet ? ' On which the deceased seized the prisoner by the collar, 
 and dragging him off the bench, they both rolled down into the cartway. 
 While they were struggling and fighting, the prisoner underneath, and 
 the deceased upon him, the deceased cried out, ' You rogue, what do you 
 do with that knife in your hand ? ' and made an attempt to secure it ; 
 but the prisoner kept striking about with one hand, and held the deceased 
 so hard with the other hand, that the deceased could not disengage him- 
 self. He made, however, a vigorous effort, and by that means drew the 
 prisoner from the ground ; and during this struggle the prisoner gave a 
 blow, on which the deceased immediately exclaimed, ' The rogue has 
 stabbed me to the heart ; I am a dead man ' ; and expired. Upon 
 inspection, it appeared that he had received three wounds, one very small 
 on the right breast; another on the left thigh, two inches deep, and 
 half an inch wide ; and the mortal wound on the left breast. The jury 
 found implied malice, and convicted of murder. But on a case reserved 
 the judges seem to have thought that there was not sufficient evidence 
 that the prisoner lay in wait for the deceased, with a malicious design to 
 provoke him, and under that colour, to revenge his former quarrel, by 
 stabbing him, which would have made it murder. On the contrary, 
 he had composed himself to work at his own door, in a summer's evening ; 
 and when the deceased passed by, neither provoked him by word nor 
 gesture. The deceased began first by ill language, and afterwards by 
 collaring and dragging him from his seat, and rolling him in the road. 
 The knife was used openly before the deceased came by, and not con- 
 cealed from the bystanders ; though the deceased in his passion did not 
 perceive it till they were both down. And though the prisoner was not 
 justifiable in using such a weapon on such an occasion, yet it being 
 already in his hand, and the attack upon him very violent and sudden, 
 the judges thought that the offence only amounted to manslaughter (w). 
 
 Upon an indictment for maliciously cutting, it appeared that a quarrel 
 arose between the prisoner and the prosecutor, both being intoxicated ; 
 the prosecutor struck the first blow, and they fought for a few minutes, 
 
 (iv) R. V. Snow, 1 Leach, 151 ; 1 East, P. C. 245, citing Serjeant Foster's MS.
 
 CHAP. I.] Mutual Combat. 717 
 
 when the prisoner ran back a short distance, and the prosecutor pursued, 
 and overtook him, on which the prisoner, who had taken out his knife in 
 his retreat, gave the prosecutor a cut across the abdomen, J. A. Park, J,, 
 said : ' The question I shall leave to the jury is this, whether the prisoner 
 ran back with a malicious intention of getting out his knife to inflict an 
 injury on the prosecutor, and so to gain an advantage in the conflict ? 
 For if he did, notwithstanding the previous fighting between them on 
 equal terms, and the prosecutor having struck the first blow, I am of 
 opinion that if death had ensued, the crime would have been murder ; or 
 whether the prisoner, bona fide, ran away from the prosecutor with 
 intention to escape from an adversary of superior strength, but finding 
 himself pursued, drew his knife to defend himself ? As in this latter case, 
 if the prosecutor had been killed, the crime would have been manslaughter 
 only' (x). 
 
 Upon an indictment for manslaughter the evidence was that the 
 prisoner and deceased were ' fighting up and down,' and that the deceased 
 died of the injury he sustained in the fight. Bayley, J., to the jury, 
 ' Fighting up and down is calculated to produce death, and the foot is 
 an instrument likely to produce death. If death happens in a fight of 
 that description it is murder, and not manslaughter.' The prisoner 
 having been convicted, Bayley, J., told him that if he had been 
 charged with murder, the evidence adduced would have sustained the 
 indictment (y). 
 
 Though, where there has been an old quarrel between A. and B., and 
 a reconciliation between them, and afterwards, upon a new and sudden 
 falling out, A. kills B., this is not murder ; yet if upon the circumstances 
 it appears that the reconciliation was but pretended or counterfeit, 
 and that the hurt done was upon the score of the old malice, it is 
 murder (z). 
 
 On an indictment for manslaughter it apjieared that the prisoner, 
 a blind man, and the deceased were at a public-house, and a dispute arose 
 between them. The prisoner went to lay hold of the deceased, who 
 pushed him away ; they then got hold of each other and there was a 
 struggle, and they pushed about from one side to another ; no blows 
 were struck, but there were three falls, and the deceased fell undermost 
 each time, and the third time the prisoner's knees came upon the lower 
 part of the stomach of the deceased, and ruptured the intestines, which 
 rupture caused the death. Patteson, J., told the jury that ' All struggles 
 in anger, whether by fighting, or wrestling, or any other mode — all kinds 
 of contests in anger, are unlawful. And if you think the deceased's 
 death was occasioned by an act of the prisoner in the struggle of that 
 kind, I cannot tell you that it does not amount to manslaughter. If the 
 prisoner was struggling, but did not attem]*t to throw him, I should tell 
 you it is not a case of manslaughter ; but it is for you to say whether 
 that is the fact or not. If the prisoner laid hold of the deceased in anger, 
 
 (a;) R. r. Kessal, 1 C. & P. 437. R. Ev. (13tli ed.) G34, as ' a brutal and savage 
 
 V. Taylor and R. v. Snow, supra, had been practice in the north of England, as lat€ as 
 
 cited for the prisoner. 1835.' 
 
 (y) R. V. Thorpe, 1 Lew. 171. ' Fighting (2) 1 Hale, 452. 1 Hawk. c. 31, s. 30. 
 up and dowai ' is described in Roscoe Cr.
 
 718 Of Homicide. Ibookix. 
 
 and struggled with him and threw him, then it is a case of manslaughter. 
 If you can collect from the circumstances that the prisoner was pulled 
 down against his will, and, in consequence, fell upon the deceased, then he 
 will not be guilty. But there does not seem anything in the evidence to 
 shew that the prisoner evinced any disposition to give up the contest ; 
 on the contrary, it appears that the contest was continued till the fall, 
 which occasioned the death. You have been told by the counsel for the 
 prisoner that you must be satisfied that the death was occasioned by the 
 wilful act of tiie prisoner. In one sense of the word " wilful " I agree with 
 him. I take it for granted he does not mean by it malicious or intending 
 to do injury, but that it must be an act of the will, and that it must be 
 shewn that the prisoner attempted to throw the deceased. They had 
 no right to struggle in this way ; if it had been an amicable contest in 
 wrestlinir, to see who was the best man, that would be quite a different 
 matter ' {a). 
 
 A man seems to be guilty of manslaughter, who, seeing two persons 
 fighting together on a private quarrel, whether sudden or malicious, 
 takes part with one of them, and kills the other (6). If a master, mali- 
 ciously intending to kill another, takes his servants with him without 
 acquainting them with his purpose, and meets his adversary, and fights 
 with him, and the servants, seeing their master engaged, take part with 
 him, and kill the other, they would be guilty of manslaughter only, 
 though the master would be (it seems) guilty of murder (c). From this 
 it follows, a fortiori, that if a servant or friend, or even a stranger, coming 
 suddenly, and seeing A. fighting with another man, sides with A., and 
 kills the other man, or seeing A.'s sword broken sends him another, 
 wherewith he kills the other man, such servant, friend, or stranger will be 
 only guilty of manslaughter {d). But this supposes that the person inter- 
 fering does not know that the fighting is upon malice ; for though if A. 
 and B. fight upon malice, and C, the friend or servant of A., not being 
 acquainted therewith, comes in and takes part against B., and kills him, 
 this (though murder in A.) is only manslaughter in C. ; yet it would be 
 otherwise, if C. had known that the fighting was upon malice, for then it 
 would be murder in both. If A., having been assaulted, retreats as far 
 as he can, and then his servant kills the assailant, it will be only homicide 
 se defendendo ; but if the servant had killed him before the master had 
 retreated as far as he could, it would have been manslaughter in the 
 servant. The law is the same in the case of the master killing a man in 
 defence of the servant (e). 
 
 Where F. C. and 0. were in a field fighting upon a quarrel, and M. C. 
 casually riding by, and seeing them in fight, and his kinsmen one of them, 
 rode in, drew his sword, thrust 0. through and killed him; Coke, C.J., 
 and the rest of the Court agreed that this was clearly but manslaughter in 
 
 {a) R. V. Canniff, 9 C. & P. 359. there cited. 1 Hale, 484. Plowd. 100 a. 
 
 (b) 1 Hawk. c. 31, s. 35. 75 E. R. 158. So Tremin says that a ser- 
 
 (c) 1 Hawk. 0. 31, s. 55. 1 Hale, 438. vant may kill a man to save the life of his 
 R V Salisbury, Plowd. 100 a. 75 E. R. master, if he camiot otherwise escape, 
 158. " Y. B. 21 H. vii. c. 39. Plowd. 100. 1 MS. 
 
 {d) Hawk c. 31, s. 56 .1 East, P. C. 290. Sum. 
 (e) 1 East, P. C. 292, and the authorities 
 
 I
 
 CHAP. I.] Mutual Combat. 719 
 
 him, and murder in the other ; for the one may have malice and the other 
 not ; he may come in by chance, and so kill the other (/). 
 
 If two persons are fighting, and another interferes with intent to part 
 them, but does not signify such intent, and is killed by one of the com- 
 batants, this is but manslaughter (g). And if a third person takes up the 
 cause of one who has been worsted in mutual combat, and attacks the 
 conqueror, and is killed by him, the killing would, it seems, be man- 
 slaughter. A. and B. were walking together in Fleet-street, and B. gave 
 some provoking language to A., who, thereupon, gave B, a box on the ear, 
 upon which they closed, and B. was thrown down, and his arm broken. 
 Presently B. ran to his brother's house, which was hard by ; and C, his 
 brother, taking the alarm, came out with his sword drawn, and niade 
 towards A., who retreated ten or twelve yards ; and C. pursuing him, A. 
 drew his sword, made a pass at C, and killed him. On an indictment of 
 A. for murder the jury were directed to find it manslaughter, because 
 it was upon a sudden falling out, not se defendendo, partly because A. 
 made the first breach of the peace by striking B. ; and partly because, 
 unless he had fled as far as might be, it could not be said to be in his 
 own defence ; and it appeared plainly upon the evidence, that he might 
 have retreated out of danger, and that his stepping back was rather to 
 have an opportunity to draw his sword, and with more advantage to 
 come upon C, than to avoid him ; and accordingly, at last, it was found 
 manslaughter {h). 
 
 Upon an indictment for wounding (under 9 Geo. IV. c. 31) (rep.), it 
 appeared that the prisoner and the prosecutor's brother were fighting, 
 and the prosecutor laid hold of the prisoner in order to prevent him from 
 beating his brother, and held him down on a locker, but did not strike 
 him, and the prisoner then stabbed him. Park, J., directed the jury, that 
 if they were of opinion that the prosecutor did nothing more than was 
 necessary to prevent the prisoner from beating his brother, the crime, 
 if death had ensued, would have been murder ; but if they thought that 
 the prosecutor did more than was necessary to prevent the prisoner from 
 beating the brother, or that he struck any blows, then it would have been 
 manslaughter {i). 
 
 A party of men were playing at bowls, when two of them fell out and 
 quarrelled ; and a third man who had not any quarrel, in revenge of his 
 friend, struck the other with a bowl, of which blow he died. This was 
 held manslaughter, because it happened upon a sudden motion in revenge 
 of his friend (/). The two men who fell out were actually fighting together 
 at the time ; for if words only had passed between them, it would have 
 been murder ; nothing but an open affray of striving being such a provo- 
 cation to one person to meddle with an injury done to another as will 
 lessen the offence to manslaughter, if a man is killed by the person so 
 meddling {k). 
 
 Though Hale and others appear sometimes to draw a distinction 
 
 (f) R. V. Gary, 3 Bulst. 206: S. C. 1 (0 R. v. Bourne, 5 C. & P. 120. 
 Rolle, R. 407, as R. v. Carew. {;") 12 Co. Rep. 87. 
 
 (g) 1 East, P. C. 292. Kel. (J.) 60. {k) See the opinion of the judges in R. 
 (h) 1 Hale, 483. A case at Newgate, v. Huggett, Kel. (J.) 59, and 1 East, P. C. 
 
 1671. 328, 329.
 
 720 Of Homicide. [book ix. 
 
 between the interference of servants and friends, and that of a mere 
 stranger, yet the limits of such distinction do not appear to be anywhere 
 actually defined. And the nearer or more remote connection of the 
 parties with each other seems to be more a matter of observation to the 
 jury as to the probable force of the provocation, and the motive which 
 induced the interference, than as furnishing any precise rule of law [1). 
 
 As a blow aimed with malice at A., and by mistake or accident falling 
 upon B. and killing him, is murder (in) ; so if a blow aimed at A. and 
 lighting on B. was given in such a transport of sudden passion as, in case A. 
 had died by it, would have reduced the offence to manslaughter, this 
 extenuation applies equally if the blow should happen to kill B. {n). 
 
 A widow finding that one of her sons had not prepared her dinner 
 as she had directed him to do, began to scold him, upon which he made 
 her some very impertinent answers, which put her in a passion, and she 
 took up a small piece of iron used as a poker, intending to frighten him, 
 and seeing she was very angry he ran towards the door of the room, 
 when she threw the poker at him, and it happened that the deceased was 
 just coming in at the moment, and the iron struck him on the head, and 
 caused his death. Park, J., told the jury, ' No doubt this poor woman had 
 no more intention of injuring this particular child than I have, but that 
 makes no difference in law. If a blow is aimed at an individual unlawfully 
 — and this was undoubtedly unlawful, as an improper mode of correction 
 — and strikes another and kills him, it is manslaughter, and there is no 
 doubt, if the child at whom the blow was aimed had been struck, and 
 died, it would have been manslaughter, and so it is under the present 
 circumstances ' {o). 
 
 A quarrel arose between some soldiers and a number of keelmen ; 
 and a violent affray ensuing, one of the soldiers was stripped, and cruelly 
 beaten. The prisoner, who was a soldier, had before driven part of the 
 mob down the street with his sword in the scabbard : and on his return, 
 seeing his comrade thus used, drew his sword, and bid the mob stand 
 clear, saying, he would sweep the street ; and, on their pressing on him, 
 he struck at them with the flat side of the sword several times ; upon 
 which they fled, and he pursued them. The soldier who was stripped 
 got up, and ran into a passage to save himself. The prisoner returned, 
 and asked if they had murdered his comrade ; and the people came back, 
 and assaulted him several times, and then ran from him. He sometimes 
 brandished his sword ; and then struck fire with the blade of it upon the 
 stones of the street, calling out to the people to keep off. At this time 
 the deceased, who had a blue jacket on, and might be mistaken for a 
 keelman, was going along about five yards from the soldier ; but, before 
 he passed, the soldier went to him and struck him on the head with his 
 sword, of which blow he almost immediately expired. It was the opinion 
 of two witnesses that, if the soldier had not drawn his sword, they 
 would both of them have been murdered. The offence was ruled to be 
 manslaughter (p). 
 
 [1) 1 East, P. C. 292. Gaselee, JJ. 
 
 (m) Post, p. 755. (p) R. V. Brown, 1 Leach, 148. 1 East, 
 
 (n) Fost. 262. P. C. 245, 246. 
 
 (o) R. V. Conner, 7 C. & P. 438, Park and
 
 CHAP. I.] Of Resistance to the Law. 721 
 
 (Sect. VIII. — Of Resistance to Officers of Justice, to Persons 
 
 ACTING in their AiD, AND TO PRIVATE PERSONS LAWFULLY INTER- 
 FERING TO Apprehend Felons, or to Prevent a Breach of the 
 Peace. 
 
 ' When a constable, or other person properly authorised, acts in the 
 execution of his duty (7), the law casts a peculiar protection round him, 
 and consequently, if he is killed in the execution of his duty, it is in general 
 murder, even though there be circumstances of hot blood and want of 
 premeditation as would in an ordinary case reduce the crime to man- 
 slaughter ' (f). In the earlier authorities such killing is described as of 
 malice aforethought, as being an outrage wilfully committed in defiance 
 of the justice of the kingdom {s). 
 
 The protection extends to justices when acting as conservators of 
 the peace, to sheriffs and their bailiffs, and to constables and other 
 peace officers {t), and prison officers {u), whether they are acting under the 
 authority of the common law or of a statute. The officer is under this 
 protection not only at the scene of action but eundo^ morando, et redeundo ; 
 and if he comes to do his office, and meeting with great opposition, retires 
 and is kiUed in the retreat, this will amount to murder ; as he went in 
 obedience to the law and in the execution of his office, and his retreat was 
 necessary in order to avoid the danger by which he was threatened. Upon 
 the same principle, if he meets with opposition by the way, and is killed 
 before he comes to the place, such killing is murder (s). 
 
 The most important of the earlier cases on the subject is the 
 Sissinghurst House case [v). A great number of persons assembled in a 
 house called Sissinghurst, in Kent, issued out and committed a great riot 
 and battery upon the possessors of a wood adjacent. The name of one, A., 
 was known, the rest were not known ; and a warrant was obtained from a 
 justice of peace to apprehend A., and divers others persons unknown, 
 who were all together in Sissinghurst House. The constable, with about 
 sixteen or twenty called to his assistance, came with the warrant to the 
 house, and demanded entrance, and told some of the persons within that 
 he was the constable, and came with the justice's warrant, and demanded 
 A. with the rest of the offenders that were then in the house. One of the 
 persons within came, and read the warrant, but refused admission to the 
 constable, or to deliver A. or any of the malefactors ; but, going in, 
 
 (q) On indictments for assaulting or kill- slayer meant to inflict grievous bodily in- 
 
 ing them, proof that they were so acting is jury for the purpose of facilitating escape 
 
 enough without producing their appoint- or rescue from prison or lawful custody or 
 
 ment. Butler v. Ford, 1 Cr. & M. 622, GG2. lawful arrest.' R. v. Rice, 4 Ontario L. R. 
 
 M'Gahey v. Alston, 2 M. & W. 20G. 233. 
 
 (r) R. V. Allen, per Blackburn, and Mel- (s) 4 Co. Rep. 40. 3 Co. Inst. 56. Fost. 
 
 lor, JJ. 17 L. T. (N. S.) 222: Stephen 318. 1 Hale, 457, 460, 494. 2 Hale, 117, 
 
 Big. Cr. Law (6th ed.) 421. The rule is 118. 
 
 thus stated in a recent Canadian case, in (t) Including special constables, until 
 which a constable had been killed in an their services arc determined or suspended, 
 attempt by prisoners under trial for felony R. i: Porter, 9 C. & P. 778, Coleridge, J. 
 to escape while being conveyed back to 1 & 2 Will. IV. c. 31, s. 7. 
 prison. ' Homicide is murder whether the {ti) 61 & 62 Vict. c. 41, s. 10. The pro- 
 offender means or does not mean that tcction applies to them while acting aa 
 death sliould ensue, or knew or did not prison officers. 
 know that it was likely to ensue, if the {v) 1 Hale, 461. 
 
 VOL. I. 3 A
 
 Of Bomicide. [book tx. 
 
 commanded the rest of the company to stand to their staves. The 
 constable and his assistants, fearing mischief, went away ; and being 
 about five rods from the door, B., C, D., E., F., &c., about fourteen in 
 number, issued out and pursued the constable and his assistants. The 
 constable commanded the peace, yet they fell on, and killed one of the 
 assistants of the constable, and wounded others, and then retired into 
 the house to the rest of their company which were in the house, whereof 
 the said A; and one G., that read the warrant j were two. For this A., 
 B., C, D., E., Fi, G., and others, were indicted of murder, and tried at the 
 King's Bench bar, when these points were unanimously determined : — 
 
 1. That although the indictment were, that B. gave the stroke, and 
 the rest were present aiding and assisting, though in truth C. gave the 
 stroke, or that it did not appear upon the evidence which of them gave 
 tt I stroke, but only that it was given by one of the rioters, yet that such 
 evidence was sufficient to maintain the indictment ; for in law it was the 
 stroke of all that party, according to the resolution in Mackalley's case {ii:). 
 
 2. That in this case all who were present and assisting to the rioters 
 were guilty of the death of the party slain, though they did not all actually 
 strike him, or any of the constable's company. 
 
 3. That those within the house, if they abetted or counselled the riot, 
 were in law present aiding and assisting, and were principals as well as 
 those who issued out and actually committed the assault ; for it was but 
 within five rods of the house, and in view thereof, and all done as it were 
 in the same instant (x). 
 
 4. That there was sufiicient notice that it was the constable^ before 
 the man was killed. (1) Because he was the constable of the same vill. 
 (2) Because he notified his business at the door before the assault, viz., 
 that he came with the justice's warrant. (3) Because, after his retreat, 
 and before the man was slain, the constable commanded the peace ; 
 and, nevertheless, the rioters fell on and killed the man. 
 
 5. That the killing of the assistant of the constable was as much 
 murder as would have been killing the constable himself. 
 
 6. That those who come in to the assistance of the constable, though 
 not specially called thereunto, are under the same protection as they that 
 are called to his assistance by name. 
 
 7. That although the constable retired with his company upon the not 
 delivering up of A., yet the killing of the assistant of the constable in that 
 retreat was murder. (1) Because the retreat was one continued act in 
 pursuance of his ofiice ; being necessary, when he could not attain the 
 object of his warrant, and being in effect a continuation of the execution 
 of his office, and under the same protection of the law as his coming was. 
 (2) Principally because the constable, in the beginning of the assault, 
 and before the man was stricken, commanded the peace. 
 
 It seems that even if the constable had not commanded the peace, 
 yet as he and his company came about what the law allowed them, and, 
 when they could not effect it fairly, were going their way, the rioters 
 
 [w) 9 Co. Rep. 65, an indictment for {x) See Lord Caere's case, 1 Hale, 439; 
 
 killing a serjeant at mace of the City of Crompt. 25 a. Dalt. c. 145, p. 472. Y.B. 34 
 
 London, when attempting to make an Hen. VIII. B. Coron. 172. See also Moore 
 
 arrest by night on civil process. (K.B.) 86 ; 72 E. R. 458 ; Kel. (J.) 56. 
 
 II
 
 CHAP. I.] Of Resistance to the Law. 723 
 
 pursuing them and killing one made the offence murder in them all ; 
 for the act was done without provocation, and the constable and his 
 company were peaceably retiring ; but this point was not relied upon, 
 because there was enough upon the former points to convict the offenders. 
 
 In the conclusion, the jury found nine guilty, and acquitted those 
 within, not because they were absent, but because there was no clear 
 evidence that they consented to the assault as the jury thought ; and 
 therefore judgment of death was given against the nine. 
 
 In time past peace officers have occasionally taken opposite sides in 
 an affray and the death of one has ensued. Where the officers act as 
 partisans they lose their protection as officers (?/), and where constables 
 interfere with the sheriff or his officers in the execution of writs and slay 
 a sheriff's officer the killing would be murder, as they are not entitled to 
 obstruct the sheriff in the execution of the King's writ (2). 
 
 Authority of the Officers. 
 
 Justices of the Peace. — ^The powers and duties of justices of the 
 peace as conservators of the peace are not now exercised by personal 
 interposition or making arrests in dealing with breaches of the peace, 
 except in the case of riot, as to which vide ante, Book VI. Chapter I. 
 p. 431, but by the judicial act of issuing warrants or other process for 
 the arrest of offenders. 
 
 Sheriffs and Bailiffs.— The sheriff has powers and duties as to pursuit 
 and arrest of felons (a), and as to suppression of riots (6). But in modern 
 practice the functions of the sheriff and his bailiffs are restricted to the 
 execution of writs, &c., issued by the High Court of Justice (c). If he is 
 resisted in the execution of a writ he is to take with him the posse comitatus 
 and go himself to do execution, and may arrest the resisters, whose resist- 
 ance is a misdemeanor (d). The powers and duties of bailiff's and officers 
 of County Courts (e), and other inferior civil Courts of Record are analogous 
 to those of the sheriff and his officers. And all are within the same 
 special protection as constables. 
 
 In civil cases the authority of the sheriff, and his bailiffs, &c., to arrest 
 or imprison is regulated and limited by the writ or process which he is 
 empowered to execute and the extent of the district in which he is privi- 
 leged to act (c). He is protected if the process, though erroneous, is not 
 void ( /'), but not if it is void on the face of it. 
 
 Constables and Police Officers.— The common-law constables, head- 
 boroughs and bors-holders are now rarely, if ever, appointed, but the 
 following statutory peace officers are by the statutes under which they 
 are appointed given the powers, privileges, and immunities, and made 
 liable for the duties of a constable within his constablewick. 
 
 1. A special constable duly appointed by justices within the area for 
 
 (y) 1 Hale, 460. 2 East, P. C. 304. competent Court. 1 Hawk. c. 28, s. 19. 
 
 (z) 1 Hale, 460. 2 East, 30.5. (d) .50 & 51 Vict. c. 5.5, s. 8 (2). Ante, 
 
 (a) 50 & 51 Vict. c. 55, .ss. 8, 29. p. 550. 
 
 (6) Ante, Bk. vi. c. i. p. 431. (e) 51 & 52 Vict. c. 43, ss. 35, 48, 49, 50, 
 
 (f) ^Mather, Sheriff Law. No private 52. 
 
 person can lawfully arrest in a civil suit (/ ) 1 Hawk. c. 32, ss. 61-62. Cf. 51 & 52 
 
 without authoritv of a writ or process of a Vict. c. 43, s. 52. as to county court process. 
 
 3 .V 2
 
 724 Of Homicide. book ix.] 
 
 which those justices have jurisdiction until his services are suspended or 
 determined {(j). 
 
 2. Local constables appointed for parishes within the county for 
 which they are appointed and the adjoining county [h). 
 
 3. Officers of the statutory county pohce, throughout the county {i), 
 and in every borough situate wholly or in part within the county {j). 
 
 4. Officers of the statutory police of a municipal borough (which has 
 a separate police force) within the borough or within seven miles of it {h). 
 
 5. Constables appointed under the Town Police Clauses Act, 1847, 
 within the limits of the special Act relating to the town and in any place 
 not more than five miles beyond such limits {I). 
 
 6. Officers of the Metropolitan Police Force (m), and the City of 
 London Police Force {n). 
 
 7. Prison officers in convict or local prisons (o). 
 
 8. Constables appointed for canals (p). 
 
 Constables, and other peace officers, are invested with large powers 
 and duties at common laAV, for the purpose of preserving the peace, 
 preventing the commission of criminal offences, apprehending offenders, 
 and executing the warrants of justices of the peace. Every constable, 
 Avithin the limits of his district, is a conservator of the peace at common 
 law (pp). It is his duty, therefore, to do all that he can to preserve the 
 peace within his constablewick [q). And in order the better to enable 
 peace officers to preserve the peace, they have authority to command all 
 other persons to assist them, in endeavouring to appease such disturb- 
 ances as take place in their presence {r). 
 
 Arrest without Warrant. — The powers of a constable or like peace 
 officer to make arrests without warrant depend (1) on the common law, 
 (2) on numerous statutes. 
 
 (1) Common Law. — At common law a constable may arrest a person 
 whom he finds committing a felony, or may arrest upon reasonable 
 suspicion that a felony has been committed by the person arrested, 
 although no felony has, in fact, been committed (s), and whether the 
 
 (^) 1 & 2 Will. IV. c. 41, ss. 1, 5, 9, 11 ; them, see s. 20. 
 5 & 6 Will. IV. c. 43, s. 1. They are only (m) 10 Geo. IV. c. 29, s. 4 ; 2 & 3 Viet, 
 
 appointed on emergency. .See R. ?'. Porter, cc. 47, 71. Their powers extend to the 
 
 9 C. & P. 778. river Thames up to the boundaries of 
 
 (A) 3 & 4 Vict. c. 88, s. IG ; 5 & 6 Vict. Bucks and Berks, and to these counties and 
 
 c. 109, s. 15. They are now appointed only the counties of London, Middlesex, Hert- 
 
 when quarter sessions deems it necessary. ford, Essex, Kent, and Surrey : and they 
 
 35 & 36 Vict. c. 92. Archbold, Quarter act in royal palaces and dockyards. Their 
 
 Sessions (6th ed.), 145. powers as to the execution of warrants 
 
 (i) 2 & 3 Vict. c. 93, s. 8; 3 & 4 Vict. c. 88. extend to all England. As to assaults on 
 
 {j) 19 & 20 Vict. c. 69. They are not to them, see 2 & 3 Vict. c. 47, s. 18 ; 24 & 25 
 
 be required to act within a municipal Vict. c. 51, s. 53. 
 
 borough, which has a separate police force, {n) 2 & 3 Vict. c. xciv., a local Act. 
 
 except in executing waiTants of the county (o) 61 & 62 Vict. c. 41, s. 10. Cf. Prison 
 
 justices. 22 & 23 Vict. c. 32, s. 2. Act, 1877 (40 & 41 Vict. c. 21), s. 28, as to 
 
 {k) 45 & 46 Vict. c. 50, ss. 191, 193, 195 ; legal custody of prisoners within or without 
 
 46 & 47 Vict. c. 44, s. 2. And see R. v. tlie walls of the prison. 
 Borton, 12 A. & E. 470. R. v. Cumpton, (p) 3 & 4 Vict. c. 50, s. 1, 
 
 5 Q.B.D. 341. Maberley v. Titterton, 7 M. (p-p) Dalton, c. 1. 
 
 6 W. 540. As to assaults on them, see [q] 1 Hale, 463. 1 Hawk. c. 31, s. 54. 
 45 & 46 Vict. 0. 50, s. 188, and post, p. 893. Post. 310, 311. 1 East, P. C. 303. 
 
 (Z) 10 & 11 Vict. c. 89, s. 8. No towns (?•) R. v. Sherlock, L. R. 1 C. C. R. 20, 
 
 which are not municipal boroughs now Dalton, c. 1. 
 have their own police. As to assaults on (s) This is an addition to his power as 
 
 «
 
 CHAP. I.J Of Resistance to the Law. 725 
 
 reasonable grounds of suspicion are matters within the constable's 
 knowledge, or are derived from facts stated to him by others {t). 
 
 A constable is not as a general rule entitled to arrest for misdemeanor 
 after it has been committed, whether the offence be fraud, breach of the 
 peace, &c. ; nor to arrest on suspicion of misdemeanor (m). 
 
 He may arrest any person who in his presence commits a misdemeanor 
 or breach of the peace (f), if the arrest is effected at the time when, or 
 immediately after, the offence is committed {iv), or while there is danger of 
 its renewal (cc), but not after the breach, or danger of its renewal, has 
 ceased (y). He may arrest or start in immediate pursuit if the mis- 
 demeanor is a breach of the public peace (2). And he may take into his 
 custody persons given in charge to him by persons w^ho have witnessed 
 a breach of the peace, if there is danger of its immediate renewal (a), but 
 not if the affray is over and peace restored (6). 
 
 The common law power of arrest extends to persons who threaten to 
 kill, beat, or hurt another, or to break the peace in his presence, if com- 
 jilaint is at once made to the constable by the person threatened (c). 
 
 There are statements in the early authorities as to the right of peace 
 officers to arrest persons reasonably suspected of being night w-alkers {d), 
 or disorderly persons, and persons unduly armed (e), which appear to have 
 been made with reference to a statute now repealed (f), and the arrest 
 of idle and disorderly persons and suspected persons and reputed thieves, 
 frequenting or lying or loitering in public places, is now regulated by 
 statute {(j). 
 
 Where a policeman saw the prisoner playing the bagpipes in a street 
 at half-past eleven o'clock at night, by which he collected a large crowd 
 around him, among whom were prostitutes and thieves, and the police- 
 man told him he could not be allowed to play at that time of night, and 
 he must go on, but he said he would be damned if he would, and the 
 
 a citizen to pursue and take felons when see East, P. C. 306. The object of tiiis 
 
 a felony has actually been committed, or power is to enable the constable to take the 
 
 to arrest a person attempting to commit offender before a justice and have him 
 
 felony. sworn to keep the peace, &c. 
 
 (<) Beckwith v. Philby, 6 B. & C. 635. (d) To be a common night-walker is .said 
 
 Davis V. Russell, 5 Bing. 354. Hogg v. to be an indictable misdemeanor. 2 Hawk. 
 
 Ward, 27 L. J. Ex. 443. Marsh v. Loader, c. 12, s. 20. Latch, 173. Popham, 208. 
 
 14 C. B. (N. S.) 535. See 2 Hale, 79, 80, As to the meaning of night-walker, see 
 
 91-93. Watson v. Carr, 1 Lew. 6, Bayley, J. 
 
 (m) See Griffin v. Coleman, 28 L. J. Ex. (e) Tooley's case, 2 Ld. Raym. 1296. 2 
 
 134. Hale, 89, 97. 1 East, P. C. 303. Cf. R. v. 
 
 {v) Timothy v. Simpson, 1 Cr. M. & R . Dadson, 2 Den. 35. Lawrence v. Hedger, 
 
 757, approved in Price v. Seeley, 10 CI. & F. 3 Taunt. 14. 
 
 38. Derecourt v. Corbishley, 5 E. & B. (/) 5 Edw. III. c. 15, repealed in 1856 
 
 188. (19 & 20 Vict. c. 64). 2 Edw. IIL c. 3. 
 
 {w) See Fox r. (Jaunt, 3 B. & Aid. 798. which prohibits riding or going armed in 
 
 Bowditch I'. Balchin, 5 Ex. 378. affray of the peace, is in force and appears 
 
 {x) R. V. Light, 27 L. J. M. C. 1. specriically to authoiise arrest for breacii 
 
 (y) R. V. Walker, 23 L. J. M. C. 123. of its provisions, vide ante, p. 428. 
 
 Cook V. Nethcrcote, 6 G. & P. 741. R. v. (g) See 5 (Jeo. IV. c. 83, s. 4, amended 
 
 Bright, 4 C. & P. 387. by 34 & 35 Vict. c. 112, s. 15, and 54 & 55 
 
 (;) See R. v. Hunt, pos?, p. 727. R. v. Vict. c. 69, s. 7 ; and as to the metropolis, 
 
 Howarth, post, p. 727. 10 Geo. IV. c. 44, s. 7, and 2 & 3 Vict. 
 
 (a) Timothy v. Simpson, ubi supra. c. 47, s. 66. As to the meaning of the 
 
 (6) 1 East, P. C. 305, 306. 2 Co. Inst. word frequenting, see R. v. Clark, 14 
 
 52. 2 Hawk. c. 12, s. 20. Strickland v. Q.B.D. 92. As to the meaning of suspicious 
 
 Pell, Dalton, c. 1, s. 7. 2 Hale, 90. character, see Cowles r. Dmibar, M. & M. 
 
 (c) 2 Hale, 88. Dalton, cc. 1, 116. And 37.
 
 726 Of Homicide. [book ix. 
 
 policeman took hold of him by the shoulder, and slightly pushed him, 
 on which the prisoner wounded him with a razor ; it was held, that if 
 the prisoner was collecting a crowd of persons at that time of night, and 
 the policeman desired him to go on, and laid his hand upon his shoulder 
 with that view only, he did not exceed his duty, and if the prisoner then 
 wounded him, it would have been murder if he had died ; but if the 
 policeman gave the prisoner a blow and knocked him down, he was not 
 justified in so doing [h). 
 
 Riol. — The general and sjsecial powers and duties of justices, sheriffs, 
 under-sherif?s, constables, and other peace officers, as to the suppression 
 of riots are stated ante. Book VI. Chapter I, sect. 6, p. 431 {i). 
 
 (2) Statute. — Power to arrest without warrant is given by many 
 statutes as to many misdemeanors and petty offences, e.g., persons 
 found lying or loitering in a highway, yard, or place during the night, 
 whom the constable reasonably suspects of having committed or being 
 about to commit any felony against the Larceny, Malicious Damage, or 
 Offences against the Person Acts of 1861 (/). 
 
 The powers of a peace officer to arrest upon the warrant of a judicial 
 officer depend on the competence of the judicial officer to issue the 
 warrant, the person or persons to whom it is addressed, the district in 
 which the execution of the warrant is attempted, and the mode adopted 
 for executing it. 
 
 Persons acting in Aid of Officers of Justice.— The protection which 
 the law affords to ministers of justice extends also to every j^erson 
 coming to their aid and lending his assistance for the keeping of the 
 peace, &c., or attending for that purpose, whether commanded or not, 
 provided that the slayer has knowledge or notice that they are so acting 
 in assistance {k). 
 
 In R. V. Phelps [1), the deceased having been required by a policeman 
 to aid him in taking a man, whom he had apprehended on suspicion of 
 stealing potatoes, to the station-house, did so for some time, and then 
 was going away, when he was attacked and beaten to death. It was 
 objected that he was not at the time aiding the policeman. Coltman, J. : 
 ' He is entitled to protection eundo, morando, et redeundo ' (m). 
 
 In R, v. Porter (n), the indictment was for the murder of D., who had 
 been called upon by a police constable to aid in apprehending the prisoner 
 and another man charged with stealing money. Brett, J., in summing 
 up, said : ' The men had been given into custody of a police constable, 
 who had legal authority to take them into custody, and to call upon others 
 to assist him, and they had no right to resist him, and in resisting him 
 they were doing what was illegal. If the prisoner kicked the man, 
 intending to inflict grievous harm, and death ensued from it, he is guilty 
 of murder. If the prisoner inflicted the kick in resistance of his lawful 
 
 (h) R. V. Hagan, 8 C. & P. 167, Bolland, see Chronological Index of Statutes (ed. 
 
 B., and Coltman, J. 1909), tit. ' Arrest.' 
 
 (i) And see 1 Hawk. c. 31, ss. 48, 49. 50, (k) Sissinghurst case, cmte, p. 721. Fost. 
 
 54. Fost. 272. ' 309, 310, 311. 
 
 ij) 24 & 25 Vict. c. 96, s. 104 ; c. 97, (I) C. & M. 180, and MS. C. S. G. 
 
 s. 57 ; c. 100, s. 66. Cf. as to offences on (m) Vide ante, p. 721. 
 
 highways, &c., 5 & 6 Will. IV. c. 50, ss. 58, (n) 12 Cox, 444. 
 59. For a complete list of such statutes.
 
 CHAP. I.] Of Resistmice to tJie Law. 727 
 
 arrest, even although he did not intend to inflict grievous injury, he is 
 equally guilty of murder. But if in the course of the struggle he kicked 
 the man, not intending to kick him, then he is only guilty of manslaughter/ 
 
 In case of a riot, if a constable sees a breach of the peace committed, he 
 may call upon any one present for his assistance if there is a reasonable 
 necessity therefor. If the person called upon, without any physical 
 impossibility or law excuse refuse to do so, he is liable to be indicted, and 
 it is no defence that in consequence of the number of rioters the single aid 
 of the person called upon would have been of no use. R. v. Brown, 
 C. & M. 314. Vide ante, Book VI. Chapter I. sect. 6, p. 431 . 
 
 Private Persons. — The protection extends also under certain limita- 
 tions to private persons who interpose to keep the peace and suppress an 
 affray by parting or arresting the combatants, whether the combat arises 
 from a sudden or premeditated quarrel (o), or endeavour to arrest and 
 bring to justice felons or persons who have given a dangerous wound. As 
 they are discharging duties or exercising powers imposed and given by law, 
 they are in a sense engaged in the public service and for the advancement 
 of justice, though not sj)ecially appointed (??). If such a person is resisted 
 and killed, the slayer is guilty of murder if he had express notice of the 
 purpose for which the deceased came, e.g., by his commanding the peace 
 or otherwise shewing that his interposition was in the interests of peace 
 and justice, or with friendly intent {q). Where express notice is not given 
 the purpose of the private intervention may be misunderstood and 
 the violence offered may be extenuated (r). 
 
 At common law a private person may, on his own initiative, without 
 warrant, apprehend and detain, until they can be carriedbefore a magis- 
 trate, all persons found committing or attempting to commit a felony (s)_: 
 and where a felony has actually been committed may arrest any person 
 reasonably suspected of having committed it {t). He is also justified in 
 using force to prevent the commission of felony {u), and in arresting 
 persons committing a breach of the public peace, or in giving them into the 
 custody of a peace officer at the time of the breach or while there is danger 
 of its renewal (?'). 
 
 Foster says (Crown Law, p. 318) : ' In the case of private persons using 
 their endeavours to bring felons to justice, these cautions ought to be 
 observed : That a felony hath been actually committed {w). For if no 
 felony hath been committed, no suspicion, how well soever grounded, 
 will bring the person so interposing within the protection of the law in the 
 sense I have already stated and explained.' 
 
 (o) 1 Hawk. c. 31, ss. 48, .ll. Chanibic, .J. 
 
 (p) Fost. 318. (v) As to arrest by piivatc pci-sons for 
 
 (n) Fost. 272, 311. 1 East, V. C. .304. irisdcmeanor, sec 1 Hawk. c. 63, ss. 11, 14, 
 1 Hawk. c. 31, ss. 48, 54. The other par- 21, 23 ; 2 Hawk. c. 12, s. 30. R. v. Pin- 
 ties to the affray are not respon.sible for ney, 3 St. Tr. (N. S.) 11, ante, p. 431. 
 the killing unless they join in the attack Holyday v. Oxcnbridgc, Cro. Car. 234 ; 79 
 on the intervener. E. R. 805. Fox v. Gaunt, 3 B. & Ad. 708. 
 
 (;•) Fost. 310, 311. Timothy v. .Simpson, 1 Cr. M. & R. 757: 
 
 («) R. V. Hunt. 1 Mood. 93. R. v. approved in Price v. Seeley, 10 CI. & F. 28. 
 
 Howarth, 1 Mood 207. Eighth Report, Grant v. Moser, 5 M. & G. 123. Baynes v. 
 
 Cr. L. Commissionei-s, p. 240. Brewster, 2 Q.B. 375. 
 
 (0 Fost. 318, infra. {w) See Beckwith v. Philbv, 6 B. & C. 
 
 (u) Handcock v. Baker, 2 B. & P. 2G0, 635. Allen v. L. S. W. R., 6 Q.B.D. 65.
 
 728 Of Homicide. [book ix. 
 
 Sect. 16. ' Supposing a felony to have been actually committed, but 
 not by the person arrested or pursued upon suspicion, this suspicion, 
 though probably well founded, will not bring the person endeavouring to 
 arrest or imprison within the protection of the law, so far as to excuse 
 him from the guilt of manslaughter, if he killeth, or on the other hand to 
 make the killing of him amount to murder. I think it would be felonious 
 homicide, but not murder, in either case ; the one not having used due 
 diligence to be apprised of the truth of the fact ; the other not having 
 submitted and rendered himself to justice, since, if his case would 
 bear it, he might have resorted to his ordinary remedy for the false 
 imprisonment.' 
 
 Hale says (1 H. P. C. 490) : ' If A. be suspected by B, to commit a felony, 
 but in truth he committed none, neither is indicted, yet upon the ofEer to 
 arrest him by B. he resists or flies, whereby B. cannot take him without 
 killing him, and B. kills him, if in truth there were no felony committed, 
 or B. had not a probable cause to suspect him, this killing is at least 
 manslaughter, but if there were a felony committed, and B. hath cause to 
 suspect A., but in truth A. is not guilty of the fact, though upon this 
 account B. may justify the imprisonment of A., yet giicere, if B. kills A. 
 in the pursuit, whether this will excuse him from manslaughter ' [x). 
 
 He says further (2 H. P. C. 82) : ' But if a felony be committed, and 
 A, upon probable cause suspects B. to have been the felon, though the law 
 permits him to arrest B., though in truth innocent, yet he cannot justify 
 the killing of him upon his flight and refusing to submit, justiciari se 
 permiitere nolens ; but if he kills him, it is at his peri] ; for if B. be innocent 
 it is at least manslaughter (3 Co. Inst. 56, 221 ; 22 Assiz. 55), and the 
 reason is because B. is not bound to take notice of A. as authorised to 
 arrest him, as being no officer, nor having any warrant. It is true, a 
 constable arresting in the king's name, or offering so to do, the party is 
 bound to take notice and submit, as hath been said (part 1, cap. 37), 
 but a mere stranger offering to do it, a man is not bound to take notice of 
 his authority, and therefore may fly from him if innocent, for possibly he 
 may think he came to rob him. Yet farther, if an innocent person be 
 actually arrested upon suspicion by a private person, all circimtistances 
 being dulv observed, and he breaks away from the arrest, yet I do not 
 think the person arresting can kill him, though he cannot be otherwise 
 taken, for the person arrested is not bound to take notice of that authority 
 that the law gives to a private person in this case.' 
 
 Upon an indictment for unlawful wounding, it appeared that the 
 prisoner had asked and obtained permission to take a basket of ashes from 
 the prosecutor's ash-pit. As he was carrying away the ashes the prosecu- 
 tor's apprentice saw among the ashes the spout of a new tea-kettle which 
 had stood on a shelf near the ash-pit, and gave the alarm. The prosecutor 
 then seized the prisoner to detain him while a constable was sent for. 
 The prisoner resisted, and in the struggle both fell, and the prisoner cut 
 the prosecutor with a knife ; a rattle of copper had been heard while the 
 prisoner was at the ash-pit. It was objected that the prosecutor had no 
 right to detain the prisoner. Alderson, B., said : ' That will depend on 
 
 (x) See also 2 Co. Inst. 52, 172. Coxe v. Wiirall, do. Jac. 193. 
 
 J
 
 CHAP. I.] Of Resistance to the Law. 729 
 
 whether the jury are satisfied that the prisoner had in fact stolen the tea- 
 kettle. If he had stolen the tea-kettle, the prosecutor had a right to 
 detain him, and this wounding will be felony ' {y). 
 
 Hue and Cry. — If a felony is committed, and the felon flies from 
 justice, or a dangerous wound is given, it is the duty of every man to use 
 his best endeavours to prevent an escape ; and in such cases, if fresh suit 
 be made, and a fortiori, if hue and cry is raised (2), all who join in aid of 
 those who began the pursuit, are under the same protection of the law (a). 
 Thus, where upon a robbery committed by several, the person robbed 
 raised hue and cry, and the country pursued the robbers, and one of the 
 pursuers was killed by one of the robbers, it was held that this was murder, 
 because the country, upon hue and cry raised, are authorised by law to 
 pursue and apprehend the malefactors ; and that, although there was no 
 warrant of a justice of the peace to raise hue and cry, nor any constable 
 in the pursuit, yet the hue and cry was a good warrant in law for the 
 pursuers to apprehend the felons ; and that, therefore, the killing of any 
 of the pursuers was murder (6), 
 
 The question is raised by the earlier writers whether a private person 
 is hound to arrest a person indicted for felony if no warrant is produced, 
 and whether, if a private person kills a person accused of felony in en- 
 deavouring to arrest him, the slayer's justification depends on the guilt 
 or innocence of the person arrested. Knowledge that an indictment had 
 been found or a warrant issued might create a reasonable suspicion of 
 guilt, but would not justify the slaying ; and the arrest by a private 
 person without warrant is a trespass if no felony had in fact been com- 
 mitted (c). 
 
 Statutes.— The following statutes authorise arrest without warrant 
 bv private persons, as w^ell as by peace officers {d) : — 
 
 Larceny Act, 1861 (24 & 25"Vict. c. 96), s. 103 : Of any person ' found 
 committing ' any offence against the Act whether punishable on indict- 
 ment or summary conviction (e), except angling in the day time ( f). 
 
 Coinage Offences Act, 1861 (24 & 25 Vict. c. 99), s. 31 : Of any person 
 found committing any indictable offence against the Act. 
 
 Prevention of Offences Act, 1851 (14 & 15 Vict. c. 19), s. 11 : Of any 
 person found committing any indictable offence in the night, i.e. between 
 9 p.m. and 6 a.m. 
 
 (y) R. r. Piice, 8 C. & P. 282, Alderson, gives as a reason that there is a charge 
 
 B. against the party on record. 1 Hawk. 
 
 (2) By the Slieriffs Act, 1887 (50 & 51 c. 28, s. 12. But upon this it is remarked 
 
 Vict. c. 55), s. 7, which re-enacts 3 Edw. I. that it does not readily occur why officers 
 
 0. 9, ' Every person in a county shall be only can take notice of the charge on 
 
 ready and apparelled at the command of record. 1 East, P. C. 300. 
 
 the sheriff and at the cry of the county to (d) For other enactments, see Motro- 
 
 arrcst a felon wiiether within franchise or politan Pohce Guide (4th ed.), 550, and 
 
 without, and in default shall on com-iction Official Index to Statutes (ed. 1908), tit. 
 
 be liable to a fine.' ' Arrest.' 
 
 (a) 1 Hale, 489, 490. 1 Hawk. c. 28, (e) See R. v. Sherriff. 20 Cox, 334, 
 
 s. 11. Fost. 309. 1 East, P. C. 298. Darling, J., an indictment for murder of 
 
 {h) Jackson's case, 1 Hale, 4CA. a policeman who was trying to arrest the 
 
 (c) 2 Hale, 79, 80. 85, 8G, 91, 92, 93. 3 Co. prisoner for having in his possession a ferret 
 
 Inst. 221. 1 East, P. C. 301. Dalt. c. 170, knowing it to be stolen. 
 
 s. 5. R. V. Turner, 1 Mood. 347. scd vide, (/) Barnard v. Roberts, [1907] 96 L. T. 
 
 1 Hale, 489, 490. Hawkins, in alluding to 648 : 21 Cox, 425. 
 the power of arrest by officers in this case,
 
 730 Of Homicide. [book ix. 
 
 Vagrancy Act, 1824 (5 Geo. IV. c. 83), s. 6 : Of any person found 
 offending against the Act. 
 
 Persons ' found committing ' any offence against the Malicious 
 Damage Act, 1861 (24 & 25 Vict. c. 97), may be arrested without warrant 
 by a peace officer or the owner of the property injured or his servant, or 
 any person authorised by him (sect. 61) (/J). 
 
 In the event of arrest of an offender by a person other than a peace 
 officer it is his duty at common law or under the particular statute to convey 
 or deliver his prisoner to a peace officer (g), in order that he may be conveyed 
 as soon as reasonably may be before a justice of peace, &c., to be dealt with 
 according to law, or to take him with all convenient speed before a justice. 
 
 Statutes authorising arrest without warrant have been construed 
 somewhat strictly. The arrest will be illegal if not in close accordance 
 with the words of the statute, e.g. if it is not immediate or if on arrest the 
 prisoner is detained in private custody [h), instead of being handed over 
 to officers of the law. The words ' found committing ' used in many of 
 these statutes are not limited to ' caught in the act.'' 
 
 In Han way v, Boultbee (t), the plaintiff, a pedlar, went to the house 
 of Mr. B., and a small dog of Mr. B.'s ran out at the plaintiff, who with a 
 stick gave the dog a blow, which stunned and permanently blinded it. The 
 plaintiff then went away, and Mrs. B. immediately sent a boy to fetch a 
 constable. The boy returned with the constable, and Mrs, B. directed them 
 to go after the j^laintiff and apprehend him for the injury done to the dog. 
 They went in pursuit of the plaintiff, and found him at a public-house about 
 a mile from Mr. B.'s, and the constable apprehended him and took him 
 before the magistrate. Tindal, C.J. (in summing up), said : ' The jury will 
 have to consider first, whether the plaintiff had committed a wilful injury 
 to the dog ; and secondly, whether he was found committing that offence 
 and immediately apprehended. With respect to the second question, the 
 words of 7 & 8 Geo. IV. c. 30 certainly differ materially from those in 
 1 Geo. IV. c. 56 (/), and were obviously meant to restrict the powers 
 
 iff) See also the power of arrest by potatoes concealed on his person, which 
 
 pawnbrokers (35 & 36 Vict. c. 93, s. 34 : appeared to have been I'ecently dug : but 
 
 Howard v. Clarke, 20 Q.B.D. 558), and he had not seen him steal, dig up the pota- 
 
 by owners of property, their servants toes, nor was there any evidence that any 
 
 and agents in case of offences against the gardens had been robbed, or that the priso- 
 
 Metropolitan Police Act, 1839 (2 & 3 Vict. ner had been near any garden. It was 
 
 c. 47, s. 16) or Town Police Clauses Act, 1847 held that the arrest of the prisoner was not 
 
 (10 & 11 Viot. c. 89, s. 157), and the Night authorised by 7 & 8 Geo. IV. c. 29, s. 63 
 
 Poaching Act, 1828 (9 Geo. IV. c. 69, s. 2), (rep.), nor at common law, as stealing po- 
 
 and by water bailiffs under the Fisheries tatoes out of a garden is not an offence at 
 
 Acts (36 & 37 Vict. c. 71, s. 38 ; 47 & 48 common law. Cf. Balhnger v. Ferris, 1 M. 
 
 Vict. c. 11, s. 3). & W. 628. Reed v. Cowmeadow, 6 A. & 
 
 {g) See R. v. Curran, 3 C. & P. 397. E. 661, and Beachey v. Sides, 9 B. & C. 
 
 (h) R. V. Curran, 3 C. & P. 397, where a 806, cases of illegal arrest under 7 & 8 Geo. 
 
 man found in a field adjoining one from IV. c. 30, s. 28, now incorporated in 24 & 25 
 
 which turnips had been stolen, was appre- Vict. c. 97, s. 61. 
 
 bended by a servant of the owner of the {i) 1 M. & Rob. 15 ; 4 C. & P. 350. 
 
 turnips, under tlie owner's directions, and {j) The words of 1 Geo. IV. c. 56, s. 3 
 
 taken to the owner's house, and then to the (repealed by 7 & 8 Geo. IV. c. 27), were : 
 
 constable, instead of being taken forthwith ' Any person or persons who shall have 
 
 beforea justice as directed by 7 & 8Geo. IV. actually committed, or be in the act of 
 
 c. 29, s. 63 (rep.). In R. i'. Phelps (C. & M. committing,' any offence. The words of 
 
 180), an indictment for murder of a person 7 & 8 Geo. IV. c. 30, s. 28 (rep.), on 
 
 acting in aid of a constable, the constable which this case turned, were the same as 
 
 had arrested a man at night, and had found those in 7 & 8 Geo. IV. c. 29, s. 63, repealed
 
 CHAP. I.] Of Resistance to the Lmv. 731 
 
 given by that Act. The object of the legislature seems to have been to 
 allow the immediate apprehension of a party taken in the commission of 
 a crime of this nature, because otherwise such offences would frecjuently 
 be committed by persons passing through or having no fixed domicile in 
 the place, and they would therefore entirely escape, if the party injured 
 were obliged to wait for the formalities of a charge before a magistrate, 
 or a warrant. Where the offender is fixed in the country, so that he can 
 be found and apprehended at a subsequent time, there is no reason why 
 that apprehension should not be after a regular proceeding ; and the 
 statute therefore differs from 1 Geo. IV. c. 56, and does not allow a 
 stale apprehension on an old charge, without a warrant. Still the words 
 of the present statute must not be taken so strictly as to defeat its reason- 
 able operation. Suppose a partv seen in the act of committing the crime 
 were to run away, and immediate and fresh pursuit to be made : I think 
 that would be sufficient. So, in this case, the party is actually seen in the 
 commission of the act complained of : as soon as possible an officer is 
 sent for, and he is taken as soon as possible. No greater diligence could 
 be required ; and that being the case, I think it must be treated as an 
 "immediate apprehension" for an offence which the plaintiff, supposing 
 under the circumstances that it was an offence at all, was "found com- 
 mitting/' and this was the imprisonment complained of.' 
 
 But arrest at 10 p.m. of a person who committed an offence at 1 a.m. 
 has been held not to be within sect. 103 of the Larceny Act, 1861, on 
 the ground that the word ' immediately ' in that section means imme- 
 diately after the commission of the offence, not immediately after the 
 discovery that it has been committed (/c). 
 
 In R. V. Fraser (1), where a policeman found the prisoner in a garden at 
 jiight, stooping down close to the ground, and the prisoner ran away, and 
 the policeman ran after him and caught him ; and it appeared that the 
 prisoner was plucking some carnations in the garden, and the jury found 
 that the prisoner had wilfully and maliciously plucked flowers from 
 plants in the garden with intent to steal them, and that he was found by 
 the policeman committing that offence, but that the policeman did not 
 inform the prisoner by word of mouth that he belonged to the police force. 
 On a case reserved, it was held that the policeman had authority to 
 apprehend the prisoner. 
 
 In actions for illegal arrest in intended exercise of the powers given 
 by sect. 10.3 of the Larceny Act, 1861, it has been held that the defendant 
 was entitled to notice of action if he acted in bo7ia fide belief, in circum- 
 stances which, if they had really existed, would have amounted to a 
 justification (m). It would seem that the arrest would be justified if the 
 person arrested was seen in a position justifying the belief that he had 
 committed the offence and the prisoner is arrested then and there or after 
 fresh pursuit (n). 
 
 In R. V. Hosvarth {(>), upon an indictment for malicious wounding, 
 
 ill 1861 and re-enacted as 24 & 25 Vict. c. Vict. c. 61. 
 
 96, s. 103. (n) Downing t'. Capcl, M&/5H/)ra, Keating 
 
 (k) Downing v. Capcl, L. R. 2 C.P. 461. and Smith, JJ. Cf. Roberta v. Orcliard, 
 
 (I) 1 Mood. 419. 38 L. J. Ex. 65. 
 
 (w) Griffith V. Taylor, 2 C.P.D. 194. (o) 1 Mood. 207. 
 Notice of action is abolished. 56 & 57
 
 732 Of Homicide. [book ix. 
 
 it appeared that near midnight two men were seen near a board-house 
 belonging to 0. ; on two persons going up to the board-house, they heard 
 a noise, and they found the door half open, and saw the prisoner inside 
 and heard a noise among the boards, and the prisoner said ' Bring the 
 board ' ; the two persons then went to 0/s house to call him up ; one of 
 them then v/ent to the bottom of the road, which was about one hundred 
 yards from the board-house, and in a quarter of an hour 0. came up, with 
 a carving knife in his hand, and having also got another person to assist 
 him, they went to the board-house, the door of which was then closed ; 
 the hasp was over the staple, and the padlock was in the staple, but not 
 locked ; nobody was in the board-house, they went in, and 0. found two 
 planks removed from the place, where he had seen them four days before, 
 to another part of the board-house, nearer the door ; they then went on 
 from the board-house, and after searching in several places found the 
 prisoner in the garden of another person, crouched down with a drawn 
 sword in his hand ; the prisoner was asked twice what he did there, he 
 made no answer, and then he started off ; one of the witnesses ran and 
 caught hold of him, but the prisoner compelled him to leave hold of him ; 
 the prisoner fell over something, and then the other witnesses came up ; 
 the prisoner struck 0. on the side with his sword, but did not cut him ; 
 then the prisoner again attempted to get away, but was prevented by 
 some paling ; the j^risoner then turned round and struck 0. with his 
 sword, cut through O.'s hat into his head, and produced a slight 
 wound on his head ; up to that time 0. had not struck the prisoner 
 any blow ; the jury negatived the felony in removing the boards 
 from one part of the board-house to another ; and it was objected that 
 the prosecutor had no right to apprehend either at common law or under 
 the Vagrancy Act, 1824 (5 Geo. IV. c. 83), s. 6 ; for at common law the 
 power to arrest for offences inferior to felony was confined to the time of 
 committing the offence, and it was the same under the Vagrancy Act ; 
 that the prisoner was not found by the prosecutor committing the offence, 
 but, on the contrary, had ceased from the attempt and abandoned the 
 intention, which distinguished this case from R. v. Hunt {p). On a 
 case reserved, it was held that the prisoner might lawfully be apprehended, 
 for as he was seen in the board-house, and was taken on fresh pursuit 
 before he had left the neighbourhood, it was the same as if he had been 
 taken in the outhouse, or in running away from it {q). 
 
 In R. V. Gardiner (r), upon an indictment for maliciously wounding, it 
 appeared that the prisoner, with several other persons, was found by J., 
 a constable, playing at thimblerig and betting with the people at a fair (s), 
 in the afternoon. J. having received verbal instructions from the magis- 
 trates to apprehend such offenders, tried, with the assistance of another 
 person, to apprehend the prisoner and his companions, and succeeded in 
 taking one, but the prisoner and two others of the company fell upon J., 
 
 {p) 1 Mood. 93, ante, p. 727. IV. c. 83), s. 4, ' every person playing or 
 
 {q) 1 Mood. 207. See the remarks of betting in any street, I'oad, highway, or 
 
 Denman, C.J., in Baynes v. Brewster, other open and pubhc place, at or with any 
 
 Q.B. 375. table or instrument of gaming, at any 
 
 (r) 1 Mood. 390. game, or pretended game of chance, shall 
 
 (s) By the Vagrancy Act, 1824 (5 Geo. be deemed a rogue and vagabond.'
 
 CHAP. I.] Of Resistance to the Law. 733 
 
 rescuing their companion, and got away themselves. About nine o'clock 
 in the evening, J., not having been able to find the prisoner before, 
 saw him with several of his companions in a public-house, and said to 
 him, ' You are my prisoner/ The prisoner asked ' For what ? ' and J. 
 replied, for what he had been doing in the fair ; the prisoner resisted, and 
 a scufSe ensued ; the prisoner escaped and concealed himself in a privy 
 in the garden. J. called another constable to his assistance, and they 
 together broke open the privy door and endeavoured to take the prisoner, 
 upon which he took a knife out of his pocket and stabbed the other 
 constable. The jury found that the prisoner knew that the constable was 
 endeavouring to take him for the offence committed at the fair ; but upon 
 a case reserved, the judges held that the attempt to apprehend was not 
 lawful under the Vagrancy Act, as it was not made on fresh pursuit (/). 
 
 Poaching Cases. — There have been several decisions arising out of the 
 exercise or attempted exercise of the powers given by the Night Poaching 
 Act, 1828 (9 Geo. IV. c. 69), to arrest poachers when three or more are 
 found in the night committing an offence under that Act [u). The powers 
 maybe exercised by the owner or occupier of the land on which the poachers 
 are found committing the offence [v), or persons having rights of free 
 warren or free chase thereon or the lord of the manor wherein the land lies, 
 and by the gamekeepers {w), or servants of such persons or any person, 
 assisting them (sect. 2), and if the offence is indictable, e.g., under sect. 9, as 
 to three or more j^ersons armed poaching by night {x), by any person 
 whether a constable or not (14 & 15 Vict. c. 19, s. 11). The power of 
 
 [l] See s. 6 of the Act. the prosecutor, knocked him down and 
 {«) Post, vol. ii. p. 1338. stunned him ; when he recovered liimself 
 (tj) R. V. Warner, 1 Mood. 380. In this he saw all the men coming by him, and one 
 case the prosecutor, being out on duty at said, ' Damn 'em, we have done 'em both ' ; 
 night as gamekeeper with his assistant on they had got two or three paces beyond 
 his master's manor, heard shots towards a him, and one of them turned back and 
 wood not belonging to his master, and struck the prosecutor a violent blow on 
 shortly afterwards saw the prisoners the left leg with what he thouglit was a 
 coming along a road in the direction from stick, which wounded him in the leg ; the 
 the wood ; tlie prisoners were armed with prosecutor had committed no assault on 
 a giui, gun-barrel, and bludgeons ; they either of the four men. The assistant took 
 stopped when they saw the prosecutor and hold of the gun to prevent the man's run- 
 his assistant ; the prosecutor and his assis- ning away, but did not tell him so ; he took 
 tant advanced towards the prisoners, when hold of it to let the keeper see if he knew 
 the prosecutor said : ' So, you have been the men ; the manor, in which the wootl 
 knocking them down ; you are a pretty set was, extended more than 200 yards beyond 
 of people to be out so late at night ' ; they where the prisoners were seen. It was 
 were then about three yards off ; the prose- objected that the prisoners were on the 
 cutor said to his assistant, sufficiently loud high road, and the prosecutor and his 
 for the prisoners to hear, ' Mind him with assistant had no right to obstruct them, 
 the gun '; the assistant took hold of the gun Bollond, B., overruled the objection, and 
 gently, one hand on the stock the other on directed the jury that if the prisoners acted 
 the barrel, and took off the cap gently ; in concert, all were equally guilty. They 
 there was no struggle ; the man did not were found guilty, and upon a case re- 
 seem angry at the assistant's holding tlie served, the conviction was upheld. Cf. R. 
 gun ; the prosecutor saw one of the priso- v. Edmeads, 3 C. & P. 390. 
 ners, and advanced to look at the faces of {w) Tins includes a person appointed, 
 the other two, but they bounced off. The even without written authority, to watch 
 prosecutor then turned back towards his for night poachers. R. v. Price, 7 C. & P. 
 assistant and the man who had the gun, 178. 
 
 and called out as loud as he could : ' For- {x) i.e., between the expiration of the 
 
 ward, G.' G. was the keeper of the manor first hour after sunset and the beginning of 
 
 in which the wood was situate, but he was the last hour before suniise (s. 12). R. i'. 
 
 not there. Three of the men ran in upon Tomlinson, 7 C. & P. 183.
 
 734 Of Homicide. [BooKix. 
 
 arrest under the Act of 1828 extends in case of pursuit to any other place 
 to which the offender escapes {y), or on the road on which he is found (2). 
 Persons seeking to arrest in lawful exercise of these powers are within the 
 special protection of the law, and if a gamekeeper is killed in a lawful 
 attempt to apprehend, the offender will be guilty of murder, though the 
 keeper had previously struck the offender or one of his party, if he struck 
 in self-defence only, and to diminish the violence illegally used against 
 him, and not vindictively to punish (a). 
 
 But if a keeper is killed in an attempt to arrest a j)oacher without 
 lawful authority, the offence is only manslaughter (6), and the same would 
 be the case if the keeper was servant of the owner of the game, but not 
 of the owner of the land, &c. {c). 
 
 Notice of the Authority and Business of the Officer. — To make the 
 killing of an officer of the law or person acting in aid or execution of the 
 law murder under the circumstances dealt with in this section, the person 
 whose liberty is interfered with and those who interfere to resist such 
 officer or person must have actual knowledge or express or implied 
 notice {d) of the officer's status and business (e). Where a bailiff j)iished 
 abruptly and violently into a gentleman's chamber early in the morning 
 to arrest him without announcing his business or using words of arrest, 
 and the gentleman in the first surprise snatched down a sword and killed 
 the bailiff, not knowing him to be an officer of the law, the killing was ruled 
 manslaughter (_/'). But where a man said to a bailifT, who came to arrest 
 him : ' Stand off, I know you well enough, come on at your peril,' and on 
 the bailiff taking hold of him, ran the bailiff through and killed him, it 
 was held murder {g). Where, of a number of persons concerned in killing 
 an officer in the execution of his duty, some have notice of his status and 
 others have not, the former may be guilty of murder and the latter of 
 manslaughter (A), unless they deliberately engaged in the fray meaning 
 to make common cause and maintain it by force (^). 
 
 In some cases the circumstances of the case render notice unnecessary, 
 e.g., where an attempt is made to arrest a man while committing an offence 
 or on fresh pursuit {j). 
 
 [y) R. V, Price, uhi supra, where the the officer and slays him, it is murder, 
 
 prisoner who on pursuit had escaped from though he knew him not. 1 Hawk. c. 31, 
 
 a wood within a manor (not in the owner- s. 57. 1 Keb. 87. Young's case, 4 Co. 
 
 ship or occupation of the lord of the Rep. 40 b. If the party to be arrested had 
 
 manor), but being hard pressed, fled back notice of the officers' authority, the 
 
 into the manor and there attemjited to fire theory is that the slayer is liable because 
 
 a loaded gun at his j^ursuers. he set himself against the justice of the 
 
 (z) 9 Geo. IV. c. 69, s. 2 ; 7 & 8 Vict. realm. But implied notice at least seems 
 
 c. 29, s. 1. As to the powers of constables necessary, though not actual knowledge, 
 
 to take poachers, see 25 & 26 Vict. c. 114. See 1 Hale, 438. 
 
 (a) R. V. Ball, 1 Mood. 330 ; vide R. v. (e) 1 Hale, 458. 1 Hawk. c. 31, ss. 49, 
 Payne, 1 Mood. 378. R. v. Taylor, 7 C. 50. Fost. 310. Mackalley's case, 9 Co. 
 & P. 266. Rep. 65 b, 69 b. 
 
 (b) R. V. Addis, 6 C. & P. 388, Patteson, (/ ) 1 Hale, 470. Case at Newgate [1667], 
 J. R. V. Davis, 7 C. & P. 785, Parke, B. Kel. (J.) 136. 
 
 R. V. Wesley, 1 F. & F. 528. (g) Pew's case, Cio. Car. 183. 1 Hale, 
 
 (c) R. V. Price, 5 Cox, 277. R. v. Wood, 458. 
 
 1 F. & F. 470. (h) I Hale, 438, 446, 461. Kel. (J.) 115, 
 
 (d) 1 East, P. C. 316. In some of the 116. 
 
 earlier books it is said that if the servant (i) Vide ante, p. 112, 
 
 or friend of a person sought to be arrested ( ;) R. v. Howarth, 1 Mood, 207, ante, 
 
 by an officer of the law, takes part against p. 732. R. r. Woolmer, 1 Mood. 334. 
 
 > 
 
 II
 
 CHAP. L] Of Resistance to the Laiv. 735 
 
 The same j^rinciple applies where persons other than officers of the law 
 are seeking to make an arrest which by common law or statute they are 
 empowered to make. 
 
 Thus where upon an indictment for malicious wounding, it appeared 
 that the assistant to the head keeper of Sir R. S. went with five or six 
 assistants towards a covert of Sir R. S., where they heard guns ; they then 
 went towards the place, and rushed in at the poachers to take them ; 
 the prosecutor saw six persons in the wood, and he ran after them ; they 
 got into a field about six yards off ; they then ranged themselves in a row, 
 the prosecutor being five or six yards from them, on the edge of the 
 plantation, and he heard one of them say : ' The first man that comes out 
 
 rU be d d if I don't shoot him ' ; upon which the prosecutor drew his 
 
 pistol, cocked it, and ran out : they all ran away together ; the prosecutor 
 followed them, and when they had all run about fifty yards they stood ; 
 they had all turned round ; one of them shot at the prosecutor, who was 
 running to him ; the prosecutor was wounded ; the men said nothing to 
 the jDrosecutor before he was shot, nor he to them ; it w^as objected, that, 
 inasmuch as the prosecutor's authority to apprehend them was derived 
 from the act creating the offence, it was incumbent upon him to give 
 notice to them : the objection was overruled : and, upon a case reserved, 
 the judges were of opinion that the circumstances constituted sufficient 
 notice [k). So where a servant of Sir T. W. was out with his gamekeeper 
 at uight, and they heard two guns fired, and went towards the place, 
 and got into a covert, and saw some men there who ran away, and the 
 servant pursued them, and got close up to one of them, and made a catch 
 at his legs, and was immediately shot in the side ; Parke, B., said : ' Where 
 parties find poachers in a wood, they need not give any intimation by 
 words that they are gamekeepers, or that they come to apprehend ; 
 the circumstances are sufficient notice. What can a person poaching 
 in a wood suppose when he sees another at his heels 'i ' {l)> 
 
 Where officers of the law intervene to preserve the peace or make 
 arrests, their functions may be indicated by their uniform or production 
 of their official staves, or any other known ensign of authority {m), e.g. 
 warrant cards, or by their commanding the peace, or declaring their office 
 and saying that they arrest in the King's name (w), or by producing a 
 warrant or writ from a Court or magistrate or in some other way indicating 
 their status and the purpose of their intervention. Where the officer is 
 in his own district and his official capacity is known, or generally 
 acknowledged, or if he is in uniform, the law will readily presume 
 notice of his capacity and the purpose of his intervention (o). 
 
 Notification by implication of law is held to have been given where the 
 officers have warrants directed to them as such. Thus, where a warrant 
 
 (/.•) R. V. Payne, 1 Mood. 378. See R. necessarily to the party) acting in liis own 
 
 V. Fraser, 1 Mood. 419, ante, p. 731. district is said not to be bound to shew his 
 
 (/) R. V. Davis, 7 C. & P. 785, Parke, B. warrant of appointment. 1 Hale, 4")8, 4()2, 
 
 See R. V. Taylor, 7 C. & P. 2(i(), Vaughan, J. 583. 9 Co. Rep. 65 b, 09 a. Rut he 
 
 (m) Fost. 311. must shew his writ or warrant against the 
 
 (n) 1 Hale, 583. party to be arrested if he needs one to 
 
 (o) Fost. 310, 311. Sissinghurst House justify the arrest. See G Co. Rep. 54 a. 
 
 case, ante, p. 721. A ])ublic haiUff jurntus 9 Co. Rej). 69 a. 1 East, P. C. 319. 
 
 et coijnitus {i.e., known in the district, not
 
 736 Of Homicide. [book ix. 
 
 had been granted against the prisoner by a justice of peace for an assault, 
 and directed to the constable of Pattishal, 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 
 daytime to execute the warrant, had his constable'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 : this was held 
 sufficient evidence and notification of the deceased being constable, 
 although there was no proof of his appointment, or of his being sworn into 
 the office (p). 
 
 To make it murder to kill a private or special bailiff or officer in resisting 
 arrest the party must know or be notified of the officer's status and his 
 warrant of appointment should be shewn, but need not be parted with as 
 it is his justification {q) and information given as to the legal process which 
 he is seeking to execute (r). In the night-time further notification is 
 necessary, but commanding the peace or using words notifying his busi- 
 ness are sufficient, whether the officer is acting in execution of civil or 
 criminal process, &c. (s). 
 
 Mode of executing Legal Authority. — Ex hypothesi, the authority which 
 the officer, &c., seeks to exercise must be one given by law, whether it be 
 exerciseable without judicial warrant at common law or by statute, or be 
 given by judicial warrant : and it must be executed in a regular and lawful 
 manner, whether as to the arrest, detention, or treatment of the persons 
 whose liberty is interfered with. If an officer attempts to make an arrest 
 out of a district in which he is authorised to act, or out of the jurisdiction 
 of the Court from which the process issued, or without any legal warrant 
 or justification and a struggle ensues in which he is killed, the killing is 
 manslaughter only (t). Instances of this are where process is executed 
 out of the jurisdiction of the Court which issued it (u), or an arrest is 
 made on a Sunday, or an attempt is made to execute in an exclusive 
 liberty a writ not containing a non omittas clause (v), or in a case where it 
 is not permitted by law (w). Execution of process within the jurisdiction 
 of the issuing Court is sufficient at common law, though it is outside the 
 district of the officer to whom it is directed by name (x), and process may 
 
 ip) R. V. Gordon [1789], 1 East, P. C. {u) 1 Hale, 458, 459. 1 East, P. C. 314. 
 
 315. R. V. Cumpton, 5 Q.B.D. 341, post, p. 740. 
 
 (q) 1 Hale, 458, 459, 461, 483. Mack- (v) R. v. Mead, 2 Stark. (N. P.) 205. 
 
 alley's case, 9 Co. 'Rep. 05, 69 b. 1 East, (w) 1 East, P. C. 324, 325. Rawlins v. 
 
 P.O. 319. Ellis, 16 M. & W. 672. The only warrants 
 
 (?) 1 Hale, 458, note (g). 6 Co. Rep. which may be executed on Sunday are for 
 
 54 a. Mackalley's case, ubi supra. treason felony or other indictable offences : 
 
 (s) Mackalley's case, uhi supra. 29 Car. II. c. 7. Warrants for indictable 
 
 (0 1 Hale, 457, 458, 459. 1 Hawk. c. 31, offences and search warrants may be issued 
 
 ss. 27, 30. Post. 312. 1 East, P. C. 312. on Sunday, 11 & 12 Vict. c. 42, s. 4. 
 
 314. Thus a search warrant headed Wilts [x) 1 Hale, 459. 2 Hawk. c. 13, ss. 27, 
 
 to wit, and directed to the constable of 30. 1 East, P. C. 314. At common law, 
 
 Dauntsey was held not to have been law- if it was addressed to a man as constable of 
 
 fully executed by a county police officer C. he could execute it only in C. R. v. 
 
 appointed under 2 & 3 Vict. c. 93, s. 8, and Chandler, 1 Ld. Raym. 545. R. v. Weir, 
 
 attached to the district in which Daintrey 1 B. & C. 288. Under 11 & 12 Vict. c. 42, 
 
 lay. Freegard v. Barnes, 7 Ex. 827. See s. 10, and 11 & 12 Vict. c. 43, a constable 
 
 R. V. Saunders, L. R. 1 C. C. R. 75, may execute a warrant out of his precinct 
 
 where a warrant directed to a parish con- at any place in the jurisdiction of the 
 
 stable was held not to authorise arrest by magistrate who granted it. 
 an officer of the county police.
 
 [CHAP. I.] Of Resistance to the Law. 737 
 
 be executed by night as well as by day {ij). The execution of justices' 
 warrants by police officers, &c., is now in the main regulated by 11 & 12 
 Vict. c. 42, ss, 10, 11, as to indictable ofEences, and by 11 & 12 Vict. c. 43, 
 s. 3, as to offences punishable on summary conviction (z). These enact- 
 ments provide for the execution of warrants out of the county in which 
 they are issued, after backing by a justice of the county in which they 
 are to be executed (a). 
 
 Execution of Warrants. — Arrest on a warrant for misdemeanor is not 
 legal unless it is effected by or in the presence of {h) the person named or 
 designated thereon and he has the warrant with him (c) for production if 
 required {d). 
 
 Upon an indictment for maliciously wounding, it appeared that a 
 constable having a warrant to apprehend P, gave it to his son, who went 
 in pursuit of P. in company with his brother ; the father staying behind. 
 They found P. lying under a hedge, and when they first saw him he had a 
 knife in his hand running the blade of it into the ground. He got up from 
 the ground to run away, and the son laid hold of him, and he stabbed the 
 son with the knife ; the father was in sight at about a quarter of a mile off. 
 Parke, B., said : ' The arrest was illegal, as the father was too far off to be 
 assisting in it ; and there is no evidence that the prisoner had prepared 
 the knife beforehand to resist illegal violence. If a person receives 
 illegal violence, and he resists that violence with anything he happens 
 have in his hand, and death ensues, that would be manslaughter. If the 
 prisoner had taken out this knife on seeing the young man come up, it 
 might be evidence of previous malice, but that is not so, as we find that 
 the knife was in his hand when the young man first came in sight ' (e). 
 
 Where a warrant for felony has been issued, an officer who knows of 
 its issue may effect arrest though he has not the warrant (/")• Where 
 several persons are named or designated in a warrant any one of them 
 may execute it (r/). It has been held that a warrant directed to a constable 
 of Gr. could not legally be executed by a county police officer {h). 
 
 As no time is usually prescribed for the execution of a warrant it 
 continues in force till fully executed (^), even if the issuing justice dies (/), 
 
 (y) 9 Co. Rep. 6(5 «. 1 Hale 457. 1 Ex. D. 352, a warrant for trespass in 
 
 Hawk. c. 31, s. (52. pursuit of rabbits. 
 
 (s) C. 43 repeals 5 Geo. IV. c. 18, which {d) In Galliarcl v Laxton, 2 B. & 8. 363, 
 
 altered the eommon law as declared in R. there was a warrant of arrest for di.sobejdng 
 
 t'. Weir, 1 B. & C. 288. Neither Act applies to a bastardy order. Arrest by a constable 
 
 warrants issued by judges of the High Court : on the warrant was held illegal, the warrant 
 
 Gladwell i\ Blake, 5 Tyrw. 186. at the time of the arrest being at the police 
 
 (o) 11 & 12 Viet. c. 42, ss.12-14; 11 & station. The Court erroneously referred 
 
 12 Vict. e. 43, ss. 3, 37 ; 14 & 15 Vict. c. 55 to 5 (Jeo. IV. e. 18 as still in force. 
 s. 8 ; 14 & 15 Viet. c. 93, s. 27 (I) ; 30 & 31 (v) R. v. Patience, 7 C. & P. 775. 
 
 Vict. c. 19, s. 1 (I) ; 44 & 45 Vict. e. 24, s. 4 (/) Crcagh v. Gamble, 24 L. R. Ir. 458. 
 
 (E, S). Hee R. v. Cumpton, 5 Q.B.D. 341. In such a case he is really exercising his 
 
 (b) Actual or constructive presence of a common-law power to arrest on suspicion 
 person named or designated is necessary. of felony. 
 
 R. V. Whalley, 7 C. & P. 245. In Blatch v. (</) 1 Hale, 459. 
 
 Archer, ICowp. 63, Aston, J., said: 'It is not (h) R. v. Saunders, L. R. 1 C. C. R. 75. 
 
 necessary that the bailitT should be actually Parish constables are now rarely designated 
 
 in sight, but he must be so near as to bo to execute warrants for offences. 
 
 near at hand, and acting in the arrest.' (?) Dickenson t\ Brown, Peake, 234, 
 
 (c) R. V. Chapman, 12 Cox, 4. R. v. Kenyon, C.J. 
 
 Carey, 14 Cox, 214. Codd i-. Cabc, 1 (/) 42 & 43 Vict. c. 49, s. 37. 
 
 VOL. I. 3 B
 
 738 Of Homicide. [book ix. 
 
 and on an indictment for maliciously wounding A. with intent to resist 
 lawful apprehension, it appeared that the prisoner had been arrested 
 on a warrant on a charge of assault and had been brought before a magis- 
 trate and ordered to find bail, which he refused to do. An order was then 
 made for his commitment. While the commitment was being made out 
 the prisoner escaped, and on A. following him by verbal direction from the 
 justices and their clerk, the prisoner cut A. with a knife. Gaselee, J., 
 ruled that the warrant continued in force and a conviction was upheld 
 on a case reserved (k). 
 
 Where the warrant is good on the face of it, and for an offence within the 
 jurisdiction of the issuing magistrate, the officer executing it is protected 
 irrespective of the truth or falsity of the charge upon which the warrant 
 was granted (?). Warrants issued by magistrates, &c., acting by special 
 statutory authority and out of the course of the common law ought to 
 shew on the face of them by direct averment or reasonable intendment the 
 authority of the magistrate [m). 
 
 Where an officer endeavouring to execute process is resisted and 
 killed, the crime will not amount to murder, unless the process is legal ; 
 but by this is to be understood only that the process, whether by writ or 
 warrant, must not be defective in the frame of it, or bad on the face of it, 
 and must issue in the ordinary course of justice from a Court or magistrate 
 having jurisdiction in the case (n). Therefore, though there may have 
 been error or irregularity in the proceeding previous to the issuing 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 
 obey it (o). 
 
 If a capias ad satisfaciendum, fieri facias, writ of assistance, or any 
 other writ of the like kind is issued, directed to the sheriff, and he or any 
 of his officers are killed in the execution of it, it is sufficient, upon an 
 indictment for this murder, to produce the writ and warrant (p), without 
 producing the judgment or decree {q). Upon an indictment for assaulting 
 E. in the execution of his office of sub-bailiff of a County Court, it appeared 
 that the prisoner was arrested by E. under a warrant issued in the form 
 authorised by 19 & 20 Vict. c. 108, s. 61 (r) for not having satisfied a 
 judgment and costs. On a case reserved, it was held that the previous 
 proceedings in the County Court need not be proved ; for the process of 
 
 (k) R. V. Williams, 1 Mood. 387. Accord- but that which is expressly so alleged. See 
 
 ing to Hawkins (Bk. 2, c. 13, s. 9), if a Howard v. Gossett, 10 Q.B. 452, Parke, B., 
 
 constable, having arrested a man on a and cases there cited, 
 
 warrant, lets him go at large on a promise {n) Fost. 311. R. v. Baker, 1 Leach, 
 
 to return, he cannot re-arrest on the same 112. 2 Hawk. c. 13, s. 10. Though the 
 
 wan-ant, but can lawfully hold him under magistrate may be liable to action for 
 
 the warrant if he voluntarily returns into issuing the process, the constable may still 
 
 custody. be protected. 
 
 {I) Shergold v. Holloway, 2 Str. 1002. (o) Fost. 311. 1 Hale, 457. 
 
 See 1 East P. C. 310. (p) It would seem that the writ must be 
 
 (m) The rule for jurisdiction is that produced as well as the sheriff's warrant to 
 
 nothing shall be intended to be out of the the bailiff. R. v. ]\Iead, 2 Stark. (N. P.) 
 
 jurisdiction of a superior Court acting ac- 205, an arrest on mesne process, 
 
 cording to the course of the common law (q) Roger's case, 1735, Lord Hardwicke. 
 
 but that which specially appears to be so, Fost. 311, 312. 
 
 and that nothing shall be intended to be (r) Repealed by the County Courts Act, 
 
 within the jurisdiction of an inferior Court 1888 (51 & 52 Vict. c. 43), 
 
 i
 
 CHAP. I.] Of Resistance to the Law. 739 
 
 the County Court was as much a justification to the officer by virtue of 
 the Act, as a writ of execution out of a superior Court to a sheriff (s). And 
 on an indictment for assaulting B., a messenger of a district Court 
 of Bankruptcy, it appeared that B., in consequence of information 
 that certain ironstone belonging to J. and 0. who were bankrupts was 
 lying in a boat, obtained a warrant from two justices to search for the 
 property of J. and 0., and went with this warrant to search the boat, 
 whereupon the assault was committed. Erie, J., held that it was un- 
 necessary to shew the validity of the proceedings prior to the grant of the 
 justices' warrant [t). So, even if the warrant of a justice of peace is not 
 in strictness lawful, e.g., if it does not express the cause with sufficient 
 particularity ; yet, if the matter is within his jurisdiction, the killing of 
 the officer executing the warrant will be murder (m). In all cases of 
 process, both civil and criminal, the falsity of the charge contained in 
 such process does not excuse or extenuate killing the officer ; for every 
 man is bound to submit himself to the regular course of justice {v). 
 Thus the person executing an escape warrant was held to be under the 
 sjsecial 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 {w). 
 
 A sergeant at mace in the City of London having authority, according 
 to the custom of the city, by entry in the porter's book at one of the 
 counters {x), to arrest M. for debt, arrested him between five and six in 
 the evening of November 8, saying at the same time, * I arrest you in the 
 King's name, at the suit of R/ ; but he did not produce his mace. M. 
 resisted, and one of his companions killed the officer. Upon a special 
 verdict it was urged that the arrest in the night was illegal, that the 
 sergeant should have shewn his mace, and that a custom stated in the 
 verdict to arrest without process first against the goods was illegal : but 
 the objections were overruled {y). 
 
 A justice for the county of Herts issued his warrant, directing a 
 constable to arrest J. H., charged with stealing a mare. Armed with this 
 warrant the constable went to Smithfield in the City of London, and 
 there arrested R. H., who was the party against whom information had 
 been given, and against whom the magistrate intended to issue his warrant 
 and who was supposed to be called J. H. ; his name, however, was really 
 R. H., J, H. being the name of his father. There was no proof that a 
 felony had been committed. The person who made the charge before the 
 justice pointed out R. H. as the man who had stolen the mare, and a 
 person present said that his name was J. H., and there was clearly evi- 
 dence to go to the jury that R. H. was the man intended to be taken up. 
 Coltman, J., told the jury that the law would not justify the constable's 
 
 {*•) R. V. Davis, L. & C. 64, Williams, J. c. 31, s. 64. Fost. 312. I East, P. C. 310. 
 
 {<) R. V. Roberts, 4 Cox, 145. His ruling Sir Henry Ferrers' case, Cro. Car. 371. 
 was based on 6 Geo. IV. c. 16, s. 29, re- (i-) 1 East, P. C. 310. 
 
 pealed in 1840 (12 & 13 Vict. c. 106). (»•) Curtis's case, Fost. 13.5. And sec 
 
 {u) 1 Hale, 460. It is said, liowevcr, Fost. 312. 
 that tliis must be understood of a warrant (x) Prisons attached to the Sheriff's 
 
 containing all the essential requisites of Courts for the City, courts now repre- 
 
 one. 1 East, P. C. 310, and sec R. r. Hood, sented by the City of London Court. 
 po5«,p. 740 note (2). 1 Hale, 457. 1 Hawk. (y) Mackalley's case, 9 Co. Rep. 65 b. 
 
 3b2
 
 740 Of Homicide. [book ix. 
 
 act, the warrant being against J. and not against R., although R. was the 
 party intended to be taken ; that a person cannot be lawfully taken under 
 a warrant in which he is described by a name that does not belong to him, 
 unless he has called himself by the wrong name. The direction was held 
 right (z). 
 
 Where a constable of the county of Worcester apprehended a man in 
 the city of Worcester under a warrant issued by county justices and not 
 backed by any justice for the city (which has a separate commission), 
 and not after a pursuit out of the county, it was held that the arrest was 
 illegal (a). 
 
 A warrant which commanded the constable to apprehend a prisoner, 
 and bring him before a justice ' to answer to all such matters and things 
 as on Her Majesty's behalf shall be objected against him on oath by 
 M. A. W., for an assault committed on her ' ; was held bad, for it did not 
 state any information on oath that any assault had been committed (6). 
 And where a warrant of a judge of the Court of Queen's Bench directed 
 certain officers to apprehend a person ' and him safely keep, to the end 
 that he may become bound and find sufficient sureties to answer ' an 
 indictment for a conspiracy, ' and to be further dealt with according to 
 law ' ; it was held bad for not directing that the party should be taken 
 before some judge or justice for the purpose of finding sureties (c). 
 
 Resisting Arrest or Detention Effected without Warrant. — An arrest 
 unlawfully made without warrant is not made lawful by a warrant 
 taken out afterwards (d). 
 
 A prisoner had produced a forged bank note ; and his conduct created 
 a suspicion that he knew it to be forged, he was apprehended, and delivered 
 with the note to a constable on a charge that ' he had a forged note in 
 his possession ' (e). While thus in custody he shot and wounded the 
 constable. On an indictment under 43 Geo. III., c. 58 (rep.), it was 
 argued that the charge imported no legal offence, and the arrest illegal, and 
 that killing the officer (if that had taken place) would have been only 
 manslaughter. But it was held that in such a charge the same pre- 
 cision was not required as in an indictment ; and that the charge must be 
 considered as imputing to the prisoner a guilty possession (/). 
 
 On an indictment of B. for wounding with intent to prevent his lawful 
 apprehension, Talfourd, J., held, that to support this charge it was enough 
 
 {z) Hove V. Bush, 1 M. & Gr. 775. Ho sou iuteuded could be distiuguished. In a 
 
 also directed them that his powers as cou- civil action a writ of execution must corre- 
 
 stable to arrest without warrant were spond with the judgment in the name of the 
 
 limited to the district for which he was defendant, although he is therein misnamed 
 
 chosen. As there was no authority to and the sheriff is bound notwithstanding 
 
 apprehend Richard H. under the warrant, to execute the writ. Reeves v. Slater, 7 
 
 and the constable was out of his district, B. & C. 480. Fisher v. Magnay, 6 Scott 
 
 he was in the same situation as a private (N. R.) 588. 
 
 individual. He might have defended him- (a) R. v. Cumpton, 5 Q.B.D. 341. 
 
 self by proving that the felony had been (b) Caudle v. Seymour, 1 Q.B. 889. 
 
 committed by Richard H., see p. 780, (c) R. v. Downey, 7 Q.B. 281. 
 
 Tindal, C.J. In R. v. Hood, 1 Mood. 281, (d) 2 Hawk. c. 13, s. 9. 
 
 a warrant which directed the arrest (e) It does not state that the prisoner 
 
 of Hood for assault was held bad knew the note to be forged, which is an 
 
 for omitting the Christian name without essential element in the offence, 
 
 assigning any reason for the omission, or (/) R. v. Ford, R. & R. 329, and MS. 
 
 giving some particulars whereby the per- Bayley, J.
 
 CHAP. I.] Of Resistance to the Law. lil 
 
 that B. was lawfully apprehended, and that the apprehension was in fact 
 lawful ; and that the question whether or not B. believed it to be lawful, 
 was irrelevant {g). 
 
 In R. -y. Thompson {h), on an indictment for stabbing with intent to 
 murder, it appeared that the prisoner, a journeyman shoemaker, applied 
 to his master for some money, which was refused until he should have 
 finished his work ; and that he applied again subsequently, was again 
 refused, and became abusive, upon which his master threatened to send 
 for a constable. The prisoner then refused to finish his work ; and said 
 that he would go up stairs and pack up his tools, and that no constable 
 should stop him. He went up stairs, came down again with his tools, 
 and drawing from the sleeve of his coat a naked knife, said he would do 
 for the first constable that offered to stop him ; he was ready to die, and 
 would have a life before he lost his own. He then made a flourishing 
 motion with the knife, put it up his sleeve again, and left the shop. The 
 master then applied to the constable to take the prisoner into custody ; 
 making no charge further than saying that he suspected the prisoner had 
 tools of his, and was leaving his work undone. The constable said he 
 would take him if the master would give charge of him ; and they pro- 
 ceeded together to the yard of an inn, where they found the prisoner in 
 a public privy, as if he had occasion there ; the privy had no door to it. 
 The master said, ' That is the man, and I give you charge of bim ' ; 
 upon which the constable said to the prisoner, ' My good fellow, your 
 master gives me charge of you, you must go with me.' The prisoner, 
 without saying anything, presented the knife, and stabbed the constable 
 under the left breast, and attemj)ted to make several other blows, which 
 the constable parried with his staff. The prisoner having been found 
 guilty, upon a case reserved, the majority of the judges (i) held, that as an 
 actual arrest would have been illegal, the attempt to make it when the 
 prisoner was in such a situation that he could not get away, and when the 
 waiting to give notice might have enabled the constable to complete 
 the arrest, was such a j^rovocation as, if death had ensued, would have 
 made the case manslaughter only ; and that therefore the conviction 
 was wrong (/). 
 
 Upon an indictment for maliciously stabbing with intent to do 
 grievous bodily harm, it apj)eared that the prisoners had attempted to 
 push a man into a ditch, upon which a scuffle ensued. The prisoners 
 walked on, and a man complained to H., a watchman, that they had 
 attempted to rob him, desired him to arrest them, followed them till H. 
 came up to them, and then said, sufficiently loud for them to hear, ' That's 
 them.' There was no evidence of any attempt by the prisoners to rob the 
 man, and the only person who saw the transaction negatived it. When 
 H. came up to the prisoners, all he said to them was, ' You must go back 
 and come along with me.' He did not explain why, nor was any charge 
 against the prisoners stated. He was dressed in a watchman's coat, and 
 had his lantern. W., one of the prisoners, said, ' Keep off,' and drew a 
 
 (?) R. V. Bentley, 4 Cox, 408. Littledale, J., ami Cascloc, J. 
 
 (A) 1 Mood. 80. {/) Holroyd and Burrough, JJ., thought 
 
 (i) Abbott, C.J., Graham, B., Bayley, otherwise. ' See Rafferty r. The People, 69 
 
 J., Park, J., Garrow, B., HuUock, B., 111. Ill ; 12 Cox, G17.
 
 74^ Of Homicide. [Book tx. 
 
 sharp instrument from his side ; the watchman said, ' It's of no use, you 
 must go back/ A third man put himself in a position as if to strike the 
 watchman, and W. made a spring at him, and caught one of the skirts of 
 his coat ; the watchman pulled out his staff, and turned at the prisoners, 
 and they came at him. The watchman struck at W., and hit him on the 
 thick part of the arm with his staff ; W. immediately stabbed the watch- 
 man, and another of the prisoners followed the watchman, and made 
 another blow at him with another knife. The place where the prisoners 
 attempted to push the man into the ditch was within the limits of the 
 hamlet, for which H. was watchman, but the place where he overtook the 
 prisoners did not appear to be within those limits. The jury found that 
 the prisoners knew H. to be a watchman. On a case reserved nine of the 
 judges held that the watchman could legally arrest the prisoners without 
 saying that he had a charge of robbery against them, though the prisoners 
 had in fact done nothing to warrant the arrest ; and that, had death 
 ensued, it would have been murder {k). 
 
 Upon an indictment for maliciously cutting W., it appeared that a 
 man travelling upon the highway told the constable that a man coming 
 along the road had been ill-using him, and charged the constable, in the 
 prisoner's hearing, to take the prisoner before a magistrate for so mis- 
 using him ; on which the constable ordered the prisoner to stop for 
 insulting a man on the road, laid hold of him, tapped him on the shoulder, 
 said he was his prisoner, and that he should take him to a magistrate, and 
 ordered W. to assist him, which AV. did, and to which the prisoner sub- 
 mitted. No particulars of what the supposed ill-usage or insult consisted 
 of appeared in evidence, nor did they pass in the constable's view or 
 hearing, and therefore the apprehension and detainer appeared clearly 
 thus far to have been unlawful. Afterwards, and whilst the prisoner was 
 thus in custody, and before they found a magistrate, the prisoner, in the 
 constable's presence, struck the man who had made the charge against 
 him, and the constable then also told the prisoner he should take him 
 before a magistrate. Some time afterwards, as they were proceeding 
 along to a magistrate's, the prisoner ran away, and attempted to escape, 
 but was pursued by W. by the constable's order ; and being overtaken by 
 him, refused to stop, asking W. where his authority was, who said it was 
 in his hand, alluding to a stick, which W. then had in his hand, and which 
 the prisoner had given up to him at the commencement of the detainer ; 
 and without further information, when W. was going to take hold of him, 
 the prisoner told him if he would not let him go he would stab him, and 
 then gave him the cut in the face, for which he was indicted. On a case 
 reserved the judges held that the original arrest was illegal, and that the 
 recaption would have been illegal, and therefore the case would not have 
 been murder if death had ensued il). 
 
 Where on an indictment for wounding with intent to disable, it 
 appeared that the prosecutor was a sergeant of police and the prisoner 
 a constable under him, and that the prosecutor went, as it was his duty, 
 
 [k) R. V. Woolmer, 1 Mood. 334. Four quet, JJ. 
 judges were of a contrary opinion, viz., (/) R. v. Curvan, 1 Mood. 132. 
 
 Bayley, B., Park, Littledale, and Bosan-
 
 CHAP. 1] Of Resistance to the Law. 743 
 
 to the house of the prisoner to see that he was correct in the discharge of 
 his duty, and the prisoner had some altercation with him, and the prose- 
 cutor left the house, the prisoner followed and struck him, and fell when 
 attempting to strike him a second time, and the prosecutor then went 
 away for assistance, and returned to the prisoner's house with two police 
 constables, when the prisoner was not at home : they returned again 
 in two hours and saw him, and the prosecutor told him he must go with 
 him to the station ; the prisoner said he would not stir an inch that night ; 
 the prosecutor attempted to take hold of him, whereupon the prisoner 
 inflicted a severe wound upon him ; and the jury found him guilty 
 of wounding with intent to prevent his apprehension. Upon a case 
 reserved, it was held, that the apprehension was not lawful ; for the 
 assault was committed at another time, and there was no probability of 
 its being renewed (m). 
 
 Upon an indictment for assaulting a police officer in the execution of 
 his duty, it appeared that the officer was informed that a disturbance 
 was going on at P., and going there found the prisoner's wife sitting 
 crying under a hedge opposite their cottage and went with her into the 
 cottage, and found the prisoner intoxicated, but sufficiently sober to 
 know what he was doing. In his hearing, the wife stated to the officer 
 that the prisoner had knocked her down and beaten her shamefully. 
 One C. was present and stated that (as was the fact) he had seen the 
 prisoner knock his wife down and jump upon her. The prisoner said 
 nothing on hearing these statements. The officer left the cottage, and 
 the prisoner and his wife in it. The prisoner then closed the shutters and 
 locked the door. The officer heard the prisoner using threatening lan- 
 guage to his wife, and saw her run out of the cottage. The prisoner said 
 he would lock her out all night, and thereupon she returned to the cottage. 
 The officer heard the prisoner again use very violent language and opened 
 the shutters, and saw the prisoner take up a shovel and hold it in a 
 threatening attitude over his wife's head, and heard him say, ' If it was 
 not for the bloody policeman outside I would split your head open, for 
 'tis you that sent for the policeman.' The prisoner was near enough to 
 have struck his wife when he raised the shovel. Shortly afterwards he 
 desired her to go to bed, and she replied, ' I can't go up stairs in this state ; 
 I don't know one hour from another when I might be murdered.' Prisoner 
 said with an oath, ' I'll leave you altogether,' and went out. This was 
 about twenty minutes after he had raised the shovel. He went on the 
 highway towards his father's house, and when he had walked about 
 seventy yards from his cottage, the officer took him into custody. He 
 had no warrant. C. had been with the officer all the time these things 
 occurred, and insisted upon his taking the prisoner into custody, because 
 he thought it would not be safe to let him go back to his wife that night. 
 The prisoner, on being taken into custody, assaulted the officer. And, 
 upon a case reserved, it was held that the officer was in the execution of 
 his duty when he was assaulted. It is not necessary that a policeman 
 should arrest a man at the very moment he sees an assault committed ; 
 it is quite sufficient if he arrests recently after the right to do so arises. 
 
 (w) R. V. Walker, Dears, 358. Cf. R. v. Marsden, L. R. 1 C. C. R. 131.
 
 744 Of Homicide. [book ix. 
 
 It could not be said that because the prisoner was going away from the 
 house the constable was bound to come to the conclusion that the danger 
 was over. As a conservator of the peace, he had authority to take the 
 prisoner into custody, having so recently witnessed the commission of an 
 assault. Here there was a continuing danger and a continuing pursuit, 
 and it was the duty of the officer to exercise his authority in this case in 
 order to prevent a further breach of the peace, and also that the prisoner 
 might be dealt with according to law in respect to the assault he had 
 so recently committed («). 
 
 Disturbances on Private Premises.— In the execution of their duties as 
 peace officers constables are not confined to disturbances, &c., on highways 
 or in public places. If a person goes into a house or is in it and makes 
 a noise or disturbs the peace of the family, even if no assault or battery 
 has been committed, the master of the house may call in a policeman to 
 turn the disturber out (o) : u fortiori if a serious fight or attempt at 
 fighting is going on in the house. The police have power under statute 
 to enter licensed refreshment houses (p) and to enter licensed public-houses 
 to prevent or detect any violation of the Licensing Acts {q), 1872 and 1874, 
 if he has reasonable grounds of susj)icion (f). Apart from these statutes, 
 if a police officer hears a disturbance in a public house at night and the 
 door is open he may enter {s), but has no authority to turn anyone out 
 of a public-house unless he has committed an offence punishable by the 
 law {t) : nor to prevent a guest from going to a room in the house unless 
 a breach of the peace is likely to occur {k). He may, however, turn 
 out a person who in a public-house makes a noise and disturbance 
 calculated to alarm the neighbourhood (v), and if he will not go quietly 
 away may arrest him {v). 
 
 A policeman between eleven and twelve o'clock at night was called 
 uj^on to clear a beer-house, which he did, and then went into the street 
 where the prisoner and many others were standing near the door. The 
 prisoner refused to go home, and used very abusive and violent language, 
 and the policeman laid his hand on his shoulder gently, and told him to 
 go away, on which the prisoner immediately stabbed him with a knife in 
 the throat. It was held that if the policeman had died, this would have 
 been murder ; for if a policeman had heard any noise in the beer-house 
 at such a time of night, he would have acted within the line of his duty 
 if he had gone in and insisted that the house should be cleared ; and 
 
 (n) R. V. Light, Dears & B. 332. force, at all times enter any licensed pre- 
 
 (o) See Shaw v. Chairitie, 3 C. & K. 21, mises or any premises in respect of which 
 
 Campbell, C.J. In this case the butler in an occasional licence is in force, and penal- 
 
 a house had quarrelled with the coachman, ties are incurred by refusing or failing to 
 
 and abused and assaulted the master of the admit a constable who in the execution of 
 
 house. Cf. Wheeler v. Whiting, 9 C. & P. his duty demands to enter. See also Sea- 
 
 262, Patteson, J. Howell v. Jackson, fi C. ley v. Tandy [1902]. 1 K. B. 296. 
 
 & P. 723, Parke, B. These were cases of (?•) Duncan v. Dowdie [1897], 1 Q.B. 575. 
 
 tm-ning quarrelsome persons oUt of public- (s) R. r. Smith, 6 C. & P. 136, Tindal, 
 
 houses': C.J. See 35 & 36 Vict. c. 94, ss. 18, 25 : 37 & 
 
 (p) 23 & 24 Vict. c. 27, s. 18. 38 Vict. c. 49, s. 16. 
 
 (r/) 37 & 38 Vict. c. 49, s. 16, under which (t) Wheeler i\ Wliiting, vbi supra. 
 
 any constable may for the purpose of pre- (u) R. v. Mabel, 9 C. & P. 474. 
 
 venting and detecting the violation of any {v) Howell v. Jackson, 6 C. & P. 723, 
 
 of the provisions of the Licensing Acts, Parke, B. 
 1872 and 1874, which it is his duty to en-
 
 CHAP, i.] Of Resistance to the Law. 745 
 
 much more so, if he was required by the landlady ; and after that was 
 done, if a knot of people remained in the street, and the crowd increased 
 in consequence of their attention being drawn to the clearing of the house, 
 and if anything was saying or doing likely to lead to a breach of the peace, 
 the policeman was not only bound to interfere, but it would have been 
 a breach of his duty if he had not done so, and if in so doing he ordered 
 the people to go away, and any one was unwilling, and defied the police- 
 man, and used threatening language, the policeman was perfectly justified 
 in insisting upon that person going off ; and if he had warned him several 
 times, and he would not go away, and used threatening language if anyone 
 ventured to touch him, the policeman was entirely justified in using a 
 degree of violence to push him from the place, in order to get him to go 
 home ; and therefore anything that he did would not be in the nature 
 of an assault, but would be an act in the discharge of his duty, and there- 
 fore any blow that was given afterwards with a cutting instrument would 
 be jDrecisely the same as if it had been given without anything being done 
 by the policeman (w). 
 
 Upon an indictment for assaulting a policeman in the execution of 
 his duty, it appeared that the policeman was called into a public-house 
 to put an end to a disturbance which the defendant was making ; he and 
 the landlady were at high words ; W. L. interfered, and the defendant 
 was in the act of squaring at him when the policeman desired the defendant 
 not to make a disturbance ; the defendant, who was at the side of the bar, 
 then attempted to go into the parlour, in which a person was sitting ; as 
 the defendant attempted to go into the parlour, the policeman collared 
 him, and prevented him going in ; he then struck the policeman ; neither 
 the landlord or landlady had desired the poHceman to turn the defendant 
 out of the house. Parke, B. : ' The policeman had a right to be in the 
 house without being called upon either by the landlord or landlady to 
 interfere, but under the circumstances he had no authority to lay hold of 
 the defendant, unless you are satisfied that a breach of the peace was 
 likely to be committed by the defendant on the person in the parlour ; 
 and if you think it was not, it was no part of the policeman's duty to 
 prevent the defendant from going into the parlour' (x). 
 
 Breaking Doors or Windows. — The right of officers of the law and 
 others to break the doors and windows of dwelHng houses or other build- 
 ings in order to make an arrest, execute process, or jDreserve the peace, 
 may be thus stated. Where the right exists it may not be exercised unless 
 there has been a notice of the business on which the officers are come, a 
 demand to enter and a refusal to admit {y). No precise words are needed 
 but enough to give notice that entry is sought under proper authority (:). 
 
 A. Criminal Cases. — Where treason or felony has been committed, or a 
 dangerous wound given, the offender's house is no sanctuary for him : 
 
 (w) R. V. Hems, 7 C. & P. 312. Williams, Burdctt, r. Abbott, 14 Ea.st. I.IT. 
 
 J. (z) Cf. R. r. Qirtis, Fost. 13.">. In this 
 
 (x) R. V. Mabel, 9 C. & P. 474, Parke, B. case two officers went with an escajw war- 
 
 {ij) Fost. 320. 2 Hawk. c. 14, s. 1. 1 rant to the workshop of A. to arrest him. 
 
 Ea.st, P. C. 324. The rule aj)plies in mis- They told l.im of the warrant, demanded 
 
 demeanors and apparently in all criminal entrance, and on their breaking in, one was 
 
 ca.ses. Launock >\ Brown, 2 B. & Ad. 592. killed.
 
 746 Of Homicide. [book ix. 
 
 and the doors may be forced, after notification, demand, and refusal (a). 
 And, where a minister of justice comes armed with process, founded on a 
 breach of the peace, doors may be broken (6). And in the case of any 
 insults to a Court of justice, on which process of contempt is issued, the 
 officer charged with the execution of the process may break open doors, if 
 necessary, in order to execute it (c). And the officer may act in the same 
 manner upon a capias utlagatum, or capias pro fine (d), or upon a habere 
 facias possessionem (e). The same force may be used where a forcible 
 entry or detainer is found by inquisition before justices of the 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 any statute which gives the whole or any part of such 
 penalty to the King (g). 
 
 Though a felony has actually been committed, breaking doors to arrest 
 a person suspected of the crime cannot be justified unless the officer comes 
 armed with a justice's warrant (h), or if the ofiicer acts without warrant he 
 does so at his peril {i). 
 
 A plea justifying the entering a house without warrant, the door being 
 open, on suspicion of felony, ought distinctly to shew the purpose for which 
 the house was entered, viz., either in search for the stolen property or to 
 arrest the plaintiff, as well as that there was reason to believe that the 
 stolen property, or the plaintiff, was there (j). 
 
 If there is a quarrel or fight in a house, the doors of which are shut, 
 whereby there is likely to be manslaughter or bloodshed, and the constable 
 demands entrance, and is refused by those within, who continue the fight, 
 the constable may break open the doors to keep the peace, and prevent 
 the danger (k) ; and if there is disorderly drinking or noise in a house at an 
 unseasonable time at night, especially in inns, taverns, or alehouses, the 
 constable on demanding, and being refused entrance, may break open the 
 doors to see and suppress the disorder (l). Where a quarrel or fight is 
 going on in a house in the view or hearing of a constable, or where those 
 who have made an affray in his presence fly to a house, and are imme- 
 diately 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 breaking open the doors (m). 
 
 («) Fost. 320. 1 Hale, 4.59. And see 2 These writs and other writs wherein the 
 
 Hawk. c. 14, s. 7, where it is said that doors King has interest contain a non omittas 
 
 may be broken open, wliern one known to clause. Harvey v. Harvey, 26 Ch.D. 649, 
 
 have committed a treason or felony, or to 655. 
 
 have given another a dangerous wound, is (c) 1 Hale, 458. 5 Co. Rep. 95 h. 
 
 pursued, either with or without a warrant (/) 2 Hawk. c. 14, s. 6 
 
 by a constable or private person. (j/) 2 Hawk. c. 14, s. 5. See s. 43 of the 
 
 {h) Tost. 320. 1 Hale, 459. 2 Hawk. Summary Jurisdiction Act, 1879 (42 & 43 
 
 c. 14, 9.. 3. Curtis's case, Fost. 135. Vict. c. 49). 
 
 (c) Burdett v. Abbott, 14 East, 1, 157, (A) Fost. 321. 2 Hawk. c. 14, s. 7. 
 
 where the process of contempt proceeded According to earlier authorities the con- 
 
 upon the order of the House of Commons. stable could break in without warrant on 
 
 Harvey v. Harvey, 26 Ch.D. 644, a wint of reasonable suspicion of felony. 1 Hale, 
 
 attachment for non-comi^liance with an 583. 2 Hale, 92. Y. B. 13 Edw. IV. 9 a. 
 order to deliver over deeds ; and see (j) 1 East, P. C. 322. 
 
 Willes, 459 : Semayne's case, 9 Co. Rep. 91 ; (/) Smith v. Shirley, 3 C. B. 142. 
 
 Cro. Eliz. 909 ; 78 E. R. 1131 ; and Briggs' (^•) 2 Hale, 95. 
 
 case, 1 Rolle Rep. 336 ; 81 E. R. 526. (/) Id. ibid. 
 
 {d) 1 Hale, 459. 2 Hawk. c. 14, s. 4. (/«) 2 Hawk. c. 14, s. 8.
 
 CHAP, i.] Of Resistance to the Law. 747 
 
 B. Civil Suits. — In civil suits, on the principle that a man's house is his 
 castle, an officer cannot in general justify the breaking open of an outer 
 door or window to execute the process, e.g. a fieri facias {n). If he does 
 so, he will be a trespasser ; and if the occupier of the house resists him, 
 and in the struggle kills him, the offence will be only manslaughter (o) ; 
 or if the occupier of the house does not know him to be an officer, and has 
 reasonable ground of suspicion that the house is broken with a felonious 
 intent, the killing will not be felony (^j). 
 
 The maxim above stated is limited (q) in its application (1) to the breach 
 of outward doors or windows ; (2) to a breach of the house for the purpose 
 of arresting the occupier or any of his family ; and (3) to arrests in the 
 first instance. 
 
 I, Outward doors or windows are those intended for the security of the 
 house against persons from without endeavouring to break in (r). If the 
 officer finds the outward door open, or it is opened to him from within, 
 he may then break open the imvard door, if he finds that necessary to 
 execute his process (s). Thus, an officer, having entered peaceably at 
 the outer door of the house, has been held justified in breaking open the 
 door of a lodger, who occupied the first and second floors, in order to 
 arrest him {t). And it has been held that a sheriff's officer in execution 
 of mesne process, who had first gained peaceable entrance at the outer door 
 of the house of A., might break open the windows of the room of B., a 
 person residing in such house, who had refused to open the door of the 
 room after being informed by the officer that he had a warrant against 
 him ill). But if the party, against whom the process is issued, is not 
 within the house at the time, the officer can only justify breaking open 
 inner doors in order to search for him, after having first demanded 
 admittance {v). If the person or the goods of the defendant are in the 
 house which the officer has entered, he may break open any door within 
 the house without further demand {w). If, however, the house is the 
 house of a stranger, and not of the defendant, the officer must be careful 
 to ascertain that the person or the goods (according to the nature of the 
 process) of the defendant are within before he breaks open any inner 
 door ; as, if they are not, he will not be justified {x). Where an outward 
 door was in part open (being divided into two parts, the lower hatch of 
 which was closed, and the upper part open), and the officer put his arm 
 over the hatch to open the part which was closed, upon which a struggle 
 ensued between him and a friend of the prisoner, and, the officer prevailing, 
 the prisoner shot at and killed him ; it was held to be murder (//). 
 
 («) R. r. Cook, Cro. Car. 537. Fost. (r) Fost. 320. 
 
 31U. But the sheriff may, if necessary, in (s) 1 Hale, 458. 1 East, P. C. 323. 
 
 order to execute a writ of habere facias (t) Lee v. Ganscl, 1 Cowj). 1. 
 
 possesnionem, break open the outer door (u) Lloyd r. Sandiland.^, 2 ^^oo^e (C. P.), 
 
 if he be denied entrance by tiic tenant. 207 ; 8 Taunt. 250. .See Hodgson r. 
 
 ■Senmync's ca.se, 5 Co. Rep. 91. Harvey Towning, 5 Dowl. P. R. 410. 
 
 V. Harvey, 20 Ch.D. 655. (v) Ratcliffe v. Burton, 3 B. & P. 223. 
 
 (t») Cro. Car. 537. (w) Hutchinson v. Birch, 4 Taunt. 610, 
 
 (p) 1 Hale, 458. 1 Ea.st, P. C. 321, 322. Gibbs, J. 
 
 iq) Fost. 319, 320, says that the rule has (x) Cook v. Birt, 5 Taunt. 765. John- 
 
 l)een carried as far as tlie true principles of son v. Leigh, 6 Taunt. 246. 
 
 poUtical justice will warrant, and tliat it (y) R. r. Baker, 1 Leach, 112. 1 East, 
 
 will not admit of any extension. P. C. 323. There was proof of a previous
 
 748 
 
 Of Homicide. 
 
 [BOOK IX. 
 
 The privilege only extends to the dwelling house, including it would 
 seem all buildings within the curtilage, and considered as parcel of the 
 dwelling-house at common law (z). 
 
 2. The privilege in respect to outer doors or windows is confined to 
 cases where the breach of the house is made in order to arrest the occupier or 
 any of his family, who have their ordinary residence there : for if a stranger, 
 whose ordinary residence is elsewhere, upon pursuit, takes refuge in the 
 house of another, this is not the castle of such stranger, nor can he claim 
 in it the benefit of sanctuary (a). But where the doors of strangers are 
 broken open, upon the supposition of the j)erson sought being there, it 
 must be at the peril of finding him there ; unless (it would seem) the parties 
 act under a magistrate's warrant {h). 
 
 If a sheriff's officer enters the house of the defendant for the purpose 
 of arresting him or taking his goods, he is justified if he has reasonable 
 grounds for believing that the party or his goods are there (c). 
 
 3. The privilege is also confined to arrests in the first instance. For if a 
 man who has been legally arrested (d) escapes from the officer, and takes 
 shelter (though in his own house) the officer may, upon fresh pursuit, break 
 open doors in order to retake him, having first given due notice of his 
 business, and demanded admission, and been refused (e). If it be not, how- 
 ever, upon fresh pursuit, it seems that the officer should have a warrant. 
 
 resolution in the prisoner to resist the 
 officer, whom lie afterwards killed in at- 
 tempting to attach his goods in his dwell- 
 ing-house, in order to comiiel an appearance 
 in the County Court. The point reserved 
 related to the legality of the attachment, 
 Vide ante, p. 738. 
 
 (z) See Penton v. Brown, 1 Sid. 18G. 
 See the authorities as to what is compre- 
 hended under the term dwelling-house at 
 common law, under the titles of ' Burglary ' 
 and ' Arson,' fost. Vol. ii. pp. 1075, 1783. 
 
 («) Fost. 320. 5 Co. Rep. 93. In 
 1 Smith's Leading Cases (11th ed.) p. 112, 
 in the notes to Semayne's case, after 
 citing the observations of Lord Lough- 
 borough in Sheere v. Brookes, 2 H. Bl. 120, 
 it is said that ' it seems to follow from this 
 that, as a house in which the defendant 
 habitually resides is on the same footing 
 with respect to executions as his own house, 
 the sheriff would not be justified in breaking 
 the outer door of such a house, even after 
 demand of admittance and refusal.' 
 
 (6) 2 Hale, 103. Fost. 321. 1 East, 
 P. C. 324. Mr. Smith, in the same note, 
 says : ' There may, perhaps, be another case 
 in which the sheriff might justify entering 
 the house of a stranger, upon bare suspicion 
 viz., if the stranger were to use fraud, and 
 to inveigle the sheriff into a belief that the 
 defendant was concealed in his house for 
 the purpose of favouring his escape, while 
 the officers should be detained in searching 
 or for any other reason, it might be held 
 that he could not take advantage of his own 
 deceit so as to treat the sheriff who entered 
 under the false supposition thus induced as 
 
 a trespasser ; or, perhaps, such conduct 
 might be held to amount to a licence to the 
 sheriff to enter.' It certainly is reasonable 
 in such a case that the party should not be 
 permitted to shew that in fact the defen- 
 dant was not concealed in his house, and 
 this would be in accordance with the 
 principles established by Pickard v. Sears, 
 () A. & E. 469. Heane v. Rogers, 9 B. & 
 C. 577, 586. Kieran v. Sanders, 6 A. & E. 
 515, and Gregg v. Wells, 10 A. & E. 90, in 
 which last case it was held that a party who 
 negUgently or culpably stands by and 
 allows another to contract on the faith and 
 understanding of a fact, wliich he can con- 
 tradict, cannot afterwards dispute that 
 fact in an action against the person 
 whom he has himself assisted in deceiviner.' 
 C. S. G. 
 
 (c) Johnson v. Leigh, 6 Taunt. 246. In 
 Morrish v. Murray, 13 M. & W. 52, officers 
 were held not jxLstified in entering and 
 searcliing the house of a stranger to arrest 
 a man on capias ad satisfaciendum if he 
 was not in the house at the time, though 
 he had resided there, and the officers had 
 reasonable cause to suspect that he was 
 there. 
 
 {d) Laying hold of the prisoner and j^ro- 
 nouncing the words of arrest, is an actual 
 arrest. Fost. 320. But bare words will 
 not make an arrest ; the officer must 
 actually touch the prisoner. Genner v. 
 Sparkes, 1 Salk. 79 ; 91 E. R. 74. Berry 
 V. Adamson, 6 B. & C. 528. 
 
 (e) Fost. 320. Genner v. Sparkes, uhi 
 supra. 1 Hale, 459. 2 Hawk. c. 14, s. 9.
 
 CHAP. I.] Of Resistance to the Law. 749 
 
 and the officer will not be authorised to break open doors in order to 
 retake a prisoner where the first arrest has been illegal (/), 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 : the killing 
 was ruled to be only manslaughter {(j). 
 
 Where an officer or his assistants, having entered a house in the 
 execution of their duty, are locked in, they may break open the doors to 
 regain their liberty {h). So where a sheriff being lawfully in a house makes 
 a lawful seizure of the goods of the owner of the house, and cannot take 
 the goods out of the house without opening the outer door, and neither 
 the owner or anyone else is there so that he can request them to open the 
 door, he may break the door open to take out the goods (^). 
 
 Where officers in order to execute process illegally break open doors 
 or windows, it is not clear whether to kill them is murder or manslaughter. 
 In Cook's case (/) a bailiff having a warrant to arrest a person upon a 
 capias ad satisfaciendum, came to his house, and gave him notice ; upon 
 which the person threatened 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. This was held not to be murder, 
 because the officer had no right to break the house ; but manslaughter, 
 because the party knew the officer to be a bailiff. 
 
 In Curtis' case (k), 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 
 immediately by a blow with an axe. A few of the judges to whom this 
 case was referred were of opinion that this would have been murder, even 
 if the warrant had not been legal, and the officers could not have justified 
 the breaking open the door, u2)on the grounds of the brutal cruelty of the 
 act, and of the deliberation manifested by the prisoner, who, looking out 
 of a window with the axe in his hand, had sworn, before any attempt to 
 enter the shop, that the first man that did enter should be a dead man. 
 
 The latter opinion seems correct ; for the status of the officers was 
 known and the breaking was at most a trespass and not in the nature of 
 burglary or felonious house-breaking, and the previous threats afforded 
 evidence of deliberation. 
 
 The fact that a warrant is illegal (/) may make an attempt to execute 
 it a provocation : but does not necessarily reduce the offence of killing 
 the officer in resisting execution from murder to manslaughter. If the 
 execution can be resisted without proceeding to extremity of violence (;»), 
 use of great and unnecessary violence unsuited to the provocation given, 
 or proof of premeditated previous threats or express malice would seem 
 
 if) 1 East, P. C. 324. {k) [1758] Fost. 135. 
 
 (g) Stevenson's case, 19 St. Tr. 840. (/) Where the warrant is for felony the 
 
 (h) 2 Hawk. c. 14, s. 11. 1 East, P. C. officer could apparently justify at common 
 
 321. law. See Hoyc v. Bush, 1 M. & Gr. TTf), 
 
 (t) Pugh V. Griffith, 7 A. & E. 827. Tindal, C.J. Beckwith v. Philby, G B. 
 
 (j) 1 Hale, 458. Cro. Car. 537. W. and C. 635. 
 
 Jones, 429. (w) See R. v. Thompson, 1 ^lood. 80.
 
 750 Of Homicide. [bookix. 
 
 to make killing in such a case murder {n). The true principle seems to 
 be that stated in East that the illegality of an attempt to arrest merely 
 puts the officer on the same footing as any other wrongdoer (o). 
 
 When due execution of the law by its known officer is resisted or the 
 officers are attacked to prevent their executing the law, as by arresting or 
 detaining in custody a person when they are legally entitled to take and 
 hold, the persons actually concerned in the resistance or attack are guilty 
 of murder. The person arrested or held is not liable if he yields himself 
 and takes no part in the resistance or attack : but is liable if he does an 
 act in aid or countenance of the attackers or in execution of a common 
 scheme of resistance to the law(p). Questions have arisen as to the law 
 where a stranger intervenes in a struggle to rescue an offender from officers 
 of the law or to resist arrest. It would seem that to kill the stranger 
 would be murder if he intervened with the object of preserving the peace, 
 aiding the officers of the law, and preventing mischief ; but that if he 
 intervened in aid of the rescuers and killed an officer of the law in the 
 struggle, it would be murder by the stranger [q). 
 
 Every person who wilfully engages in a breach of the peace by 
 assaulting another is bound at his peril first to satisfy himself of the 
 justice of the cause which he espouses ; and if he happens to take the 
 part of those resisting the law and to kill an officer of the law or a person 
 acting in his aid or a person lawfully acting in support of the law, it is 
 difficult to extenuate the offence by proof that the slayer had not know- 
 ledge or notice of the status of the party killed (r). 
 
 When the warrant or other authority under which a peace officer is 
 acting is not sufficient to justify him in arresting or detaining the person 
 whom he has taken or is holding, the officer is not entitled to the peculiar 
 protection afforded by the law to officers acting in the execution of their 
 duty, and if he is killed the crime may be reduced to manslaughter when 
 
 {n) See R. v. Patience, 7 C. & P. 775, held not responsible unless it could be 
 
 Parke, B. ; R. v. Curvan, 1 Mood. 132, and proved that after his arrest he encouraged 
 
 the observations in Roscoe, Cr. Ev. (13th the other to kill the pursuers, 
 
 ed). 644 onStockley's case; and Curtis' case, {q) Holt, C.J., and Rooksby, J., at Hert- 
 
 Fost. 356. ford, temf. Will. III. ad incipium MS. 
 
 (o) 1 East, P. C. 328. As to the Scots Tracey, 53 ; 1 East, P. C. 296 ; and see Fost. 
 
 law vide Alison, Cr. L. Sc. 25, 28 ; 1 Hume, 353. In R. v. Willis, 1 Salk. 334, it was 
 
 250. In the Illinois case of Rafferty v. The ruled that if a man began a riot in which an 
 
 People (69 111. Ill ; 12 Cox, 617), it was held officer was killed he would be liable as a 
 
 that where the milawful arrest of any per- principal murderer if present at the time of 
 
 son is attempted he may kill his assailant the slaying, though he did not commit the 
 
 deliberately. fact. This depends on how far the killing 
 
 (f) See Sir Charles Stanley's case, Kel. was part of or a natural consequence of the 
 
 (J.) 86; 1 Sid. 159. 1 East, P. C. 296. concerted action which led to the riot; 
 
 R. V. Whithorne, 3 C. & P. 394. R. v. vide ante, Bk. i. c. v. ; Bk. vi. c. i. 
 
 Rice [1902], 4 Ontario L. R. 233, qmst, (r) The olderauthorities and dicta on this 
 
 p. 754, note [l). 1 East, P. C. 318. subject are collected and discussed, 1 Hawk. 
 
 See Jackson's case, 1 Hale, 464, where c. 31, s. 59 ; 1 East, P. C. 316, 317. In Sir 
 
 of four robbers being pursued upon C. Stanley's case (Sid. 159; Kel. (J.), 86; 
 
 hue and cry one turned on his pur- East, P. C. 318) intervention against a 
 
 suers and, refusing to yield, killed one bailiff with the object only to keep the 
 
 of them. It was considered that the peace was held manslaughter ; but in the 
 
 resistance was part of a common scheme report in Keble, 584, it is said that it was 
 
 of resistance, and that the other robbers adjudged, that if any casttaZZy assist against 
 
 were liable as principals in murder, though the law, and kill the bailiff, it is murder, 
 
 they were at some little distance. One of especially if he knew the cause of the 
 
 the gang arrested before the killing was bailiff's action.
 
 CHAP. I.] Of Resistance to the Law. 751 
 
 the killing is sudden and without premeditation and is attended by 
 circumstances affording reasonable provocation (s). The proposition 
 above stated is now accepted as correctly declaring the law, and as re- 
 conciling the divergences of opinion among former judges upon the 
 question how far the person arrested, or third persons, especially mere 
 strangers interfering on behalf of a person illegally arrested or detained, 
 are entitled to rely on the illegality of the arrest to extenuate their 
 guilt in killing the officer. 
 
 In Ferrers' case {t). Sir Henry Ferrers being arrested for debt, upon an 
 illegal warrant, his servant, in seeking to rescue him, as was pretended, 
 killed the officer ; but, upon the evidence, it appeared clearly that Sir 
 Henry Ferrers, upon the arrest, obeyed, and was put into a house before 
 the fighting between the officer and his servant : wherefore he was found 
 not guilty of murder or manslaughter. 
 
 In Hugget's case (w), B. and two other constables impressed a man 
 without a warrant for so doing ; to which the man quietly submitted, 
 and went along with them. The prisoner, with three others, seeing them, 
 instantly pursued them, and required to see their warrant ; on which B. 
 shewed them a paper, which the prisoner and his associates said was 
 no warrant, and immediately drew their swords to rescue the impressed 
 man, and thrust at B. ; whereupon B, and his two companions drew 
 their swords, and a fight ensued, in which Hugget killed B. But this case 
 is stated very differently by Lord Hale, as having been under the follow- 
 ing circumstances : — A press-master seized B. for a soldier ; and, with 
 the assistance of C, laid hold of him. D. finding fault with the rude- 
 ness of C, there grew a quarrel between them, and D; killed C. ; and 
 by the advice of eight judges against four, it was ruled that this was 
 but manslaughter. 
 
 In R. V. Tooley [v) B., who was a parish constable, came into another 
 parish, where he was no constable, and consequently had no authority {w) ; 
 and there arrested a woman, under suspicion of being a disorderly person, 
 but who had no^ misbehaved herself, and against whom B. had no 
 warrant. The prisoners came up ; and though they were all strangers 
 to the woman drew their swords, and assaulted B., for the purpose 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 
 B. carried the woman to the round-house in Covent Garden. A short time 
 afterwards, the w^oman being still in the round-house, the prisoners drew 
 
 (5) Opinion of Blackburn and Mollor, wlio hold it manslauglitpr put the point as 
 
 J. J., in R. V. Allen, 17 L. T. (N. S.) 222; an endeavour to rescue, and that undue 
 
 Steph. Dig. Ci-. L. (6th ed.) 421. arrest or restraint of the liberty of any 
 
 (<) Cro. Car. 371. The ratio decidendi person is a provocation to all men of Eng- 
 
 was that the warrant was bad for misde- land. In R. v. Mawgridge, Kel. (J.) 136, 
 
 scribing a baronet as a knight. In the Hugget's case is treated as having settled 
 
 report in W. Jones the ruling is said to have the law. 
 
 been that the offence was not murder cither (v) 2 Ld. Rayni. 1200: 92 E. R. 349. 
 
 in master or servant, because the warrant (;/■) One judge only tiiought that Bray 
 
 was bad. acted \\\i\\ authority, as he showed his 
 
 (tt) The fullest report is in Kel. (J.) 59, staff, and that, witli respect to the pri- 
 and see 1 Halo, 465. The minority con- soners, ho was to be considered as con- 
 sidered the offence murder. The judges stable de facto.
 
 752 Of Homicide. [bookix. 
 
 their swords again, and assaulted B., on account of her imprisonment, 
 and to get her discharged. B. 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 D. came to his assistance ; 
 and before any stroke received, one of the prisoners gave D, while assisting 
 the constable, a mortal wound. 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 murder. The seven 
 judges who held that it was manslaughter thought that it was a sudden 
 action, without any precedent malice or apparent design of doing hurt, 
 but only to prevent the imprisonment of the woman and to rescue her 
 who was unlawfully restrained of her liberty ; and that it could not be 
 murder, if the woman was unlawfully imprisoned {x) ; and they also 
 thought that the prisoners, in this case, had sufficient provocation on 
 the ground that if one be imprisoned upon an unlawful authority, it is a 
 sufficient provocation to all people out of compassion, 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 
 England. 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 servant ; and that it would be 
 dangerous to allow such a power of interference to the mob. The 
 majority of the judges relied on Hugget's case and Ferrers' case [y). 
 
 In E.. V. Osmer (2;) a man was arrested on a good warrant by a person 
 described as sergeant at mace, who had no authority to execute it. The 
 defendant was convicted of assaulting the sergeant, but the conviction 
 was held bad, Ellenborough, C.J., saying : ' If a man without authority 
 attempts to arrest another illegally it is a breach of the peace, and any 
 other person may lawfully interfere to prevent it, doing no more than is 
 necessary for the purpose.' 
 
 In R. V. Phelps {a), on an indictment for the murder of a person who 
 was assisting a police officer to take P, to the station house it appeared 
 that P. was arrested on suspicion of having stolen potatoes from a garden. 
 As the police had not found P. committing the offence, and it was not a 
 felony, Coltman, J., ruled that the arrest was illegal and the killing man- 
 slaughter only. 
 
 The conclusions of the majority of the judges in Tooley's case were 
 severely criticised by Foster, J., who considered that they were not 
 warranted by Hugget's case or Ferrers' case, and carried the law in favour 
 of private persons officiously interfering in cases of illegal arrest further 
 than was warranted by sound reason or true policy (6). After observing 
 that in Hugget's case (c) swords were drawn, a mutual combat ensued, 
 the blood was heated before the mortal wound was given, and a rescue 
 seemed to be practicable at the time the affray began ; whereas, though 
 in Tooley's case, the prisoners had, at the meeting, drawn their swords 
 
 {x) For this Yong's case, 4 Co. Rep. 40, («) C. & M. 180, ante, p. 726. This case 
 
 and Mackalley's case, 9 Co. Rep. 65, were turned chiefly on 7 & 8 Geo. IV. c. 29, s. 63, 
 
 cited. re-enacted as 24 & 25 Vict. c. 96, s. 103. 
 
 (y) Ante, p. 751. (6) Fost. 312 et seq. 
 
 (z) 5 East, 304. (c) Ante, p. 751.
 
 CHAP, i.i Of Resistance to the Law, 753 
 
 against the constable unarmed, they had put them up again, appearing 
 to be pacified, and cool reflection seeming to have taken place ; and it 
 was at the second meeting that the deceased received his death wound, 
 before a blow was given or offered by him or any of his party ; and also 
 in that case there was no possibility of rescue, the woman having been 
 secured in the round-house ; he says, that the second assault on the 
 constable seems rather to have been grounded upon resentment, or a 
 principle of revenge, for what had before passed, than upon any hope or 
 endeavour to assist the woman. He then proceeds : ' Now, what was the 
 case of Tooley and his accomplices, stript of a pomp of words, and the 
 colourings of artificial reasoning ? They saw a woman, for aught appears, 
 a perfect stranger to them, led to the round-house under a charge of a 
 criminal nature. This, upon evidence at the Old Bailey, a month or two 
 afterwards, comes out to be an illegal arrest and imprisonment, a violation 
 of Magna Charta ; and these ruffians are presumed to have been seized, 
 all on a sudden, with a strong fit of zeal for Magna Charta {d) and the 
 laws ; and in this frenzy to have drawn upon the constable, 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 the time, 
 could be the provocation which led them into this outrage. But, admitting 
 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 voluntary homicide ; and yet every man who hath considered 
 the human frame, or but attended to the workings of his own heart, 
 knows that affronts of that kind pierce deeper, and stimulate the veins 
 more effectually, than a slight injury 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 indignation, 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 ? ' (e) 
 
 In R. V. Adey ( /'). the prisoner, who cohabited with a person named F., 
 
 (d) Holt, C.J., ill delivering the judg- (e) Fost. 315, .316, 317. 
 
 ment in Tooley's case, had said: ' Sure a {() \ Leach, 206. At p. 212 it is said 
 
 man ought to be concerned for Magna that the prisoner lay eighteen months in 
 
 Charta and the laws : and if any one gaol, and was then discharged ; but tlie 
 
 against the law imprison a man, he is an following note is added: ' It is said, that 
 
 offender against Magna Charta.' the judges held it to be manslaufrhter only, 
 
 VOL. I. 3 c
 
 754 
 
 Of Homicide. 
 
 [BOOK: I5t. 
 
 killed an assistant of a constable, who came to apprehend F., as an idle 
 and disorderly person, under 19 Geo. II. c. 10. (gr), though he was not 
 an object of the Act, and did not himself make any resistance to the arrest; 
 but the prisoner, immediately upon the constable and his assistant 
 requiring F. 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. Hotham, B., with whom Gould, J., and 
 Ashhurst, J., concurred, held the offence to be murder. A special verdict, 
 however, was found (A) t and the case was argued in the Exchequer 
 Chamber, before ten of the judges ; but no opinion was ever publicly 
 delivered. 
 
 The opinion of Foster seems to have been accepted by Alderson, B., 
 who said in R. -y. Warner {%) that Tooley's case was overruled, and by 
 Pollock, C.B., in R. v. Davis (/), and is approved by Sir James Stephen (A;), 
 and aj)pears to be established as the accepted rule by R. v. Allen (^). 
 In that case K. and D. had been arrested on suspicion of felony (wt), and 
 were from time to time remanded on a warrant charging them generally 
 with felony but not specifying any particular offence. While they were 
 being driven in a police van to prison a rescue was attempted — in the 
 course of which a constable was killed. On an indictment of A. and 
 
 but no opinion wag ever publicly given ; 
 and (/«., whether the prisoner did not escape 
 pending the opinion of the judges, when 
 the gaol was burnt down in 1780, and was 
 never retaken.' And see also 1 East, P. C. 
 829, note (a), where it is said : ' Upon in- 
 quiry, however, it appears that, pending the 
 consideration of the case by the judges, she 
 escaped during the riots in 1780, and was 
 never retaken.' In R. v. Porter (reported 
 as to another point, 9 C. & P. 778), upon an 
 indictment for murder, it appeared that 
 the deceased, who was a watchman, and 
 another were taking a person towards a 
 station-house on a charge of robbing a 
 garden, and were proceeding quietly along 
 a road, the pi'isoner making no resistance, 
 
 when they were attacked and the deceased 
 
 beaten to death. In opening the case it 
 
 was asserted, that even if the prisoner were 
 
 not lawfully in custody, the offence was 
 
 murder ; for if a person were illegally in 
 
 custody, and was making no resistance, no 
 
 person had any right to attack the persons 
 
 who had him in custody, and that if they 
 
 did, and death ensued in consequence of 
 
 the violence used to release the prisoner, it 
 
 was murder ; and that, although there 
 
 might be old cases to the contrary, they 
 
 were no longer considered as binding 
 
 authorities. The point, however, did not 
 
 ultimately become material, as it was held 
 
 that the party was in lawful custody ; but 
 
 the above position was neither controverted 
 
 by the very learned judge who tried the 
 
 case, nor by the prisoner's counsel ; and it 
 
 would seem that it could not be successfully 
 
 disputed, for it is difficult to discover upon 
 
 what principle any individual can be 
 
 justified in interfering to prevent what 
 
 ap23arently is the due execution of the law, 
 and that the question, whether he is guilty 
 of murder or manslaughter, if death ensue, 
 is to depend upon whether the custody is 
 legal or illegal, of which, probably, at the 
 time, he was peifectly ignorant, and which, 
 consequently, could in no respect influence 
 his conduct. C. S. G. See ante, p. 729. 
 
 (r/) A local Act. 
 
 \)i) The Court advised the jury to find a 
 special verdict, on the ground of the 
 difference of opinion which had been enter- 
 tained in Tooley's case, and Hugget's case, 
 anle^ p. 751. 
 
 (i) 1 Mood. 385. 
 
 (y) L. & C. 64, 71. 
 
 {k) 3 Steph. Hist. Cr. L, 71 ; Steph, 
 Dig. Cr. L. (6th ed. ) and see Mayne, Ind. Cr. 
 L. (ed. 1896), p. 424. 
 
 (Z) See 17 L.T. (N. S.) 222, and the facts of 
 this case (known in Ireland as that cf the 
 Manchester Martyrs), analysed out in Steph. 
 Dig. Cr. L. (6th ed.), pp. 414 d seq. It is 
 reported as R. v. Martin, Times, Nov. 7, 
 1867. See R. v. Rice [1902], 5 Canada 
 Cr. Cas. 509 ; 4 Ontario, L. R. 233. There 
 R. and two others, being under trial for 
 burglary, were during the trial being recou- 
 veyed in a cab to gaol in the lawful custody 
 of two constables. A parcel containing 
 revolvers was thrown by an unknown per- 
 son into the cab, a struggle with the con- 
 stables in charge ensued in which one was 
 killed by a shot fired by one of the three 
 prisoners, it was not ascertainable by which. 
 Held that the act being done by one of the 
 three acting in concert, R. was guilty of 
 murder. 
 
 (m) Steph. Dig. Cr. L. (6th ed.) 421. 
 
 ■
 
 CHAP, i.] Criminal, Unlawful, or Wanton Purpose. 755 
 
 others for the murder of the constable it was contended that K. and D. 
 were not in legal custody and that consequently the kilhng of the 
 constable in the attempt to rescue them was manslaughter only. Black- 
 burn and Mellor, JJ., directed the jury to convict of murder, and on a 
 conviction, after consulting the other judges, refused to reserve a case. 
 In giving the reasons for their refusal they laid down the rule stated ante 
 pp. 721, 750, and distinguished the cases of Ferrers, Hugget and Tooley, 
 relied on for the defence as applying only in the case of a sudden or 
 unpremeditated affray where the fact of unwarranted arrest might be a 
 sufficient provocation and the parties might act without any previous 
 malice or design of doing hurt (n). And they added that the convicts 
 had formed a deliberate prearranged conspiracy to attack the police with 
 fire-arms and shoot them if necessary for the purpose of rescuing K. and 
 D., and well knew that the police were acting in obedience to the com- 
 mands of a justice who had full power to remand K. and D. to gaol if 
 he made a proper warrant for the purpose. ' We think it would be 
 monstrous to suppose that under such circumstances, even if the justice 
 did make an informal warrant, it would justify the slaughter of an officer 
 in charge of the prisoners or reduce that slaughter to the crime of 
 manslaughter.' 
 
 Sect. IX. — Of Killing in the Prosecution of some Criminal, 
 Unlawful, or Wanton Purpose. 
 
 As a general principle, subject to the qualifications jJresently to be 
 stated, if an action, unlawful in itself, is done deliberately, and with intent 
 to cause mischief or great bodily harm to particular individuals, or 
 indiscriminate mischief, and some person is killed in consequence of the 
 act, even against or beside the original intention of the slayer, he is in law 
 guilty of murder (o). 
 
 Under this head fall cases in which particular malice directed 
 against one person falls by mistake or accident upon another. Though 
 the death caused under such circumstances may in a loose way be called 
 accidental, the law does not so regard it. Thus if B. is killed by means 
 which were in fact intended to kill or injure A., whether by poison, blow, 
 or any other means, the killing of B. is murder if the kilhng of A. would 
 have been so (/;). Thus, if C, having malice against A., strikes at and 
 misses him, but kills B., this is murder in C. {q) ; and, if A. and B, engage 
 in a deliberate duel, and a stranger coming between them to part them is 
 killed by one of them, it is murder in the party killing (r). And where A. 
 
 {«) SccTooley'scase, 2Ld. Rayni. 1300, out of Dalli.son's Report, p. 217. But 
 
 Holt, C.J., ante, p. 751. Hale thinks tliat it is not nnuder in both, 
 
 {o) Fost. 2()1. unless both struck liini wlio came to part 
 
 {p) Id. ibid. 1 Hale, 441. R. t\ Wil- them,andsaysthatbythebookof22As.s. 71. 
 
 Hams, 1 Hale, 4G9. See R. i'. Mawgridge, Coron. 180 (which seems to be the case more 
 
 Kel. (J.), 131 ; 17 St. Tr. 57. at large) he only that gave the stroke had 
 
 {q) 1 East, P. C. 230. judgment, and was executed. 1 Hale, 441, 
 
 (/•) 1 Hale, 441. Dalt. c. 145, p. 472. to which this note is subjoined: 'The other 
 
 It appears to have been held where the does not appear to have been before the 
 
 combat was by malice prepense, that tlic Court ; but, upon putting the case, the 
 
 killing of the person wiio came to part Court said lie that struck is guilty of felonj", 
 
 them was murder in both combatants, but said nothing as to him who did not 
 
 Y. B., 22 Edw. III. Coron. 262. Lambard. strike.' 
 
 3c2
 
 756 Of Homicide. [book ix. 
 
 had malice against D., tlie master of B., and assaulted him, and upon B. 
 the servant coming to the aid of his master, A. kills B., it was held murder 
 in A. as much as if he had killed the master (s). So, where A. gave a 
 poisoned apple to his wife intending to poison her, and the wife, ignorant 
 of the matter, gave it to a child who took it and died ; this was held 
 murder in A,, though he, being present at the time, endeavoured to 
 dissuade his wife from giving the apple to the child {t). Where A. mixed 
 poison in an electuary sent by an apothecary to her husband, with intent 
 to poison him, which did not kill him, but afterwards killed the apothecary 
 who to vindicate his reputation tasted it himself, having first stirred it 
 about, some doubt was entertained, because the apothecacy, of his own 
 hand, without incitement from anyone, not only partook of the electuary, 
 but mingled it together, so as to incorporate the poison, and make its 
 operation more forcible than the mixture as made by the wife of A. But 
 ultimately the judges resolved that A. was guilty of murder, for the 
 putting the poison into the electuary was the cause of the death : and 
 if a person prepares poison with intent to kill any human being, such 
 person is guilty of the murder of any one who is killed thereby (w). So 
 if A. puts poison into wine, with intent to kill B., and C. drinks the wine 
 and dies, A. is guilty of the murder of C, ; and it makes no difference that 
 the wine, unless stirred up, would not have killed C, and that C, thinking 
 there was sugar in it, stirred it up {v). 
 
 So, where a person gave medicine to a woman to procure abortion {w), 
 and where a person put skewers into the womb of a woman for the 
 same purpose {x), by which in both cases the women were killed, these 
 acts were held murder ; for though the death of the woman was not 
 intended, the acts were deliberate and malicious, and necessarily 
 attended with great danger to the person on whom they were practised. 
 
 Where the prisoner was indicted for the wilful murder of a woman, 
 and it appeared that the woman had died as a result of the prisoner 
 having injected mercury or used other means upon her with the intention 
 of procuring abortion, Bigham, J., told the jury : ' If you are of opinion 
 that the girl died as a result of the prisoner's unlawful operation, he is 
 guilty of murder ... I do not mean to say that there are not some cases 
 where this rule of law is not applicable. There may be cases where death 
 is so remote a contingency that no reasonable man could have taken it 
 into his consideration. ... If you can think that though the prisoner 
 may have administered the injection, he nevertheless could not have 
 contemplated that it could have resulted in death, then he is not guilty 
 of the graver charge, but is guilty of the lesser crime of manslaughter ' (y). 
 
 Even where no mischief is intended to any particular individual, if 
 there is a general malice or depraved inclination to mischief, fall where it 
 may ; the act itself being unlawful, attended with probable serious 
 danger, and done with a mischievous intent to hurt people, the killing is 
 
 (s) 1 Hale, 438. 2 Mood. 120. 
 
 U) E. V. Saiinders, Plowd. 473. 1 Hawk. {w) 1 Hale, 429. 
 
 c. 31, s. 45. 1 Hale, 436. (x) R. v. Tinckler, 1 East, P. C. 230, 354 ; 
 
 (w) R. V. Gore, 9 Co. Rep. 81. 77 E. R. 1 Den. v. 
 ^53. 1 Hawk. c. 31, s. 45. 1 Hale, 436. (y) R. r. Whitmarsh, 62 J. P. 711, 
 
 (i') 9 Co. Rep. 81. See R. v. Michael, Bigham, J. 
 
 II
 
 CHAP. I.] Criminal, Unlawful, or Wanton Purj)ose. Ibl 
 
 m law murder (2). Thus, if a man deliberately, and with intent to do 
 mischief, rides upon a horse used to kick, or coolly discharges a gun, among 
 a multitude of people, and death results, it will be murder (a). So, if a 
 man resolves to kill the next man he meets, and does kill him, it is murder, 
 although h,e knew him not ; for this is universal malice (6). Upon the 
 same principle, if a man, knowing that people are passing along the street, 
 throws a stone likely to do injury, or shoots over a house or wall with 
 intent to do hurt to people, and one is thereby slain, it is murder on 
 account of the previous malice, though not directed against any particular 
 individual ; for it is no excuse that the party was bent upon mischief 
 generally (c). 
 
 It has been said that whenever an unlawful act (an act malum in se), 
 is done in prosecution of a felonious intention, and death ensues, it will be 
 murder : as if A. shoots at the poultry of B. intending to steal the poultry, 
 and by accident kills a man, this will be murder by reason of the felonious 
 intention of stealing {d). But Holt, C.J., said that the dictum of Coke 
 (3 Inst. 56), was too large and that ' there must be a design of mischief to the 
 person, as to commit a great riot ' (e). And upon an indictment for murder 
 against a man who had set fire to his house with intent to defraud his 
 insurers, and had thereby caused the death of an imbecile son of his, 
 Stephen, J., said : ' I think that, instead of saying that an act done 
 with intent to commit a felony and which causes death amounts to murder, 
 it would be reasonable to say that any act known to be dangerous to life 
 and likely in itself to cause death done for the purpose of committing 
 a felony which caused death, should be murder ' (/), And it has been 
 held, that if such offenders as were mentioned in 21 Edw. I., st. 2 {h) {De 
 malefactoribus in farcis), killed the keeper, &c., it was murder in all, 
 although the keeper ordered them to stand, assaulted them first, and 
 they fled, and did not turn till one of the keeper's men had fired and 
 hurt one of their companions {i). 
 
 {z) 1 Hale, 475. 1 East, P. C. 231. tame fowl, and says, if the arrow by mis- 
 
 (a) 1 Hale, 476. 4 Bl. Com. 200. 1 adventure kills a man, it is murder ; and 
 Hawk. c. 29, s. 12. 1 East, P. C. 231. cites for the latter position 3 Edw. III. 
 Hawkins, speaking of the instance of the Coron. 354, 2 Hen. IV. 18, and 11 Hen. VII. 
 person riding a horse used to kick amongst 23. Hale (1, 38) cites 11 Hen. VII. 23, 
 a crowd, says, it would be murder, though Br. Coron. 229, Proclamation, 12. 22 
 the rider intended no more than to divert Ass. pi. 71, and see 1 Hale, 5C8. R. i'. 
 himself by putting the people into a fright. Woodburn, 14 St. Tr. 53, 80. In R. v. 
 1 Hawk. c. 31, s. 68, and see ante, p. 679. Plummer, Kel. (J.) 109, 117, the question is 
 
 (b) 4 Bl. Com. 200. discussed in the judgment of C.J., and 
 
 (c) 1 Hale, 475. 3 Co. Inst. 57. 1 East, Coke's dictum is exi)lained to mean that if 
 P. C. 231. See remarks by Blackburn, J., two men have a design to steal a hen, and 
 in the course of the argument in R. v. one shoots at the hen for the ))uri)ose, and 
 Pembliton, 1,. R. 2 C. C. R. 119, and R. a man be killed, it is murder in both, be- 
 V. Latimer, 17 Q.B.D. 359. See also R. v. cause the design was felonious ; and it is 
 Martin, 8 Q.B.D. 54, and R. v. Faulkner, said that with that explanation the books 
 13 Cox, 550. cited do warrant that opinion. Foster, 
 
 (d) Fost. 258, 259.' Coke (3 Inst. 56) 258-9, cites 3 Co. Inst. 56, and Kel. (J.) 117. 
 says: 'If the act be unlawful it is murder; (e) R. v. Keates, Comb. 406, 409. 
 
 as if A., meaning to steal a deer in the park (/') R. v. Serne, 16 Cox. 311, 313. 
 
 of B., shoots at the deer, and by the glance (h) Repealed in 1827 (7 & 8 Geo. IV. c. 
 
 of the arrow kills a boy that is hidden in 27). 1 Hale, 491. 
 
 a bush, this is murder; for that the act is (/) 1 East, P. C. 256, citing 1 MS. Sum. 
 
 unlawful,' and he cites Bract. Lib. 3. 1201). 145. 175. Sum. 37, 46. Palm. 546. 2 
 
 And then he draws the distinction between Roll. Rep. 120. The reason is, the Act 
 
 shooting wild fowl and slinnting at any provides that, if after hue and cry made to
 
 758 Of Homicide. [book ix. 
 
 It has been shewn, that where death ensues from an act done in the 
 prosecution of a, felonious intention, it will be murder {j) ; but a distinction 
 is taken in the case of an act done with the intent only of committing a 
 hare trespass ; as if death ensues from such act, the offence will be only 
 manslaughter {k). Thus, if A, shoots at the poultry of B., intending to 
 steal them, and by accident kill a man, it will be murder; yet, if he shoots 
 at tliem wantonly, and without any such felonious intention, and acciden- 
 tally kills a man, the offence will be only manslaughter [l). And any 
 one, who voluntarily, knowingly, and unlawfully, intends hurt to the 
 person of another, though he does not intend death, yet, if death ensues 
 is guilty of murder or manslaughter, according to the circumstances 
 or the nature of the instrument used, and the manner of using it, as 
 calculated to produce great bodily harm or not (m). And if a man is 
 doing an unlawful act, though not intending bodily harm to any one 
 (as if he is throwing a stone at another's horse), and hits a person and 
 kills him, it is manslaughter (w). 
 
 Incendiarism. — Where a man set fire to a house whereby a person was 
 burnt to death it was held murder (o). On an indictment for murder it 
 appeared that the prisoner had set fire to a stack of straw, in an enclosure 
 in which was an outhouse or barn, but not adjoining to any house. While 
 the fire was burning, the deceased was seen in the flames, and his body 
 was afterwards found in the enclosure. There was no evidence who he 
 was, or how or when he came there, nor whether he had been in the out- 
 house or merely lying on or beside the stack : nor was there evidence 
 that the prisoner had any idea that any one was, or was likely to be, there, 
 and when he saw the deceased, he wanted to save him. It did not exactly 
 appear how long the fire had been kindled before it was discovered, but 
 very soon after it was discovered the deceased was seen in the flames. 
 Bramwell, B., told the jury that ' the law laid down was that where a 
 prisoner, in the course of committing a felony, caused the death of a 
 human being, that was murder, even though he did not intend it. And 
 though that may appear unreasonable, yet, as it is laid down as the law, 
 it is our duty to act uponjt. The law, however, is that a man is not 
 answerable except for the natural and probable result of his own act ; 
 and therefore, if you should not be satisfied that the deceased was in the 
 farm or enclosure at the time the prisoner set fire to the stack, but came 
 in afterwards, then, as his own act intervened between the death and the 
 act of the prisoner, his death could not be the natural result of the 
 prisoner's act. And in that view he ought to be acquitted on the present 
 charge ' (p). 
 
 Grievous Bodily Harm. — Where the intent is to do some great hodily 
 
 stand, they will not yield, but flee or defend (m) T East,' P. C. 256, 257. 1 Hale, 39. 
 
 themselves, and the keepers kill them in («) 1 Hale, 39. 
 
 taking them, they shall not be troubled in (o) R. v. Smitliies, 5 C. & P. 332. Sec 
 
 any way for it. Therefore all that the R. v. Serne, 16 Cox, 311, ante, p. 757. 
 keepers did in this case was lawful, and (p) R. v. Horsey, 3 F. & F. 287. The 
 
 consequently the killing was the killing of a question in such a case would be whether 
 
 party in the due execution of his duty. the prisoner in firing the stack had com- 
 
 (j) Ante, p. 757. mitted a felony within 24 & 25 Vict. c. 97, 
 
 (k) Fost. 258. Coke seems to think s. 7. See R. v. Child. L. R. 1 C C. R. 307, 
 
 otherwise, 3 Inst. 56. 310, Blackburn, J. 
 
 (0 Fost. 258, 259. 1 Hale. 475. 
 
 I
 
 CHAP. I.] Cmninal, Unlawful, or Wanton Purpose. 759 
 
 harm to another, and death ensues, it will be murder ; as if A, intends 
 only to heat B, in anger, or from preconceived malice, and happens to 
 kill him, it will be no excuse that he did not intend all the mischief that 
 followed ; for what he did was tnalum in se, and he must be answerable 
 for all its consequences, He beat B. with an intention of doing him 
 some bodily harm, and is therefore answerable for all the harm he did (q). 
 So if a large stone is thrown at one with a deliberate intention to hurt, 
 though not to kill him, and by accident it kills him, or any other, this is 
 murder (r). If a wrongful act (an act which the party who commits it 
 can neither justify nor excuse) is done under circumstances which shew 
 an intent to kill, or to do any serious injury, or any general malice, the 
 offence is murder (s). But the nature of the instrument, and the manner 
 of using it, as calculated to produce great bodily harm or not, will vary 
 the offence in all such cases (t). 
 
 Practical Jokes, — Upon an indictment for murder it appeared that 
 the deceased, being in liquor, had gone at night into a glass-house, and 
 laid himself down upon a chest ; and that while he was there asleep the 
 prisoners covered and surrounded him with straw, and threw a shovel 
 of hot cinders upon his belly ; the consequence of which was that the 
 straw ignited, and he was burnt to death. There was no evidence of 
 express malice, but the conduct of the prisoners indicated an entire 
 recklessness of consequences, hardly consistent with anything short of 
 design. Patteson, J., adverted to the fact of there being no evidence 
 of express malice, but told the jury that if they believed the prisoners 
 really intended to do any serious injury to the deceased, although not to 
 kill him, it was murder ; but if they believed their intention to have 
 been only to frighten him in sport it was manslaughter (u). 
 
 Where Several join to do an Unlawful Act, — Where several persons 
 come to a resolution to resist all opposers in the commission of a breach 
 of the peace, and to execute it in a manner naturally tending to create 
 riot or tumult, e.g. by going to beat a man, or rob a park, or standing 
 in opposition to the sherifE's posse, they must, 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 (v). But in order to 
 make the killing by any, murder in all, of those who arc confederated 
 together for an unlawful purpose, merely on account of the unlawful act 
 done or in contemplation, it must happen during the actual strife or 
 unlawful enterprise, or at least within such a reasonable time afterwards 
 as may leave it probable that no fresh provocation intervened (w). 
 
 The fatal act must appear to have been committed strictly in prose- 
 cution of the purpose for which the party was assembled ; and therefore, 
 if several persons be engaged in an unlawful act, and one of them takes 
 the opportunity to kill one of his companions against whom he bears 
 deliberate malice, the rest are not concerned in the guilt of that act, 
 
 (7) Fost. 250. V. Fenton, 1 Lew. 179, and R. v. Franklin, 
 
 (>■) 1 Hale, 440, 441. 15 Cox, 103, post, p. 785. 
 
 (.s) R.i: Fenton, 1 Lew. 17!), Tindal, C.J. (i) 1 Hawk. c. 31, s. 51. 8taundf. 17. 
 
 po.sf, p. 785. As to bodily harm vide post, 1 Hale, 439 et seq. 4 Bl. Com. 200. 1 
 
 p. 852. East, P. C. 257. And sec ante, p. 112. 
 
 (.') Kel. (J.) 133. 1 East, P. C. 257 . (w) 1 East, P. C. 259. 
 
 {u) R. V. Ellington, 2 Lew. 217. See R.
 
 760 Of Ho?nicide. [book ix. 
 
 because it had no connection with the crime in contemplation {x). Two 
 men were beating another man in the street, and a stranger made some 
 remark upon the cruelty of the act, upon which one of the two men gave 
 him a mortal stab with a knife. On an indictment of both men as prin- 
 cipals in the murder ; the judge held that although both were doing an 
 unlawful act in beating the man, yet as the death of the stranger did not 
 ensue upon that act, and as it appeared that only one of them intended 
 any injury to the person killed, the other could not be guilty either as 
 principal or accessory (tj). 
 
 Where a party of smugglers were met and opposed by an officer of 
 the Crown, and during the scuffle which ensued 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. The Court agreed 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 accom- 
 pUce of their own were the person killed (z). The point upon which the 
 case turned was, that it did not appear from any of the facts found that 
 the gun was discharged in prosecution of the purpose for which the party 
 was assembled (a). In another case the prisoners had been hired by a 
 tenant to assist him in carrying away his household furniture in order to 
 avoid a distress. They accordingly assembled for this purpose armed 
 with bludgeons and other offensive 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 authority, 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 
 standing at his father's door looking on, but totally unconcerned in the 
 affray. The question was raised whether this was murder in all the 
 company ; 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 (6). This opinion seems to have 
 been based on the view that there was no evidence to shew that the 
 stroke by which the boy was killed was either levelled at any of the 
 opposing party, or Avas levelled at him upon the supposition 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 (c). 
 
 (x) 1 Hawk. c. 31, s. 52. Fost, 351. act by continuing the affi-ay after the 
 
 And see the charge of Foster, J., in R. v. constable had commanded the peace. 
 
 Jackson, 9 Harg. St. Tr. 715. They cited Staundf. 17, 40; Fitz. Corone, 
 
 (y) Anon. 8 Mod. 164. 1 Hawk. c. 31, 350; Crompt. 244. See R. v. Plummer, 
 
 s. 52. 21-bi supra, and 12 Mod. 629. Thompson's 
 
 (z) R. V. Plummer, Kel. (J.), 109. case, Kel. (J.) 66; and Anon. 8. Mod. 165. 
 
 (a) Fost. 352, and see Mansell and Her- See also Keilw. 161 ; and Borthwick's case, 
 
 bert's case, 2 Dy. 128 b: 73 E. R. 279. 1 Dougl. 207. 
 
 (h) R. V. Hodgson, 1 Leach 0, cited as R. (c) 1 East, P. C. 258, 259 ; and see the 
 
 V. Hubson, 1 East, P. C. 258. Holt, C. J., remarks of Hale, upon the case of Mansell 
 
 and Pollexfen, C.J., considered the offence and Herbert 2 (Dy. 128 b.) in 1 Hale, 440, 
 
 murder, as all were engaged in an unlawful 441.
 
 CHAP. I] Criminal, Unlawful, or Wanton Purpose. 761 
 
 The prisoners, eight in number, each having a gun, uj)on being found 
 poaching by some keepers, who went towards them for the purpose of 
 apprehending them, formed into two lines, and pointed their guns at the 
 keepers, saying that they would shoot them. A shot was then fired 
 which wounded a keeper, but no other shot was fired. It was objected 
 that it was clear that there was no common intent to shoot this man, 
 because only one gun was fired instead of the whole number. Vaughan, 
 B., said : ' That is rather a question for the jury, but still on this evidence it 
 is quite clear what the common purpose was. They all draw up in lines, 
 and point their guns at the gamekeepers, and they are all giving their 
 countenance and assistance to the one who actually fires the gun. If it 
 could be shewn that either of them separated himself from the rest, and 
 shewed distinctly that he would have no hand in what they were doing, 
 the objection would have much weight in it ' (d). Two private watchmen 
 seeing the prisoner and another man with two carts laden with apples, 
 which they suspected had been stolen, went up to them, and one walked 
 beside the prisoner, and one beside the other man, at some distance from 
 each other, and while they were so going along, the prisoner's companion 
 stepped back, and with a bludgeon wounded the watchman he had been 
 walking with. Garrow, B., said : ' To make the prisoner a principal the 
 jury must be satisfied that when he and his comj»anion went out with 
 a common illegal purpose of stealing apples, they also entertained the 
 common guilty purpose of resisting to death, or with extreme violence, 
 any persons who might endeavour to apprehend them ; but if they had 
 only the common purpose of stealing apples, and the violence of the 
 prisoner's companion was merely the result of the situation in which he 
 found himself, and proceeded from the impulse of the moment, 
 without any previous concert, the prisoner will be entitled to an 
 acquittal (e). 
 
 Where the whole of a party of poachers set upon and beat a keeper 
 till he was senseless, and having left him lying on the ground, one of them 
 after they had gone a little distance returned, and stole his money, it was 
 held that he alone was guilty of larceny (/"). Where two poachers were 
 apprehended by some gamekeepers, and being in custody called out to 
 one of their companions, who came to their assistance and killed one of the 
 gamekeepers, it was held that this was murder in all, though the blow was 
 struck while the two were actually in custody, but that it would not 
 have been so if the two had acquiesced and remained passive in 
 custody (17). 
 
 AVhere four poachers were met by a keeper and his assistant, and after 
 some words had passed, three of them ran in upon the keeper, knocked 
 him down and stunned him ; and when he recovered himself, he saw all 
 of them coming by him, and one said, ' Damn 'em we've done 'em ' ; 
 and when they had got two or three paces beyond him, one of them 
 turned back and wounded the keeper in the leg, and then the men set 
 off and ran away ; BoUand, B., told the jury if they thought the 
 
 {d) R V. Edmeads, 3 C. & P. 390. (/) R. v. Hawkins, 3 C. & P. 392. Park. J. 
 
 (e) R. V. CoUison, 4 C. & P. 565. See R. (g) R. v. Whithorne, 3 C. & P. 394, MSS. 
 
 V. Howell, 9 C. & P. 437, 450, Littledale, J. C. S. G. Vaughan, B. See ante, p. 750. 
 R. V. Lee, 4 F. & F. 03.
 
 762 Of Homicide. [book jx. 
 
 prisoners were acting in concert, they were all equally guilty of inflicting 
 the wound {h). 
 
 Where, upon an indictment for maliciously cutting, the question was, 
 how far one prisoner was concurring in the act of the other ; Park, J,, 
 told the jury that ' If three persons go out to commit a felony, and one of 
 them, unknown to the others, puts a pistol in his pocket, and commits a 
 felony of another kind, such as murder, the two who did not concur in 
 this second felony will not be guilty thereof, notwithstanding it happened 
 while they were engaged with him in the felonious act for which they went 
 out ' (^). 
 
 AVhere on an indictment for murder it appeared that the deceased was 
 found tied hand and foot with string, and something forced into her 
 throat, by which she had been suffocated, and the house in which she was 
 had been forcibly entered, and the object evidently had been robbery ; 
 the jury were told that if they were satisfied that the deceased met with 
 her death from violence by any person or persons to enable them to 
 commit a burglary or any other felony, although they who inflicted the 
 violence might not have intended to kill her, all who were parties to that 
 violence were guilty of murder (/). 
 
 The prisoner was indicted for manslaughter, A. began a quarrel with 
 the deceased, and called C, out of a public-house, and both went after 
 the deceased into a cellar and began to beat him with their fists. In the 
 course of the fight the deceased received from one or other of the men a 
 blow from a piece of timber which was in the cellar. A. was tried and 
 convicted of manslaughter, and Cleasby, B., is reported to have ruled that 
 A., having invited C. down into the cellar to beat the deceased, was 
 answerable for whatever was done afterwards. Lush, J., is reported to 
 have said that might be so, and yet that C. would not be responsible for 
 all that A. did. If two men concerted together to fight two other men 
 with their fists, and one struck an unlucky blow causing death, both would 
 be guilty of manslaughter. But if one used a knife or other deadly 
 weapon, such as this piece of timber, without the knowledge or consent of 
 the other, he only who struck with the weapon would be responsible for 
 the death resulting from the blow given by it (k). 
 
 (h) R. V. Warner, 1 Mood. 380. order to arrest any one for a felony, would 
 
 (i) R. V. Duffey, 1 Lew. 194. See R. v. clearly reduce the offence to manslaughter ; 
 
 Macklin, 2 Lew. 225, Alderson, B. it is plain there was no reason for drawing 
 
 ij) R. V. Franz, 2 F. & F. 580. 'In R. any such distinction, and therefore the 
 
 V. Luck, .3 F. & F. 483, the marginal note report is probably erroneous.' C. S. G. 
 
 is not warranted by the case, and the case 8ee R. v. Skeet, 4 F. & F. 931. 
 
 is very inaccurately stated. Byles, J., is (k) R. v. Caton, 12 Cox, 624. See R. v. 
 
 reported to have directed the grand jury Turner, 4 F. & F. 339, where Channell, B., 
 
 that, " as the poachers were not engaged in ruled that it was otherwi.se on a charge 
 
 a felony, the use of the flail with violence of manslaughter. The ruling of Lush, J., 
 
 might reduce the offence to manslaughter." seems correct. In R. i'. Price, 8 Cox, 96, 
 
 It is perfectly clear that there is no such Bj-les, J., directed the jury as to the respon- 
 
 distinction kiiown to the law as to the sibility for homicide in a case where a saUor, 
 
 manner of arrest between cases of felony who was being maltreated by a gang of six 
 
 and misdemeanor, where the right to arrest other sailors, was stabbed with a knife by 
 
 at the time and place, and by the person one of them. But the report of the case is 
 
 attempting it, exists ; and an attack with too inaccurate to make the case of any 
 
 such a dangerous instrument as a flaU, in value as an authority.
 
 CHAP. I.] By Lawful Acts Improjjerly Performed. 763 
 
 Sect. X. — Of Killing in consequence of some Lawful Act being 
 Criminally or Improperly Performed, or of some Act per- 
 formed WITHOUT Lawful Authority. 
 
 OflBcers of Justice Acting Improperly.— The special protection given 
 by the law to ministers of justice, in the execution of their duties, has 
 already been stated (/), but it is lost if they misconduct themselves in the 
 discharge of their duty. 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 even if death should be the 
 consequence {7n) ; yet he ought not to proceed to extremities upon every 
 slight interruption, nor without reasonable necessity (w). And if he 
 should kill where no resistance is made, it will be murder : and it is pre- 
 sumed that the offence would be of the same magnitude if he should kill 
 a party after the resistance is over and the necessity has ceased, provided 
 that sufficient time has elapsed for the blood to have cooled (o). 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 misdemeanor only, 
 and flies from the arrest, the officer must not kill him, though there 
 is a warrant to apprehend him, and though he cannot otherwise be 
 overtaken ; and if he does kill him, it will in general be murder (q) ; but, 
 it may amount only to manslaughter, if it appears that death was not 
 intended (r). 
 
 So, in civil suits, if the party against whom the process is issued, flies 
 from the officer endeavouring to arrest him, or if he flies after being 
 arrested or taken in execution, and the officer not being able to overtake 
 him makes use of any deadly weapon, and by so doing, or by other means, 
 intentionally kills him in the pursuit, it will amount to murder (s). 
 But 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 
 ordinary cudgel, 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 (t). 
 
 Where a collector, having distrained for a duty, laid hold of a maid- 
 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 held her opposition to the officer to be a 
 sufficient provocation to extenuate the homicide, yet they were clearly 
 
 (/) Ante, p. 721 ctseq. (r) Fost. 271. 1 Easl, P. C. 302. 
 
 (»() Post, p. 813. (s) 1 Hale. 481. Fost. 271. 1 Ea.st, 
 
 (v) 4 Bl. Com. 180. P. C. 306, .307. Layinp hold of the 
 
 (o) 1 East, P. C. 297. The crime wil! at prisoner and pronouncing; word.s of arrest, 
 
 least be manslaughter. M.SS. Burnet, 37. is an actual arrest ; or it may be made 
 
 (p) 1 Hale, 481. 4 Bl. Com. 179. JFost. without actually laying hold of him, if he 
 
 271. But if he ma)'^ be taken in any case submit to the arrest. Horner v. Battyn 
 
 without such severity, it is, at least, man- and another. Bull. (N. P.) 02, and sec 1 East, 
 
 slaughter in him who kills him ; and ti»e P. C. 300. But see Arrowsmith v. Le 
 
 jury ought to infpiire whether it were done ]\Iesurier, 2 B. & P. (X. R.) 211, and Berry 
 
 of necessity or not. 1 East, P. C. 298. v. Adamson. B. & C. 528, 
 
 {q) Fost. 271. 1 Hale, 481. (/) Fost. 271.
 
 764 Of Homicide. [book ix. 
 
 of opinion that he was guilty of manslaughter in so far exceeding the 
 necessity of the case {u). 
 
 An officer in the impress service put one of his seamen on board a 
 boat belonging to C, a fisherman, with intent to bring it under the stern 
 of another vessel, in order too see if there were any fit objects of the impress 
 service on board. The boat steered away in another direction ; and the 
 officer pursued in another vessel for three hours, firing several shots at 
 her, with a musket loaded with ball, for the purpose of hitting the hal- 
 yards, and bringing the boat to, which was found to be the usual way, 
 and one of the shots unfortunately killed C*. The Court said it was 
 impossible for it to be more than manslaughter (v). It is presumed that 
 this decision proceeded on the grounds that the musket was not levelled 
 at the deceased, nor any bodily hurt intended to him : but that as such 
 an act was calculated to breed danger, and not warranted by the law, 
 though no bodily hurt were intended, the killing was manslaughter {to). 
 By the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36) it is provided, 
 s. 181, that 'If any ship or boat liable to seizure or examination under the 
 Customs Acts shall not bring to on being recpiired so to do the master of 
 such ship or boat shall forfeit the sum of £20 : and on such ship or boat 
 being chased by any vessel or boat in His Majesty's navy, having the 
 proper pendant and ensign of His Majesty's ships hoisted, or by any 
 vessel or boat duly employed for the prevention of smuggling, having a 
 proper pendant and ensign hoisted, it shall be lawful for the captain, 
 master, or other person, having the charge or command of such vessel 
 in His Majesty's navy, or employed as aforesaid (first causing a gun to 
 be fired as a signal), to fire at or into such vessel or boat ; and such 
 captain, master, or other person, acting in his aid, or by his direction, 
 shall be, and is hereby indemnified and discharged from any indictment, 
 penalty, action, or other proceeding for so doing {x). 
 
 If an officer makes an arrest out of his proper district (except under 
 authority of statute), or if an officer has no warrant or authority at all, 
 he is not entitled to the special protection of the law ; and if he purposely 
 kills the party for not submitting to such iUegal arrest, it will be murder 
 in all cases, at least where an indifferent person acting in the like manner, 
 without any such pretence, would be guilty to that extent {y). 
 
 So if a court-martial orders a man to be flogged where it has no 
 jurisdiction, and the flogging kills the man, the members who concurred 
 in that order are guilty of murder {z). 
 
 It is no excuse for kilUng a man that he was out at night as a ghost 
 dressed in white for the purpose of alarming the neighbourhood. The 
 neighbourhood of H. had been alarmed by what was supposed to be a 
 ghost ; the prisoner went out with a loaded gun to take the ghost ; and 
 upon meeting with a person dressed in white, immediately shot him. 
 M'Donald, C.B., Rooke and Lawrence, JJ., were clear that this was 
 murder, as the person who appeared as a ghost was only guilty of a mis- 
 demeanor ; and no one might kill him, though he could not otherwise 
 
 (w) Goffe's case, 1 Ventr. 21G. s. 218, vide ante, p. 373, et seq. 
 
 (v) E. V. Phillips, 2 Cowp. 830. (y) 1 East, P. C. 312. 
 
 iw) 1 East, P. C. 308. (2) Warden v. Bailey, 4 Taunt. G7 
 
 (x) This replaces 16 & 17 Vict. c. 107, Heath, J. 
 
 I
 
 CHAP. I.] By Lawful Acts Improperly Performed. 765 
 
 be taken. The jury, however, brought in a verdict of manslaughter ; 
 but the Court said that they could not receive that verdict ; and told the 
 jury that if they believed the evidence they must find the prisoner guilty 
 of murder ; and if they did not believe the evidence, they should acquit 
 the prisoner. The jury then found the prisoner guilty (a). 
 
 Upon a trial for murder, it appeared that the prisoner, an excise officer 
 being in the execution of his office, had seized with the assistance of 
 another person, two smugglers in the act of landing whiskey, contrary 
 to law. The deceased had surrendered himself quietly into the hands 
 of the prisoner, but shortly afterwards, when the prisoner was of? his 
 guard, he assaulted him violently with an ash stick, which cut his head 
 severely in several places, and he lost much blood, and was greatly weak- 
 ened in the struggle which succeeded. The officer, fearing the deceased 
 would overpower him, and having no other means of defending himself, 
 discharged a pistol at the deceased's legs, in the hopes of deterring him 
 from any further attack, but the discharge did not take effect, and the 
 deceased prepared to make another assault. Seeing this, the prisoner 
 warned him to keep off, telling him that he must shoot him if he did not ; 
 but the deceased disregarded the warning, and rushed towards him to 
 make a fresh attack ; he thereupon fired a second pistol and killed him. 
 Holroyd, J., told the jury, ' An officer must not kill for an escape, where 
 the party is in custody for a misdemeanor ; but if the prisoner had reason- 
 able ground for believing himself to be in peril of his own life, or of bodily 
 harm, and no other weapon was at hand to make use of, or if he was 
 rendered incapable of making use of such weapon by the previous violence 
 that he had received, then he was justified. If an affray arises, and blows 
 are received, and weapons used in heat, and death ensues although the 
 party may have been at the commencement in the prosecution of some- 
 thing unlawful, still it would be manslaughter in the killer. In this case 
 it is admitted that the custody was lawful. The question is, whether, 
 under all the circumstances, the deceased being in the prosecution of an 
 illegal act, and having made the first assault, the prisoner had such reason- 
 able occasion to resort to a deadly weapon to defend himself, as any 
 reasonable man might fairly and naturally be expected to resort to ' (h). 
 
 Gaolers and their officers are under the same special protection as 
 other ministers of justice ; but in regard to the great power which they 
 have over their prisoners, the law watches their conduct with a jealous 
 eye, and they must not exceed the necessity of the case in the execution 
 of their duty. The coroner must hold an inquest upon the body of every 
 person who dies in prison (c). If the death was owing to cruel and 
 oppressive usage upon the part of the officer of the prison, or, to speak in 
 the language of the law, to duress ofvmprisonment, it will be deemed wilful 
 murder in the person actually guilty of such duress (d). 
 
 A gaoler, knowing that prisoner infected with the small-pox lodged 
 in a certain room in the prison, confined another prisoner against his will 
 
 ((/) R. V. Siiiitli, 0. B. Jan. 1804, MS, c. 71), s. 3 (1). 
 Bayley, J. Tlio prisoner was reprieved. (d) Fost. 321, 322. 1 Hale, 4G(). R. v. 
 
 4 Bl. Com. 201 n. Hugtfins, 2 Str. 882. See R. v. Allen, 7 C, 
 
 (/>) R. V. Forstcr, 1 Ix-w. 187. & P."^ 153, and R. v. Green, 7 C. & P. 15G, 
 
 (c) Coroners Act, 1887 (50 & 51 Vict. post, p. 799.
 
 766 Of Homicide. [book ix. 
 
 in the same room. The second prisoner, who had not had the disease, 
 o£ which fact the gaoler had notice, caught the disease, and died of it ; 
 this was held to be murder (e). 
 
 H., the warden of the Fleet prison, appointed one G. as his lawful 
 deputy, G. had a servant, B., whose business it was to take care of the 
 prisoners, and particularly of one A. ; and B. put A. into a new-built 
 room, over the common sewer, the walls of which were damp and un- 
 wholesome, and kept him without fire, chamber pot, or other necessary 
 convenience, for forty-four days, when he died. It appeared that B. 
 knew the unwholesome situation of the room, and that H. knew the 
 condition of the room fifteen days at least before the death of A., as he 
 had been once present at the prison, and seen A. under such duress of 
 imprisonment, and turned away ; at which time B. shut the door of the 
 room, in which A. continued till he died. It was found that A. had 
 sickened and died by duress of imprisonment, and that during the time 
 G. was deputy, H. sometimes acted as warden. Upon these facts the 
 Court were clearly of opinion that B. was guilty of murder. But they 
 thought that H. was not guilty, as it could not be inferred, from merely 
 seeing the deceased once during his confinement, that H. knew that his 
 situation was occasioned by the improper treatment, or that he consented 
 to the continuance 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. H. could not know the circum- 
 stances 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 H., which perhaps might have altered the case. And the Court 
 seemed also to think that as B. was the servant of G., and G. had the 
 actual management of the prison, the accidental presence of the principal 
 would not amount to a revocation of the authority of the deputy (/). 
 
 An assault upon a gaoler, which would warrant him (apart from 
 personal danger) in killing a prisoner, must, it should seem, be such from 
 whence he might reasonably apprehend that an escape was intended, 
 which he could not otherwise prevent {(j). 
 
 Execution of Sentence. — In the execution of sentence upon criminals, 
 the execution ought 7iot to vary from the judgment ; for if it does, the officer 
 will be guilty of a felony at least, if not of murder {h). And in con* 
 formity to this rule, it has been held, that if the judgment were to be 
 hanged, and the officer beheaded the party, it was murder {i) ; and that 
 even the King could not change the punishment of the law by altering the 
 hanging or burning into beheading, though, when beheading was part of 
 the sentence, the King might remit the rest {j). But others have thought, 
 
 (e) Fost. 322, referring to Castell v. affray. 
 Bambridge, 2 Str. 854, an appeal of murder. {h) 1 Hale, 501. 2 Hale, 411. 3 Co. 
 
 (/) R. V. Huggins, 2 Str. 882; 2 Ld. Inst. 52, 211. 4 Bl. Com. 179. See R. v. 
 
 Raym. 1574; 92 E. R. 518; 9 St. Tr. 111. Antrobus, 2 A. & E. 788. 
 Fost. 322. 1 East, P. C. 331. [i) 1 Hale, 433, 454, 466, 501. 2 Hale, 
 
 ((/) 1 East, P. C. 331, citing 1 MS. Sum. 411. 3 Co. Inst. 52. 4 Bl. Com. 179. 
 145, semi. Pult. 120, 121. In 1 Hawk. (j) 3 Co. Inst. 52. 2 Hale, 412. In the 
 
 c. 28, s. 13, it is said that if a criminal in case of treason the mode of execution can 
 
 trying to break the gaol assaults the gaoler now be altered from hanging to beheading, 
 
 he may be lawfully killed by him in the 54 Geo. III. c. 146, s. 2.
 
 CHAP, t.] By Lawful Acts Impro'perty Performed. 767 
 
 more justlv, than this prerogative of the Crown, founded in mercy and 
 immemorially exercised, was part of the common law {k) ; and that 
 though the King could not by his prerogative vary the execution so as to 
 aggravate the punishment beyond the intention of the law, yet he might 
 mitigate the pain of infamy : and accordingly that an officer, acting upon 
 a warrant from the Crown for beheading a person under sentence of death 
 for felony, would not be guilty of any offence (l). But the rule may apply 
 to an officer varying from the judgment of his own head, and without 
 warrant or the colour of authority {m). And if an officer, whose duty it 
 is to execute a sentence of whipping, should exceed all bounds of 
 moderation, and thereby cause the party's death, it is said that he will 
 at least be guilty of manslaughter (n). 
 
 Discipline at S6a» — Persons on board ship are necessarily subjected 
 to something like a despotic government, and it is extremely important 
 that the law should regulate the conduct of those who exercise dominion 
 over them (o). In vessels belonging to the Koyal Navy the correction of 
 seamen is regulated by the Naval Discipline Act (29 & 30 Vict. c. 109) 
 and the King's Regulations and Admiralty Instructions {p). The discipline 
 of British merchant ships is governed by sects. 220-228 of the Merchant 
 Shipping Act, 1894 (57 & 58 Vict. c. 60). In a case of manslaughter 
 against the captain and mate of the vessel, by accelerating the death of 
 a seaman really in ill health, but whom, they allege, they believe to be a 
 skulker, that is, a person endeavouring to avoid his duty, the question is 
 (in determining whether it is a slight or aggravated case), whether the 
 phenomena of the disease were such as would excite the attention of 
 humane and reasonable men ; and, in such a case, if the deceased is taken 
 on board after discharge from a hospital it is important to inquire 
 whether he was sent on board by the surgeon of the hospital as a person 
 in a fit state of health to perform the duties of a seaman (q). 
 
 Domestic and Scholastic Correction. — Parents, masters, and other 
 persons having authority in foro doniestico, may inflict resonable chas- 
 tisement on those under their care, such as children, pupils, or apprentices, 
 and if death ensues without their fault, it will not be felony (r). In the 
 case of a schoolmaster the right is said to exist by delegation from the parent 
 or guardian of the child : and the delegation is not limited to acts of the 
 child within four walls of the school, even in a day school (s). But if the 
 correction exceeds the bounds of due moderation, either in the measure of 
 it, or in the instrument used, 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 
 
 (it) Fost. 270. F. N. B. 144 h. 19 Rym. 271. Lamb v. Burnett. 1 Cr. & J. 291. 
 
 Feed. 284. {p) See official edition of 190G. 
 
 (I) Fost. 2()8. 4 Bl. Com. 405. 1 East, (q) R. v. Leggett, 8 C. & P. 191, Alder- 
 
 P. C. 33.5. son, B., Williams and Colt man, JJ. 
 
 (m) Female traitors used in mercy to be (r) This right is expressly saved by the 
 
 strangled before they were burnt (Fost. Children Act, 1908 (8 Edw. VII. c. (>7). 
 
 2G8). They are now liable to be hanged, s. 31, post. -p. ^21. See HaUiwcll r. Counsell, 
 
 and not to be burnt. 30 Geo. III. e. 48, 38 L. T. (N. S.) 176. 
 
 s. 1. (s) Cleary v. Booth [1893], 1 Q.B. 405, 
 
 (n) 1 Hawk. c. 29, s. 5. As to mode of 469, Cave, J. As to the authority of under- 
 executing sentences of whii^ping, vide ante, masters to inflict chastisement, see Mansell 
 p. 215. V. Griffin f 1908], 1 K.B. 160, Phillimore and 
 
 (o) See The Aijincourl, 1 Hagg. Adni. Walton, JJ.
 
 768 Of Homicide. [book ix. 
 
 (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 {t). 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, schoolmaster, correct his child, 
 servant, or scholar, it must be with such things as are fit for correction, 
 and not with such instruments as will probably kill them ; otherwise, 
 under pretence of correction, a parent may kill his child ; and a bar of 
 iron is no instrument of correction (u). 
 
 The prisoner having employed her stepdaughter, a child of ten, to 
 reel some yarn, and finding some of the skeins knotted, threw at the 
 child a four-legged stool which struck her on the right temple, and 
 caused her death. The stool was of sufficient size and weight to give 
 a mortal blow : but the prisoner did not intend when 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 (v). 
 
 In R. V. Wiggs {w), a shepherd boy had suffered some of the sheep, 
 which he was employed in tending, to escape from their pen. The boy's 
 master, the prisoner, seeing the sheep get out, 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. Nares, J., after stating that every master 
 had a right moderately to chastise his servant (x), but that the chastise- 
 ment must be on just grounds, and with an instrument properly adapted 
 to the purposes of correction, desired the jury 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 circumstances, 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 implies that a degree of malice attended the act, which, if 
 death actually happen, will be murder. Therefore, if the jury should 
 think the stake was an improper instrument, they would further consider 
 whether it was probable that it was used with an intent to kill ; that 
 
 {/) 1 Hawk. c. 29, s. 5. 1 Hale, 454, villem shall not have any remedy.' In 
 
 473. R. V. Keite, 1 Ld. Raym. 138, 144 
 
 91 E. R. 989. 
 
 (w) R. V. Grey, Kel. (J.) 64. Fost. 262, 
 
 See R. V. Wall, 28 St. Tr. 51, 145, Mac 
 
 Donald, C.B. 
 
 (v) R.z;. Hazel, 1 Leach, 368. Ante, -p. 698 
 (w) 1 Leach, 378 n. See also R. v. 
 
 R. V. Mawgridge, (12 St. Tr. 57; Kel. (J.) 
 ] 33) it was held that ' If a parent or a master 
 be provoked to a degree of j^assion by some 
 miscarriage of the child or servant, and the 
 parent or master shall proceed to correct 
 the child or servant with a moderate 
 weapon, and shall by chance give him an 
 
 Conner, 7 C. & P. 438, ante, p. 720. unlucky stroke, so as to kill him, that is 
 
 (x) In Combe's case, 9 Co. Rep. 76 a, it but a misadventure. But if a parent or 
 
 is said to have been held in 33 Edw. III. master shall use an impi'oper insti'ument 
 
 Trespass 253, that ' the lord may beat his in the correction, then if he kills the child 
 
 villein for cause or without cause and the or servant it is murder.'
 
 CHAP. I.] By Lawful Acts ImprojJerly Performed. 769 
 
 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 at most amount to manslaughter. The jury found it man- 
 slaughter. 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 instrument, 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 (y). 
 
 Though the correction exceeds the bounds of moderation, the Court 
 will pay regard to the nature of the provocation, where the act is mani- 
 festly accompanied with a good intent, and the instrument not such as 
 must, in all probability, occasion death, though the party were hurried 
 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 
 offence, 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 judge, by whom the father was tried, consulted his 
 colleague in office, and the princijDal counsel on the circuit, who all 
 concurred in oj)inion that it was only manslaughter ; and so it was 
 ruled (z). 
 
 The deceased, a girl about fifteen, with her younger sister, had been 
 placed, after their mother's death, under the care of an aunt, who employed 
 them in stay-stitching fourteen or fifteen hours a day, and, when they 
 did not do the required quantity of work, severely punished them with 
 the cane and the rod. The deceased was in consumption, and did not do 
 so much work as her sister, and, in consequence, was much oftener and 
 more cruelly punished by the aunt, who accompanied her corrections 
 with very violent and threatening language, and said that she was sure 
 that the girl was acting the hypocrite and shamming illness, and that 
 she had a very strong constitution. The surgeon said she died from 
 consumption, but that her death was hastened by the treatment she had 
 received. Under these circumstances, the counsel for the prosecution 
 thought there was not proof of malice sufficient to constitute the crime 
 of murder, as the aunt always alleged that she believed the girl was sham- 
 ming illness, and was really able to do the work required, and which it 
 appeared her younger sister actually did, and the Court concurred in 
 that opinion (a). 
 
 On an indictment for manslaughter, it appeared that the prisoner, a 
 schoolmaster, having the care of the deceased, a boy of thirteen or 
 
 (ij) Sco R. V. Turner, Comb. 407-408, Scrjt. Forster's MIS. 1 East, P. C. 261. 
 cited ante, p. 098. (a) R. v. Cheeseman, 7 C. & P 455, 
 
 (z) Anon. Worcester 8pr. Ass. 1775, Vaughan, J. 
 
 VOL. I. 3d
 
 770 Of Homicide. [bookix. 
 
 fourteen, wrote to Ms father, stating that the boy was obstinate, and 
 that, were he his own child, he should, after warning him, as he had done, 
 subdue his obstinacy, by chastising him severely, and, if necessary, he 
 should do it again and again, and continue it again even if he held out 
 for hours. The father replied, ' I do not wish to interfere with your plan.' 
 The prisoner took the boy into a room downstairs, and beat him for about 
 two hours, between ten and twelve, with a thick stick ; using also a 
 skipping-rope. About midnight the prisoner beat him again, until about 
 half-past twelve, when the beating and crying suddenly stopped. About 
 seven the next morning, the prisoner said he had found the boy dead, and 
 almost stifiening. A medical examination shewed that the thighs and 
 other parts of the body were covered -svith bruises, and that there had 
 been profuse bleeding and extravasation of blood caused by excessive 
 and j)rotracted beating, and that the immediate cause of death was 
 exhaustion arising therefrom. The medical witnesses stated that upon 
 the evidence, coupled with the prisoner's statement, the boy at seven 
 o'clock in the morning must have been dead about six hours ; so that 
 their evidence went to shew that he died about the time when the beating 
 was heard suddenly to cease. The prisoner had not avowed the beating 
 until its effects had been discovered by a post-mortem examination, and 
 had sent the body home so closely wrapped up that the bruises were not 
 detected until the coverings were removed in consequence of rumours 
 prevailing. There was no post-mortem examination prior to the inquest, 
 at which the surgeon, who was called in by the prisoner at seven o'clock 
 and who had only seen the boy's face, was examined, and the prisoner, 
 who suggested that the boy had died of disease of the heart. The stick 
 was at one end an inch thick ; at the other it was edged with brass about 
 the circumference of a sixpence, and there were holes in the shins of the 
 deceased corresponding therewith, and which the medical witness thought 
 must have been produced by poking therewith. The prisoner and his 
 wife had been for some time going up and down stairs engaged in w^ashing 
 out the stains of blood in the night. Cockburn, C.J., said : ' By the law 
 of England, a parent or a schoolmaster, who for this purpose represents the 
 parent, and has the parental authority delegated to him, may, for the 
 purpose of correcting what is evil in the child, inflict moderate and 
 reasonable corporal punishment, always, however, with this condition, 
 that it is moderate and reasonable. If it be administered for the grati- 
 fication of passion or of rage, or if it be immoderate and excessive in its 
 nature and degree, or if it be protracted beyond the child's powers of 
 endurance, or with an instrument unfitted for the purpose and calculated 
 to produce danger to life or limb ; in all such cases the punishment is 
 excessive, the violence is unlawful, and if death ensues it will be man- 
 slaughter ' [at least] ; and (after commenting on the evidence) ' It is 
 true that the father authorised the chastisement, but he did not, and no 
 law could, authorise an excessive chastisement. There can be no doubt 
 that the prisoner thought the boy obstinate, but that did not excuse 
 extreme severity and excessive punishment ' (6). 
 
 (6) R. V. Hopley, 2 F. & F. 202. ' The tainly ought to have been for murder.' 
 indictment was for manslaughter : it cer- C. S. G. 
 
 I
 
 CHAP. I.] By Lawful Acts Improperly Performed. 771 
 
 In R. I'. Griffin (c), where the father of a child two and a half years 
 old had beaten it with a strap, Martin, B., after consulting Willes, J., 
 said : ' The law as to correction has reference only to a child capable of 
 appreciating correction, and not to an infant two years and a half old. 
 Although a slight slap may be lawfully given to an infant by her mother, 
 more violent treatment of an infant so young by her father would not 
 be justifiable ; and the only question for the jury to decide is whether 
 the child's death was accelerated or caused by the blows inflicted bv the 
 prisoner.' 
 
 Careless Performance of Ordinary Duties.— If persons, in pursuit of 
 their lawful and common occupations, see danger probably arising to 
 others from their acts, and yet jjersist, without giving sufficient warning 
 of the danger, and cause death, such killing seems in law to be murder. 
 Thus, if workmen throwing stones, rubbish, or other things from a house, 
 in the ordinary course of their business, happen to kill a person under- 
 neath, the question will be, whether they deliberately saw the danger, or 
 betrayed any consciousness of it. If they did, and yet gave no warning, 
 the act will amount to murder from its gross impropriety (d). So, if a 
 person driving a cart or other carriage happens to kill another, and it 
 appears that he saw, or had timely notice of the mischief likely to ensue, 
 and yet drove on, it will be murder (e). Such acts are deliberate, and 
 manifest a heartless disregard of social duty (/). 
 
 Where persons employed about a lawful occupation, from which 
 danger may probably arise to others, neglect the ordinary precautions, it 
 will be manslaughter, at least, on account of such negligence (g). Thus, 
 if workmen 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 probabihty of persons passing 
 by, it will be manslaughter {h). It was a lawful act, but done in an 
 improper manner. It has, indeed, been said, that if this be done in the 
 streets of London, or other populous towns, it will be manslaughter, not- 
 withstanding such caution used (^'). But this must be understood with 
 some limitation. If it is done early in the morning, when few or no 
 people are stirring, and ordinary caution is used, the party may be excus- 
 able ; 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 (/). 
 
 On an indictment for the manslaughter of a lunatic, it appeared that 
 the prisoner, who was an attendant at a lunatic asylum, turned on the 
 
 (c) 11 Cox, 402. transeuiilcm occidcrit, si prope viam pubU- 
 
 (rf) 3 Co. Inst. 57. 4 151. Com. 192. 1 cam aut vicinnlcm id factum est, nequc pro- 
 East, P. C. 262. clamavit, ut casus cvitari posset, culpcE reus 
 
 (e) 1 Hale, 470. Fost. 263. 1 East, est ; sed si proclamavit, nee ille curavit 
 
 P. C. 262. prcecavere, extra culpam est putator. Aiquc 
 
 (/) Fost. 263. As to when a person extra culjxim esse intelligitur si seorsum a 
 
 causing death by negligently driving a via forte, vcl in medio f undo caedebat, licet 
 
 vehicle Ls guilty of manslaughter, see post, nonproclamavit,quia in roloconulli extraneo 
 
 tit. 'Manslaughter,' p. 794. jusfuerat versandi. Just. Inst. L. iv. tit. iii. 
 
 (g) Fost. 262. 1 East, P. C. 262. s. 5. 
 
 (h) Fost. 262. 1 Hale, 475. Item si (») R. v. Hull, Kel. (J.) 40. 
 
 putator, ex arborc ramo dcjeclo, scrvum tuum (/) Fost. 263. 
 
 3 d2
 
 772 Of Homicide, [book ix. 
 
 hot-water tap by mistake into a bath in which accidentally a lunatic had 
 remained after having been told by the prisoner to get out. The prisoner 
 thought the man had got out of the bath, and his attention being called 
 away for the moment, he did not observe that the man was still there. 
 Lush, J., directed the jury that if they took this view of the case it was 
 an accident {h). 
 
 Persons using Dangerous Articles or Instruments.— As the degree of 
 caution to be employed depends upon the probability of danger, it follows 
 that persons using articles or instruments, in their nature peculiarly 
 dangerous, must use such caution as the particular circumstances may 
 require. Thus, though where one lays poison to kill rats, and another 
 takes it and dies, this is misadventure : yet it must be understood to have 
 been laid in such manner and place as not easily to be mistaken for 
 proper food; for to lay it where it might be mistaken for food would 
 be grossly negligent, and might in some cases amount to manslaughter {}). 
 
 A., having deer frequenting his cornfield, which was not within the pre- 
 cincts of any forest or chase, set himself in the night-time to watch in a 
 hedge, and set B., his servant, to watch in another corner of the field, with 
 a gun charged with bullets, giving him orders to shoot, when he heard any 
 bustle in the corn by the deer. The master afterwards improvidently 
 rushed into the corn himself, and the servant, supposing it to be the deer, 
 shot and killed the master. Hale, C.J., ruled this to be misadventure, 
 on the ground that the servant was misguided by his master's own 
 direction, and was ignorant that it was anything else but the deer. He 
 thought, however, that if the master had not given such direction, which 
 was the occasion of the mistake, it would have been manslaughter, 
 because of the want of due caution in the servant to shoot before he 
 discovered his mark (m). But it is suggested by East that if, from all 
 other circumstances of the case, there appeared a want of due caution 
 in the servant, it does not seem that the command of the master could 
 supplv it, much less could excuse him in doing an unlawful act : and that 
 the excuse of having used ordinary caution can only be admitted where 
 death happens accidentally in the prosecution of some lawful act {n). On 
 the same principle as to due caution it was ruled to be misadventure, 
 where a commander coming upon a sentinel in the night, in the posture 
 of an enemy, to try his vigilance, is killed by him as such ; the sentinel 
 not being able to distinguish his commander, under such circumstances, 
 from an enemy (o). 
 
 The caution which the law requires, is not the utmost caution that 
 can be used : reasonable caution is sufficient, such as is usual and ordinary 
 in similar cases ; such as has been found, by long experience in the ordinary 
 
 (k) R. V. Finney, 12 Cox, 625. human being resulted from infraction of these 
 (I) 1 Hale, 431. 1 East, P. C. 266. The Acts it would seem to be manslaughter, 
 laying of poisoned grain and meat for the (m) 1 Hale, 476. The learned author 
 purpose of killing animals is unlawful unless seems to think that the offence amounted 
 it is done in a dwelling-house or enclosed to manslaughter (1 Hale, 40) ; but con- 
 land attached thereto for rats, mice or siders the question as of great difficulty, 
 small vermin. 1 & 2 Will. IV. c. 32, s. 3 The case was, however, determined at 
 (ground game); 26 & 27 Vict. c. 113 Peterborough, as stated in the text, 
 (poisoned grain or seed) ; 27 & 28 Vict. (n) 1 East, P. C. 266. 
 c. 115 (poisoned flesh). If the death of a (o) 1 Hale, 42. 
 
 I
 
 chAp. 1.1 
 
 Concealing Birth. 
 
 773 
 
 course of things to answer in the end (p). But in order to create criminal 
 liability for homicide it is necessary to prove a grosser neglect of proper 
 caution than would suffice to create a civil liability (a). 
 
 PART II.— CONCEALMENT OF BIRTH. 
 
 By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), 
 s. 60, ' If amj woman shall be delivered of a child, every person who shall, 
 6?/ any secret disposition of the dead body of the said child, whether such 
 child died before, at, or after its birth, endeavour to conceal the birth 
 thereof, shall be guilty of a misdemeanor, and being convicted thereof 
 shall be liable, at the discretion of the Court, to be imprisoned for any 
 term not exceeding two years, with or without hard labour : Provided 
 that if any person tried (r) for the murder of any child shall be acquitted 
 thereof, it shall be lawful for the jury, by whose verdict such person shall 
 be acquitted, to find, in case it shall so appear in evidence, that the child 
 had recently been born, and that such person did, by some secret disposition 
 of the dead body of such child, endeavour to conceal the birth thereof, 
 and thereupon the Court may pass such sentence as if such person had 
 been convicted upon an indictment for the concealment of the birth ' (.s). 
 
 Under the former enactments (t) the mother only could be tried for 
 the offence, and cases sometimes occurred where endeavours had been 
 made to conceal the birth of children, and there was no evidence to prove 
 that the mother participated in those endeavours, though there was 
 sufficient evidence that others did so, and under such circumstances, 
 all must have been acquitted (u). The above section is so framed as to 
 include every person who uses any such endeavour ; and it is quite im- 
 material under it whether there be any evidence against the mother or not. 
 
 might find, ' that the prisoner was de- 
 Hvered 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 con- 
 ceal the death thereof.' This provision 
 could only be acted upon where the child 
 was a bastard and where the party was 
 charged with murder by an inquisition or 
 an indictment. It was repealed by 9 
 Ceo. IV. c. 31. In Scotland the enact- 
 ment 49 Geo. III. c. 14 differs from 43 
 Geo. III. c. 58, and does not make that 
 concealment a matter which can only be 
 found by the jury upon the trial of an 
 indictment for murder, but enacts (s. 2) 
 ' that if any woman in Scotland shall con- 
 ceal her being with child during the whole 
 period of her pregnancy, and shall not call 
 for and make use of help or assistance in 
 the birth, and if the child be found dead 
 or be missing, the mother, l)eing lawfully 
 convicted thereof, shall be imprisoned for 
 a period not exceeding two yeai-s, in such 
 common gaol or prison as the Court before 
 which she is tried shalldirect and appoint.' 
 {«) R. V. Waterage. 1 Co.x, 338. R. v. 
 Skelton. 3 C. & K. 119. 
 
 (p) R. V. Hughes, 26 L. J. M. C. 102. 
 
 (<7) R. V. Lowe, 3 C. & K. 123, Camp- 
 bell, C.J. R. V. Franklin, 15 Cox, 163, 
 Field, J. Hammack v. White, 31 L. J. 
 C.P. 131 ; 11 C. B. (N. S.) 588, Willes, J. 
 
 (r) Whether on indictment or on the 
 coroner's inquisition. R. v. Cole, 2 
 Leach, 1095; 3 Camp. 371. R. v. May- 
 nard, R. & R. 240. 
 
 (.«) Framed from 9 Geo. IV. c. 31, s. 14 
 (E) ; and 10 Geo. IV. c. 34, s. 17 (I). The 
 words ' by any secret disjiosition ' have 
 been substituted for ' by secret burying 
 or otherwise disposing of the dead body,' 
 and it is no longer material whether the 
 secret disposition was temporary or per- 
 manent. 
 
 (0 43 Geo. III. c. 58, which repealed 
 21 .lac. I. c. 27, provided that trials, in 
 England and Ireland, of women charged 
 with the nuuder of any issue of tlieir 
 bodies, wliich would by law be bastard, 
 should ])roceed by tlie like rules of evi- 
 dence and presumption as were allowed 
 to take place in respect to other trials for 
 murder; and that the jury, by whose 
 verdict any prisoner charged with such 
 murder aforesaid should be ac(|uitted.
 
 774 Of Homicide. [book ix. 
 
 A person assisting the mother in concealing a birth will come within the 
 terms of this section as a principal {mde ante. Book I. Chapter V.). 
 
 Secret Disposition. — Whether there is any evidence of a secret dis- 
 position within the statute is a question which depends upon the circum- 
 stances of each particular case. The most public exposure may be a 
 secret disposition, as, for instance, in the middle of Dartmoor, or on the 
 top of a mountain in Scotland in winter. It is for the jury to consider (v). 
 The prisoner put the dead body of her child over a wall which was four 
 and a half feet high, and divided a yard from a field. The yard was at the 
 back of a public-house, and entered from the street by a narrow passage. 
 The prisoner did not live at the public-house, and must have carried the 
 body from the street up the passage to the yard. The field was grazed 
 by the cattle of a butcher, and the only entrance to it was through a gate 
 leading from the butcher's own yard. There was no path through the 
 field, and a person in the field could only see the body in case he went 
 up to the wall, close against which the body lay. A little girl, picking 
 flowers in the field found the body of the child, twenty yards from the 
 gate. There was nothing on or over the body to conceal it. Upon a 
 case reserved it was held that there was evidence to go to the jury of a 
 secret disposition of the dead body of the child, and a conviction for 
 endeavouring to conceal the birth of the child, by secretly disposing of 
 its dead body, was confirmed {iv). 
 
 But where the dead body of a child was put into a box, and this box 
 was put into a larger box, neither being locked or fastened, but both being 
 closed, and the boxes were left in a bedroom, but in such a position as 
 to attract the attention of those who daily resorted to the room, the jury 
 were directed that this was not a secret disposition of the body [%), 
 
 Where on an indictment for endeavouring to conceal the birth of her 
 child, it was proved that, the prisoner appearing ill, her mistress sent for 
 a doctor, who asked the prisoner if she had been confined, and she said she 
 had been ; and the doctor asked her what she had done with the child, 
 and she said it was in a box in her bedroom, and he went to the room and 
 found the child in an open box, having the cover lifted ; Byles, J., told 
 the jury that ' there must be a secret disposition for the purpose of con- 
 cealing the birth. The concealment must be by a secret disposition of the 
 body, and a disposition could only be secret by placing it where it was not 
 likely to be found. Secrecy was the essence of the offence. Could they 
 say that an open box in the prisoner's bedroom was a secret disposition ? 
 It was for them to say, but in his opinion it was not ' (z). 
 
 But where the body is placed in an unlocked box, all the attendant 
 circumstances must be taken into consideration to determine whether 
 or not an offence has been committed (a). Where the body was taken 
 out of the house, and was placed in a locked pound which was open to the 
 sky and surrounded by a wall five feet high along which there was a public 
 
 (i) Bovill, C.J., in R. v. Brown, L. R. for the judge, whether there has been 
 
 1 C. C. R. 244. a secret disposition of the body, i.e., a 
 
 {«•) R. V. Brown, %ihi siipra. disposing of it in such a place as that the 
 
 (x) R. v. George, 11 Cox, 41, Bovill, C.J. offence may have been committed. See 
 
 (2) R. V. Sleep, 9 Cox, 559. But Martin, R. v. Clarke, 4 F. & F. 1040, Martin, B. 
 B., held that it was a question of law (a) R. v. Cook, 11 Cox 542, Lush, J.
 
 CHAP. T] Concealing Birth. 775 
 
 footway, it was held that there was no secret disposition of the body (6). 
 Where the prisoner put the dead body of her child on the bed and covered 
 it with a petticoat, Jelf, J., held that there was no secret disposition and 
 directed an acquittal (c). 
 
 Under 21 Jac. I. c. 27 (rep.), evidence was always allowed of the 
 mother's having made provision for the birth, as a circumstance to shew 
 that she did not intend to conceal the death {d). So, under 9 Geo. IV. 
 c. 31, s. 14 (rep.), where the body of a child was found among the feathers 
 of a bed, but it did not appear by whom it had been placed there, and 
 the prisoner had prepared clothes for the child, and sent for a surgeon 
 at the time of her confinement, an acquittal was directed (e). But the 
 fact that the prisoner may have previously allowed the birth to be known 
 to some persons is not conclusive evidence negativing concealment (/). 
 
 The prisoner and one T. were indicted under 43 Geo. III. c. 58 (rep.) 
 for the murder of the prisoner's bastard child ; it was a seven months' 
 child, and from the state in which it was found the probability was that it 
 was stillborn. T., when questioned immediately after the child's birth, 
 wholly denied it, though she must have known it. The prisoner threw 
 the child down the privy ; and the jury found this an endeavour to 
 conceal the birth. On a case reserved, it was held that this was evidence 
 of an endeavour to conceal the birth {g). 
 
 The sending for a female to attend at the beginning of the labour, 
 and the fact of its being known to the mother of the woman and others 
 that she was pregnant, were no bar to a conviction for concealing the 
 birth, under 9 Geo. IV. c. 31, s. 14 (rep.), but only evidence for the con- 
 sideration of the jury. If the dead body of the child were buried, or 
 otherwise disposed of by an accomplice of the mother in her absence, the 
 accomplice acting as her agent in so doing, she might be convicted under 
 the last-mentioned Act of endeavouring to conceal the birth (h). 
 
 In order to bring a case within 9 Geo. IV. c. 31, s. 14, the disposition 
 of the body of the child must have been complete. The prisoner was 
 found going across a yard in the direction towards a privy with a 
 bundle of cloth sewed up, with the body of a child in it, and was 
 stopped ; Gurney, B., interposed and said, that the prisoner could 
 not be convicted under that Act, the offence not being complete ; 
 ' the body must be buried or otherwise disposed of, to bring the case 
 within the Act. Here she was interrupted in the act, probably, of dis- 
 posing of the body, but the act was incomplete ' (r). So where it appeared 
 that the alleged concealment was the taking of the body immediately 
 after the birth to a sister, living at a distance, for the purpose of having 
 it buried in a churchyard, Erie, J., considered this did not amount to a 
 concealment (/). But it was afterwards held that any concealment of 
 
 (6) R. V. Nixon, 4 V. & F. 1040n.. Martin, (c) R. v. Rosonl)ercr. 70 J. P. 264, Jelf, J. 
 
 B. Where the naked dead hofly of a child (d) 1 East. P.C. 228. 229. 
 
 was exposed in a inil)lic street wiicre many (e) R. v. Hij/ley. 4 C. & P. 336, Park, J. 
 
 persons were certain to pass and repass, (/) R. r. Douglas, 1 Mood. 480; 7 C. & 
 
 and the exposure was calculated to out- P. 644. 
 
 rage public decency, Dcnman, J., held {g) R. v. Cornwall, R. & R. 336, and 
 
 that tliis was a nuisance at common law, MS. Bayley, J. 
 
 hut that there was no secret disposition of {h) R. v. Bird, 2 C. & K. 817. 
 
 the dead body within this section. R. v. {i) R. v. Snell, 2 M. & Rob. 44. 
 
 Clark, 15 Cox, 171. {j) R. v. Waterace, 1 Cox, 338.
 
 776 
 
 Of Homicide. 
 
 [BOOK IX. 
 
 the body, whether intended to be final or temporary, was within that 
 Act {k). 
 
 Where on an indictment under 9 Geo. IV. c. 31, s. 14, for endeavouring 
 to conceal the birth of a child, it appeared that the prisoner was delivered 
 in a privy ; that the child dropped from her there into the soil, and that 
 there she left it, and the jury thought that she went into the privy for 
 the purpose of being delivered there, and for the jiurpose thereby 
 of concealing the birth ; upon a case reserved, the judges thought, 
 upon the wording of the section, it was necessary something should 
 be done by the prisoner after the birth to bring the case within that 
 section {I). So in a similar case, where the prisoner had denied 
 her pregnancy and the birth, and the body of the child was found in 
 a privy ; Patteson, J., told the jury that the offence was not merely 
 the endeavouring to conceal the birth of a child, but that the prisoner, 
 to come within 9 Geo. IV. c. 31, s. 14, must have endeavoured to conceal 
 the birth by secret burying, or otherwise disposing of the dead body of 
 the child ; and it was essential to the commission of this offence that 
 she should have done some act of disposal of the body after the child was 
 dead. If she had gone into the privy for another purpose, and the child 
 came from her unawares, and fell into the soil and was suffocated, she 
 must be acquitted, notwithstanding her denial of the birth of the child, 
 because she did not come within the provisions of the Act, unless she 
 had done something with the child after it was dead. If there had been 
 evidence that the child was born elsewhere, and was, after it was dead, 
 carried by her to this place, and thrown in, that would be a disposing of 
 the body within the Act (m). It is a question for the jury in such a case 
 whether the prisoner threw the dead body into the privy, or whether it 
 fell from her into it (n). 
 
 A woman delivered of a child born alive endeavoured to conceal the 
 birth thereof by depositing the child while alive in the corner of a field, 
 leaving the infant to die from exposure, which it did, and the dead body 
 was afterwards found in the corner. Upon a case reserved it was 
 held that she could not be convicted of concealing the birth of the 
 child (o). 
 
 On an indictment for murder it appeared that the child was discovered 
 
 (k) R. V. Farnham, 1 Cox, 349, Patte- 
 son, J,, where the body was placed in the 
 bottom of a bonnet-box in the middle of 
 some linen, and was wrapped in a petti- 
 coat with a bonnet on the top, R. v. 
 Goldthorpe, 2 Mood, 244, where the body 
 was placed between the bed and mattress. 
 R. V. Perry, Dears. 471 : 24 L. J. M. C.137 : 
 6 Cox, ,531, where the body was placed 
 Tinder a bolster upon which the prisoner 
 was partly lying. R. v. Gogarty, 7 Cox, 
 107 (Ir.), where the body was on a bed 
 covered by a quilt, the pi'isoner being 
 seated on the side of the bed , But in R. 
 V. Opie, 8 Cox, 332, where the bodj' was 
 found behind a door of a privy in a tub 
 covered with a cloth, Martin, B-, stopped 
 the case and expressed his agreement with 
 the dissenting judgment of Pollock, C.B,, 
 
 in R. V. Perry, supra. 
 
 (I) R. V. Wilkinson, M. T. 1829. MSS, 
 BayleVj J, 3 Burn's Justice (ed. by 
 D. & W.), 348. 
 
 (m) R. V. Turner, 8 C. & P, 755, Patte- 
 son, J. Where the evidence strongly 
 tended to shew that the child had been 
 born in a privy, and there was no evidence 
 to shew any act done to it by the prisoner 
 after its death, Coleridge, J., approved of 
 the preceding case, and counsel for the 
 prosecution offered no evidence, as the 
 case could Hot be distinguished from R. v> 
 Turner ; R, v. Nash, Hereford Spr. Ass. 
 1841. MSS. C. S. G. Cf. R. v. Derham, 
 1 Cox, 56, Coleridge, J. 
 
 (m) R. v. Coxhead, 1 C. & K. 623, Piatt, B, 
 
 (o) R. V. Mav, 10 Cox, 448. R. v. Bell, 
 Ir. Rep. 8 C. L, 542.
 
 CHAP. I.] Concealing Birth. 777 
 
 in an outhouse, alive, but concealed from view by four bundles of rick- 
 pegs lying horizontally in front and partly over it, but not touching it : 
 the child was left as it was found, and about an hour afterwards the rick- 
 pegs were found to have been partially removed, and placed on one side 
 of the child, which was dead, and there was evidence to shew that the 
 prisoner alone had been in the outhouse during the hour. For the 
 jDrosecution it was urged that if the prisoner after the death of the child 
 re-covered it, that would be a secret disposal of the body. Lord Camp- 
 bell, C.J. : ' I have carefully examined the statute (9 Geo. IV. c. 31, s. 7) 
 and the facts with reference to the point suggested by the counsel for the 
 jorosecution. Any objection that might have arisen, that there was no 
 attempt to conceal the dead body of the child, is, I think, removed in 
 the manner suggested ; for there cannot be any reasonable doubt that 
 the prisoner visited the outhouse after the child was dead, and although 
 she did not remove it, any rej^lacing of the clothes or other things by 
 which the body was concealed from view, would, I think, be an endeavour 
 to conceal by a secret disposal of the dead body within the statute ' (/>). 
 
 But where the dead body was found on the floor of an attic, wrapped 
 in bed-sheets which had been removed from the room below ; the head 
 of the child separated from the body, and a knife lying near it, and the 
 body was in the middle of the room, Talfourd, J., held that there was 
 no evidence of an endeavour to conceal (q). 
 
 Where on an indictment for murder, it appeared that the prisoner 
 had denied that she was in the family way ; but in consequence of a 
 stain of blood having been discovered in her bedroom she was questioned, 
 and then said that she had taken the child away, and put it in a sheet of 
 water in a park and she accompanied the constable thither, and pointed 
 out where she had thrown in the body, and it was found wrapped in a 
 towel and dressed in a cap and shirt ; and she afterwards stated that 
 she had put away the body in a box in her room for two days, after which 
 she threw it into the water, and she said she should have had it buried in 
 the churchyard only she was afraid of provoking her father: Coltman, J., 
 told the jury that the offence contemplated by the Act (9 Geo. IV. 
 c. 31, rep.) was the endeavour to conceal the birth from the world at 
 large, and not from any individual. The statute did not apply to indi- 
 viduals, but to society in general. If, therefore, the secret disposal of 
 the dead body arose from an endeavour to conceal the birth from some 
 private individual, and not from the world at large, then the offence con- 
 templated by the statute had not been committed ; and if the jury 
 believed that the prisoner was really actuated by the dread of provoking 
 her father's displeasure, she was not guilty of this offence (r). 
 
 Where on an indictment under the Act (9 Geo. IV. c. 31, rep.) for 
 concealing the birth, a surgeon stated that the remains were those of a 
 child of which the mother must have gone from seven to nine months ; 
 Erie, J., told the jury that, ' this offence cannot be committed unless the 
 child had arrived at that stage of maturity at the time of birth that it 
 might have been a living child. It is not necessary that it should have 
 
 (p) R. V. Hughes, 4 Cox, 447. Sed {q) R. v. Goode, 6 Cox, 318. 
 
 qucere. (r) R. v. Morris, 2 Cox, 489.
 
 778 Of Jlomicide. [BooKyx. 
 
 been born alive, but it must have reached a period when, but for some 
 accidental circumstances, such as disease on the part of itself, or of its 
 mother, it might have been born alive. There is no law which compels 
 a woman to proclaim her own want of chastity ; and if she had mis- 
 carried at a time when the foetus was but a few months old, and therefore 
 could have had no chance of life, you could not convict her upon this 
 charge. No specific limit can be assigned to the period when the chance 
 of life begins ; but it may, perhaps, be safely assumed that, under seven 
 months, the great probability is that the child would not be born alive' (s). 
 
 In a case under 21 Jac. I. c. 27 (rep.), it appeared from the view of 
 the child and by apparent probabilities, that it had not arrived at its 
 dehitum fartus tempus, as it wanted hair and 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 (t). 
 
 The dead body of the child must be found and identified on an 
 indictment for attempting to conceal the birth. A woman apparently 
 pregnant took a room at an inn in Stafford. On August 28 she 
 received a Rugby newspaper by post with the Rugby postmark on it. 
 On the same day her appearance and the state of her room seemed 
 to shew that she had been delivered of a child. She left the inn next 
 day for Shrewsbury, carrying a parcel. In the afternoon of that 
 day a dead body of a child was found at Stafford railway station, 
 wrapped in a Rugby newspaper dated August 27. There is a railway 
 from Stafford to Shrewsbury, but no evidence was given that the prisoner 
 had been at Stafford station. It was held that this evidence was not 
 sufficient to identify the body of the child found as the child of the 
 prisoner (u). 
 
 An indictment for concealing the birth of a child must expressly allege 
 the child to be dead, for it is only an offence to conceal the dead body {v). 
 
 An indictment under 9 Geo, IV. c. 31, s. 14 (rep.), stated that the 
 prisoner endeavoured to conceal the birth of her child ' by secretly dis- 
 posing of the dead body ' ; and it was objected that the mode of disposal 
 ought to be stated to enable the Court to see whether it amounted to the 
 complete disposition contemplated by the statute, one mode was specified 
 in the Act, and any other ought to be stated ; and Maule, J., expressing 
 a strong opinion that the objection was good, counsel for the prosecution 
 declined to press the case (w). 
 
 (,9) R. V. Berriman, 6 Cox, 388. Ac- Parke, J. MSS. C. S. G. R. v. Perkin, 
 
 cording to Martin, B., a, foetus not bigger 1 Lew. 44, Parke, J. 
 
 than a man's finger, but liaving the shape {w) R. v. Hounsell, 2 M. & Rob. 292. 
 
 of a child, is a child within the statute. But as the present clause has the words 
 
 R. V. Colmer, 9 Cox, 50G, sed qucere. In R. ' any secret disposition,' it should seem 
 
 V. Hewitt, 4 F. & F. 1101, Montague that an indictment in this form would be 
 
 iSmith, J., left it to the jury to say whether good ; for every secret disposition is in- 
 
 what the prisoner concealed was a child, eluded. See Holloway ?'. R., 17 Q.B. 317, 
 
 or was only a foetus. where it was held that a count for aiding 
 
 [t] 2 Hale, 289. an escape was good, though it did not 
 
 {u) R. V. WilHams, 11 Cox, 684, Mon- state tlie means used, because the words 
 
 tague Smith, J. See R. v. Bate, 11 Cox, of 4 Geo. IV. c. 64, s. 43 (rep.) were ' shall, 
 
 386. hy any means whatever, aid.' 
 
 (v) R. V. Davis, Hereford Spr. Ass. 1829,
 
 CHAP. I.l 
 
 Of Manslaughter. 
 
 779 
 
 An indictment under the above enactment, alleging that the prisoner 
 did cast the dead body of her child into the waters and filth in a privy, 
 and ' did thereby then and there unlawfully dispose of the dead body of 
 the said child, and endeavour to conceal the birth thereof,' was held 
 sufficient ; for the word ' thereby ' applied both to the disposal and to the 
 endeavour ; and the indictment need not allege that the child died before, 
 at, or after its birth {x). 
 
 PART III.— OF MANSLAUGHTER. 
 
 Sect. I. — Definition and Punishment. 
 
 The felony of manslaughter consists of the killing of man by man 
 without malice aforethought [y), but without legal justification or ex- 
 cuse (2), i.e., under circumstances rendering the killing unlawful or legally 
 culpable. The death must ensue within a year and a day of the culj)able 
 actor issue assigned as its cause (a). It is not defined by any statute, 
 and the nearest approach to a statutory definition is the declaration in 
 sect. 6 of the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), 
 that ' it shall be sufficient in any indictment for manslaughter to charge 
 that the defendant did feloniously kill and slay the deceased ' (6). 
 
 Bv sect. 5 of that Act, ' whosoever shall be convicted of manslaughter 
 shall be liable at the discretion of the Court to be kept in penal servitude 
 for life . . . (c) or to pay such fine as the Court shall award, in addition to 
 or without any other such discretionary punishment as aforesaid ' (c). 
 Where the person convicted is under sixteen, he is dealt with under sects. 
 102, 104 of the Children Act, 1908 {d). 
 
 Accessories. — In order to make an abettor to manslaughter a 
 principal in the felony, he must be present aiding and abetting the fact 
 committed (e). It was formerly considered that there could not be any 
 accessories before the fact in any case in manslaughter, because it was 
 presumed to be altogether sudden, and without premeditation (./ ) : and 
 it was laid down, that if the indictment be for murder against A., and that 
 B. and C. were counselling and abetting as accessories before only (and 
 not as present aiding and abetting, for such are principals), if A. be found 
 guilty only of manslaughter, and acquitted of murder, the accessories 
 before will be thereby discharged (g). But the position ought to be limited 
 to those cases where the killing is sudden and unpremeditated ; for there 
 
 (x) R. V. Coxhcad, 1 C. & K. G23, 
 Piatt, B. 
 
 (V) A7iie, pp. G55 et seq. Foat. 290. 
 1 Hale, 4G0. In R. v. Taylor, 2 Lew. 
 215, Taunton, J., said: ' Manslauf^htor 
 is homicide, not under the influence of 
 malice, but where the blood is heated by 
 provocation, and before it has time to 
 cool.' This definition does not cover 
 homicide by neglect or want of skill, 
 or in doing an unlawful act. 
 
 (z) Post, p. 807. 
 
 (n) R. V. Dyson [1908], 2 K. B. 4.5-1-4.56 
 (C. C. A.). 
 
 (b) Vide po.sf, 818. 
 
 (c) Or not less than three years, or to 
 imprisonment with or without hard labour 
 for not over two years. 54 & 55 Vict, 
 c. 09, s. 1 ; ante, pp. 211, 212. The words 
 omitted from s. 5 were repealed in 1892 
 (S. L. R.). 
 
 id) Ante, p. 231. 
 
 (f) 1 Hale, 438, 430. and see mile, 
 ]>p. 108, 114 (t seq. as to what will be a 
 presence aiding and abetting. 
 
 (/) 1 Hale, 437. 1 Hawk. c. 30, s. 2. 
 
 ig) 1 Hale, 450. This is clearly 
 Bil)ithe's case. 4 Co. Rep. 43 b. Moore 
 (K.B.) 461. See the ob.servations on it, 
 Greaves' Cr. Cons. Acts, 43 (2nd ed.).
 
 780 Of Homicide. [Book ix. 
 
 are cases of manslaughter where there may be accessories (A). Thus a 
 man may be such an accessory by purchasing poison for a pregnant 
 woman to take in order to jDrocure abortion, and which she takes and 
 thereby causes her death (^). Where two men fought with fists and the 
 one was killed, and before fighting, by agreement, they each deposited a 
 pound with the defendant, upon the terms that after the fight he was to 
 hand over the two pounds to the winner, the defendant, who was not 
 present at the fight, and took no further part in the circumstances 
 attending it than to hold the money and to hand it over afterwards to the 
 survivor, was held not liable to be convicted of being accessory before the 
 fact to the manslaughter (/). There may be accessories after the fact 
 in manslaughter (k). 
 
 Provocation and Mutual Combat. — Whenever death ensues from 
 the sudden transport of passion, or heat of blood upon a reasonable 
 provocation, and without malice, the offence will be manslaughter {I). 
 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. The decisions as to the line to be drawn between 
 murder and manslaughter in cases of killing in mutual combat have been 
 already discussed ante, p. 710. 
 
 Resistance to Oflficers of Justice, &c. — It has been before mentioned 
 as a general rule, that where persons who have authority to arrest 
 or imprison, and use the proper means for that purpose, are resisted in 
 so doing, and killed, it will be murder in all who take part in such 
 resistance [m). This protection of the law extends only to persons who 
 have proper authority and do use that authority in a proper manner (n) ; 
 wherefore questions of nicety and difficulty have frequently arisen upon 
 the points of authority, legality of process, notice, and regularity of 
 proceeding. The consequence of defects in any of these particulars, is in 
 general that the offence of killing the person resisted is extenuated to 
 manslaughter (o). 
 
 Sect. II. — Killing in the Prosecution of some Unlawful 
 OR Wanton Purpose. 
 
 Where death is caused by an act unlawful in itself, done heedlessly 
 or incautiously, but without deliberation or mischievous intention {f), 
 the killing is manslaughter {q). Where a blow aimed at one person lights 
 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 
 
 (h) R. V. Gaylor, Dears. & B. 288 ; vide c. 4 (see 2 Hawk. c. 29, s. 24). 
 
 ante, pp. 1 14 et seq. (I) 1 Hale, 466. 1 Hawk. c. 30. Fost. 
 
 (i) Ibid. 290. 4 Bl. Cbm. 191. 1 East, P. C. 232. 
 
 (j) R. V. Taylor, L. R. 2 C. C. R. 147. (m) Ante, p. 721. 
 
 {k) 1 Hale, 450. 1 East, P. C. 353. R. (w) Fost. 319, and ante, p. 763. 
 
 V. Greenacre, 8 C. & P. 35, Tindal, C.J., (o) Ante, p. 656. 
 
 Coleridge and Goltman, JJ. 24 & 25 Vict. (p) As to deliberate intention, vide ante, 
 
 c. 94, s. 3 ; 24 & 25 Vict. c. 100, s. 67. pp. 655 el seq. 
 
 Ante, p. 126. There were doubts on the (q) Fost. 261. 
 subject before the Act 1 Anne, st. 2, 
 
 I
 
 CHAP. I.] Manslaw/hter by Unlawful or Waiiton Acts. 781 
 
 been murder or manslaughter. For if a blow, intended against A., and 
 lighting on B., arose from a sudden transj)ort of passion, which, in case 
 A, had died by it, would have reduced the offence to manslaughter, the 
 fact will admit of the same alleviation, if it shall have caused the death 
 of B. (r). 
 
 There are so many acts so heedless and incautious as necessarily to 
 be deemed unlawful and wanton, though there may not be any express 
 intent to do mischief : and the party committing them, and causing 
 death by such conduct, will be guilty of manslaughter. As if a person, 
 who is breaking an unruly horse, rides him amongst a crowd of peojile, 
 and death ensues from the viciousness of the animal, and it appears 
 clearly to have been done heedlessly and incautiously only, and not with 
 an intent to do mischief, the crime will be manslaughter (s). And if a 
 man knowing that people are passing along the streets, throws a stone or 
 shoots an arrow over a house or wall, and a person be thereby killed, this 
 will be manslaughter, though there was no intention to do hurt to any- 
 one, because the act itself was unlawful (t). So where a gentleman came 
 to town in a chaise, and, before he got out of it, fired his pistols in the 
 street, which, by accident, killed a woman, it was ruled manslaughter ; 
 for the act was likely to breed danger, and was manifestly improper (u). 
 
 A party who causes the death of a child by giving it spirituous liquors, 
 in a quantity quite unfit for its tender age, has been held guilty of 
 manslaughter {v). 
 
 On an indictment for manslaughter it aj^peared that the deceased was 
 in possession of the goods of one of the prisoners under a warrant from 
 the sheriff, and the three prisoners plied him with drink, themselves 
 drinking freely also, and when he was very drunk, put him into a cab- 
 riolet, and caused him to be driven about the streets, and about two hours 
 after he was put in the cabriolet he was found dead. Parke, B., after 
 directing the jury to dismiss from their consideration that part of the 
 indictment which alleged that the prisoners knew that the quantity of 
 liquor taken was likely to cause death, of which there did not appear to 
 be any evidence, and which, if proved, would make the offence approach 
 to murder, told the jury that if they were of opinion that the prisoners 
 put the deceased in the cabriolet, then the questions would be : first, 
 whether they or any of them were guilty of administering or procuring 
 the deceased to take large quantities of liquor for an unlawful purpose ; 
 or, whether, when he had taken it, they put him into the cabriolet for an 
 unlawful purpose. If they thought that the three prisoners, or one of 
 them, made him excessively drunk, to enable the prisoner, whose goods 
 were seized, to prevent the completion of the execution ; or if they were 
 satisfied that the object of the prisoners, or any of them, was otherwise 
 unlawful, and that the death of the deceased was caused in carrying their 
 unlawful object into effect, they must be found guilty. The simple fact 
 
 (r) Fost. 262. (m) R. v. Burton, 1 Str. 481. 
 
 (s) 1 East, P. C. 231. (»;) R.r.Martin,3 C. & P.211. Itisnow 
 
 (t) 1 Hawk. c. 31, s. 68. But it is said an offence to give intoxicating liquor to a 
 
 thatinsuchacaseif the rider had intended child under five except on the order of a 
 
 to divert himself with the fright of the fully qualilied medical practitioner or 
 
 crowd the offence would bo murder. nurse, or in case of sickness or other urgent 
 
 I Hale, 475. 1 Hawk. c. 29, s. 9. cause (8 Ed w. VII. c. 07. s. 119).
 
 782 Of Homicide. [book ix. 
 
 of persons getting together to drink, or one pressing another to do so. was 
 not an unlawful act ; or, if death ensued, an ofience that could be con- 
 strued into manslaughter. Upon the first question stated, it would be 
 essential to make out that the prisoners administered the liquor with 
 the intention of making the deceased drunk, and then getting him out of 
 the house ; and if that were doubtful, still if, when he was drunk, they 
 removed him into the cabriolet with the intention of preventing his 
 returning, and death was the result of such removal, the act was unlawful, 
 and the case would be a case of manslaughter. If, however, they all got 
 drunk together, and afterwards he was put into the cabriolet with an 
 intention that he should take a drive only, that was not an unlawful 
 object, such as had been described, and the prisoners would be entitled 
 to an acquittal. And to a question put by the jury, the learned baron 
 answered, that if the prisoners, when the deceased was drunk, drove him 
 about in the cab, in order to keep him out of possession, and by so doing 
 accelerated his death, it would be manslaughter {iv). 
 
 If death ensues from an act which is a mere trespass the offence will 
 be only manslaughter, not murder. Where a carman was in the front 
 part of a cart loading it with sacks of potatoes, and a boy pulled the trap- 
 stick out of the front of the cart, but not with intent to do the man any 
 harm, as he had seen it done several times before by others ; and in con- 
 sequence of the trapstick having been taken out, the cart tilted up, and 
 the deceased was thrown out on his back on the stones, and the potatoes 
 were shot out of the sacks, and fell on and covered him over, and he died 
 in consequence of the injuries then received, it was held that the boy was 
 guilty of manslaughter {x). Where an indictment for manslaughter 
 alleged that the prisoners in and upon one L. H. did make an assault, 
 and that L. H. then lying in a certain cart containing divers bags of nails 
 of great weight, the prisoners did with their hands force up the shafts of 
 the said cart, and throw down the body of the said cart in which L, H. 
 was so as aforesaid lying, and him the said L. H. by such forcing up of 
 the shafts and throwing down of the body of the said cart as aforesaid, 
 did cast and throw upon the ground under the said bags of nails ; by 
 means whereof the said bags of nails were thrown and forced against over 
 and upon the breast of L. H., L. H. then being upon the ground, and the 
 said bags of nails then and there did press and lie upon the breast of 
 L. H., thereby giving, &c., Tavmton, J., held that it was not necessary 
 to allege in the indictment that the prisoners knew the deceased to be 
 in the cart, as malice was not an ingredient in the crime {y). 
 
 On an indictment for manslaughter, the following statement of the 
 prisoner was proved : ' As I was going home about four o'clock this 
 afternoon I heard the report of a gun. Shortly afterwards I saw the 
 deceased with a gun, and I went to him to take his gun from him. We 
 had a scuffle together for about ten minutes, and there were blows ex- 
 changed on both sides ; the deceased struck me, and knocked me down 
 with his gun ; at the same time the gun went off, and shot the deceased. 
 
 {w) R. V. Packard, C. & M. 236. (y) R. v. Lear and Kempson, Stafford 
 
 {x) R. V. Sullivan, 7 C. & P. 641. (Jur- Spring Assizes, 1832. MSS. C. S. G. 
 
 ney, B., and Williams, J.
 
 CHAP. I.] Manslaughter by Uyilawful or Wanton Acts. 783 
 
 I was insensible for a short time, and when I came round found the de- 
 ceased was dead, and had the barrel of the gun in his hand/ The prisoner 
 was a gamekeeper of a gentleman who had permission by parol to shoot 
 over the land where this scuffle took place. It was contended that, 
 admitting that the prisoner had no right to take the gun away, and that 
 he was guilty of an assault in attempting to do so, the death was not 
 the result of that assault, but of the excess of violence of the deceased 
 himself. Lord Campbell, C.J., told the jury that the case was one of 
 manslaughter. The struggle between the jH-isoner and the deceased was 
 to be considered as one continuous illegal act on the part of the prisoner, 
 and death resulting from that act (2). 
 
 The defendant kept a gun loaded with printing types, in consequence 
 of several robberies having been committed in the neighbourhood, and 
 sent a mulatto girl, his servant, of the age of about thirteen, for the gun, 
 desiring the person in whose house he lodged to take the j)riming out. 
 This he did, and told the girl so, and delivered the gun to her, and she put 
 it down in the kitchen, resting on the butt, and soon afterwards took it 
 up again, and presented it, in play, at the plaintiff's son, a young boy, 
 saying she would shoot him, and drew the trigger, and the gun went off, 
 and wounded the boy. It was held that the defendant was liable to 
 an action for the injury. Ellenborough, C. J., said : ' The defendant might 
 and ought to have gone farther ; it was incumbent on him, who, by 
 charging the gun, had made it capable of doing mischief, to render it safe 
 and innoxious. This might have been done by the discharge or drawing 
 of the contents ; and though it was the defendant's intention to prevent all 
 mischief, and he expected that this would be effectuated by taking out the 
 priming, the event has unfortunately proved that the order to Leman 
 was not sufficient ; consequently, as by this want of care the instru- 
 ment was left in a state capable of doing mischief, the law will hold the 
 
 (2) R. V. Wesley, 1 F. & F. 528. ' Lord 
 Campbell refused to reserve the point ; 
 and yet it seems well deserving of better 
 consideration. If the prisoner had died 
 from the excess of violence inflicted by 
 the deceased, it cannot be doubted that 
 the deceased would have been guilty of 
 manslaughter, and it is not a little startling 
 to hold that that excess of violence which 
 caused the gun to explode is to make the 
 prisoner guilty of manslaughter. Suppose 
 the deceased had ])ulled the trigger in- 
 tending to shoot the jiiisoner, and in the 
 struggle he had shot himself instead, it 
 would bo startling to hold the prisoner 
 guilty of manslaughter. The reason why 
 an excess of violence is punished is, that 
 it is not in point of law attributable to the 
 assault committed, but to the wrongful 
 act of the party assaulted, and to hold the 
 party assaulting guilty of the result of an 
 excess of violence is to hold him guilty of 
 the consequence of an act, of which the 
 law not only holds him not to be guilty, but 
 holds the other party to be guilty, or, to put 
 it in still simpler terms, to hold him re- 
 sponsible for an act which the law holds not 
 
 to be his act at all, but to be wholly the act 
 of another person.' — C. S. G. In R. v. 
 Archer (1 F. & F. 351) the deceased 
 had deposited a gun with A. to secure 
 a loan of monc}-, and in A."s absence 
 called at his house and took away 
 tlie gun without repaying the money. 
 A. went to the deceased and demanded 
 the gun back, and on his refusal to give 
 it up began to wrestle with him. The 
 deceased said that the gun was loaded ; 
 the prisoner, however, persisted in his 
 attempt to take it away, and after a violent 
 struggle succeeded in doing so; but, 
 falling on the ground as he was in the act 
 of wrenching the gun away, the gun went 
 off accidentall}', and killed the deceased. 
 Campbell, C.J., told the jury that, though 
 the prisoner had a right to the possession 
 of the gun, to take it away from the 
 deceased by force was unlawful ; and that 
 as the discharge of the gun was this result 
 of the unlawful act, it was their duty to 
 find the prisoner guilty of manslaughter. 
 The decision in Blades r. Higgs, 11 H. 
 L. C. 621, 10 C. B. (N. S.) 713, seems to 
 render this ruhng of no authority.
 
 784 Of Homicide. [bookix. 
 
 defendant responsible ' (a). It has been suggested in former editions 
 that this ruling would have justified the conviction of the defendant 
 for manslaughter if death had ensued : but it is very doubtful whether 
 it can safely be pressed so far. 
 
 Where a person fires at another a firearm, knowing it to be loaded, 
 and therefore intending either to kill or to do grievous bodily harm, if 
 death ensues the crime is murder ; and if he does not know that it is 
 loaded, and has taken no pains to ascertain, the crime is manslaughter (6). 
 
 A man found a pistol in the street, which he had reason to believe was 
 not loaded, having tried it with the rammer ; he carried it home, and 
 shewed it to his wife ; and she standing before him, he pulled up the cock, 
 and touched the trigger ; and the pistol went off and killed the woman. 
 This was ruled manslaughter (c). But the legality of the decision has 
 been doubted, on the ground that the man examined the pistol in the 
 common way, and used the ordinary caution deemed to be effectual in 
 similar cases {d). And Foster, J., after stating his reasons for disapprov- 
 ing of the judgment, says, that he had been the longer upon the case, 
 because accidents of this lamentable kind may be the lot of the wisest 
 and best of mankind, and most commonly fall amongst the nearest 
 friends and relations ; and then proceeds to state a case of a similar kind, 
 in which the trial was had before himself. On a Sunday morning a man 
 and his wife went to take dinner at the house of a friend. He carried his 
 gun with him, but before dinner he discharged it, and set it up in a private 
 place in his friend's house. After dinner he went to church ; and in the 
 evening, returned home with his wife, bringing his gun with him. He 
 taking it up, touched the trigger ; and the gun went off and killed his 
 wife. It came out in evidence, that, while the man was at church, 
 another person took the gun, charged it, and went after some game ; 
 and returned it, loaded, to the place whence he took it, and the defendant, 
 who was ignorant of all that had passed, found it, to all appearance 
 as he had left it. ' I did not inquire,' says Foster, J., ' whether 
 the poor man had examined the gun before he had carried it home ; 
 but being of opinion, upon the whole evidence, that he had reasonable 
 grounds to believe that it was not loaded, I directed the jury that, 
 if they were of the same opinion, they should acquit him : and he was 
 acqviitted ' (e). 
 
 An indictment charged that there was a scaffolding in a certain coal 
 mine, and that the prisoners, by throwing large stones down the mine, 
 
 (a) Dixon v. Bell, 5 M. & S. 198. See broken, that it would be very incautious 
 
 1 Beven on Negligence {3rd ed.), p. 97. in a person previously unacquainted with 
 
 (fo) R. V. Campbell, 11 Cox, 323. R. v. the state of the instrument to rely upon 
 
 Jones, 12 Cox, 628. such proof as he could receive from the 
 
 (r) Rampton's case, Kel. (J.) 41. rammer, unless it were passed so smartly 
 
 {d) Fost. 264, where it is said, that per- down the barrel as clearly to give the 
 haps the rammer, which the man had not sound of the metal at the bottom. How- 
 tried before, was too short, and deceived ever, there is a qu. to the case in the 
 him. But, qu., whether the ordinary and margin of the report, and it appears that 
 proper precaution would not have been to the learned Editor (Holt, C.J.) was not 
 have examined the pan, which in all pro- satisfied with the judgment ; and that it 
 bability must have been primed. The is one of the points which, in the Preface, 
 rammer of a pistol, or gun, is so frequently he recommends for further consideration, 
 too short, from having been accidentally {e) Foster, Cr. L. 205.
 
 CHAP. I.] Manslaufjhter by Unlawful or Wanton Acts. 785 
 
 broke the scaffolding ; and that in consequence of the scaffolding being so 
 broken, a corf, in which the deceased was descending the mine, struck 
 against a beam, on which the scaffolding had been supported, and by- 
 such striking the corf was overturned, and the deceased precipitated into 
 the mine and killed. It was proved that scaffolding was usually found 
 in mines in the neighbourhood, for the purpose of supporting the corves, 
 and enabling the workmen to get out and work the mines ; that the stones 
 were of a size and weight sufficient to knock away the scaffolding, and that 
 if the beam only was left, the probable consequence would be that the corf 
 striking against it would upset, and occasion death or injury. Tindal, 
 C.J., said : ' If death ensues as the consequence of a wrongful act, an act 
 which the party who commits it can neither justify nor excuse, it is not 
 accidental death but manslaughter. If the wrongful act was done under 
 circumstances which shew an intent to kill, or do any serious injury in the 
 particular case, or any general malice, the offence becomes that of murder. 
 In the present instance, the act was one of mere wantonness and sport, 
 but still the act was wrongful — it was a trespass. The only cjuestion 
 therefore is, whether the death of the party is to be fairly and reasonably 
 considered as a consequence of such wrongful act ; if it followed from such 
 wrongful act, as an effect from a cause, the offence is manslaughter ; 
 if it is altogether unconnected with it, it is accidental death ' (ee). 
 
 But where a person wrongfvdly and wantonly threw a large box from 
 a pier into the sea and accidentally struck and killed a man who was 
 swimming under the pier, Field, J., after consulting Mathew, J., said 
 that the question of negligence must be left to the jury and not the 
 mere question whether the death was caused by the wrongful act of the 
 prisoner. The mere fact that the prisoner had committed a civil wrong 
 ought not to be used as an incident which was a necessary step in a 
 criminal case (/'). 
 
 Unlawful Games. — Where sports are unlawful in themselves, or pro- 
 ductive of danger, riot, or disorder, so as to endanger the peace, and 
 death ensue in the pursuit of them, the party killing is guilty of man- 
 slaughter {(j). Prize-fighting, public boxing matches {h) or any other sports 
 of a similar kind, which are exhibited for lucre, and tend to encourage 
 idleness by drawing together a number of disorderly people, have been 
 considered unlawful (i). For in these cases the intention of the parties 
 is not innocent in itself, each being careless of what hurt may be given, 
 provided that the promised reward or applause be obtained ; and meetings 
 of this kind have also a strong tendency to cause a breach of the 
 peace (/). Therefore, where the prisoner had killed his opponent in a 
 boxing match, it was held 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 engage by taunts ; and the occasion 
 was sudden (k). 
 
 (ce) R. V. Fenton, 1 Lew. 179, Tindal, v. Young, 10 Cox, 371. 
 C.J. {i) Fost. 2G0. 
 
 (/) R. V. Franklin, 1.5 Cox, 163. (/) 1 East, P. C. 270. 
 
 (<7) Fost. 250, 2t)0. 1 East, P. C. 2(18. Uc) Ward's case, 0. B. 1780, cor. Ash- 
 
 Ui) But not ^^pan■ini^ matches with hurst, J. 1 East, P. C. 270. 
 proper gloves and fairly conducted. K. 
 
 VOL. I, 3 E
 
 786 
 
 Of Homicide. 
 
 [BOOK IX. 
 
 Prize-flglits are altogether illegal ; as illegal as duels with deadly 
 weapons, and it is not material which party strikes the first blow (/). 
 
 In R. V. Coney {m), two men fought with each other in a ring formed by 
 ropes supported by posts and in the presence of a large crowd. Amongst 
 the crowd were the prisoners, who were not proved to have^ taken any 
 active part in the management of the fight, or to have said or done any- 
 thing. They were tried and convicted of aiding and abetting an assault. 
 Upon a case reserved the conviction was quashed by eight judges against 
 three, the majority holding that mere voluntary presence at a fight does 
 not as a matter of law necessarily render persons so present guilty of aiding 
 and abetting an assault, although the mere presence unexplained may, 
 it would seem, afford some evidence for the consideration of a jury. 
 
 In R. v. Murj)hy (n), at a fight at which many were assembled the ring 
 was several times broken by persons carrying sticks, which they used 
 with great violence, and the deceased died of blows then received ; 
 Littledale, J., directed the jury : ' You ought to consider whether the 
 deceased came by his death in consequence of blows he received in the 
 fight itself ; for if he came by his death by any means not connected with 
 the fight itself, that is, if his death was caused by the mob coming in with 
 bludgeons, and taking the matter as it were out of the hands of the com- 
 batants, then persons merely present encouraging the fight would not be 
 answerable, unless they are connected in some way with that particular 
 violence. If the death occurred from the fight itself, all persons encoura- 
 ging it by their presence are guilty of manslaughter ; but if the death 
 ensued from violence unconnected with the fight itself, that is, by blows 
 given not by the other combatant in the course of the fight, but by persons 
 breaking in the ring and striking with their sticks, those who were merely 
 present are not, by being present, guilty of manslaughter.'' 
 
 Killing another by 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, will be manslaughter (o). 
 
 Lawful Sports. — Such sports and exercises as tend to give strength, 
 activity, and skill in the use of arms, and are entered into as private 
 tecreations amongst friends without any intention to cause bodily harm, 
 such as playing at cudgels, or foils, or sparring with gloves {p), wrestling 
 by consent, or football [q), are deemed lawful ; and if either party happens 
 
 (?) R. V. Coney, 8 Q.B.D. 535, approving 
 R. V. Perkins, 4 C. & P. 537, Patteson, J. 
 ll. V. Lewis, 1 C. & K. 419, Coleridge. J. 
 R. V. Billingham, 2 C. & P. 234, Burrough, 
 J. See R. V. Hargrave, 5 C. & P. 170, 
 where Patteson, J., ruled that persons 
 present at a prize-fight were not such 
 accomplices as to need corroboration. 
 
 (m) 8 Q.B.D. 534, per Denman, J., 
 Huddlestone, B., Manisty, Hawkins, 
 Lopes, Stephen, Cave, and North, JJ. 
 (Coleridge, C.J., Pollock, B., and Mathew, 
 J., diss.). This decision appears to ovei-- 
 rule R. V. Murphy, 6 C. & P. 103; R. 
 V. Perkins, 4 C. & P. 537 ; and R. v. 
 Billingham, 2 C. & P. 234, if and so far 
 
 as they decided that mere presence at 
 a prize-fight is encouragement. Cf. R. 
 V. Young, 8 C. <& P. 644, where mere pre- 
 sence at a duel was held not enough to 
 warrant conviction for aiding and abetting 
 in the murder of one of the combatants. 
 
 (n) 6 C. & P. 103. 
 
 (o) 1 Hawk. c. 29, s. 5. Cock- throwing 
 at Shrovetide was held unlawful, and a 
 person who in throwing at a cock missed 
 his aim and lulled a child was held guilty 
 of manslaughter by Foster, J. Fost. 261. 
 
 (p) R. w. ''Young, 10 Cox, 371. 
 
 iq) R. V. Bradshaw, 14 Cox, 83. R. v. 
 Moore, 14 T. L. R. 229. 
 
 J
 
 CHAP. I.] Manslaughter hy Unlawful or Wanton Acts. 787 
 
 accidentally to be killed in sucli sports, it is excusable homicide by 
 misadventure (r). 
 
 Though it cannot be said that such sports are altogether free from 
 danger, yet they are very rarely attended with fatal consequences, and 
 each party has friendly warning to be on his guard. Proper caution and 
 fair play should, however, be observed, andillegal violence avoided, and, 
 though the weapons used be not of a deadly nature, yet, if they may breed 
 danger, there should be due warning given, that each party may start 
 upon equal terms. For if two are engaged to play at cudgels, and the 
 one make a blow at the other, likely to hurt, before he is ujDon his guard, 
 and without warning, from whence death ensues, the want of due and 
 friendly caution will make such act amount to manslaughter, but not 
 murder, the intent not being malicious (s). 
 
 In R. V. Young {t) seven men were indicted for manslaughter. They had 
 been sparring with gloves on, and the deceased was with them. After 
 several rounds the deceased fell and struck his head against a post, whilst he 
 was sparring with the prisoner. The men were all friendly, but as the 
 deceased and the prisoner came up to the last round they were ' all in a 
 stumble together.' The medical testimony was to the effect that sparring 
 might be dangerous, but that death would be unlikely to result from such 
 blows as had been given. The danger would be where a person was able 
 to strike a straight blow, but the danger would be lessened as the com- 
 batants got weakened. Bramwell, B., said, the difficulty was to see what 
 there was unlawful in this matter. It took place in a private room ; there 
 was no breach of the peace. No doubt if death ensued from a fight, 
 independently of its taking place for money, it would be manslaughter ; 
 because a fight was a dangerous thing and likely to kill ; but the medical 
 witness here had stated, that this sparring with the gloves was not dan- 
 gerous, and not a likely thing to kill. After consulting Byles, J., Bram- 
 well, B., said, that he retained the opinion he had previously expressed. 
 It had, however, occurred to him that supposing there was no danger in 
 the original encounter, the men fought on until they were in such a state 
 of exhaustion that it was probable they would fall, and fall dangerously, 
 and if death ensued from that, it might amount to manslaughter, and he 
 proposed, therefore, so to leave the case to the jury and reserve the point 
 if necessary. The prisoners were acquitted. 
 
 In R. V. Orton (w) it was held upon a case reserved that if persons meet 
 to fight intending to continue till they give in from injury or exhaustion, 
 the fight is unlawful whether gloves are or are not used. 
 
 On a trial for manslaughter it appeared that the prisoner came into 
 a shop and pulled a young lad by the hair off a cask where he was sitting, 
 and put his arm round his neck and spun him round, and they came 
 together out of the shop, and the prisoner kept spinning him round, and 
 the lad broke away from him, and in consecjuence, and at the moment 
 of his so doing, the prisoner, being intoxicated, reeled into the road, and 
 against the deceased who was j)assing and knocked her down, and she 
 
 (r) Fost. 259, 200. 1 East, V. C. 2fi8. (s) 1 East, P. C. 269. 
 
 A dilTercnt view seems to have been held (/) 10 Cox, 371. 
 
 by Hale, 1 P. C. 472, but his view is con- {u) U Cox, 220 (C. C. R.). 
 tested by Foster (Cr. L. 200). 
 
 3e2
 
 788 
 
 Of Homicide. 
 
 [BOOK IX. 
 
 died shortly afterwards. The lad said he did not resist the prisoner — he 
 thought the prisoner was only playing with him, and was sure that it 
 was intended as a joke throughout. Erie, J., told the jury : ' Where the 
 death of one person is caused by the act of another, while the latter is in 
 pursuit of any unlawful object, the person so killing is guilty of man- 
 slaughter, although he had no intention whatever of injuring him who 
 was the victim of his conduct. Here, however, there was nothing un- 
 lawful in what the prisoner did to this lad, and which led to the death of 
 the woman. Had this treatment of the boy been against his will, the 
 prisoner would have been committing an assault — an unlawful act — which 
 would have rendered him amenable for any consequences resulting from 
 it ; but as everything that was done was with the boy's consent, there 
 was no assault, and consequently no illegality. It is in the eye of the 
 law an accident, and nothing more ' (y). 
 
 Ordinarily the weapons made use of upon such occasions are not 
 deadly in their nature. In some sports the instruments used are of a 
 deadly nature ; yet, if they are not directed by the persons using them 
 against each other, and therefore no danger is reasonably to be appre- 
 hended, the killing which may casually ensue will be only homicide by 
 misadventure. Such will be the case, therefore, where persons shoot at 
 game, or butts, or any other lawful object, and a bystander is killed {w). 
 
 Even in lawful sports, if the weapons used are of an improper and 
 deadly nature, the party killing will be guilty of manslaughter. Sir John 
 Chichester in playing with his manservant made a j)ass at the servant 
 with the sword in the scabbard, 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 {x). 
 This was adjudged manslaughter : and Foster, J., 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 chajse 
 might be beaten off, which would necessarily expose the servant to great 
 bodily harm {y). 
 
 The deceased met with his death in the course of a game of football 
 played according to the Association rules. The deceased was kicking the 
 ball when the prisoner in charging him struck him with his knee in the 
 stomach, inflicting injuries which proved fatal. Bramwell, L.J., told 
 
 (?■) R. V. Bruce, 2 Cox, 262. 
 
 (w) ] Hale, 38, 472, 475. 1 Hawk. c. 
 29, s. 6. 1 East, P. C. 269. Shooting at 
 game without a licence, or under the old 
 law without a qualification, is not so un- 
 lawful as to render accidental killing man- 
 slaughter. 1 Hale, 475. Fost.259. Where 
 one of two poachers accidentally kills 
 another, it has been ruled manslaughter. 
 R. t>. Holt, Lancaster Assizes, 25 Jan. 1907, 
 Sutton, J., 42 L. J. (Newsp.)67. Sedqucere. 
 
 (x) Sir John Chichester's case, Allen 
 12: Keilw. 108; 72 E. R. 72.3; 1 Hale, 
 472, 473. 
 
 iy) 1 Hale, 473. Fost. 260. 1 East, 
 P. C. 269. But see in Hale, 473, the 
 following note : ' This seems a very 
 hard case ; and, indeed the foundation of 
 it fails ; for the pushing with a sword in 
 the scabbard, by consent, seems not to be 
 an unlawful act ; for it is not a dangerous 
 weapon likely to occasion death, nor did it 
 so in this case, but by an unforeseen acci- 
 dent, and therein differs from the case of 
 jousting, or prize-fighting, wherein such 
 weapons are made use of as are fitted and 
 likely to give mortal wounds.' 
 
 i
 
 CHAP. I.] 
 
 Lawful Acts Imfroferly Performed 
 
 789 
 
 \ 
 
 the jury : ' If a man is playing according to the rules and practice of the 
 game and not going beyond, it may be reasonable to infer that he is not 
 actuated by any malicious motive or intention, and that he is not acting 
 in a manner which he knows will be likely to be productive of death or 
 injury. But if the prisoner intended to cause serious hurt to the deceased, 
 or if he knew that in charging as he did he might produce serious injury, 
 and was indifferent and reckless as to whether he did so or not, then the 
 act would be unlawful ' {z). The jury acquitted the prisoner. 
 
 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 is killed by the shot, such killing will be manslaughter (a). 
 
 In one case, where rioters, having forcibly gained possession of a house, 
 afterwards killed a partisan of the person whom they had ejected, as he, 
 in company with a number of others, was endeavouring in the night 
 forcibly to regain the possession, and to fire the house, they were adjudged 
 guilty only of manslaughter (6). The ratio decidendi seems to have been 
 that the person slain was so much in fault himself {c). But the decision 
 is an exception from the general rule already stated as to the liability of 
 rioters in case of homicide {d). 
 
 Sect. III. — Killing in consequence of some Lawful Act being 
 
 CRIMINALLY OR IMPROPERLY PERFORMED, OR OF SOME ACT 
 PERFORMED WITHOUT LaWFUL AUTHORITY. 
 
 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 person, guilty of murder (e). And as the circumstances 
 of the case may vary, the party so killing another may be guilty only of 
 manslaughter (/). 
 
 (.:) R. V. Bradshaw, 14 Cox, 83. 
 
 {a) 1 Hale, 475. 
 
 (h) Drayton Basset case, Fitzli. (ed. 
 Crampton, 160C), f. 20. 1 Hale, 440. 
 
 (r) 1 Hawk. c. 31, s. 53. 
 
 id) Ante, p. 759. 
 
 (e) Ante, jij). 763 et seq. ; of. R. v. Moore, 
 14 T. L. R. 22!), Hawkins, J. 
 
 (/) In R. V. Tranter (as reported 1 Str. 
 44!)), li., bein<? arrested for a small debt, 
 prevailed on one of the oflicers to go with 
 iiim to his lodf^inj^s, while the other was 
 sent to fetch the attorney's bill, in order, 
 as L. pretended, to have the debt and 
 costs paid. Words arose at the lodginjis 
 about civility money, which L. refused to 
 jlive, and he went upstairs, pretending to 
 fetch money for the payment of the debt 
 antl costs, leaving the oitieer below. He 
 soon returned with a brace of loaded 
 pistols in his bosom, which, at the impor- 
 tunity of his servant, he laid down on the 
 table, saj'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 com- 
 panion at the lodgings ; and, words of 
 anger arising, L. 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. This is said 
 to have been held manslaughter, by reason 
 of the first assault with the cane. This 
 decision is criticised as extraordinary by 
 Foster (293, 2!)4), who mentions additional 
 circumstances as rejiorted Ki St. Tr. 1. 
 1. L. had a sword i)y his side, which, after 
 the aflray was over, was found drawn and 
 broken. 2. When L. laid the pistols on 
 the table, he declared that lie brought 
 them down because he would not be forced 
 out of his lodgings. 3. He threatened the 
 officers several times. 4. One of the 
 officers appeared to have been wounded 
 in the hand by a pistol shot (for both
 
 790 Of Homicide. [book ix. 
 
 Where an inquisition alleged that the defendants were trustees under 
 an Act of Parliament, and that it was their duty to contract for the 
 repair of a road, and also to repair the road, and that they did 
 feloniously neglect to contract for the reparation of the said road, and 
 did feloniously neglect to repair the same, and that W. B. being riding 
 in a barrow along the said road, the defendants by their neglect to 
 contract for the reparation of the said road, and by their neglect to 
 repair the same, did cause one wheel of the said barrow to fall into 
 a large hole in the said road, and the said W. B. to be thereby thrown 
 with great violence from the said barrow upon the ground, whereby 
 he was killed ; it was held that the inquisition was bad : not only 
 must the neglect, to make a party guilty of it liable to the charge of felony, 
 be personal, but the death must be the immediate result of that personal 
 neglect, and here the death was not the direct consequence of the neglect 
 charged {(j). 
 
 Negligence in Business. — Upon an indictment for the manslaughter 
 of a child, it appeared that the child being ill, the mother sent to a 
 chemist for a pennyworth of paregoric ; the chemist's apprentice delivered 
 a phial, with a paregoric label on it, but with laudanum in it ; and the 
 mother, supposing it to be paregoric, gave the child six or seven drops, 
 which killed it. The laudanum bottle and the paregoric bottle stood side 
 by side, Bayley, J., told the jury : ' If you think there was negligence 
 on the part of the prisoner, you will find him guilty ; if not, you must 
 acquit him ' {h). 
 
 The prisoner was indicted for manslaughter, in having, by negligence 
 in the manner of slinging a cask, caused the same to fall and kill two 
 females, who were passing along the causeway. It appeared that there 
 were three modes of slinging casks customary in Liverpool : one by slings 
 passed round each end of the cask ; a second by can hooks ; and a third 
 which the prisoner employed, by a single rope round the centre of 
 the cask. The cask was hoisted up to the fourth storey of a warehouse, 
 and on being pulled endways towards the door, it slipped from the rope 
 as soon as it touched the floor of the room. Parke, J., told the jury : 
 ' The double slings are undoubtedly the safest mode ; but, if you think 
 that the mode which the prisoner adopted was reasonably sufi&cient, 
 you cannot convict him ' (?'). 
 
 pistols were discharged in the affray), and from his lodgings, which it would have 
 slightly wounded on the wrist by some been their duty to have done, if the debt 
 sharp-pointed weapon, and the other was had not been paid or bail given, he declared 
 slightly wounded in the hand by a like it would be no more than manslaughter, 
 weapon. 5. The evidence touching L. (;y) R. v. Pocock, 17 Q.B. 34 ; cf. R.v. 
 begging for mercy was not that he was on Hilton, 2 Lew. 214, post, p. 801. R. v. 
 the ground begging for mercy, but that Clerk of Assizes of Oxford Circuit [1897], 
 on the ground he held up his hands as if 1 Q. B. 370, where an inquisition for man- 
 he was begging for mercy. Upon these slaughter by neglect to fence a quarry 
 facts Pratt, C.J., directed the jury, that was quashed as insufficiently setting out 
 if they believed L. endeavoured to rescue the necessary particulars, 
 himself, which he seemed to think was the (h) R. i'. Tessymond, 1 Lew. 169, and 
 case, and which very probably was the vide ante, pp. 681 et seq. The directions 
 case, it would be justifiable homicide in of Bayley, J., as to criminal negligence in 
 the officers. And as L. gave the first this case are criticised in Beven on Negli- 
 blow, accompanied with menaces to the gence (3rd ed.), Vol. i. p. 7. 
 officers, and the circumstance of producing (i) R. v. Rigmaidon, 1 Lew. 180, 
 loaded pistols to prevent their taking him 
 
 I
 
 CHAP. I.] Lawful Acts Impwperly Performed. 791 
 
 The prisoner, who was an ironfounder, was employed to make twelve 
 cannon. Four of them were sent home and tried, and one of them burst 
 under the touch-hole, and was sent back to the prisoner, with orders to 
 have it melted up. The prisoner returned it nailed down to a carriage, 
 and there was some lead in it, which must have been put there to stop up 
 the part which had burst, as it matched the former aperture. The cannon 
 was loaded, with an ordinary charge, burst, and thereby killed the 
 deceased. It was held that the prisoner was guilty of manslaughter (/). 
 
 The prisoner had a firework shop in the Westminster Eoad, where he 
 had for some time carried on the business of selling fireworks. No fire- 
 works were made there except as follows : — First, the finishing the 
 smaller rockets, and making stars for them of combustible matter ; 
 secondly, making fireworks called serpents ; thirdly, making cases and 
 filling them with combustible matter, called red, blue, and green fires (k). 
 The fire was employed for filling coloured cases used to imitate revolving 
 lights in fireworks called wheels. These cases affixed were not used by 
 themselves, but in connection with those fireworks, to add to their effect. 
 The contents of the cases of fire made at the Westminster Road were 
 combustible, and the red fire would explode if struck hard. Five or six 
 pounds of fire were made every day in the house in Westminster Road, 
 and filled there in the back room into cases with a rammer and mallet by 
 persons employed for the purpose. At the time of the fire there was a 
 quantity of the red and blue fire in the house, in the room where it was 
 to be put into cases, in order to be used in the course of the business, and 
 a quantity of fireworks for the evening. The prisoner being out of the 
 house and not personally interfering, a fire broke out in the red and blue 
 fire, which communicated to the fireworks which were kept in the shop, 
 causing a rocket to cross the street and set fire to a house, in which the 
 deceased was consequently burnt to death. It was contended that the 
 fire was accidental in the sense of not being wilful or designed ; that it 
 did not happen through any personal interference or negligence of the 
 prisoner ; that he w^as entitled to the benefit of any distinction between 
 its happening through negligence of his servants, or by pure accident 
 without any sucii negligence ; that the cases of red, &c., fire, were only 
 parts of the fireworks, and not within 9 & 10 Will. III. c. 7 ; that it did 
 not a.ppear that it was by reason of making the fireworks that the mischief 
 happened, and that the death was not the direct and immediate result of 
 any wrong or omission on the prisoner's part. Willes, J., held that the 
 prisoner was guilty of a misdemeanor in doing an act with intent to do 
 what was forbidden by the statute, and that, as the fire was occasioned 
 by such misdemeanor, and without it would not have taken place, or 
 could not have been of such a character as to cause the death, a case was 
 made out ; but, upon a case reserved, the conviction was held wrong. 
 Cockburn, C.J., said, * The keeping of the fireworks in the shop by the 
 prisoner caused the death only by the superaddition of the negligence of 
 some one else. By the negligence of the prisoner's servants the fireworks 
 ignited, and the house in which the deceased was, was set on fire and 
 
 (j) R. V. Carr, 8 C. & P. 1G3, Bayley and particular attention of the judges wag 
 
 Guincy, BB.. and Pattcson, J. directed. 
 
 (h) To this last part of the business tUp
 
 792 Of Homicide. [book ix. 
 
 death ensued. The keeping of the fireworks may be a nuisance ; and if, 
 from the unlawful act of the prisoner, death had ensued as a necessary 
 and immediate consequence, the conviction might be upheld. The 
 keeping of the fireworks, however, did not alone cause the death : flus 
 that act of the prisoner there was the negligence of the prisoner's 
 servants ' {]). 
 
 H. was commandant of the forces at the garrison of Plymouth. 
 A target was placed in the Sound, under the general directions of the 
 Horse Guards, and the artillerymen were accustomed to j^ractise by 
 firing at it with ball. One day while such practice was proceeding a 
 ball missed the target, and, striking the waves, ricochetted and hit a 
 boatman, who was taking a boat across the Sound in the lawful and proper 
 exercise of his vocation, and in a place where he might lawfully be. 
 Byles, J., after stating that the depositions were extremely long and 
 vague, so that he hardly knew in what shape the charge would be pre- 
 sented, is said to have told the grand jury that ' manslaughter was when 
 one man was killed by the culpable negligence of another ' {m). A slight 
 act of negligence was not sufficient — all men and women were negligent 
 at some time ; it would depend on the degree of negligence. A slight 
 deviation from proper care and skill was not sufficient. By way of 
 illustration : suppose a man were to fire a gun in a field where he 
 saw no one, and as he fired another man suddenly raised his head 
 from a ditch ; he could not say that that man would be guilty of 
 manslaughter ; it would be held not to be culpable negligence (n). 
 But supposing a man were to fire down the High Street of Exeter 
 because he saw no one, and some one was suddenly to a23pear, and 
 he was killed, that would be culpable negligence in the man who 
 fired the gun. It would seem, and the results shewed it, that the 
 
 (?) R. V. Bennett, Bell, 1 : 28 L. J. dangerous one, and carried on unlawfully 
 M. C. 27. ' The case stated that the in a place where it is perilous to the public, 
 question of a nuisance, indejiendent of " The law takes notice that occasional 
 the statute, was disposed of upon the carelessness may be reckoned upon, and 
 facts in favour of the prisoner. Not a forbids that to be done which, on the re- 
 single authority or case was referred to currence of carelessness, wOl, in all pro- 
 in the argument, or by the Covut : and bability, prove destructive to life," R. v. 
 this case seems deserving of reconsidera- Lister, Dears. & B. 209: and therefore a 
 tion. The death would not have hap- person, who carries on such an employ- 
 pened except for the unlawful act of the ment in sucli a jjlaee, must be taken to 
 prisoner ; for, unless the combustibles had contemjjlate the carelessness of his ser- 
 been where they were, the death would vants as one of the natural consequences 
 not have occurred. If they had spon- of his carrying it on, and ought to be held 
 taneously ignited, or a stranger had acci- criminally responsible for it. Seetheprin- 
 dentally ignited them by striking his cijiles laid down in R. v. Lister.' C. S. G. 
 nailed boots on the floor, it cannot be 9 & 10 Will. III. c. 7 was repealed in 
 doubted that the prisoner would have 1860 by 23 & 24 Vict. c. 139, and the latter 
 been guilty of manslaughter ; but it is Act was reiJcaled by the Explosives Act, 
 .said that the negligence of the servant 1875 (38 & 39 Vict. c. 17), under which the 
 exonerates the master. It is submitted manufacture and storage of gunpowder 
 that, in point of law, it has no such effect. and other explosives is now regulated. 
 A master may be criminally responsible (m) This is only one form of man- 
 for the wilful acts of his servants, where slaughter; vide ante, p. 780. 
 they are done in the course of their em- (n) ' It is clear tliis would be no negli- 
 ployment and for his profit. R. v. Dixon, gence at all. The case as put is of a man 
 3 M. & S. 11; and d fortiori, he ought to lawfully shooting in a lawful place, where 
 be held to be criminally responsible for he had no reason to suppose any other 
 the negligence of his servants in his em- person was.' C. S. G. 
 ployment, where that employment is a
 
 CHAP. I.] Lawful Acts Imfw^perly Performed. 793 
 
 boat was within the range of fire ; but that was no defence. If the man 
 had not been killed, and had brought an action for damages, or if his wife 
 or family had brought an action, or if he had in anv degree contributed to 
 the result an action could not be maintained. But in a criminal case it 
 was different. The Queen was the prosecutor, and could be guilty of no 
 negligence ; and if both the parties were negligent, the survivor was 
 guilty; and therefore it was no defence that the boat was in danger (o). 
 He could only sj)eculate \\])o\\ the negligence imputed in this case. First 
 he did not know that it would be said that it was an improper place 
 whether to fire from or to fire over. The gun was fired from one of the 
 batteries kept on purpose for practice. It was said that this battery was 
 too low ; but that was not the point of defence. Therefore, subject to 
 their better judgment, nothing could be imputed to the defendant as to the 
 place whence the gun was fired. Then as to the place over which it was 
 fired. Had the defendant the selection of it ? Then in using the place, 
 although an imj)roper one, was he obeying military orders ? If so, he 
 would not be guilty (p). Common danger did not make the place im- 
 joroper. He was a man performing a most important duty. Supposing, 
 therefore, that the defendant had been personally engaged in the firing : 
 if he thought that the place from which the gun was fired was not im- 
 proper, and that the place to which the firing was directed was not improper, 
 assisted by additional precautions, which might be used, he would not be 
 responsible, because acting under the direction of superior authority. 
 It seemed that complaints had been made by a great many persons 
 residing in Plymouth and Devonport, and he must beg their attention 
 to the orders the defendant had given. The major-general would impress 
 upon the officers in command to see with the utmost diligence that 
 the range was free before the firing. Then there was a second order. 
 The major-general impresses upon the officers the necessity of seeing that 
 all was free, as he should hold them personally responsible. He had 
 hitherto presumed that the defendant had personally to do with the 
 firing ; and, if he had, he would not be guilty of manslaughter. But 
 the next question was, did he personally superintend the firing or did 
 he not ? They would see whether he did or not. Was he guilty of a 
 breach of duty in not personally superintending the firing ? He could 
 not see that he was. Again, it might be said, that if he issued orders 
 it was his duty to see that proper persons were a])pointed to keep a 
 proper look-out ; and if j^roper persons were nominated by him, it did 
 not appear whether they were properly disciplined, and it might be a 
 question whether there was any negligence in thorn. There were persons 
 with flags, but whether a jiroper look-out was kept might possibly be 
 doubtful ; whether means were taken for keeping a proper look-out they 
 
 (o) See post. p. 80(>. private individual. Sec the charge of 
 
 (p) 'With all deference, tliis seems to be Tindal, C.J., ante, p. 432, And the 
 
 an error. The commission of a felony can command of tlie master is no defence to 
 
 never be excused by the order of any the servant. See R. v. James, 8 C. & P. 
 
 superior, except in eases where the cir- 131. If the military authorities gave 
 
 cumstances are such as to warrant the act an order to practise at a ])arficular place, 
 
 that is done, as in case of rebellion, &c. that order would only justify practising in 
 
 In other cases the law acknowledges no a careful and proper manner.' C. S. G. 
 distinction between the soldier and the
 
 794 Of Homicide, [book ix. 
 
 would have to determine. Under these circumstances it would be for 
 them to say whether negligence was brought home to the defendant {q). 
 
 A., B., and C. went into a field in proximity to certain roads and 
 houses, taking with them a rifle which would be deadly at a mile, for the 
 purpose of practising firing with it. B. placed a board, which was handed 
 to him by A., in the presence of C^., in a tree in the field as a target. All 
 three fired shots directed at the board so placed, from a distance of about 
 100 yards. No precautions of any kind were taken to prevent danger 
 from such firing. One of the shots thus fired by one, though it was not 
 proved by which one of them, killed a boy in a tree in a garden near the 
 field at a spot distant 393 yards from the firing point. A., B., and C. were 
 all found guilty by a jury of manslaughter. On a case reserved it was held 
 that all three had been guilty of a breach of duty in firing at the spot in 
 question without taking proper precautions to prevent injury to others, 
 and were rightly convicted of manslaughter (r). 
 
 Vehicles, — It is the duty of every man who drives a vehicle on a 
 public highway to drive it with such care and caution as to prevent, 
 as far as is in his power, any injury to any person (s). 
 
 A foot passenger, though he may be infirm from disease, has a right 
 to walk on the carriage-way, although there be a footpath, and he is 
 entitled to the exercise of reasonable care on the part of persons driving 
 carriages along the carriage-way {t). 
 
 On an indictment for manslaughter, it appeared that the deceased 
 was walking along a road, in a state of intoxication : the prisoner was 
 driving a cart drawn by two horses, without reins ; the horses were 
 cantering, and the prisoner was sitting in front of the cart ; on seeing 
 the deceased, he called to him twice to get out of the way, but from the 
 state he was in, and the rapid pace of the horses, he could not do so, and 
 one of the cart wheels passed over him, and he was killed ; it was held, 
 that if a man drive a cart at an unusually rapid pace, whereby a person is 
 killed, though he calls repeatedly to such person to get out of the way, if, 
 from the rapidity of the driving, or from any other cause, the person 
 cannot get out of the way in time enough, but is killed, the driver is in law 
 guilty of manslaughter ; and that it is the duty of every man, who drives 
 any carriage, to drive it with such care and caution as to prevent, as far 
 as in his power, any accident or injury that may occur (m). 
 
 Upon an indictment for manslaughter, the evidence was, that the 
 prisoner, being employed to drive a cart, sat in the inside instead of 
 attending at the horse's head, and while he was sitting there, the cart went 
 over a child, who was gathering uj) flowers on the road. Bayley, B., 
 held that the prisoner, by being in the cart, instead of at the horse's head, 
 or by its side, was guilty of negligence ; and death having been caused by 
 such negligence, he was guilty of manslaughter {v). 
 
 iq) R. V. Hutohinson, 9 Cox, 555. 1 East, P. C. 263, 264. 
 This report is manifestly imperfect, and, (<) Boss v. Litton, 5 C. & P. 407, Den- 
 as counsel are never present as counsel man, C.J. R. v. Grout, 6 C. & P. 629, 
 when the grand jury are charged, is not BoUand, B., Park, J. 
 hkely to be the report of any barrister. (u) R. v. Walker, 1 C. & P. 320, Gar- 
 
 (r) R. V. Salmon, 6 Q.B.D. 79 : 50 L. J. row, B. 
 
 M. C. 25. (v) R. V. Knight, 1 Lew. 168. This rule 
 
 (a) Fost. 263. Anon,, Old Bailey, 1704: applies as much to bicycles, motor-cars,
 
 CHAP. I.J Lawful Acts Imffo'perly Performed. 795 
 
 Ujjon an indictment for manslaughter, it appeared that there were 
 two omnibuses, which were running in opposition to each other, galloping 
 along a road, and that the prisoner was driving that on which the deceased 
 sat, and the witnesses for the prosecution stated that the prisoner was 
 whipping his horses just before his omnibus upset. The defence was, that 
 the horses in the omnibus driven by the prisoner took fright and ran away. 
 Patteson, J., said : ' The cpiestion is, whether you are satisfied that the 
 prisoner was driving in such a negligent manner that, by reason of his 
 gross negligence, he had lost the command of his horses ; and that depends 
 on whether the horses were unruly, or whether you believe that he had 
 been racing with the other omnibus, and had so urged his horses that he 
 could not stop them ; because, however he might be endeavouring to stop 
 them afterwards, if he had lost the command of them by his own act, 
 he would be answerable : for a man is not to say, " I will race along a road, 
 and when I am got beyond another carriage I will pull up." If the 
 prisoner did really race, and only when he had got past the other 
 omnibus endeavoured to pull up, he must be found guilty ; but if you 
 believe that he was run away with, without any act of his own, then he 
 is not guilty. The main questions are, were the two omnibuses racing ? 
 and was the prisoner driving as fast as he could, in order to get past the 
 other omnibus ? and had he urged his horses to so rapid a pace, that he 
 could not control them ? If you are of that opinion you ought to convict 
 him ' {w). 
 
 S. and 0. were indicted for the manslaughter of D. The prisoners, 
 who were each driving a cart and horse, were seen two miles and a half 
 from the place where the deceased was killed. S. there paid the toll. 
 Both prisoners then appeared to be intoxicated. They were next seen at 
 a bridge, over which they passed at a gallop, the one cart close behind 
 the other. A person there told them to mind their driving ; this was 
 990 yards from the place where the deceased was killed. They were next 
 seen forty-seven yards beyond the place where the deceased was killed. 
 The carts were then going at a quick trot, one closely following the other. 
 At a turnpike-gate a quarter of a mile from that place S., who appeared 
 all along to have been driving the first cart, told the toll-gate keeper, 
 ' We have driven over an old man ' ; and desired him to bring a light, 
 and look at the name on the cart, on which 0. pushed on his cart, and told 
 S. to hold his bother, and they then started off at a quick pace. They 
 were subsequently seen at two other places, at one of which S. said he had 
 sold his concern to 0. The surgeon stated that the deceased had a mark 
 on his body, which would correspond with the wheel of a cart, and also 
 several other bruises, and although he could not say that both carts had 
 passed over the body, it was possible that both might have done so. For 
 the prosecution it was contended, that it was perfectly immaterial in 
 point of law whether one or both carts had passed over the deceased. 
 The prisoners w^ere in company, and had concurred in jointly driving 
 
 and mechanically propelled vehicles as to R. v. Davi.s, Old Bailey, Jan. 9, 1908, 
 
 vehicles drawn by animals or propelled Bigham, J., 43 Law Journal (Newsp.) 38, 
 
 by hand. For conviction.s of man- and R. v. Gylee, 1 Cr. Ajjp. R. 242: 73 J.P. 
 
 •slaughter by furiously riding a bicycle see 72, and R. v. Dalloz, 1 Cr. App. R. 258. 
 R. V. Parker, 59 J. P. 793 ; R. v. Tliirgood, {w) R. t-. Timmins, 7 C. & P. 499, Patto 
 
 'a3 J. P. 442. As to motor-cars, sec son, J.
 
 796 Of Homicide. [book ix. 
 
 furiously along the road ; that was an unlawful act, and as both had 
 joined in it, each was responsible for the consequences, though they 
 might arise from the act of the other. For the prisoners it was urged 
 that the evidence only proved that one of the prisoners ran over the 
 deceased, and that the other was entitled to be acquitted. Pollock, C.B. : 
 ' I think that is not so. I think the counsel for the Crown is right in his 
 law. If two persons are in this way inciting each other to do an unlawful 
 act, and one of them runs over a man, whether he be the first or the last, 
 he would be equally liable. The person who runs over the man would 
 be a principal in the first degree, and the other a principal in the second 
 degree.' And in summing up. Pollock, C.B., said : ' The prisoners are 
 charged with contributing to the death of the deceased by their negligence 
 and improper conduct ; and if they did so, it matters not whether he was 
 deaf, or drunk, or negligent, or in part contributed to his own death ; for in 
 this consists a great distinction between civil and criminal proceedings {x). 
 If two coaches run against each other, and the drivers of both are to 
 blame, neither of them has any remedy for damages against the other. 
 But in the case of loss of life, the law takes a totally different view ; for 
 there each party is responsible for any blame that may ensue, however 
 large the share may be ; and so highly does the law value human life, 
 that it admits of no justification wherever life has been lost, and the 
 carelessness or negligence of any one person has contributed to the death 
 of another person.' He then directed the jury on the other point in the 
 manner above mentioned {y). 
 
 On an indictment for manslaughter it appeared that the two prisoners 
 were in a state of partial intoxication, and drove a gig along a road at a 
 very rapid pace, and met three men, and at that time they were driving 
 rapidly down a hill, and when the three men got to the top, which was 
 thickly shaded with trees, they found the deceased lying insensible in the 
 middle of the road, presenting all the appearance of having just been run 
 over by some vehicle, and he shortly afterwards died. He had been deaf 
 from his childhood, and had contracted an inveterate habit of walking 
 all hours in the middle of the road, though he had been frequently warned 
 of the probable consequences of doing so. It was contended that the 
 prisoners ought to be acquitted, as the deceased had contributed to his 
 own death. Kolfe, B., said: ' Whatever may have been the negligence 
 of the deceased I am clearly of opinion that the prisoners would not be 
 thereby exonerated from the consequences of their own illegal acts, which 
 would be traced to their negligent conduct, if any such existed. I am 
 of opinion, that if any one should drive so rapidly along a great thorough- 
 fare leading to a large town, as to be unable to avoid running over any 
 pedestrian who may happen to be in the middle of the road, it is that 
 degree of negligence in the conduct of a horse and gig which amounts to 
 an illegal act in the eye of the law, and, if death ensues from the injuries 
 then inflicted, the parties driving are guilty of manslaughter, even though 
 considerable blame may be attributed to the deceased. There is a very 
 wide distinction between a civil action for pecuniary compensation for 
 
 {x) But see R. v. Birchall, 4 F. & F. (y) R. v. Swindall, 2 C. & K. 230. As 
 
 1087, R. V. Mastin, fi C. fr P. 396, and R. v. to contributory negligence, see fost, p. 
 
 Gylee, 1 Cr. App. R. 242. 807.
 
 CHAP. I.] Lawful Acts Impwperly Performed. 797 
 
 death arising from alleged negligence and a proceeding by way of indict- 
 ment for manslaughter. The latter is a charge imputing criminal negli- 
 gence, amounting to illegality ; and there is no balance of blame in 
 charges of felony ; but wherever it appears that death has been occasioned 
 by the illegal act of another, that other is guilty of manslaughter in point 
 of law, though it may be that he ought not to be severely punished. 
 If the jury should be of opinion that the prisoners were driving along the 
 road at too rapid a pace, considering the time and place, and were con- 
 ducting themselves in a careless and negligent way in the management 
 of the horse and gig, I am of opinion that such conduct amounts to 
 illegality, and that the prisoners must be found guilty on this indictment, 
 whatever may have been the negligence of the deceased himself ' {z). 
 
 Upon a trial for manslaughter it appeared that the prisoner was 
 standing up in a spring cart ; the reins were not in his hands, but lying 
 on the horse's back ; while the horse was trotting down a hill with the 
 cart, the deceased, a child about three years old, ran across the road before 
 the horse, and the wheel of the cart knocked it down and killed it. It did 
 not appear that the prisoner saw the child before the accident. Erie, J., 
 told the jury, that if the prisoner had had the reins, and by using them 
 could have saved the child, he was guilty of manslaughter ; but if they 
 thought he could not have saved the child by pulling the reins or other- 
 wise by their assistance, they must acquit him (a). 
 
 Where on an indictment for manslaughter, it appeared that the de- 
 ceased was knocked down by a car driven by the prisoner, and great 
 numbers were in the street at the time : Perrin, J., told the jury, that 
 this unusual concourse of people, instead of offering any extenuation for 
 the prisoner, or diminishing the criminality of his careless driving, if they 
 found it to have been such, would but be a circumstance to add to it, and 
 that it was his duty, as well as of all driving upon such occasions, to take 
 more than ordinary precautions against accidents, and to use more than 
 ordinary diligence for the safety of the public (b). 
 
 A person driving a carriage is not bound to keep on the ordinary side 
 of the road ; but if he does not do so, he is bound to use more care and 
 diligence, and keep a better look-out, that he may avoid collision, than 
 would be requisite if he were to keep to his proper side of the road (c). 
 
 Vessels (d). — An inquisition charged that the prisoner did * propel and 
 force ' a vessel against a skiff, whereby the deceased was drowned. The 
 counsel for the prosecution, in opening the case, said, that he ai^prehended 
 that the rule as to traversing the river Thames was the same as that 
 applicable to the mode of passing along any of the Queen's common 
 highways : therefore, if the speed at which, or the manner in which, the 
 prisoners were navigating the vessel, and were proceeding before they 
 saw the skiff, was such as to prevent them, after they did see it, from 
 
 (2) R. V. Longbottom, 3 Cox, 439. keep the left side of tlie road, and eonse- 
 
 (a) R. V. Dalloway, 2 Cox, 273. qiiciitly in nieetinj^ should pass eacii other 
 
 (h) R. V. Murray, 5 Cox, 509 (Ir.). on the whip liand.' See Leanic v. Bray, 3 
 
 (c) Pluckwell V. Wilson, 5 C. & P. 375, East, 593. 1 Beven, Negligence (3rd ed.), 
 
 Alderson, B. See 5 & (i Will. IV. c. 35, 541. 
 
 s. 78. In Christian's note, 1 Bl. Com. 74, (d) As to defaults of master and crew 
 
 it is said ' that the law of the road ia that of a ship causing danger to life, see 57 & 
 
 horses and carriages should respectively 58 Vict. c. GO, s. 225.
 
 798 
 
 Of Homicide, 
 
 [BOOK IX. 
 
 stopping in time to prevent mischief to the person in it, they would be 
 responsible for the offence of manslaughter, if his death happened in 
 consequence ; if, on a misty night, the prisoners were proceeding at such 
 a rate that they could not stop in time, their so proceeding was illegal, 
 and, as death ensued, they were responsible. Parke, B. : ' You have 
 stated the law most correctly. There is no doubt that those who navi- 
 gate the Thames improperly, either by too much speed, or by negligent 
 conduct, are as much liable, if death ensues, as those who cause it on a 
 public highway, either by furious driving or negligent conduct ^ (e). 
 
 On an indictment for manslaughter it appeared that the prisoner 
 was a pilot, and was on board a Portuguese barque sailing down the 
 Thames ; the barque was manned entirely by Portuguese, who did not 
 understand English or nautical directions. The deceased was shrimping 
 in a small boat, and while such occupation is going on the boat is kept 
 motionless by the shrimp net. When the barque was about a quarter of 
 a mile distant the boat made a signal to her, and when she was within 
 twenty yards the deceased hailed her. The prisoner called to the Portu- 
 guese helmsman to turn the vessel to the starboard, but the helmsman, 
 not understanding the prisoner's directions, steered to the larboard 
 {i.e. port) ; the barque struck the deceased and killed him. Denman, 
 C.J., after consulting Alderson, B., told the jury : ' The law is, that if 
 the prisoner has produced the death by any conduct of his, he is guilty of 
 manslaughter. It appears to me that he was the person guiding and 
 directing the vessel, and that he is responsible for its management. 
 It is extremely unfortunate that he did not, in the first instance, make the 
 foreigners understand such simple directions as starboard and larboard. 
 You will consider whether there was some negligence upon the part of the 
 prisoner in not making the foreigners understand thoroughly. 1 take 
 your opinion whether he was guilty of negligence in this respect, and 
 whether that negligence caused the death. If you think so, you will find 
 him guilty ' (/). 
 
 The captain and pilot of a steamer were indicted for manslaughter 
 in causing a death by running down a smack, and it appeared that at the 
 time the steamer started there was a man forward in the forecastle to 
 keep a look-out, but at the time when the accident happened, which was 
 about an hour afterwards, the captain and pilot were both on the bridge 
 which communicates between the paddle-boxes ; the night was dark, 
 and it was raining hard ; the steamer had a light at each end of the 
 topsail yard ; an oyster smack, on board which the deceased was, was 
 
 (e) R. V. Taylor, 9 C. & P. 672. Parke, 
 B., also said : ' The allegation in the in- 
 quisition is, that the defendants forced 
 and prof)elled the vessel against the skiff : 
 evidence against those who gave the 
 immediate orders will be necessary to 
 sustain this allegation.' In R. v. Lloyd, 
 1 C. & P. 301, Garrow, B., where an in- 
 dictment for manslaughter stated that 
 the prisoner ' did compel and force A. B. 
 and C. D. to leave ' a windlass, by means 
 of which the death was occasioned, and it 
 appeared that the prisoner, who was 
 
 working one handle of the windlass, went 
 away, and A. B. and C. D., then finding 
 they were not strong enough to hold the 
 windlass without him, let go their hold, 
 by reason of which the deceased was 
 killed, it was held that the words ' did 
 compel and force ' must be taken to mean 
 personal affirmative force applied to A. B. 
 and C. D., and therefore the prisoner must 
 be acquitted. These decisions turn on 
 pleading points. 
 
 (/) R. V. Spence, 1 Cox, 352. 
 
 i
 
 CHAP. I] Laivful Acts Improperly Performed. 799 
 
 coming up the Thames without any light on board ; the deceased was 
 below : a boy who was on board the smack stated that when the steamer 
 struck the smack he got on board the steamer, and found nobody forward ; 
 other witnesses were present to shew that no person was forward on the 
 look-out at the time. Park, J., said, ' Then the captain is not responsible 
 in felony ; it is the fault of the person who ought to be there, and who may 
 have disobeyed orders ; if the captain leaves the pilot on the paddle-box, 
 as he did here, he is not criminally responsible. In a criminal case every 
 man is answerable for his own acts ; there must be some personal act ; 
 these persons may be civilly responsible.' Alderson, B. : 'If you could 
 shew that there was a man at the bow, and that the captain had said, 
 " Come away, it 's no matter about looking out," that would be an act of 
 misconduct on his part. If you can shew that the death of the deceased 
 was the result of any act of personal misconduct on the part of the captain, 
 you may convict him." Park, J., said, ' Supposing he had put a man 
 there, and had gone to lie down, and the man had walked away, do you 
 mean to say he would be criminally responsible ? And you must 
 carry it to that length, if you mean to make anything of it.' Alderson, 
 B. : ' I think this case has arrived at its termination ; there is no act of 
 personal misconduct or personal negligence on the part of these persons 
 at the bar ' (g). 
 
 On a trial for manslaughter of a person who was burnt in a ship, 
 where the prisoner had struck a light with a match, and lighted a candle, 
 in a part of the ship forbidden by the ship's regulations, and had thrown 
 down the match before it was extinguished, but a period of six hours 
 elapsed without sign of fire by sight or smell ; BramweU, B., thought the 
 evidence too slight to justify a conviction (h). 
 
 Mines. — Where an indictment for manslaughter alleged that the 
 prisoner was employed to superintend and keep in motion the working 
 of an engine at a colliery for pumping out the water from the colliery, 
 and thereby keeping a clear course for the passage of air and the 
 dispersing of foul air, and that the prisoner neglected to superintend 
 and keep in motion the working of the engine, and did thereby 
 prevent a clear course being left for the passage of the air, and 
 did cause noxious gases to accumulate, and then went on to state 
 that an explosion took place and death ensued ; which allegations 
 were proved. It was objected that the charge in the indictment was of 
 non-feasance only and not of misfeasance and that mere non-feasance 
 did not make a man criminally responsible. Wightman, J., ruled 
 that the facts as charged did not constitute an indictable offence, 
 observing that the indictment contained no direct allegation that it was 
 the duty of the prisoner to do that which he was alleged to have 
 neglected to do (i). 
 
 An indictment for manslaughter alleged that it was the duty of 
 the prisoner to cause to be ventilated a coal mine, and to cause it to 
 
 (<j) R. V. Allen, 7 C. & P. 153. Qucere, Fost. 322. R. v. Green, 7 C. & P. 1.5(i. 
 
 whether this case amounts to more than (h) R. v. Gardner, 1 F. & F. G(39. 
 
 this, that tlic captain had placed a proper (i) R. v. Barrett, 2 C. & K. 343. But 
 
 person forward, who had left his post see R. v. Lowe, pout, p. 800, and R. v. 
 
 without the captain perceiving it ? See Hughe.«, post, p. 802.
 
 800 Of Homicide. [book ix. 
 
 be kept free from noxious gases, and tliat the prisoner feloniously omitted 
 to cause the mine to be ventilated, and that noxious gases accumulated 
 and exploded, whereby the deceased was killed. It appeared that the 
 deceased was killed by the explosion of fire damp in a coUiery, of which 
 the prisoner was a sort of manager, and it was imputed on the part of the 
 prosecution that this explosion would have been j^revented if the prisoner 
 had caused an air-heading to have been put up, as it was his duty to have 
 done. For the defence it was attempted to be proved that it was the 
 duty of one of the persons killed to have reported to the prisoner that an 
 air-heading was required, and that he had not done so. In summing up, 
 Maule, J., said : ' The questions for you to consider are, whether it was 
 the duty of the prisoner to have directed an air-heading to be made in this 
 mine ; and whether, by his omitting to do so, he was guilty of a want of 
 reasonable and ordinary precaution. If you are satisfied that it was the 
 plain and ordinary duty of the prisoner to have caused an air-heading to 
 be made in this mine, and that a man using reasonable diligence would 
 have done it, and that, by the omission, the death of the deceased occurred, 
 you ought to find the prisoner guilty of manslaughter. It has been 
 contended that some other persons were, on this occasion, also guilty of 
 neglect ; still, assuming that to be so, their neglect will not excuse the 
 prisoner ; for if a person's death be occasioned by the neglect of several, 
 they are all guilty of manslaughter ; and it is no defence for one, who was 
 negligent, to say that another was negligent also, and thus, as it were, to 
 try to divide the negligence among them ' {j). 
 
 Upon an indictment for manslaughter it appeared that the prisoner 
 was an engineer, and his duty was to manage a steam engine employed 
 for the purpose of drawing uj) miners from a coal pit ; and when the skip 
 containing the men arrived at the pit's mouth his duty was to stop the 
 revolution of the windlass, so that the men might get out. On the day in 
 question he deserted his post, leaving the engine in charge of an ignorant 
 boy, who, before the prisoner went away, declared himself to the prisoner 
 to be utterly incompetent to manage such a steam engine as the one 
 entrusted to him. The prisoner neglected this warning, and threatened 
 the boy, in case he refused to do as he was ordered. The boy superin- 
 tended the raising of two skips from the pit with success ; but on the 
 arrival at the pit's mouth of the third, containing four men, he was unable 
 to stop the engine, and the skip being drawn over the pulley, one of the 
 men was thrown down the shaft of the pit, and killed on the spot. The 
 engine could not be stopped, ' in consequence of the slipper being too low,' 
 an error which any competent engineer could have rectified, but which 
 the boy in charge of the engine could not. For the prisoner it was con- 
 tended that a mere omission or neglect of duty could not render a man 
 guilty of manslaughter (k). Campbell, C.J., said : ' I am clearly of 
 opinion that a man may, by a neglect of duty, render himself Hable to be 
 convicted of manslaughter, or even of murder ' (l). 
 
 {)) R. V. Haines, 2 C. «fe K. 3C8. See R. Campbell discussed this case with Mr. 
 
 V. Swindall, 2 C. & K. 230, ante, p. 796, as Greaves, Q.C., and they fully concurred 
 
 to the last point. that a man might render himself equally 
 
 (k) R. V. Green, and R. v. Allen, ante, culpable by neglecting to do his duty as by 
 
 p. 799. a wilful act. E.g., it is the duty of a points- 
 
 (t) R. V. Lowe, 3 C. & K. 123. Lord man to turn the switches on the approach 
 
 m
 
 CHAP I] Lawful Acts Imfroferly Performed. 801 
 
 Upon a trial for manslaughter, it appeared that it was the prisoner's 
 duty to attend to a steam engine, but on the occasion in question he had 
 stopped the engine and gone away, and that, during his absence, a person 
 came and put it in motion, and being unskilled was unable to stop it again, 
 and in consequence of the engine being thus put in motion, the deceased 
 was killed. Alderson, B., stopped the case, saying that the death was 
 the consequence, not of the act of the prisoner, but of the person who set 
 the engine in motion after the prisoner had gone away ; that it is necessary 
 in order to a conviction for manslaughter, that the negligent act which 
 causes the death should be that of the party charged (m). 
 
 Upon an indictment for manslaughter it appeared that the prisoner 
 was a banksman at the top of a shaft of a colliery, where there were an 
 engine and ropes to send down bricks and materials in a bucket, and draw 
 up the empty baskets. It was his duty to send down materials, and to 
 superintend the proper letting down of the buckets, and to place the stage 
 hereinafter mentioned. The buckets were run on a truck on to a movable 
 stage over half of the area of the top of the shaft, and there the bucket 
 was attached and lowered down, the stage being removed. The prisoner 
 on the occasion in question had omitted to put or cause to be put the stage 
 on the mouth of the shaft, and in the absence of the stage a bucket with 
 a truck and bricks ran along the tram-road, into the shaft, fell down the pit 
 and killed the deceased. It did not appear that the prisoner was directing 
 or driving the waggon at the time. It was left to the jury to say whether 
 the accident happened by negligence of the prisoner, and whether that 
 negligence arose from an act of omission or commission, and they found 
 that the death arose from the negligent omission of the prisoner in not 
 putting the stage on the mouth of the pit ; and, upon a case reserved. 
 Lord Campbell, C.J., delivered judgment : ' We are of opinion that this 
 conviction ought to be affirmed. It was the duty of the prisoner to 
 place the stage on the mouth of the shaft ; the death of the deceased 
 was the direct consequence of the omission of the prisoner to perform 
 this duty ; if the prisoner, of malice aforethought, and with a premedi- 
 tated design of causing the death of the deceased, had omitted to place 
 the stage on the mouth of the shaft, and the death of the deceased had 
 thereby been caused, the prisoner would have been guilty of murder. 
 According to the common-law form of an indictment for murder by reason 
 of the omission of a duty, it was necessary that the indictment should 
 allege that it was the duty of the prisoner to do the act, or to state facts 
 from which the law would infer this duty {n). But it has never been 
 
 of a train, and if he wilfully neglects to such a degree of negligence as some proof 
 
 do so, whereby an accident happens and of malice.' ' There must be negligence so 
 
 a man is killed ; another man wilfully turns great as to satisfy a jury that the offender 
 
 some points with which he has nothing to had a wicked mind in the sense of being 
 
 do, and a death occurs ; tlie offence of reckless and careless whether death oc- 
 
 the one is precisely the same as that curred or not.' See R. v. NichoUs, 1.3 Cox, 
 
 of the other. A man who wilfully neglects 75, Brett, J. R. v. Handlcy, 13 Cox, 79. 
 
 to feed his infant child is just as guilty of R. v. Elliott, 16 Cox, 710. 
 murder as if he jKusoncd it. In Lynch v. {m) R. v. Hilton, 2 Lew. 214 ; Cf. 
 
 Nurdin, 1 Q.H. 2!t, Den man, C.J. said, that R. v. Waters, 6 C. & P. 328, ante, p. 
 
 ' between wilful mischief and gross negli- 667. 
 
 gence the boundary line is hard to trace ; (w) R. t'. Edwards, 8 C. & P. 611. R. 
 
 I should rather say, impossible. The r. Goodwin [1832], MS. C.S.G. : 1 Russ. 
 
 law runs them into each other, considering C. & M. (3rd ed.) 562, 
 
 VOL. I. 3 F
 
 802 
 
 Of Homicide. 
 
 [BOOK IX. 
 
 doubted that if death is the direct consequence of the mahcious omission 
 of the performance of a duty (as of a mother to nourish her infant child) (o), 
 this is a case of murder. If the omission was not mahcious, and arose 
 from negligence only, it is a case of manslaughter (p). 
 
 Railways. — The prisoner (who was indicted for manslaughter of G.) 
 was employed by H., a colliery proprietor, who was also owner of a 
 tramway crossing a turnpike road. It was the prisoner's duty to give 
 warning to any persons when any trucks might cross the said road. The 
 tramway was in existence before the road, and in the Act by which the 
 road was made there was no clause imposing on H. the duty of placing 
 a watchman where the tramway crossed the road. The deceased was 
 crossing the tramway, having received no warning that any trucks were 
 about to cross the road. As he was crossing, however, he was knocked 
 down by some trucks, and was killed. On inquiry, it appeared that the 
 prisoner was absent from his post at that time, although he had strict 
 orders never to be absent. Lush, J., said, that there being no clause in 
 the Act compelling H. to place a watchman where the tramway crossed 
 the road, the prisoner was merely the private servant of H. ; and that, 
 consequently his neghgence did not constitute such a breach of duty as 
 to make him guilty of manslaughter {q). 
 
 The prisoner was a porter at the Brighton Station, and it was his duty 
 to start the trains. It being an excursion day, three up trains came in 
 succession, all of them late, so that none of them could be started at the 
 proper time. There was a rule of the company, that under such circum- 
 stances no train should be started at intervals of less than five minutes 
 after the preceding one. The case against the prisoner was that he had 
 started the three trains so that there was only an interval of three or four 
 minutes between the second and third. The first train arrived safely at 
 the Clayton Tunnel (seven miles from Brighton), and passed safely through 
 and the man at the Brighton end of the tunnel, when it entered, tele- 
 graphed ' train in ' ; but, owing to some improper working of the signal 
 at his end, became confused, and on the arrival of the second train, not 
 feeling certain that he had received the signal which authorised him to 
 send on the second train, again telegraphed ' train in ' just as the second 
 train had gone into the tunnel. Fearing that the signal might be mis- 
 understood, he shewed the red flag, which he supposed the second train 
 had not seen, but which had the effect of pulling up the second train in 
 the tunnel. He again telegraphed to ask ' is that train out ? ' upon which 
 
 (o) The neglect on the part of the 
 mother to provide for the child must be 
 subsequent to the birth : thus mere failure 
 on the part of the mother to make proper 
 provision for her expected confinement 
 resulting in the complete birth and subse- 
 quent death of a child does not amount to 
 manslaughter (R. v. Izod, 20 Cox, 690, 
 Channell, J.), though if the jury are satis- 
 fied that the mother, having made up her 
 mind to be alone at the time of the birth, 
 caused its death by wicked negligence after 
 its birth, they should return a verdict of 
 guilty. R. V. Handley, 13 Cox, 79, Brett, 
 j., at p. 81. 
 
 (73) R. V. Hughes, Dears. & B. 248. 
 
 (g) R. V. Smith, 11 Cox, 210. Query 
 whether this case is accurately reported. 
 In all probability the facts proved at the 
 trial shewed that the j^risoner had only 
 neglected his duty to his employer by 
 being absent from his post, and that the 
 other servant managing the traflic, know- 
 ing he was absent, allowed the truck to 
 cross the road. To have proved the 
 prisoner guilty it must have been shown 
 that he neglected some duty which he 
 owed to the deceased as one of the public 
 using the highway.
 
 CHAP, i.i Lawful Acts Improperly Performed. 803 
 
 the man at the north end of the tunnel, supposing that this referred to 
 the first train, telegraphed ' train out,' whereupon the porter at the 
 Brighton end of the tunnel sent the third train into the tunnel, and this 
 ran into the second, which had come to a standstill in consequence of 
 seeing the red flag. Erie, C.J., is reported to have told the grand jury 
 that ' they must be satisfied before they found the bill that there was a 
 prima facie case of such criminal negligence as had been the proximate 
 and efficient cause of the catastrophe. The negligence imputed appeared 
 to be the sending of one train after another in a shorter interval of time 
 than, according to the rules, he ought to have done. A mistake, indeed, 
 was said to have arisen from the negligence of the defendant. Still, if 
 the particular negligence imputed to the prisoner appeared not to have 
 been the proximate cause of the catastrophe, the bill for manslaughter 
 ought not to be found ; and if it appeared that other causes had inter- 
 vened, the prisoner's negligence would not have been the proximate and 
 efficient cause of the deaths which had occurred. That this was in entire 
 accordance with the authorities will aj)pear from the most recent cases. 
 The case is to be clearly distinguished from that of joint negligence. It 
 is indeed well settled, that it is no defence in a case of manslaughter that 
 the death was caused by the negligence of others as well as by that of 
 the prisoner ; for if the death of the deceased be caused partly by the 
 negligence of others, the prisoner and all those others are guilty of 
 manslaughter (r). 
 
 (r) R. V. Ledger, 2 F. & F. 857. Erie, 
 C. J., refen-ed t(;R. v. Haines, supra, p. 799, 
 and R. v. Barrett, supra, p. 800. The 
 great importance of placing the culpa- 
 bility of railway officials in a clear light 
 has caused the following remarks, in which 
 the words ' neglect ' and ' negligence ' are 
 always used as importing such a degree 
 of culpa biUty as, if death ensued from it, 
 the offence would amount to manslaughter 
 at least. First, then, a clear distinction 
 exists between negligence and a wilful act 
 — a distinction well illustrated by the 
 numerous cases, in which the rule has 
 been established, that a master is answer- 
 able for the negligent, but not for the 
 wilfvl act of his servant. And it should 
 seem that if a railway official deliberately 
 starts a train in direct opposition to the 
 orders he has received, this is a wilful act, 
 and that, as it is an intentional violation 
 of his duty, it ought to be considered pre- 
 cisely in the same light as if it were done 
 by a person who had no authority what- 
 ever to interfere with the train. Next, 
 where a train is started before its proper 
 time, and it runs into another train and 
 kills a person, it seems that, whether the 
 starting of the train be considered as a 
 wilful or negligent act, the starter of the 
 train is guilty of manslaughter. If the 
 accident would not have happened if the 
 train had not been started till its proj)er 
 time the case seems clear from doubt, for 
 there the too early starting of the train is 
 manifestly the cause of the death ; and 
 
 supposing the accident would have hap- 
 pened had the train been started at the 
 proper time, still the death was caused at 
 the time when it occurred by the culpable 
 conduct of the starter of the train ; in 
 other words, the death arose from the 
 culpable act of the starter of the train, and 
 sooner than it otherwise would have done, 
 and the case seems to be ver^' similar to 
 those where the death of a person is accel- 
 erated by violence {ante, p. 692), and which 
 establish the piinciple that if a man is 
 caused bj' a wrongful act to die at any 
 time earlier than he otherwise would have 
 done, it is a case of manslaughter, and if 
 the accelerating the death of a sick man 
 be such an offence, it is not easy to suggest 
 a reason why the accelerating the death of 
 a healthy man is not so also. It must also 
 be observed, that in such a case all that is 
 certain is what has actually Imppcned ; it 
 is mere speculation what might have hap- 
 pened if the train had been started at its 
 proper time : the mere shifting of the 
 deceased from one scat to another might 
 have saved his life. Nor is it any excuse 
 that the train which was run into was met 
 ^v^th at a place at which it would not have 
 been but for the wilful or negligent act of 
 some other person : the answer to this 
 excuse is, that tlic time for starting having 
 been fixed expressly for the purpose of 
 preventing the possibility of such acci- 
 dents, whether they might arise from the 
 preceding train being met with on the line 
 through negligence or otherwise, it does 
 
 3 F 2
 
 804 
 
 Of Homicide. 
 
 [BOOK IX, 
 
 On an indictment for manslaughter against an engine-driver and 
 fireman, it apjDeared that by the general rules of the railway company 
 the fireman was always to follow the directions of the engine-driver, but 
 both of them had the duty of looking out, the engineman being directed 
 to attend to and act upon signals, the fireman obeying his directions. 
 There was a regular system of signals, in which a red flag by day shewed 
 that the train must stop instantly. On Ascot race day special instructions 
 were issued, which materially differed from the regular rules, and by them 
 the red signal did not mean, as it usually did, ' Stop,' but only ' Danger,' 
 and that meant that the engine should proceed with caution. The rules 
 prohibited engines from running tender foremost ; but there was no turn- 
 table at Ascot, and the engines consequently returned with their tenders 
 foremost. The return trains were started at irregular intervals of about 
 five minutes by the station-master and traffic manager at Ascot. One of 
 them stopped at Egham, and abovit five minutes afterwards another 
 was started from Ascot. The prisoners who had charge of it, did not 
 know that the preceding train would stop at Egham ; the stoppage 
 delayed it two or three minutes ; when the prisoners' train passed the 
 two stations before Egham the signal was red. There was contradictory 
 evidence as to the pace their train went ; but, after passing the auxiliary 
 
 not lie in the starter's mouth to excuse his 
 own wrongful act by such a wilful or 
 negligent act of another. Lastly, it is 
 submitted that the clear rule of the law is, 
 that every one who contributes by his 
 wilful or negligent act to the death of a 
 man is guilty of manslaughter, although 
 there be no community of purpose or 
 action between them, and although the act 
 of the one may be proximate to, and the 
 acts of the others remote from, the im- 
 mediate cause of death ; and that the 
 only correct question in these cases is, 
 whether the act did in any way whatever 
 contribute to the death. In R. v. Haines, 
 the prisoner's duty was to cause an air- 
 heading to be put in a mine ; and it was 
 alleged to be the duty of another person to 
 report to the prisoner that an air-heading 
 was wanting — such totally different duties 
 that the neglect of either could not possibly 
 be the joint neglect of the two parties. 
 Now Maule, J., said : ' It has been con- 
 tended that some other persons were also 
 guilty of neglect ; still, assuming that to 
 be so, their neglect will not excuse the 
 prisoner, for if a person's death be occa- 
 sioned by the neglect of several, they are 
 all guilty of manslaughter ; and it is no 
 defence for one who was negligent to say 
 that another was negligent also, and thus 
 as it were, try to divide the negligence 
 among them.' The decision is directly 
 against there being any limitation to joint 
 negligence or proximate negligence, and, 
 as far as it goes, entirely supports the posi- 
 tion above laid down. Suppose three 
 railway officials each negligently turned 
 three different sets of points at A., B., and 
 
 C, and that the result was an accident and 
 death, it is submitted that all of them 
 would be guilty of manslaughter, provided 
 the act of each contributed in any degree 
 to the accident. So again, suppose A. and 
 B. each negligently turned the points for 
 two different trains, so that the trains 
 were caused thereby to run into each other, 
 can it admit of doubt that both would be 
 responsible for the result ? In R. v. 
 Barrett, ante, p. 799, the decision turned 
 on the defect in the indictment, which, 
 being in the old form, contained no allega- 
 tion that it was in the jarisoner's duty to do 
 that wliich he was alleged to have neg- 
 lected to do. See also R. v. Swindall, ante, 
 p. 796; and R. v. Longbottom, ante, p. 797, 
 as to the negligence of the deceased form- 
 ing no excuse. — C. S. G. Where a fatal 
 railway accident had been caused by the 
 train running off the line at a spot where 
 rails had been taken up without allowing 
 sufficient time to rejjlace them, and also 
 without giving sufficient, or at all events, 
 effective warning to the engine-driver ; 
 and it was the duty of the foreman of plate- 
 layers to direct when the work should be 
 done, and also to direct effective signals 
 to be given : Held, that though he was 
 under the general control of an inspector 
 of the district, the inspector was not liable; 
 and that the foreman was so, assuming 
 his neghgence to have been a material and 
 substantial cause of the accident, even 
 although there had also been negligence 
 on the part of the engine-driver, in not 
 keeping a sufficient look-out. R. v. Benge, 
 4 F. & F. 504. 
 
 fll
 
 CHAP i.] Laivful Acts Imj)roperly Performed. ^05 
 
 signal before reaching Egham, the speed was slackened. The prisoners' 
 train, not having to stop at Egham, went right through the station ; a 
 minute or two afterwards the engineer saw the preceding train, and tried 
 to stop his train, but did not succeed in stopping the train before it ran 
 into the other train, and caused the death of several persons. Willes, J., 
 held that in a criminal prosecution an inferior officer must be held justified 
 in obeying the directions of a superior not obviously improper or contrary 
 to law ; that is, if an inferior officer acted honestly upon what he might 
 not unreasonably deem to be the effect of the orders of his superior, he 
 would not be guilty of culpable negligence, these orders not appearing to 
 him, at the time, to be improper or contrary to law. It appeared that 
 the prisoners had nothing to do with the general management or regulation 
 of the traffic, and their duty was to obey the special instructions issued 
 to them as well as they could, presuming there was no apparent illegality 
 in them ; and in that case, provided they put the best construction they 
 could upon them, and acted honestly in the belief that they were carrying 
 them out, they were not criminally responsible for the result. In a civil 
 case they might be responsible, but not criminally. As to the fireman, 
 as he was bound to follow the direction of the engineman, there was no 
 case. The jury then interposed, and said that they were all of opinion 
 that there was no case of culijable neghgence against either of the prisoners. 
 Willes, J., said he was quite of the same opinion, and thought that the 
 prisoners ought not to be convicted on a criminal charge. They had 
 instructions of an unusual kind, and were doing their best at the time to 
 prevent an accident ; that is, they were trying to put on the brake so near 
 to the time when, according to any view, they could be expected to have 
 done so, that they can hardly be deemed guilty of culpable negligence. 
 They only saw a red signal, and that, according to their special instructions, 
 did not mean ' Stop.' There was no symptom of danger ; they did not 
 know that the other train had stopped at Egham, and they had no 
 instructions to do so ; and so they went right on, although a minute 
 afterwards they did their best to stop the train. The arrangement was 
 such as could not but cause imminent danger of the second train running 
 into the first, which had passed only five or six minutes before, and had 
 stopped three minutes at Egham. He therefore concurred in the verdict. 
 In the course of the case, Willes, J., also held that a witness could not be 
 asked to give an explanation as to his construction of the effect of the 
 rules. The rules were in writing, and must speak for themselves, and 
 the judge must declare their meaning. The special rules, if not consistent 
 with the general rules, must override them, but their construction was 
 for the judge. And that an officer of the Board of Trade could not be 
 asked his opinion on the mode of conducting the trafiic (which rather 
 affected the company than the prisoners), nor whether in his judgment, 
 as a man of experience, the driver of the engine ought to be convicted 
 of negligence, nor (it seems) whether, in his opinion, the driver had kej^t 
 a sufficient look-out ahead ; but that he might be asked whether, sup- 
 posing the train was going about forty miles an hour, it could have been 
 stopped (&•). 
 
 {s) R. V. Trainer, 4 F. & F. 10.5.
 
 806 Of Homicide. Lbookix. 
 
 Steamships. — ^ Where on a trial for manslaughter a steam tug, of 
 which the prisoners were the captain and engineman, had exploded and 
 killed the deceased whilst the prisoners, with the deceased, the stoker, 
 were the only persons on board. The lever of the safety valve was 
 found to have been so tied down by weights that it could not act as a 
 safety valve. There was therefore considerably more pressure on the 
 boiler plates than they could bear. There was a government valve , one 
 of the keys to the lock of which was kept by a government inspector, 
 and the other ought to have been in possession of the captain ; but 
 there was no proof that he had the key at the time of the explosion, and 
 this valve was in such a state that it could not work. If it had been 
 working, no mischief could have occurred. At the time of the explosion 
 the tug was racing with a steamer, and had been so for some time. Against 
 the captain it was urged that he had the control of the tug, and that he 
 was guilty of culpable neglect in not seeing that the government valve 
 was put into working order, or in allowing the other valve to be in a state 
 in which it could not work. As to the engineer, it was his duty to attend 
 to the working of the engine, and he was bound to see that too much 
 steam was not generated. Hill, J., held that there was no case for a 
 conviction. There was a difficulty in shewing that either of the prisoners 
 were in a position to see that the government valve was out of order ; 
 and there was nothing inconsistent with the assumption that the deceased 
 himself could see it to be out of order ; and it was perfectly possible that 
 he might have put the valve in order without the intervention of either 
 of the prisoners ; if so, it was clear that a felony could not be made out (t). 
 
 On an indictment for manslaughter it appeared that thirteen persons 
 embarked in a boat, besides two watermen, of whom the prisoner was one ; 
 two witnesses proved, that by the swell of a steamer in motion the boat 
 was carried against the bows of another steamer, and that as soon as it 
 struck the prisoner called out to the passengers to sit still, but they all 
 jumped up and tried to lay hold of the steamer, and in consequence the 
 boat was upset. Had the passengers remained quiet, the witnesses be- 
 lieved the accident would not have happened. Another witness was of 
 opinion that the fault lay in the prisoner's pushing off the boat from the 
 stairs with one of the oars, he standing upright at the time, instead of 
 being seated and having the command of the sculls ; he ought to have 
 known the danger under such circumstances of crossing the strong tide that 
 rushed through the arch of the bridge ; but for his pushing off as he did, 
 the boat would have cleared the steamer. He thought the same thing 
 might have happened to the boat if there had been only three persons in 
 it or only one. Williams, J. : 'If the circumstance of the passengers 
 jumping up really caused the accident, the overloading of the boat was 
 immediately productive of such a result, and thus the prisoner is answer- 
 able ; for he should have contemplated the danger of such a thing 
 happening. If the fact of the prisoner standing up in the boat was the 
 cause of the catastrophe, then it may be gross negligence on his part to 
 have done so ; because he is supposed to be acquainted with the force and 
 
 (<) R. V. Gregory, 2 F. & F. 153. The other safety valve, or at least might have 
 
 deceased might liim.self have weighted the seen that it was so weighted.
 
 CHAP 1.1 
 
 Of Excusable Homicide. 
 
 807 
 
 velocity of the tide, and the danger of crossing it under the circumstances. 
 On the whole it is a question for the jury, whether the deceased met his 
 death either by the gross carelessness of the prisoner in the management 
 of the boat, or in taking on board a greater number of passengers than 
 it was capable of safely carrying ' {u). 
 
 Contributory Negligence.— It has been generally held that it is no 
 defence that the deceased was guilty of contributory negligence. The 
 sole question for the jury is, did the negligence of the prisoner materially 
 contribute to the death of the deceased (y). In R. v. Birchall {iv), Willes, J., 
 is reported to have said that a man was not criminally responsible for 
 negligence for which he would not be responsible in an action, but on 
 this case being cited in R. v. Jones {x), Lush, J., said that it was quite at 
 variance with what he had always heard, and he ruled that there was no 
 contributory negligence in merely getting into a vehicle and allowing 
 himself to be driven, even though the driver was obviously drunk {y). 
 
 In R. V. Dant (2), it was held that if a commoner turns out on a com- 
 mon, across which there are public footpaths, a horse which he knows to 
 be vicious and dangerous, and the horse kicks and kills a child, the 
 commoner is liable to be convicted of manslaughter, even though the 
 child has strayed on to the common a little way off the path (a). 
 
 In former editions reference was made to a local and personal Act 
 (7 & 8 Geo. IV., c. 75), (6) making it a misdemeanor to take on board 
 wherries, &c., more persons than by law allowed, if any such persons 
 should be drowned. The Act was repealed in 1859 (22 & 23 Vict., c. 133), 
 and the particular portion was not re-enacted. 
 
 PART IV.— OF EXCUSABLE AND JUSTIFIABLE HOMICIDE. 
 
 Preliminary. 
 
 By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), 
 s. 7, ' No punishment or forfeiture shall be incurred by any person who 
 shall kill another by misfortune, or in his own defence, or in any other 
 manner, without felony ' (c). 
 
 {u) R. V. Williamson, 1 Cox, 97, Gur- 
 ney, B., and Williams, J. 
 
 {v) See per Pollock, C.B., in R. v. 
 Swindall, ante, p. 796 ; R. i\ Haines, ante, 
 p. 800 ; R. V. Walker, 1 C. & P. .320. Per 
 Byles, J., in R. v. Kcw, 12 Cox, 355, and 
 in R. V. Hutchinson, 9 Cox, 555 ; and see 
 R. V. Dant, L. & C. 567, infra. 
 
 [w) 4 F. & F. 1087. 
 
 (.1) 11 Cox, 544. See Arclib. Cr. PI. 
 (23rd ed.) 800. 
 
 (y) It has been suggested in a colonial 
 case that evidence which would be ad- 
 missible to establish contributory negli- 
 gence might in a criminal case be admitted 
 to show that the death was not due to 
 the culpable negligence of the defendant. 
 See R. V. Bunney [1894], 6 Queensland 
 L. J. 80, Griffith, C.J. See 1 Beven, 
 Negligence (3rd ed.) 149. 
 
 (;) L. & C. 567 ; 34 L. J. M. C. 119. 
 
 (rt) Blackburn, J., said : ' I by no means 
 mean to say that the conviction might 
 not have been supported if the child had 
 been killed by the horse at the time when 
 she was straying upon the common far 
 from the public path.' 
 
 (h) It was observed upon 10 Geo. II. 
 c. 31 (rep.), containing a more severe 
 punishment for an offence of this kind, 
 that it might serve as a caution to stage 
 coachmen and others, who overload their 
 carriage for the sake of lucre, to the great 
 danger of the lives of their p.assengers, the 
 number of whom are regulated by Act of 
 Parliament. 1 East, P.C. 264. 
 
 (c) This section re-enacts 9 Geo. IV. 
 c. 31, s. 10, which Act by s. 1 repealed 
 the Statute of Gloucester, 6 Edw. I. c. 9, 
 under which the offender might bo put 
 to sue out a pardon. See Pollock and 
 Maitland, Hist. Eng. Law, vol. ii, p. 477.
 
 808 Of Homicide. [booK ix. 
 
 Excusable homicide is of two kinds : either per infortunium, by mis- 
 adventure ; or se et sua defendendo, upon a principle of self-defence. 
 The term excusable homicide imports some fault in the party by whom it 
 has been committed ; but of a nature so trivial that the law excuses such 
 homicide from the guilt of felony. Justifiable homicide is of several 
 kinds : as it may be occasioned by the performance of acts of unavoidable 
 necessity, where no shadow of blame can be attached to the party killing ; 
 or by acts done by the permission of the law, either for the advancement 
 of public justice, or for the prevention of some atrocious crime. 
 
 Sect. I a. — Of Excusable Homicide by Misadventure. 
 
 Homicide by misadventure is where in doing a lawful act, without any 
 intention of bodily harm, and using proper precautions to prevent 
 danger, one man unfortunately happens to kill another (d). The act 
 must be lawful ; for if it is unlawful, the homicide will amount to murder, 
 or manslaughter, according to the attendant circumstances {e), and it 
 must not be done with intent to inflict great bodily harm ; for then the 
 legality of the act, considered in the abstract, would be no more than a 
 mere cloak, or pretence, and consequently wovild avail nothing. The 
 act must also be done in a proper manner, and with due caution to prevent 
 danger (/). 
 
 Thus, if people, in following their common occupations, use due caution 
 to prevent danger, and nevertheless happen, unfortunately, to kill any one, 
 such killing is homicide by misadventure (g). Thus where a person, 
 driving a cart or other carriage, happens to drive over another and kill 
 him, if the accident happen in such a manner that no want of due care 
 could be imputed to the driver, it will be accidental death, and the driver 
 will be excused (h). Where a person was riding a horse, and the horse, 
 being whipped by some other person, sprang out of the road, and ran over 
 a child and killed it, this was held to be misadventure in the rider, but 
 manslaughter in the person who whipped the horse (i). 
 
 It has been shewn (j), that where parents, masters, and other persons, 
 having authority in foro domestico, are giving to those under their care 
 reasonable and moderate correction, if by the struggling of the party 
 corrected, or by some other misfortune death ensue, the killing will be 
 only misadventure {k). 
 
 As to accidental killing whilst engaged in a lawful sport, see ante, 
 p. 786. 
 
 The punishment of excusable homicide {d) 1 Eaf?t, P.C. 221, 2fiO, 261. Fost. 
 
 seems never to have gone beyond forfei- 258. 1 Hawk. c. 29, s. 1. 
 
 ture of some or all of the goods of the (e) Ante, pp. 65G, 780. 
 
 slaver (4 Bl. Com. 188. 1 Hale, 425, {f) 1 East, P.C. 261. 
 
 1 Hawk. c. 29, s. 20. Fost. 281), and (g) Ante, p. 789. I Hale, 472, 476. 
 
 pardon and writ of restitution were 1 Hawk. c. 29, ss. 2 & 4. Fost. 262. 1 
 
 granted as of course on paying the ex- East, P.C. 262. 
 
 pense of suing them out. To prevent (h) Fost. 263. 1 Hale, 476. 0. B. 
 
 this expense it became usual to direct Sess. before Mich. T. 1704. MS. Tracy, 
 
 acquittal where the killing was obviotisly .32. 1 East, P.C. 263. 
 
 by misadventure or in self - defence (i) 1 Hawk. c. 29, s. 3. 
 
 (4 Bl. Com. 188. Fost. 288. 1 East, (j) Ante, p. 767. 
 
 P.C. 222), and such practice is estab- {k) 1 Hale, 454, 473, 474. 4 Bl. Com. 
 
 Jished as law by the enactment in the 182. As to abu.se of the power to correct, 
 
 text. vide ante, p. 767.
 
 i 
 
 CHAP. I.] Of Excusable IJomicide. 809 
 
 Sect. I b. — Of Excusable Homicide in Self-Depence. 
 
 Homicide in self-defence is homicide committed se et sua defendendo, 
 in defence of a man's person or property, uj)on some sudden affray, 
 considered by the law as in some measure blameable, and barely 
 excusable (I). 
 
 When a man is assaulted in the course of a sudden brawl or Cjuarrel, 
 he may, in some cases, protect himself by killing the person who assaults 
 him, and excuse himself on the ground of self-defence. But, in order to 
 entitle himself to this plea, he must shew first, that before a mortal stroke 
 given he had declined further combat ; secondly, that he then killed his 
 adversary through mere necessity, in order to avoid immediate death (m). 
 Under such circumstances, the killing will be excusable self-defence, 
 sometimes expressed in the law by the word chance medley or casual 
 affray (n). 
 
 Homicide upon chance medley borders very nearly upon manslaughter, 
 and, in fact and experience, the boundaries in some instances are scarcely 
 perceivable, though in consideration of law they have been fixed (o). 
 In both cases it is supposed that passion has kindled on each side, and 
 blows have passed between the parties ; but in the case of manslaughter, 
 it is either presumed that the combat on both sides had continued to the 
 time the mortal stroke was given, or that the party giving such stroke 
 was not at that time in imminent danger of death (p). The true criterion 
 between them is stated to be this : when both parties are actually com- 
 bating, at the time the mortal stroke was given, the slayer is guilty of 
 manslaughter ; but if the slayer has not begun to fight, or, having begun, 
 endeavours to decline any further struggle, and afterwards, being closely 
 pressed by his antagonist, kills him to avoid his own destruction, this is 
 homicide excusable by self-defence {q). 
 
 In all cases of homicide excusable by self-defence, it must be taken 
 that the attack was made upon a sudden occasion, and not premeditated, 
 or with malice ; and, from the doctrine which has been above laid down, it 
 appears that the law requires that the person who kills another in his 
 own defence should have retreated as far as he conveniently or safely 
 could, to avoid the violence of the assault, before he turned upon his 
 assailant ; and that not fictitiously, or in order to watch his opportunity, 
 but from a real tenderness of shedding his brother's blood. For in no case 
 will a retreat avail, if it be feigned, in order to get an opportunity or 
 interval to enable the party to renew the fight with advantage (r). The 
 party assaulted must therefore flee, as far as he conveniently can, either 
 
 (/) Fost. 273. ' Self-defence culpable, 24 Hen. VIII. c. 5 (rep.), and the ancient 
 
 but through tlie benignity of the law ex- books (Staundf. Ki ; 3 Co. Inst. ,'57; Kel. 
 
 cusable.' (J.) G7) that it is properly applied to such 
 
 (m) 1 East, P.C. 280. Post. 273. killing as happens in self-defence uj)on a 
 
 (n) Or chaude melee, an affray in the sudden rencounter. 4 Bl. Com. 184. 
 
 heat of blood, or passion. Both of them Fost. 275. 
 
 are pretty much of the same import : but (o) Fost. 276. 
 
 the former has, in common speech, been (/j) Fost. 277. 
 
 often erroneously applied to any manner (7) 4 Bl. Com. 184. 
 
 of homicide by misadventure ; whereas (;) 1 Hale, 481, 483. Fost. 277. 4 Bl. 
 
 it appears by 22 Hen. VIII. c. 5 (rep.), Com. 185.
 
 810 Of Homicide. [book ix. 
 
 by reason of some wall,, ditch, or other impediment, or as far as the 
 fierceness of the assault will permit him ; for it may be so fierce as not 
 to allow him to yield a step without manifest danger of his life, or great 
 bodily harm, and then, in his defence, he may kiU his assailant instantly (s). 
 Before a person can avail himself of the defence, that he used a weapon 
 in defence of his life, he must satisfy the jury that that defence was 
 necessary ; that he did all he could to avoid it ; and that it was necessary 
 to protect his own life, or to protect himself from such serious bodily harm, 
 as would give him a reasonable apprehension that his life was in immediate 
 danger. If he used the weapon, having no other means of resistance, and 
 no means of escape, in such case, if he retreated as far as he could, he 
 would be justified {t). 
 
 Where the prisoner levelled a gun at the deceased, and it was a question 
 whether the gun went off accidentally or not, Cockburn, C.J., left the 
 following questions to the jury : — 1. Was the discharge of the gun 
 intentional or accidental ? (a) If intentional, was it from ill feeling to the 
 deceased, or desire to get rid of him ? in which case it would be murder, 
 (b) If it was not so done, was it done by the prisoner in self-defence, and 
 to protect himself from death or serious bodily harm intended towards 
 him by the deceased ? or (c) from the reasonable apprehension of it 
 induced by the words and conduct of the deceased, though the latter 
 may not, in fact, have intended death or serious injury ? (d) If not so, 
 was it done after an assault made by the deceased on the prisoner, though 
 short of an assault calculated to kiU or cause serious bodily injury ? or 
 (e) was it done under such a degree of alarm and bewilderment of mind, 
 caused by the conduct of the deceased, as to deprive the prisoner, for the 
 time, of his reason and power of self-control ? or (f) was the effect of the 
 language and conduct of the deceased such as to provoke the angry 
 passions of the prisoner so as to deprive him of his reason and power of 
 self-control ? 2. If the discharge of the gun was accidental, in which 
 case the prisoner cannot be convicted of murder, but may be of man- 
 slaughter, (a) Was the gun levelled by the prisoner at the deceased in 
 self-defence against an attack of the deceased endangering life or limb, 
 or reasonably apprehended by the prisoner as likely to do so, in either of 
 which cases the prisoner would be entitled to an acquittal, or (b) was the 
 gun levelled by the prisoner at the deceased unnecessarily under the 
 circumstances, but without the intention of discharging it, in which case 
 it would be manslaughter (w). 
 
 If A. challenges B. to fight, and B. declines the challenge, but lets A. 
 know that he will not be beaten, but will defend himself ; and then B., 
 going about his business and wearing his sword, is assaulted by A., and 
 killed ; this is murder in A. But if B. had killed A. upon that assault, 
 it had been se defendendo, if he could not otherwise have escaped ; or 
 bare manslaughter, if he could have escaped and did not {v). 
 
 The law appears to be that if the blow, from the effect of which the 
 deceased died, was given purely in self-defence, as distinguished from a 
 desire to fight, it is excusable, and it is a question for the jury whether 
 
 (s) 1 Hale, 483. 4 Bl. Com. 185. Colt man, J. See R. v. Bull, 9 C. & P. 22. 
 
 {t) R. V. Smith, 8 C. & P. 160, per Bos- (it) R. v. Weston, 14 Cox, 346. 
 
 anquet, J., prcescntibus, BoUand, B., and (y) 1 Hale, 453.
 
 CHAP I.] 
 
 Of Excusable JTomicide. 
 
 811 
 
 the prisoner struck the blow in self-defence, or whether he really desired 
 to fight (w). 
 
 As in the case of manslaughter upon sudden provocation, where the 
 parties light upon equal terms, all malice apart, it matters not who gave 
 the first blow : so in the case of excusable self-defence, it will seem that 
 the first assault in a sudden affray, all malice apart, will make no difference, 
 if either party quit the combat and retreat, before a mortal wound be 
 given {x). According to this doctrine, if A., upon a sudden quarrel, 
 assaults B. first and upon B/s returning the assault A. really and bona 
 fide flies, and being driven to the wall, turn again upon B. and kills him, 
 this will be se defendendo (y) ; but some writers have thought this opinion 
 too favourable, inasmuch as the necessity to which A. is at last reduced 
 originally arose from his own fault (2). With regard to the nature of the 
 necessity, it may be observed that the party killing cannot, in any case, 
 substantiate his excuse, if he kill his adversary even after a retreat, 
 unless there were reasonable ground to apprehend that he would 
 otherwise have been killed himself (a). 
 
 Under the excuse of self-defence, the principal civil and natural 
 relations are comprehended : therefore, master and servant, parent and 
 child, husband and wife, killing an assailant in the necessary defence of 
 each other, respectively, are excused ; the act of the relation assisting 
 being considered the same as the act of the party himself (6). So where 
 a son shot and killed his father, who was assaulting his mother. Lopes, 
 J., told the jury that if the accused had reasonable grounds for believing, 
 and honestly believed that his mother's life was in imminent peril, and 
 that the shot which he fired was absolutely necessary for the preservation 
 of her life, then he ought to be excused from the consequences of the 
 homicide (c). 
 
 If A., in defence of his house, kills B., a trespasser, who is endeavouring 
 to enter it, A. is guilty of manslaughter ; at least unless his life was in 
 danger. But if B. enters the house, and A., having first requested him 
 to depart, gently lays his hands upon him to turn him out, and then 
 B. turns upon him and assaults him, and A. then kills him, it will be 
 se defendendo, supposing that he was not able by any other means to 
 avoid the assault, or retain his lawful possession (d). In such a case 
 A., being in his own house, is not under an obhgation to retreat as in 
 other cases of self-defence, as that would be to give up the j^rotection 
 of his house to his adversary by his flight (e). 
 
 («') R. V. Knock, 14 Cox, 1. 
 
 (x) Fost. 277. 
 
 (y) 1 Hale, 482. 
 
 (2) 1 Hawk. c. 29, s. 17. Hale seems 
 also to (liplinguish tlie case of him who is 
 first attacked from the assailant, with 
 respect to the point of retreatinp;, 1 Hale, 
 482. Upon this subject East (IP. C. 281, 
 282), says : ' At an}' rate I think there is 
 great difficulty in applying tiie distinction 
 taken by Hale and Hawkins against liim 
 who makes the first assault, to the case of 
 mutual combat by consent, though upon 
 a sudden occasion, where neither of tlie 
 jiarties makes an attack till the other is 
 
 prepared ; because in these cases it 
 matters not who gives the first blow ; it 
 forms no ingredient in the merits of the 
 question.' 
 
 in) Fost. 27.3, 27.5, 289. 4 BI. Com. 
 184. 
 
 (6) 1 Hale, 484. 4 Bl. Com. 186. 
 
 (c) R. V. Rose, 1") Cxix, .540. 
 
 (d) 3 Edw. IIT. Cijron. 35. Crompt. 
 27 b. 1 Hale, 480. 
 
 (e) Vide post, p. 81;5. 1 Hale, 480. 
 In R. V. Dakin, 1 Lew. 10(5, where the 
 prisoner was a lodger at a house, to which 
 there was a back-way, of which the 
 prisoner was ignorant, it being the first
 
 812 
 
 Of Homicide. 
 
 [BOOK IX. 
 
 Necessity. — At tlie trial of an indictment for murder it appeared, upon 
 a special verdict, that the prisoners, D, and S., seamen, and the deceased, 
 a boy between seventeen and eighteen, were cast away in a storm on the 
 high seas, and compelled to put into an open boat, that the boat was 
 drifting on the ocean, and was probably more than a thousand miles 
 from land ; that on the twentieth day, when they had been nine days 
 without food, and seven without water, D., with the assent of S., killed 
 the boy, and both D. and S. fed on his flesh for four days ; that at the 
 time of the act there was no sail in sight, nor any reasonable prospect of 
 relief ; that under these circumstances there appeared to the prisoners 
 every probability that unless they then, or very soon, fed upon the boy, 
 or one of themselves, they would die of starvation : On a special verdict 
 finding these facts it was held that there was no proof of any such necessity 
 as could justify the prisoners in killing the boy, and that they were guilty 
 of murder (/). 
 
 According to Hale, a man cannot even excuse the killing of another 
 who is innocent, under a threat, however urgent, of losing his own life 
 if he does not comply ; so that if one man should assault another so 
 fiercely as to endanger his life, in order to compel him to kill a third person, 
 this would give no legal excvise for his compliance {g). But if the com- 
 mission of treason may be extenuated by the fear of present death, and 
 while the party is under actual compulsion (A), there seems to be no reason 
 why homicide may not also be mitigated upon the like consideration, of 
 human infirmity : though, where the party might have recourse to the 
 law for his protection from the threats used against him, his fears would 
 certainly furnish no excuse for committing the murder (^). 
 
 As the excuse of self-defence is founded on necessity, it can in no case 
 extend beyond the actual continuance of that necessity, by which alone 
 it is warranted [j) : for if a person assaulted falls upon the aggressor, after 
 the affray is over, or when he is running away, this is revenge, and not 
 defence (k). 
 
 night he had lodged at the house, and 
 some persons spht open the door of the 
 house in order to get the prisoner out and 
 ill-treat him ; Bayley, J., is reported to 
 have saiil : ' If the prisoner had known of 
 the back-way, it would have been his duty 
 to have gone out backwards, in order to 
 avoid the conflict.' ' But it is submitted 
 that the protection of the house extends 
 to each and every individual dwelling in it. ' 
 In R. V. Cooper, Cro. Car. 544, it was held 
 that a lodger might justify kilhng a per- 
 son endeavouring to break into the house 
 where he lodged with intent to commit a 
 felony in it; and see 1 East, P.C. 289. 
 289. Fost. 274; and Ford's case, Kel. 
 (J.) .51. Post, p. 816. C. S. G. 
 
 (/) R. V. Dudley, 14 Q.B.D. 273. The 
 case was tried at the Exeter Assises, and a 
 special verdict returned. The Assizes 
 were then adjourned to the Royal Courts 
 of Justice. The record was brought into 
 court, and filed, and the arguments were 
 
 heard by the judges not as commissioners 
 of assize but as judges of the High Court. 
 The prisoners were sentenced to death by 
 the Court, but the sentence was commuted 
 by the CroAvn to six months' imprison- 
 ment. See the comments of Sir J. F. 
 Stephen on this case, Stephen, ' Digest Ci*. 
 Law (6th ed.), 25. The Court considered, 
 but did not follow, the case cited by Bacon 
 of two shipwrecked persons getting on the 
 same plank. Bac. Elem. c. 5 ; Cf . 1 Hawk, 
 c. 28, s. 26. 4 Bl. Com. 186. 
 
 ig) 1 Hale, 51, 434. 
 
 (h) 1 East, P.C. 70, and the authorities 
 there cited. 
 
 (*■) 1 East, P.C. 294. Hale says that 
 in the most extreme case, where there 
 could be no recourse to law, the person 
 assailed ought rather to die himself than 
 kill an innocent person. 1 Hale, 51. 
 
 (/) 1 East, P.C. 293. 
 
 {/c) 4 Bl. Com. 293. 
 
 I
 
 CHAP. I. J Of Justifiable Homicide. 813 
 
 Sect. II. — Of Justifiable Homicide. 
 
 Justifiable homicide is of several kinds, as it may be occasioned by the 
 performance of acts required by law, or done by the 'permission of the 
 law (l). 
 
 The execution of criminals under a lawful sentence of death is an act 
 required by the law, and, therefore, justifiable (m). But acts not required 
 by law are not justifiable ; and, therefore, wantonly to kill the greatest of 
 malefactors, would be murder ; and all acts of official duty should, in the 
 nature of their execution, be in conformity with the judgment by which 
 they are directed (n). 
 
 Amongst the acts done by the permission of the law, for the advance- 
 ment of public justice, may be reckoned those of the officer, who, in the 
 execution of his office, either in a civil or criminal case, kills a person who 
 assaults and resists him. The resistance will justify the officer in 
 proceeding to the last extremity. So that in all cases, whether civil or 
 criminal, where persons having authority to arrest or imprison, and using 
 the proper means for that purpose, are resisted in so doing, they may 
 repel force with force, and need not give back ; and if the party 
 making resistance is unavoidably killed in the struggle, this homicide is 
 justifiable (o). This rule is founded in reason and public utility ; for few 
 men would quietly submit to an arrest, if, in every case of resistance, the 
 party empowered to arrest were obliged to desist, and leave the business 
 undone ; and a case in which the officer was held guilty of manslaughter, 
 because he had not first given back, as far as he could, before he killed the 
 party who had escaped out of custody, in execution for a debt, and 
 resisted being retaken (p), seems to stand alone, and has been 
 mentioned with disapprobation ((/), As to the authority of constables 
 and others to arrest, see ante, pp. 723 et seq. (r). 
 
 The protection above stated does not extend to sentries in the navy 
 or army. The prisoner was sentinel on board a ship in the Royal Navy, 
 when she was paying off. The orders to him from the preceding sentinel 
 were, to keep off all boats, unless they had officers with uniforms in them, 
 or unless the officer on deck allowed them to approach ; and he received 
 a musket, three blank cartridges, and three balls. The boats pressed ; 
 upon which he called repeatedly to them to keep off ; but one of them 
 persisted and came close under the ship ; and he then fired at a man who 
 was in the boat, and killed him. The jury found that the sentinel fired 
 
 {I) Ante, p. 808. arc apprehended, and who arc upon 
 
 (m) Fost. 207. 1 Hale, 496, 4 Bl. necessity slain, because tliey cannot other- 
 Corn. 178. wise be overtaken, it is no felony in the 
 
 (h) Ante, \). 705, and see 1 Hale, 501. officers or their assistants, tliougli the 
 
 2 Hale, 411. parties killed were innocent (2 Hale, 89, 
 
 (o) 1 Hale, 494. 2 Hale, 117, 118. 3 97). But it is doubtful wiiether nowadays 
 
 Co. Inst. 56. 1 Hawk. c. 28, ss. 17, 18, 19. so great a degree of severity would be 
 
 Fost. 270, 271. 4 Bl. Com. 179. 1 East, either justifiable or necessary (especially 
 
 P.C. p. .307. in the case of bare flight), unless there was 
 
 (p) 1 Rolle Rep. 189. a reasonable susj)icion of fclonv. See 1 
 
 (q) Fost. 271. 1 P:ast, P.C. 307. East, P.C. 303. R. r. Dadson, 2 Den. 35. 
 
 (r) It has been said, that if peace The old statute 2 Ed w. TIT. c. 3, as to night- 
 officers meet witli night-walkers, or per- walkers is repealed, and t lie right to arrest 
 sons unduly armed, who will not yield misdemeanants by niglit rests on statutes, 
 themselves, but resist or fly before they vide ante, pp. 729 et seq.
 
 814 
 
 Of Homicide. 
 
 [BOOK IX. 
 
 under the mistaken impression that it was his duty. On a case 
 reserved, the judges were unanimous that the killing was, nevertheless, 
 murder ; but were of opinion, that if the act had been necessary for the 
 preservation of the ship, as if the deceased had been stirring up a mutiny, 
 the sentinel would have been justified {rr). 
 
 An officer of justice may justify the kilHng of a person flying from arrest 
 for treason or felony (s). In the case of a riot or rebellious assembly, 
 peace officers and their assistants, endeavouring to disperse the mob, are 
 justified, both at common law and by the Riot Act, in proceeding to the 
 last extremity, in case the riot cannot otherwise be suppressed {t). And it 
 has been said, that perhaps the killing of dangerous rioters may be justified 
 by any private persons who cannot otherwise suppress them, or defend 
 themselves from them, inasmuch as every private person seems to be 
 authorised by the law to arm himself for the preservation of the peace {u). 
 
 On an indictment for shooting, vn\h. intent to do grievous bodily harm, 
 it appeared that the prisoner was a constable and employed to guard a 
 copse, from which wood had been stolen, and for this purpose carried a 
 loaded gun. From this copse he saw the prosecutor come out, carrying 
 Avood which he was stealing, and called to him to stop. The prosecutor 
 ran away, and the prisoner having no other means of bringing him to 
 justice fired, and wounded him in the leg. It was further alleged that the 
 prosecutor was actually committing a felony, he having been before con- 
 victed repeatedly of stealing wood {v) ; but these convictions were 
 unknown to the prisoner, nor was there any reason for supposing that he 
 knew the difference between the rules of law relating to felony and those 
 relating to less offences. Erie, J., told the jury that shooting with intent 
 to wound amounted to the felony charged, unless from other facts there 
 was a justification ; and that neither the belief of the prisoner, that it was 
 his duty to fire, if he could not otherwise apprehend the prosecutor, nor 
 the alleged felony, it being unknown to him, constituted such justification ; 
 and upon a case reserved, it was held that the conviction was right ; 
 for the prisoner was not justified in firing, because the fact that the 
 prosecutor was committing a felony was unknown to him at the time {w). 
 
 Prison officers are under the same special protection as constables {x) 
 and other ministers of justice; and, therefore, if in the necessary discharge 
 of their duty they meet with resistance, whether from prisoners in civil or 
 criminal custody, or from others in behalf of such prisoners, they are not 
 obliged to retreat as far as they can with safety, but may freely, and without 
 retreating, repel force by force ; and the killing of the party so resisting 
 
 (;t) R. v. Thomas, 1816, MS. Bayley, 
 J. The prisoner was tried at Nisi Prius, 
 4 M. & S. 441. 
 
 (s) ylwfe, p. 763. 
 
 (t) 1 Hale, 53, 494, 495. MS. Tracy, 36, 
 cited 1 East, P.O. 304. Vide ante, p.p 431 
 et seq. 
 
 (u) 1 Hawk. c. 28, s. 14, and see Fost. 
 272 ; Poph. 121. It was so resolved by 
 all the judges in Easter Term, 39 EUz., 
 though they thought it more discreet for 
 every one in such a case to attend and 
 assist the King's officers in preserving the 
 
 j)eace. And certainly, if private persons 
 interfere to suppress a riot, they must give 
 notice of their intention. 
 
 (v) These previous convictions rendered 
 the prosecutor's act a felony under 7 & 8 
 Geo. IV. c. 29, s. 39, now replaced by 24 
 & 25 Vict. c. 96, s. 33. 
 
 (w) R. V. Dadson, 2 Den. 35 ; sed contra, 
 R. V. Bentley, 4 Cox, 406, and see The 
 Abby, 5 Chr. Rob. (Adm.) 254, a case of 
 shooting at an Englishman and kilhng an 
 alien enemy. 
 
 (x) 61 & 62 Vict. c. 41, s. 10. 
 
 4
 
 CHAP I.] 
 
 Of Justifiable Homicide. 
 
 815 
 
 the gaoler, or his officer, or any person coming in aid of him, will be 
 justifiable homicide {y). 
 
 H., 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, came himself into his 
 park at night as if with the intent to steal the deer ; and being questioned 
 by the keeper, who knew him not, and refusing to stand or answer, he was 
 shot by the keeper. This was decided to be excusable homicide within 
 21 Edw. I. st. 2, De malefactorihus in parcis (z). 
 
 A man is justified in repelling force by force in defence of his person, 
 habitation, or property, against one who manifestly intends and endea- 
 vours, by violence or surprise, to commit a felony upon either. In these 
 cases he is not obliged to retreat, but may pursue his adversary till he 
 finds himself out of danger ; and if, in a conflict between them, he hap- 
 pens to kill, such killing is justifiable (a). But the rule does not apply 
 to any crime unaccompanied with force, such as pocket picking (6). The 
 intent to murder, ravish, or commit a felony attended with force or 
 surprise, should be apparent, and not be left in doubt ; so that if A, makes 
 an attack upon B., it must plainly appear by the manner of the assault, 
 the weapon, &c,, that the life of B. is in imminent danger ; otherwise his 
 killing the assailant wdll not be justifiable self-defence (c). There must be 
 an intention on the part of the person killed to rob, or murder, or to cause 
 some serious bodily injury to the person killing ; or the conduct of the 
 party must be such as to render it necessary on the part of the party 
 killing to do the act in self-defence (d). The rule extends only to felony ; 
 for if one comes to beat another, or to take his goods merely as a trespasser, 
 though the owner may justify assaulting him so far as to make him desist, 
 yet if he kills him, it is manslaughter (e). But if a house is broken open, 
 though in the day-time, with a felonious intent, it will be within the 
 rule (/). A person who was set to watch a yard or garden by his master, 
 was held not to be justified in shooting anyone who came into it in the 
 night, even if he saw him go into his master's hen-roost, and some dead 
 fowls and a crow-bar be found near him ; but if from the conduct of the 
 
 (y) Yost. 321. 1 Hale, 481, 490. 
 
 (z) 1 Hale, 40. By 21 Edw. I. st. 2, if 
 a forester, parker, or vvarrencr, found any 
 trespassers wandering within his liberty, 
 intending to do damage therein, who would 
 not yield, after hue and cry made to stand 
 unto the peace, but continued their malice, 
 and disobeying the King's peace, did flee 
 or defend themselves with force and arms, 
 if such forrestcr, parker, or warrener, or 
 their assistants, killed such offenders, 
 either in arresting or taking them, they 
 should not be troubled for the same, nor 
 suffer any punishment. 21 Edw. 1, st. 2, 
 was repealed by 7 & 8 Geo. IV. c. 27 (E) 
 and 9 Geo. IV. c. 53 (I). 3 & 4 Will. & M. 
 c. 10, was repealed by 16 Geo. III. c. 30, 
 and 4 & 5 Will. & M. c. 23. by 7 & 8 
 Geo. IV. c. 27, and 1 & 2 Will. IV. c. 32. 
 C. S. G. See ank, p. 772. 
 
 (a) Post. 273. Kel.{J.)128, 129. 1 Hale, 
 
 445, 481, 484, el seq. 1 Hawk. c. 28, ss. 21. 
 24. R. V. Bull, 9 C. & P. 22. 
 
 (b) 1 Hale, 488. 4 Bl. Com. 180. 'But 
 if one pick my pocket, and I cannot other- 
 wise take him than by killing him, this 
 falls under tlie general rule concerning the 
 arresting of felons.' I East, P.C. 273. 
 
 (c) 1 Hale, 484. 
 
 (d) R. V. Bull, 9 C. & P. 22, Vaughan 
 and Williams, JJ. See R. v. Symondson, 
 60 J. P. 645, ante, p. 701, note (»). 
 
 (e) 1 Hale, 485, 486. 1 Hawk. c. 28, 
 s. 23. Kel. (J.) 132. 1 East, P.C. p. 272. 
 
 (/) 1 East, P.C. 273. In 4 Bl. Com. 
 180, it is said that the rule reaches not to 
 the breaking open of an}^ house in the day- 
 time, unless it carries with it an attempt 
 of robbery also. But it will apply where 
 the breaking is such as imports an apparent 
 robbery, or an intention or attempt of 
 robbery. 1 Hale, 488.
 
 816 Of Homicide. [book ix. 
 
 trespasser he had fair ground to beUeve his own life in actual danger, he 
 would be justified in shooting him {g). 
 
 In cases of this kind it is essential to ascertain the grounds which the 
 slayer had for supposing that the person slain had a felonious design 
 against him ; more especially where it afterwards appears that no such 
 design existed. One L. was indicted for killing F., under the following 
 circumstances : — L. being in bed and asleep, his servant, who had procured 
 F. to help her about the work of the house, and had gone to the door 
 about twelve o'clock at night to let F. out, conceived that she heard 
 thieves about to break into the house : upon which she ran to L., and 
 told him of what she apprehended. L. arose immediately, took a drawn 
 sword, and with his wife, went downstairs ; when the servant, fearing that 
 her master and mistress should see F., hid her in the buttery. L. with 
 his sword searched the entry for thieves, when his wife spying F. in 
 the buttery and not knowing her, conceived her to be a thief, and cried 
 out to her husband in great fear, ' Here they be that would undo us ; ' 
 when L., not knowing that it was F, in the buttery, hastily entered with 
 his drawn sword, and being in the dark, and thrusting before him with 
 his sword, thrust F. under the left breast, and gave her a mortal wound, 
 of which she instantly died (A). This was ruled to be misadventure. 
 Foster, J., appears to have thought that it would have been better ruled 
 manslaughter ; due circumspection not having been used {i). But in the 
 view of East {j), upon the peculiar facts and circumstances of the trans- 
 action, the case is more properly one of those mentioned by Hale {k), 
 where the ignorance of the fact excuses the party from all sort of blame. 
 Hawkins mentions the case as one in which the defendant might have 
 justified the fact under the circumstances, on the ground that it had 
 not the appearance even of a fault {I). 
 
 Questions sometimes arise as to what is enough to establish that the 
 deceased intended to commit such felony as would justify the slayer in 
 killing him. M. on words of anger, threw a bottle with great force at 
 the head of C, and immediately drew his sword, upon which C. returned 
 a bottle with eqvial violence (m) ; and it was held that this was lawful 
 and justifiable on the part of C, on the ground that he that has manifested 
 malice against another, is not fit to be trusted with a dangerous weapon 
 in his hand (w). There seems to have been good reason for C. to suppose 
 that his life was in danger : and it was probably on the same ground that 
 the judgment in Ford's case proceeded. F. being in possession of a 
 room at a tavern, several persons insisted upon having it, and turning 
 him out, which he refused to submit to ; thereupon they drew their swords 
 upon F. and his company, and F. drew his sword, and killed one of them ; 
 and this was adjudged justifiable homicide (o). For if several attack a 
 
 (;/) K. V. Scully, 1 C. & P. 319, Gar- {h) Levet's case, Cro. Car. 538. 1 Hale, 
 
 row, B. ' 24 Hen. VIII. c. 5, by which 42, 474. («) Fosfc. 299. 
 
 persons kilUng those who were attempting {j) 1 East, P.O. 274, 275. 
 
 to rob or murder, or commit burglary, {k) 1 Hale, 42; a,\\Avide ante, p. 101. 
 
 were not to suffer any forfeiture of (I) 1 Hawk. c. 28, s. 27. 
 
 goods, &c., but to be fully acquitted, (m) Mawgridge's case, Kel. (J.) 119, 
 
 and wliich was referred to in the second 128, ante, p. 713. 
 
 edition of this work was repealed 9 Geo. («) Kel. (J.) 128, 129, Holt, C.J. 
 
 IV. c. 31, in 1828.' C. S. G. (o) Ford's case, Kel. (J.) 51.
 
 CHAP. I.] Of Justifiable Homicide. 817 
 
 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 {f). But no 
 assault, however violent, will justify killing the assailant under the plea 
 of necessity, unless there be a plain manifestation of a felonious intent {q). 
 And it may be further observed, that a man cannot, in any case, justify 
 killing another by a pretence of necessity, unless he were wholly without 
 fault in bringing that necessity upon himself ; for, if he kills any person 
 in defence of an injury done by himself, he is guilty of manslaughter at 
 least ; as in the case where a body of people wrongfully detained a 
 house by force, and killed one of those who attacked it, and endeavoured 
 to set it on fire (r). 
 
 Foster, J., was of opinion, that upon the same principle upon which 
 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. Harley sitting in 
 Council, discharged the parties who were supposed to have given the 
 Marquis a mortal wound from all manner of prosecution on that account, 
 and declared the killing to be a lawful and necessary action (s). 
 
 Where an act obviously felonious is attempted upon anyone, not only 
 may the party assaulted repel force by force, but his servant attending 
 him, or any other person present, may interpose to prevent the mischief ; 
 and if death ensues, the party so interposing will be justified {t). 
 
 But, in cases of mutual combats or sudden affrays, a person inter- 
 fering should act with much caution. Where, indeed, a person interferes 
 between two combatants with a view to preserve the peace, and not to 
 take part with either, giving due notice of his intention, and is under the 
 necessity of killing one of them in order to preserve his own life or that 
 of the other combatant, it being impossible to preserve them by other 
 means, such killing will be justifiable {u) ; but, in general, if there is an 
 affray and an actual fighting and striving between persons, and another 
 runs in, and takes part with one party, and kills the other, it will not be 
 justifiable homicide, but manslaughter {v). 
 
 It should be observed, that as homicide committed in the prevention 
 of forcible and atrocious crimes is justifiable only upon the plea of neces- 
 sity, it cannot be justified, unless the necessity continues up to the time 
 when the party is killed. Thus, though the person upon whom a felonious 
 
 [p) 1 East, P.C. 276 ; and see 1 East, (q) 1 East, P.C. 277. 
 
 P.C. 243, where Ford's case is observed (r) 1 Hawk. c. 28, s. 22. 1 Hale, 440, 
 
 upon, and it is said that the memorandum 441. 
 
 in the margin of Kelyng to in(|uirc of this (s) 9 Anne, c. 16, repealed in 1828 (9 Geo. 
 
 case, and the qucere used by Foster, J., in IV. c. 31). Fost. 275. 
 
 citing it, were probably made on the (<) 1 Hale, 481, 484, Fost. 274. R. v. 
 
 ground of the reason suggested in the Rose, rtw/e, p. 81 1. In Handcock i-. Baker, 
 
 margin of Kelyng for the judgment, 2 B. & P. 26.5, Chambre, J., said : ' It is 
 
 namely, that the killing by Mr. Ford in lawful for a private person to do anything 
 
 defence of his own possession of the room to prevent the perpetration of a felony,' 
 
 was justifiable, which, under those circum- Vide ante, pp. 727, 81.5. 
 
 stances, might be fairly questioned : as, (u) 1 Hale, 484. 1 East, P.C. 290. 
 
 on that ground, it might have been better (v) 1 East, P.C. 291, Vide ante, pp. 
 
 ruled to be manslaughter. 427, 718. 
 
 VOL. I. 3 o
 
 818 
 
 Of Homicide. 
 
 [BOOtC IX. 
 
 attack is first made is not obliged to retreat, but may pursue the felon 
 till he finds himself out of danger ; yet if the felon is killed after he has 
 been properly secured, and when the apprehension of danger has ceased, 
 such killing will be murder ; 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 {w). 
 
 PART v.— OF INDICTMENTS AND EVIDENCE ON TRIALS FOR 
 HOMICIDE, &c. 
 
 Sect. I. — Indictment. 
 
 By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), 
 s. 6, ' In any indictment for murder or manslaughter, or for being an 
 accessory to any murder or manslaughter, it shall not be necessary to set 
 forth the manner in which or the means by which the death of the deceased 
 was caused {x) but it shall be sufficient in any indictment for murder to 
 charge that the defendant did feloniously, wilfully, and of his malice 
 aforethought, kill and murder the deceased ; and it shall be sufficient in 
 any indictment for manslaughter to charge that the defendant did feloni- 
 ously kill and slay the deceased ; and it shall be sufficient in any indictment 
 against any accessory to any murder or manslaughter to charge the 
 principal with the murder or manslaughter (as the case may be) in the 
 manner hereinbefore specified, and then to charge the defendant as an 
 accessory in the manner heretofore used and accustomed ' {y). 
 
 Where several join in a murder, both the principal in the first degree 
 and the principal in the second degree may be charged that they feloniously, 
 wilfully, and of their malice aforethought murdered the deceased (2). 
 
 A count for being accessory after the fact to murder may be joined 
 with a count for murder, and according to the preponderance of authority 
 the Court will not in such case put the prosecution to elect on which count 
 they Adll proceed (a). 
 
 And as 24 & 25 Vict. c. 94, s. 1 (6) has made accessories before the fact 
 liable to be indicted as principals, an indictment may charge an accessory 
 before the fact and a principal in the same manner in which two principals 
 may be charged. And on such an indictment it is quite immaterial which 
 
 {w) 1 East, P.C. 293. 4 Bl. Com. 185. 
 1 Hale, 485. 
 
 (x) This applies equally where the death 
 is due to a culpable omission. R. v. 
 Smith, 11 Cox, 210. 
 
 (y) Taken from the Criminal Procedure 
 Act, 1851 (14 & 15 Vict. c. 100), s. 4, 
 which applied only to indictments for 
 murder or manslaughter. A serious 
 doubt was entertained whether in an in- 
 dictment against an accessory to murder 
 or manslaughter, where the accessory was 
 charged as an accessory and not as a 
 principal, it might not still be necessary 
 to adopt the old form of indictment, and 
 in order to render that course unneces- 
 sary, the new parts of this section were 
 introduced. S. 6 renders it unnecessary 
 to refer to the old decisions as to the 
 
 sufficiency of indictments for homicide. 
 
 The word ' indictment ' includes a 
 coroner's inquisition whereby any person 
 is charged with murder or manslaughter, 
 or as an accessory before the fact to either 
 of those offences. R. v. Ingham, 33 L. J. 
 Q.B. 183 ; 9 Cox, 508 ; iMst, p. 821. See 
 R. V. G. W. Ry. Co., 3 Q.B. 333. R. v. 
 King, 2 Cox, 95. 2 Co. Inst. 32, 550. 4 
 Co. Inst. 271. 
 
 [z) This gets rid of the difficulties of 
 pleading which existed at common law. 
 
 (a) 24 & 25 Vict. c. 94, s. 6, ante, p. 131. 
 R. V. Blackson, 8 C. & P. 43, Parke, B., and 
 Patteson, J. R. v. Tuffin, 12 July, 1903, 
 Darling, J. 19T.L.R.640. InR.z^.Bran- 
 non, 14 Cox, 394, Cockburn, J., required 
 the prosecution to elect in such a case. 
 
 (h) Ante, p. 130.
 
 CHAP. I.] 
 
 Indictment. 
 
 819 
 
 of the prisoners was principal in the first degree in the one case, or whether 
 the party were accessory before the fact or a principal in the other case, 
 and consequently the jury will be relieved from considering these 
 questions (c). 
 
 Names. — Where the name of the person killed is known it should be 
 correctly stated in the indictment : but errors and mis-descriptions can 
 be amended. In the case of an infant or of an unknown person the proper 
 description is a certain infant (male or female) child not named (cZ), or a 
 certain person whose name is to the jurors unknown [e). 
 
 Time and Place. — It would seem to be unnecessary for the indict- 
 ment to contain allegations of time and place (/). If a time is laid it 
 would seem that the date of the striking the blow should be given. If 
 from the evidence it appears that the deceased died more than a year and 
 a day from this date the prisoner will be entitled to be acquitted of 
 homicide {g) and in this sense no doubt the date is material. 
 
 Venue. — At common law murder, like all other offences, must be 
 inquired of in the county in which it was committed. It appears, however, 
 to have been a matter of doubt 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 either county (h). 
 
 By 2 & 3 Edw. VI. c. 24, s. 2 it was enacted, that the trial should be 
 in the county where the death happened. That enactment was repealed 
 in 1826 (7 Geo. IV., c. 64, s. 32) but under ss. 12, 13, of the repealing 
 Act (t) the prosecution may take place either in the county where the 
 injury was given or in that in which the death took place. The venue, 
 as stated in the margin of the indictment, is a sufficient allegation of 
 the place (/). 
 
 In R. V. Bexley {k) the prisoner was indicted at the Central Criminal 
 Court for the murder of her child aged eight weeks. She was seen one 
 afternoon at Willesden, within the jurisdiction of the Central Criminal 
 Court, and she there had the child with her and said she was going to see 
 her parents in Suffolk. She arrived that night at a house in Suffolk, 
 outside the jurisdiction of the Central Criminal Court ; she there had a" 
 parcel with her, but apparently no child. She returned next day to 
 
 (c) See R. v. Downing, 1 Den. .52; unle, 
 p. 148. 
 
 (d) R. V. Waters, 1 Den. 350 ; 2 C. & 
 K. 804. 
 
 (e) R. V. Stroud, 2 Mood. 270 ; 1 C. & 
 K. 187. See R. v. Campbell, 1 C. & K. 82, 
 where the description of a deceased woman 
 as of a name unknown weis quashed on the 
 1,'round that there was evidence that she 
 was the wife of the ])risoner. In R. v. 
 Hicks, 2M. & Rob. 302, Coleridge, C.J., 
 and Maule, J., an indictment for murder 
 was held bad, because it neither named 
 the child nor stated that its name was 
 unknown, it was held that the prisoner 
 could not be convicted of endeavourimi to 
 conceal the birth of the child ; for the 
 indictment being bad for its professed 
 purpose was bad altogether. This deci- 
 sion is right in jirinciple, but the indict- 
 
 ment if defective could now be amended 
 under 14 & 15 Vict. c. 100, s. 1, yoM, 
 Vol. ii. ]). 1972 el seq. 
 
 {/) See 14 & 15 Viet. c. 100, ss. 1, 24, 
 post. Vol. ii. p. 1935. 
 
 {(j) 2 Hawk. c. 25, s. 77. R. r. Dyson 
 [1908] 2 K.B. 454 (C. C. A.). 
 
 {h) 1 Hawk. c. 2.5, s. 30. 1 East, RC. 
 361. 
 
 (i) Anie,\^. 19; Cf. R. v. Ellis [1899], 
 1 Q.B. 320. 
 
 (j) 14 & 15 Vict. c. 100, s. 23. r^-il. 
 Vol. ii. p. 1937. See R. v. Riley or 
 Riplcv, 17 Cox, 120. 
 
 ()t)'ri900] 70 J. P. 204, tirantham, J. 
 As to the payment of the costs of the 
 prosecution where the injun,' is given in 
 one place and the death takes place in 
 another, see R. v. Brown, 02 J. P. 521, and 
 fost. Vol. ii. p. 2039 (t seq. 
 
 3g2
 
 820 
 
 Of Homicide. 
 
 [BOOK IX. 
 
 Willesden, taking the parcel with her. The parcel on being opened at 
 Willesden was found to contain the dead body of the child. It was 
 objected that there was no evidence that the death of the child took 
 place within the jurisdiction of the Court, but Grantham, J., held that as 
 the child was last seen alive within the jurisdiction and that the dead body 
 was found within the jurisdiction in the prisoner's custody, the inference 
 might be drawn that the murder was committed within'^the jurisdiction. 
 
 As to the trial of homicide committed abroad or in the Admiralty 
 jurisdiction, vide ante, pp. 27, 32. 
 
 Describing Offence. — In an indictment for murder it has always been 
 necessary to state that the act by which the death was occasioned was 
 done feloniously, and of tnalice aforethought (l), and it must also be stated, 
 that the prisoner murdered the deceased (m). If the averment respecting 
 malice aforethought is omitted, and the indictment only alleges that the 
 stroke was given feloniously, or that the prisoner tmirdered, &c., or killed, 
 or slew the deceased, the conviction can only be for manslaughter (n). 
 
 Where the grand jury return the bill of indictment only a true bill 
 for manslaughter, and ignoramus as to murder, it is stated to have been 
 the usual course to strike out, in 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 (o) ; but it has 
 been thought to be safer to present a new bill to the grand jury for 
 manslaughter (p). And a learned judge has ordered this to be done 
 where the grand jury have returned manslaughter upon a bill for murder, 
 saying he thought it the better course to prefer a new bill, although the 
 usual course on the circuit had been to alter the bill for murder, on the 
 finding of the grand jury (q). Though the same indictment may charge 
 one with murder and another with manslaughter, yet if it charges 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 ought to be a new bill against the other for man- 
 slaughter (r). And where the grand jury returned a true bill for murder 
 against one, and for manslaughter against another, the one was tried for 
 murder on that indictment, but a new bill for manslaughter was preferred 
 against the other (s). 
 
 If, as is very commonly the case, there be an indictment for murder, 
 and a coroner's inquisition for the same offence against the same person, 
 at the same sessions of gaol delivery, the usual practice is to arraign and 
 try the prisoner upon both, in order to avoid the plea of autrefois acquit 
 or convict ; and to endorse his acquittal or conviction uj^on both 
 presentments (t). 
 
 {I) 2 Hale, 18G, 187. Staundf. 130. 
 Bradley v. Banks, Yelv. 204. Vide ante, 
 p. 655." 
 
 (m) 2 Hawk. c. 23, s. 77. Anon. Dy. 
 304. 
 
 (n) 1 East, P.C. 345, 346. 2 Hale, 186. 
 
 (o) 2 Hale, 162. 
 
 (p) By Hale (2 H., P.C. 162), on the 
 ground that the words of the endorsement 
 do not make the indictment, but only evi- 
 dence the assent or dissent of the grand 
 
 jury, and that the bill itself is in the in- 
 dictment when affirmed. See R. v. Ford, 
 Yelv. 99. 
 
 iq) R. V. Turner, 1 Lew. 176, Parke, B. 
 
 (r) 1 East, P.C. 347. 
 
 (s) R. V. Bubb, 4 Cox, 45o, ante, p. 671, 
 after consultation between Williams, J., 
 Lord Campbell, C.J., and Mr. Greaves, 
 Q. C. See R. v. Gary, 3 Bulst. 206. 1 Rolle 
 R. 407, as R. v. Carew". C. S. G. 
 
 (t) I East, P.C. 371.
 
 CHAP. I.] 
 
 Coroner's Inquisition. 
 
 821 
 
 And where the coroner's jury have found a verdict of manslaughter, 
 and the grand jury a bill for murder, the prisoner has been arraigned and 
 tried on both the inquisition and indictment at the same time {u). So 
 where the grand jury have found a bill for manslaughter, and the 
 coroner's jury a verdict of wilful murder {v). So where the grand jury 
 have found a bill against more prisoners for murder than the coroner's 
 jury {w). 
 
 Sect. II. — Coroner's Inquisition. 
 
 Coroner's Inquisition.— By the Coroners Act, 1887 (50 & 51 Vict. c. 
 71),s.3(l), ' Where a coroner is informed that the dead body of a person 
 is lying within his jurisdiction, and there is reasonable cause to suspect 
 that such person has died either a violent or an unnatural death, or has 
 died a sudden death of which the cause is unknown, or that such person 
 has died in prison or in such place or under such circumstances as to require 
 an inquest in pursuance of any Act {x), the coroner, whether the cause of 
 death arose within his jurisdiction or not, shall, as soon as practicable, 
 issue his warrant for summoning not less than twelve nor more than 
 twenty-three good and lawful men to appear before him at a specified 
 time and place, there to inquire as jurors into the death of such person 
 as aforesaid.' 
 
 By sect. 4 (2), ' It shall be the duty of the coroner in a case of murder 
 or manslaughter to put into writing the statement on oath of those who 
 know the facts and circumstances of the case, or so much of such state- 
 ment as is material, and any such deposition shall be signed by the witness 
 and also by the coroner.' 
 
 By sect. 4 (3), 'After viewing the body and hearing the evidence the 
 j ury shall give their verdict and certify it by an inquisition in writing, setting 
 forth . . . who the deceased was, and how and where the deceased came 
 by his death, and if he came by his death by murder or manslaughter, 
 the persons, if any, whom the jury find to have been guilty of such murder 
 or manslaughter, or of being accessories before the fact to such murder {y). 
 
 Ingham, 5 B. & S. 257. See ante, p. 
 818. Although the prisoner may be 
 charged with murder or manslaughter by 
 the inquisition of the coroner, it is usual 
 also to prefer an indictment against him. 
 By 50 & 51 Vict. c. 71, s. 20, if in the 
 opinion of the Court having cognizance of 
 the case, an inquisition finds sufhcientiy 
 the matters required to be found thereby, 
 and. where it ciiarges a jierson with murder 
 or manslaughter, sufhciently designates 
 that person and the olTence charged, it 
 shall not be quashed for any defects, but 
 may be amended by the proper ofticcr of 
 the Court. The jurisdiction of the King's 
 Bench Divison to quash an inquisition for 
 irregularity on the face of it is left un- 
 touched by this section. R. v. (i. W. Ry. 
 Directors, 20 Q.B.D. 410; IG Cox, 410. 
 If particulars are set out professing to 
 show facts justifying the verdict the in- 
 quisition may be quashed if they aro 
 
 (m) R. x\ Walters, Hereford Sum. Ass. 
 1841, Coltman, J. MSS. C. S. G. R. v. 
 Powell, Hereford Sum. Ass. Erskine, J. 
 MSS. C. S. G. See R. v. Harding, 1 Cr. 
 App. R. 219. 
 
 (v) R. V. Smith, 8 C. & P. 100. Bo.san- 
 quet and Coltman, JJ., and Bolland, B. 
 
 {w) R. V. Dwyers, Gloucester Sum. Ass. 
 842, Erskine, J., MSS. C. S. G. 
 
 (x) It is a misdemeanor to burn or otlior- 
 wise dispose of a dead body, upon which 
 an inquest ought to be held, with intent 
 to prevent the coroner holding an inque.it ; 
 R. V. Price, 12 Q.B.D. 247, Stephen. .7. 
 And see R. v. Stephenson, 13 Q.B.D. 331 
 (C. C. R.). R. V. Byers, 71 J. P. 205, 
 Kennedy, J. 
 
 (y) The inquisition must be under the 
 hands and in the case of murder or man- 
 slaughter under the seals of the jurors 
 who concur (s. 18 (1)). Such an inqui- 
 sition amounts to an indictment, R. i'.
 
 822 Of Homicide. [bookix. 
 
 By sect. 4 (5), ' In case twelve at least of the jury do not agree on a 
 verdict the coroner may adjourn"the inquest to the next sessions of over 
 and terminer or gaol delivery held for the county or place in which such 
 inquest is held, and if, after the jury have heard the charge of the judge or 
 commissioner holding such sessions, twelve of them fail to agree on a 
 verdict, the jury may be discharged by such judge or commissioner 
 without giving a verdict.' 
 
 By sect. 6, power is given to the High Court of Justice, on appli- 
 cation by or under the authority of the Attorney-General, to order an 
 inquest to be held if the coroner refuses or neglects to hold one, or 
 where it is necessary in the interests of justice that another inquest 
 should be held. 
 
 By sect. 7 (1), ' The coroner only within whose jurisdiction the body 
 of a person upon whose death an inquest ought to be holden is lying shall 
 hold the inquest, and where a body is found dead in the sea or any creek, 
 river, or navigable canal within the flowing of the sea, where there is no 
 deputy coroner for the jurisdiction of the Admiralty of England, the 
 inquest shall be held only by the coroner having jurisdiction in the place 
 where the body is first brought to land. 
 
 (2). ' In a borough with a separate Court of quarter sessions, no coroner, 
 save as is otherwise provided by this Act, shall hold an inquest belonging 
 to the office of coroner except the coroner of the borough or a coroner or 
 dejDuty coroner for the jurisdiction of the Admiralty of England.' 
 
 By subsect. 3, in a borough having no separate Court of quarter 
 sessions, only the county coroner or the coroner or deputy coroner for 
 the jurisdiction of the Admiralty shall hold an inquest. 
 
 By sect. 40 (1), ' For the purpose of holding coroners' inquests, every 
 detached part of a county shall be deemed to be within the county by 
 which it is wholly surrounded, or where it is partly surrounded by two or 
 more counties, within the county with which it has the longest common 
 boundary.' 
 
 Sect. III. — Evidence. 
 
 The evidence, in cases of murder, will consist of the proof of the parti- 
 cular facts and circumstances which shew the killing, and that it was 
 committed by the party accused of malice aforethought. It should be 
 observed, however, that when the fact of killing is proved, all the circum- 
 stances of accident, necessity, or infirmity, are to be satisfactorily shewn 
 by the prisoner, unless they arise out of the evidence produced against 
 him ; for the law presumes the fact to have been founded in malice until 
 the contrary appears (z). 
 
 Corpus delicti. — It has been considered a rule, that no person should 
 be convicted of murder unless the body of the deceased has been found ; 
 and Hale says, ' I would never convict any person of murder or man- 
 slaughter, unless the fact were proved to be done, or at least the body 
 be found dead ' (a). But this rule or caution must be taken with some 
 
 insufficient in law to constitute the offence (a) 2 Hale, 290. This is only a caution, 
 
 found. R. V. Clerk of Assize of Oxford not a rule for every case. R. v. Burton, 
 
 Circuit [1897], 1 Q.B. 370. Dears. 282, Maule, J. R. v. Kersey, 1 
 
 (2) Fost. 255. Ante, p. 657. Cr. App. R. 260.
 
 CHAP I.J 
 
 Evidence. 
 
 823 
 
 qualifications ; and circumstances may be sufficiently strong to shew the 
 fact of the murder, though the body has never been found. 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 they 
 admitted the general rule of law, left it to the jury to say, upon the 
 evidence, whether the deceased was not killed before his body was cast 
 into the sea ; and the jury being of that opinion, the prisoner was coU' 
 victed, and (the conviction being unanimously approved by the judges) 
 was afterwards executed (6). 
 
 And where the mate of a ship was seen to seize the captain from 
 behind, and throw him into the sea, and the captain fell striking a boat, 
 and leaving marks of blood upon it, but was never seen again, Archibald, 
 J., allowed the case to go to the jury, and the prisoner was convicted of 
 manslaughter (c). 
 
 But where upon a indictment against the prisoner for the murder of 
 her bastard child, it appeared that she was seen, with the child in her 
 arms, on the road from the place where she had been at service to the 
 place where her father Hved, about six in the evening, and between 
 eight and nine she arrived at her father's, without the child, and the 
 body of a child was found in a tide-river, near which she must have 
 passed in her road to her father's, but the body could not be 
 identified as that of the child of the prisoner, and the evidence rather 
 tended to shew that it was not the body of such a child ; it was 
 held that she was entitled to be acquitted ; the evidence rendered it 
 probable that the child found w^as not the child of the prisoner ; and 
 with respect to the child, which was really her child, the prisoner could 
 not by law be called upon either to account for it, or to say where it was, 
 unless there were evidence to shew that her child was actually dead {d). 
 
 The true principle seems to be that the rule is properly applicable 
 only in cases where it is sought to presume death from the disappearance 
 of the person said to be deceased (e). 
 
 ill) R. V. Hindmarsli, 2 Leach, 509. It 
 was argued at tlie tiial that the prisoner 
 was entitled to be accjuitted, on the ground 
 tliat it was not proved that the captain 
 was dead ; and that as there were many 
 ships and vessels near the place where the 
 transaction was alleged to have taken 
 place, the probability was that he was 
 taken up by some of them, and was then 
 alive. And counsel mentioned a case 
 before Gould, J., in which tlie inotlicr and 
 reputed father of a bastard child were 
 observed to take the child to the margin of 
 the dock at Liverpool, and after stripping 
 it, cast it into the dock. The body of the 
 infant was not afterwards seen ; and as 
 
 tlie tide of the sea flowed and reflowed into 
 and out of the dock, the learned judge, 
 upon the trial of the father and mother for 
 the murder of their child, observed that it 
 was possible the tide might have carried 
 out the living infant ; and upon this 
 ground the jury, bj' his direction, acquitted 
 the jirisoners. But qu. the form of the 
 indictment in this case. 
 
 (c) R. V. Armstrong, 13 Cox, 184. 
 
 (d) R. V. Hopkins, 8 C. & P. 591. 
 Abingcr, C.B. R. i-. Cheverton, 2 F. & F. 
 83.3, Erie, C.J. R. v. Perry, 14 St. Tr. 
 1312. 
 
 (e) See Upington, r. Solomon, 9 Buch- 
 a,nan (Cape, S.C), 240. 276, dc Villier.s^
 
 824 Of Homicide. [bookix. 
 
 A question has sometimes been raised whether a prisoner can be 
 convicted of murder where it is impossible for any evidence to be given 
 of the cause of death, in consequence of the state in which the body was 
 found, but it would seem that it is a question for the jury, taking all 
 the circumstances into consideration, whether the death was caused by 
 violence or not, and whether that violence was the act of the prisoner (/). 
 
 On a trial for murder, in order to prove the state of the health of the 
 deceased prior to the day of his death, a witness was asked in what state 
 of health the deceased seemed to be when he last saw him, and he began 
 to state a conversation which had then taken place between the deceased 
 and himself on this subject. Alderson, B.,.held that what the deceased 
 said to the witness was reasonable evidence to prove his state of health 
 at the time (gr). 
 
 Upon an indictment for murder by the explosion of certain grenades, 
 a novel kind of explosive instrument, evidence of other deaths and wounds 
 caused by the explosion at the same time and place was held admissible 
 for the purpose of proving the character of the grenades (A). Where in 
 the same case a witness was called to prove that he made the grenades, 
 it was held that the name of the person who gave the order for them 
 might be proved, as a fact in the transaction, even though he had not 
 then been shewn to be connected with the prisoner (?'). 
 
 It has already been shewn that if A. is indicted as having given the 
 mortal stroke, and B. and C. as present aiding and assisting, and upon 
 the evidence it appeared that B. gave the stroke, and A. and C. were 
 aiding and assisting, or it be not proved which gave the stroke, the charge 
 is proved, for in law it is the stroke of all (/). So if a prisoner is indicted 
 for strangling the deceased with her own hands, and upon the evidence 
 it turns out that the deceased was strangled by someone else in the 
 presence of the prisoner, who was privy to it, and so near as to be able 
 to assist, that is sufficient {k). 
 
 An indictment for murder, stating that the prisoner gave and adminis- 
 tered poison, is supported by proof that the prisoner gave the poison to 
 A. to administer as a medicine to the deceased, and that A. neglecting to 
 do so, it was accidentally given to the deceased by a child, the prisoner's 
 intention to murder continuing. Upon an indictment for murder, which 
 alleged that the prisoner feloniously, &c., did administer a large quantity 
 of laudanum to a child, it appeared that the prisoner delivered to one S., 
 with whom the child was at nurse, about an ounce of laudanum, telling 
 her that it was proper medicine for the child, and directing her to ad- 
 minister to the child every night a tea-spoonful thereof, which was quite 
 a sufficient quantity to kill the child ; the j)risoner's intention in so doing, 
 as shewn by the finding of the jury, was to kill the child. S. took home 
 
 C.J. Cf. R. V. King, 9 Canada Crim. Cas. the principals effected, just as in a case of 
 
 436. R. V. Kenniff [1903], Queensland arson, if one rick is set fire to and several 
 
 State Rep. 17. others burnt, evidence of all is always 
 
 (/) R. V. Macrae, Northampton Winter admitted. 
 
 Assizes, Dec. 23, 1892, Kennedy, J. [i) Ibid. 8 St. Tr. (N. S.) 926. 
 
 (g) R. V. Johnson, 2 C. & K. 354. {j) Ante, pp. 114, 759. 1 Hale, 463. 
 
 (h) R. V. Bernard, 8 St. Tr. (N. S.), 887, (k) R. v. Culkin, 5 C. & P. 121, Park, J., 
 
 922. But surely the evidence was ad- Parke and Bolland, BB. 
 missible as proof of what the single act of
 
 CHAP i-i Evidence. 825 
 
 the laudanum, and thinking the child did not require medicine, did not 
 intend to administer it all, and left it on the mantel-piece of her room 
 A few days afterwards a little boy of S., during her accidental absence., 
 removed the laudanum from its place and administered a much larger 
 dose than a tea-spoonful to the child, in consequence of which the child 
 died. The jury were directed that if the prisoner delivered the laudanum 
 to S. with intent that she should administer it to the child, and thereby 
 produce its death, the quantity so directed to be administered being 
 sufficient to cause death ; and that, if the laudanum was afterwards 
 administered by an unconscious agent, while the prisoner's original in- 
 tention continued, the death of the child, under such circumstances, was 
 murder by the prisoner, and that if the tea-spoonful was sufficient to 
 produce death, the administration of a much larger quantity by the little 
 boy would make no difference. The jury found the prisoner guilty, and, 
 upon a case reserved for the opinion of the judges, whether the facts above 
 stated constituted an administering of the poison by the prisoner to the 
 child, they were unanimously of opinion that the administering of the 
 poison by the child was, under the circumstances of the case, as much, in 
 point of law, an administering by the prisoner, as if she had actually 
 administered it with her own hand (Z). 
 
 Upon an indictment, alleging that the prisoner did an act which 
 caused the death, it is sufficient to prove that the prisoner caused and 
 procured the act to be done by an innocent agent. An indictment charged 
 that the prisoner feloniously did place and fix upon the head of the 
 deceased a certain plaster made by the prisoner of certain dangerous 
 ingredients. The prisoner was proved to have applied two plasters 
 to the head of the deceased, but a third, which was the last applied 
 before the deceased died, was applied by the child's mother, in the 
 absence of the prisoner, it being made with materials which had been 
 given by the prisoner to the mother for that purpose ; it was objected 
 that the indictment was not proved ; but it was held that, though 
 indictments often go on to say that the prisoner ' caused and procured ' 
 the thing to be done, yet if the plaster was made by the direction of the 
 prisoner, that was enough (m). 
 
 One important species of evidence occasionally resorted to in cases 
 of homicide, namely, the dying declaration of the party killed, is dealt 
 with j)ost tit. ' Evidence,' Vol. ii. p. 2084. 
 
 Where the facts of the case amount only to excusable homicide, it is 
 usual for the judge to direct a general verdict of acquittal, unless some 
 criminal culpability appears to attach to the conduct of the party (n). 
 And several persons present at a homicide may be found guilty in different 
 degrees, one of murder, the other only of manslaughter (o). 
 
 In every case where the point turns upon the question whether the 
 homicide was committed wilfully and maliciously, or under justifying, 
 
 (/) R. V. Michael, 2 Mood. 120 ; 9 C. & R. r. Saunders, Tlowd. 473; 75 E. R. 70(5 ; 
 
 P. 35G. ' If A. gives poison to B., in- IJalt. c. 93 ; but B.. because ignorant, is 
 
 tending to poison him, and B., ignorant of not guilty.' 1 Hale, 431. Vide ante, p. 104. 
 
 it, gives it to C, a child, or other near (m) R. v. iSpiller, 5 C. & P. 333, Bol 
 
 relation of A., against whom lie never land, B., and Bosanquct, J. 
 
 meant harm, and C. takes it and dies, this (n) Fost. 279, 289, and aH/f,pp. 808-812. 
 
 is murder in A., and a poisoning by him. (o) Ante, p. 114.
 
 826 
 
 Of Homicide. 
 
 [BOOK IX. 
 
 excusing, or alleviating circumstances, the matter of fact, namely, 
 whether the facts alleged by way of justification, excuse, or alleviation, are 
 true is the proper and only province of the jury. But whether, upon a 
 supposition of the truths 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 
 the Court (p). In cases of doubt and real difficulty, the jury may be 
 directed to state facts and circumstances in a special verdict {q). 
 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 
 find a general verdict, conformably to such direction {r). On a trial for 
 murder, if the jury cannot agree, the presiding judge may discharge them 
 and the prisoner may be tried again at the same or later assizes (s). 
 Where it is deemed inexpedient or unjust to retry the prisoner, a nolle 
 prosequi may be entered by the Attorney- General and the prisoner 
 released without requiring him to be re-arraigned (t). 
 
 Sect. IV.— Convictions of Offences not Specifically Charged. 
 
 A person may be convicted of manslaughter on an indictment for 
 murder (w). And where the indictment is for the murder of a newly-born 
 child the defendant may be acquitted of the murder and convicted of 
 concealment of birth (v). 
 
 A person indicted as accessory after the fact to murder, may be 
 convicted as accessory after the fact to manslaughter, if the offence of 
 the principal turns out to be manslaughter (w). Either assisting the party 
 to conceal the death, or in any way enabling him to evade the pursuit 
 of justice, will render a party who knows the offence to have been 
 committed, an accessory after the fact (w). A conviction as accessory 
 after the fact to homicide upon an indictment as a principal, or as an 
 accessory before the fact is bad {x). 
 
 On an indictment for the manslaughter of a person under 16 by a 
 person over 16 who had the custody, care, or charge of the deceased, the 
 jury may acquit of manslaughter and convict of cruelty (?/). 
 
 It has not been determined whether under 14 & 15 Vict. c. 100, s. 9 (z), 
 
 1 
 
 (p) See R. V. Foster, 8 C. & P. 182. 
 
 (q) e.g. in R. v. Dudley, 14 Q.B.D. 273, 
 where the question raised was whether 
 homicide and cannibalism were excusable 
 by necessity. 
 
 (r) Fost. 255, 256. See R. v. Smith, 
 ante, p. 765, where the Court refused to 
 receive a verdict. R. v. Slaughterford, 
 18 St. Tr. 326 : 2 Str. 1204. 
 
 (5) Winsor v. R., L. R. 1 Q.B. 289. 
 
 it) R. V. M'Guire, Times, June 29, 1908, 
 43 L.J. (Newsp.) p. 423. 1 Chit. Cr. L. 479. 
 
 (m) R. v. Mackalley, 9 Co. Rep. 67 b. 
 R. V. Greenwood, 7 Cox, 404. The cases 
 of R. V. Chatburn, 1 Mood. 403. R. v. 
 Rushworth, 1 Mood. 404, and R. v. Berry. 
 1 M. & Rob. 463, Parke, B., merely decide 
 
 that it made no difference that the indict- 
 ment for murder did not contain the 
 now immaterial conclusion contra formam 
 statuti. 
 
 {v) 24 & 25 Vict. c. 100, s. 60, ante, 
 p. 773. 
 
 (w) R. I'. Greenacre, 8 C. & P. 35. 
 Tindal, C.J., Coleridge and Coltman, JJ. 
 
 (x) Richards v. R., 61 J.P. 389, and 
 see R. V. Bubb, 70 J.P. 143 (C. C. R.). 
 
 (y) 8 Edw. VII. c. 67, s. 12 (4). See R. 
 V. Dyson [1908], 2 K.B. 454, a decision on 
 the corresponding enactment, 4 Edw. VII. 
 c. 15, s. 1 (rep.) : and R. v. Petch, 2 Cr. 
 App. R. 71: 25 T. L. R. 401. 
 
 (z) Post, Vol. ii. p. 1967.
 
 CHAP I.] Convictions of Offences not SpecificciJhj Charged. 827 
 
 a person indicted for murder might be convicted of an attempt to 
 murder, e.g. where the death was after a year and a day from the felon- 
 ious act, or was due to some other cause than the felonious act. In one 
 case it was ruled that a previous acquittal of murder was no bar to an 
 indictment for attempting to commit murder on the ground that 14 & 15 
 Vict. c. 100, s. 9, applies only to an attempt which is a misdemeanor (a). 
 But this case is of doubtful authority (b). 
 
 (a) R. V. Coniiell, Cox, 178, Williams (/;) See R. v. Cook [189«JJ, 20 N, S. W. 
 
 and Talfourd, JJ. Rep, Law, 264,
 
 k
 
 ( 828a ) 
 
 CANADIAN NOTES. 
 
 OF HOMICIDE. 
 
 Sec. 1. — Of Murder and Felo De Se. 
 
 Homicide, Definition of. — Code sec. 250. 
 
 Homicide, What is not. — Code sec. 253. 
 
 Homicide, Consent to. — Code sec. 67. 
 
 When Child Becomes a Human Being. — Code sec. 251. 
 
 Homicide, When Culpable. — Code sec. 252. 
 
 Murder, Definition of. — Code sec. 259. 
 
 Murder in Certain Cases. — Code sec. 260. 
 
 Punishment for Murder. — Code sec. 263. 
 
 (See notes to ch. VII. on the Execution of Sentences.) 
 
 Sec. 2.— Felo De Se. 
 
 Aiding and Counselling. — Code sec. 269. 
 Attempt to Commit Suicide. — Code sec. 270. 
 
 Sec. 3. — The Party Killing and the Party Killed. 
 
 Criminal Liability of Corporation. — A corporation is not subject 
 to indictment upon a charge of any crime the essence of which is 
 either personal criminal intent or such a degree of negligence .as 
 amounts to a wilful incurring of the risk of causing injury to others. 
 R. V. Great West Laundry Co. (1900), 3 Can. Cr. Cas. 514 (Man.). 
 Sections 247 and 252, as to want of care in the maintenance of dan- 
 gerous things, do not extend the criminal responsibility of corpora- 
 tions beyond what it was at common law. Ibid. 
 
 Although a corporation cannot be guilty of manslaughter, it may 
 be indicted under Code sec. 222 and possibly also under sec. 284, 
 for having caused grievous bodily injury by omitting to maintain in 
 a safe condition a bridge or structure which it was its duty to so 
 maintain, and this notwithstanding that death ensued at once to the 
 person sustaining the grievous bodily injury. R. v. Union Colliery 
 Co. (1900), 3 Can. Cr. Cas. 523 (B.C.), affirmed, 4 Can. Cr. Cas. 400, 
 31 Can. S.C.R. 81. 
 
 Under sec. 247 a corporation may be indicted for omitting, witliout 
 lawful excuse, to perform the duty of avoiding danger to human 
 life from anything in its charge or under its control. The fact
 
 828b Homicide. [book ix. 
 
 that the consequence of the omission to perform such duty might have 
 justified an indictment for manslaughter in the ease of an individual 
 is not a ground for quashing the indictment. Union Colliery Co. v. 
 K (1900), 4 Can. Cr. Cas. 400, 31 Can. S.C.R. 81. 
 
 As the Criminal Code provides no punishment for the offence as 
 against a corporation, the common law punishment of a fine may be 
 imposed on a corporation indicted under it. Ihid. 
 
 The manager of a corporation is not criminally liable as for wil- 
 ful disobedience of a statute under Code sec. 164 in respect of the 
 corporation's neglect not due to any .active participation on his 
 part, to perform a statutory duty imposed upon it. R. v. Hays (1907), 
 12 Can. Cr. Cas. 423. 
 
 There are offences such as assaults which it is physically impossible 
 for a corporation to commit, but for such offences as they can commit, 
 whether of misfeasance or malfeasance, and for which the prescribed 
 punishment is one which they can be made to endure, they are as 
 amenable to the criminal law as are natural persons. R. v. Central 
 Supply Association (1907), 12 Can. Cr. Cas. 371. 
 
 "If it were the fact that the Board of Directors or the general 
 manager of the defendants' company, or anyone responsible directly 
 or indirectly for the system carried on in the transportation of ex- 
 plosives, resided within the jurisdiction of this Court, I should have 
 recommended their being indicted as well as the company. It is right 
 and just that employees of whatever grade shall be placed upon trial 
 when any negligence of theirs caused wounds or death, and the 
 higher officers through whom a defective system is put on or kept in 
 operation should not escape." Per Riddell, J. R. v. Michigan Central 
 Ry. (1907). 
 
 In Ex parte Brydges (1874), 18 Lower Canada Jurist 141, the 
 application was upon the return of rules nisi to quash a coroner's 
 inquisition (which then had an effect similar to an indictment) and 
 for the discharge of Mr. Brydges' recognizance, under the following 
 circumstances: — A man named Cauchon had been killed by a G.T.R. 
 train at a level crossing. Mr. Brydges was the managing director 
 cf the railroad and on complaints made that the crossing was particu- 
 larly dangerous, had admitted the fact and promised the Attorney- 
 General that he would have a watchman placed there. He did not 
 place a watchman as promised and the fatality to Cauchon resulted. 
 The finding of the coroner's jury was quashed because it was insuffi- 
 cient in form and did not sufficiently charge a criminal offence. 
 
 The Party Killed. 
 
 When a Child Becomes a Human Being. — Code sec. 251. 
 Killing an Tinhorn Child. — Code sec. 306.
 
 CHAP. I.] The Party Killed. 828c 
 
 Where the accused, a member of a tribe of pagan Indians, killed 
 that which he l)elieved was an evil spirit, called a Wendigo, embodied 
 in human tlesh, but which was in fact his own foster-father, the trial 
 Judge directed the jury that "as a matter of law there is here no justi- 
 fication for the killing, and culpal)le homicide without justification is 
 manslaughter." The jury found the prisoner guilty of manslaughter, 
 and a cause was reserved for the consideration of the Court of Appeal, 
 which said : ' ' Upon the case reserved, if there was evidence upon 
 which the jury could find the prisoner guilty of manslaughter it is 
 not upon us to reverse that finding, and the question we have to decide 
 is w^hether there was such evidence. We think there w.as, and there- 
 fore do not see how we can say that the prisoner Avas not properly 
 convicted of manslaughter." Machekequonabe v. The Queen, 2 Can. 
 Cr. Cas. 140. 
 
 Sec. 4. — Of the Means of Killing and of Causing Death by Malicious 
 and Intentional Neglect of Duty. 
 
 Acceleration of Death. — Code sec. 258. 
 
 Neglect of Duty. 
 Duty of Persons. 
 
 (a) In charge of another to provide necessaries of life. Code 
 
 sec. 241. 
 (6) In charge of family to provide necessaries. Code sec. 242. 
 
 (c) Of masters, to provide necessaries. Code sec. 243. 
 
 (d) Undertaking acts dangerous to life. Code sec. 246. 
 
 (e) To avoid omissions dangerous to life. Code sec. 248. 
 (/■) In charge of dangerous things. Code sec. 247. 
 
 (g) Act or omission accelerating death. Code sec. 256. 
 (/i) Neglect of proper means. Code sec. 257. 
 
 Medical Aid. 
 
 A person who engages the services of a child under sixteen years, 
 placed out with him by his legal guardian under a contract for the 
 child's services for a fixed period, whereby the party with whom he 
 is placed engages to furnish the child with board, lodging, clothing, 
 and necessaries, is not as to suclj child a "guardian or head of a 
 family" so as to become criminally responsible as such, under sec. 
 242 for omitting to provide "necessaries" to such child while a mem- 
 ber of his household. The relationship in such case is that of master 
 and servant, and comes within the provisions of sec. 243, under whick
 
 828d Homicide. [book ix. 
 
 the master is criminally responsible only in respect of a failure to 
 provide "necessary food, clothing or lodging." R. v. Coventry, 3 
 Can. Cr. Cas. 541. Sec. 243 of the Code does not impose a criminal 
 responsibility upon the master to provide the servant with medical 
 attendance or medicine. 
 
 Medical attendance and remedies are necessaries within the 
 meaning of Code sees. 241 and 242 and also at common law, and 
 anyone legally liable to supply such is criminally responsible for 
 neglect to do so. " R. v. Brooks (1902), 5 Can. Cr. Cas. 372, 9 B.C.R. 
 13; R. V. Lewis (1903), 7 Can. Cr. Cas. 261, 6 O.L.R. 132. Con- 
 scientious belief that it is against the teaching of the Bible and there- 
 fore wrong to have recourse to medical attendance and remedies is 
 no excuse. Ibid. 
 
 If a person having the care and custody of another who is helpless, 
 neglects to supply him with the necessaries of life and thereby causes 
 or accelerates his death he was guilty of a criminal offence even 
 before the statute. R. v. Nasmith (1877), 42 U.C.Q.B. 242. But 
 if a person over the. age of sixteen (see sec. 243) and having the exer- 
 cise of free will, chooses to stay in a service where bad food and lodg- 
 ing are provided and death is thereby caused, the master is not crimin- 
 ally liable. 
 
 By Influence of Mind. — Code sec. 255. 
 
 By Want of Medical or Surgical Skill. 
 
 A woman practising "Christian Science" and not called in as a 
 medical attendant was held not guilty of manslaughter where the 
 only treatment by her was to sit silently by the patient, a child ill 
 of diphtheria, although the child's life might have been saved or 
 prolonged had proper medical aid been called in. R. v. Beer, 32 
 C.L.J. 416. But the aiding and abetting the person charged with 
 the duty of providing necessaries is punishable in like manner as the 
 principal offence. See Code see. 69. R. v. Brooks (1902), 5 Can. Cr. 
 Cas. 372, 9 B.C.R. 13 ; R. v. Lewis (1903), 7 Can. Cr. Cas. 261, 6 O.L.R. 
 132. 
 
 By Perjury. — Code sec. 174(2). 
 
 By Infection. — The theory of the . defence in an indictment for 
 murder, was that the death was caused by the communication of small- 
 pox virus by Dr. M., who attended the deceased, and one of the wit- 
 nesses for the defence explained how the contagion could be guarded 
 against. Dr. M. had not in his examination in chief or cross-examina- 
 tion been asked anything on this subject ; it was held that he was pro- 
 perly allowed to be called in reply, to state that precautions had been 
 taken by him to guard against the infection. R. v. Sparham and 
 Greaves, 25 U.C.C.P. 143.
 
 CHAP. I.] Time of Death. 828e 
 
 By Rape. — A practising physician who kept an hospital for the 
 sick, on three successive days forced the person of B. a patient then 
 under his control in such hospital, she being in a condition of health 
 that rendered sexual intercourse dangerous even with her consent. 
 B. died on the sixth day after the last occasion on which she had been 
 ravished, and her death was hastened if not caused thereby. It was 
 held that there was sufficient evidence to justify A. 's surrender under 
 the Ashburton Treaty for extradition on a charge of murder. Re 
 Weir, 14 Ont. E. 389. 
 
 Sec. 5. — Time of Death. Treatment of Wounds. Killing Persons 
 Labouring Under Disease. 
 
 Time of Death. — Death within a year and a day. Code sec. 254. 
 
 The prisoner was convicted of manslaughter in killing his wife, 
 who died on November 10th, 1881. The immediate cause of her death 
 was acute inflammation of her liver which the medical testimony 
 proved might be occasioned by a blow or a fall against a hard sub- 
 stance. About three weeks before her death the prisoner had loiocked 
 his wife down with a bottle; she fell on the floor .and remained in- 
 sensible for some time; she was confined to her bed soon afterwards 
 and never recovered. Evidence was given of frequent acts of violence 
 committed by the prisoner upon his wife within a year of her death by 
 knocking her down, and kicking her in the side. On questions re- 
 served, whether the evidence was properly received of assaults and 
 violence committed by the prisoner upon the deceased prior to the 
 date of death or prior to the occasion on which he had knocked her 
 down with the bottle, and whether there was any evidence to leave 
 to the jury to sustain the charge, it was held by the Supreme Court 
 of Canada, affirming the judgment of the Supreme Court of New 
 Brunswick, that the evidence was properly received and that there 
 was evidence to su])mit to the jury that the disease which caused her 
 death was produced by the injuries inflicted by the prisoner. Theal v. 
 The Queen, 7 Can. S.C.R. 397. 
 
 Sec. 6. — Provocation. 
 
 All questions as to motive, intent, heat of blood, etc., must be left 
 to the jury, and should not be dealt with as propositions of law. R. 
 V. McDowell (1865), 25 U.C.Q.B. 108, 115. 
 
 Although by sec. 229(3) no one shall be held to give provocation 
 to another by doing that which he had a legal right to do, it is for 
 the jury and not for the Judge to determine any preliminary question 
 of fact upon which the alleged legal right depends. R. v. Bronnan 
 (189(i), 4 Can. Cr. Cas. 41, 27 Ont. R. 659. 
 
 On a trial for murder if the trial Judge directs the jury that 
 imminent pci-il of tlie prisoner's own life, or of the lives of his family.
 
 828/ Homicide, [book ix. 
 
 is a ground for justification for killing, in defence of his household, 
 one of a party committing an unprovoked assault upon him, but does 
 not direct them that a reasonable apprehension of immediate danger 
 of grievous bodily harm to the prisoner or to his wife and family 
 is an equal justification, such omission constitutes a substantial wrong 
 or miscarriage occasioned on the trial (Cr. Code sec. 1019) where the 
 circumstances shewn in evidence are such as to point much more to 
 the latter ground of justification than to the former, and a new trial 
 should be ordered. R. v. Theriault (1894), 2 Can. Cr. Cas. 444 (N.B.) ; 
 Code sees. 53 and 55. 
 
 In the case of a sudden quarrel, where the parties immediately 
 fight, there may be circumstances indicating malice in the party kill- 
 ing, which killing will then be murder. R. v. McDowell (1865), 25 
 U.C.Q.B. 108. 
 
 Treatment of Wounds. — Code sec. 258. 
 
 Sec. 9. — Killing in Prosecution of Criminal, Unlawful, Wa)iton 
 
 Purpose. 
 
 Where Several Join to do an Unlawful Act. — Where a package of 
 revolvers was thrown into a carriage in which three prisoners con- 
 jointly charged with a crime were being conveyed under lawful arrest 
 and the prisoners all struggled to obtain revolvers, two of them 
 succeeding in doing so, whereupon all of them attempted to efl^ect a 
 forcible escape, during which one of the peace officers was shot dead 
 by one of the prisoners, but by which of them is unknown, proof that 
 the defendant had one of the revolvers in the melee, and had ordered 
 another of the peace officers to "give up" immediately after another 
 of the prisoners had told the defendant to "give it to him," is with 
 such facts, sufficient evidence of a conspiracy by the three prisoners 
 for an unlawful purpose, to wit, the escape, and of a common design 
 to use for its accomplishment any amount of violence or force, and a 
 conviction of the defendant for murder is, therefore, proper without 
 proof that he fired the fatal shot. It was proper for the trial Judges 
 to instruct the jury that "where all the parties proceed with the 
 intention to commit an unlawful act and with the resolution or determ- 
 ination to overcome all opposition by force, that if by reason of such 
 resolution one of the party is guilty of homicide, his companions 
 would be liable to the penalty which he had incurred. ' ' The shooting 
 of the constable by one of the conspirators, in the prosecution of such 
 common purpose, was an act which was or ought to have been known 
 to be a probable consequence of prosecuting such purpose, and each 
 of the conspirators became, under Cr. Code sec. 69(2), a party to 
 the homicide. R. v. Rice (1902), 5 Can. Cr. Cas. 509.
 
 CHAP. I.] Manslauylitcr. %2Sg 
 
 Constructive murder, as it is called, is a phrase which has no legal 
 meaning, but is a common and convenient way of describing a homicide 
 committed under circumstances which in law constitutes the offence 
 of murder, though the particular act which occasioned it may not have 
 been actually done or directly authorised by the accused. R. v. Rice 
 (1902), 5 Can. Cr. Cas. 509, per Osier, J. A. 
 
 Manslaughter. — Where a person strikes another wantonly and 
 unlawfully, but without any intention of doing him bodily harm, 
 and thereby caused the other to fall and dislocate his spine, and 
 death results therefrom, the assaulting party is guilty of manslaughter, 
 although death would not ordinarily result either from the blow or 
 from the fall. R. v. Chisholm, 14 Can. Cr. Cas. 15. 
 
 Sec. 1. — Of Manslaughter. 
 
 Culpable Homicide, which would Otherwise he Murder, may be 
 Reduced to Manslaughter by Provocation. — Code sec. 261. 
 
 Culpable Homicide not Amounting to Murder is Manslaughter. — 
 Code sec. 262. 
 
 Neglect to Guard Hole in Unused Ice or Mine. — Code sec. 287. 
 
 Punishment for Manslaughter.— -Code sec. 268. 
 
 Provocation. — See Notes to Part 1, sec. 6. 
 
 Accessories. — See Notes to Bk. 1, ch. 5. 
 
 Corporations Cannot he Guilty of Manslaughter. — (See preceding 
 note on Criminal Liability of Corporations.) 
 
 Resistance to Officers of Justice. — (1) The question whether a 
 peace officer, on reasonable and probable grounds, believed that an 
 offence for which the offender might be arrested without a warrant 
 had been committed by the fugitive fleeing to escape arrest, is one for 
 the jury, and not for the Judge to decide. 
 
 (2) If a person with intent to steal something out of a shop or 
 store, opens a door leading into it })y lifting the latch or turning the 
 knob and then enters the store, although during business hours, for 
 the purpose of carrying out his intention, he may be convicted of 
 shopbreaking under sec. 461 of the Code. 
 
 (3) AVhen a peace officer, pursuing a fugitive, whom he had a 
 right to arrest without a warrant, found that the fugitive was, in his 
 opinion, likely to escape for the time ])eing owing to superior speed, 
 it is a question for the jury, on tlie trial of the officer for manslaughter 
 in killing the fugitive by a shot from his revolver, intended only to 
 wound and so stop his flight, whether, under all the circumstances, 
 the officer was justified under section 41 of the Code in such shooting 
 in order to prevent the escape of such fugitive, or whether such 
 escape could not have been prevented by reasonable means in a less 
 violent way. R. v. Smith, 17 Man. R. 282, 13 Can. Cr. Cas. 326.
 
 S28h Homicide. [bookix. 
 
 Lawful Acts Improperly Ferformed. — On a charge of manslaugh- 
 ter against the master of a ship in respect of a collision resulting in loss 
 of life, such recklessness must appear ,as will amount to a wilful 
 attempt upon the lives of people in putting them to danger, and not 
 merely an error of judgment. E. v. Delisle (1896), 5 Can. Cr. Cas. 
 210 (Que.). 
 
 Striking a person unlawfully, but without intention to do him 
 bodily harm, is manslaughter, if the act results in death. R. v. 
 Chisholm, 14 Can. Cr. Cas. 15. 
 
 Sec. 1. — Indictment. 
 
 AVhere two persons are jointly indicted for murder and one pleads 
 guilty, and the other not guilty, and the trial upon the latter plea 
 results in an acquittal, leave should be granted the other defendant 
 to change his plea of guilty to one of not guilty, if the circumstances 
 of the case are such that the verdict of acquittal already given in 
 respect of the one would be absolutely inconsistent with the guilt of 
 the other who had pleaded guilty. The King v. Herbert, 6 Can. Cr. 
 Cas. 214. 
 
 In a criminal trial as in a civil case, only the issues presented by 
 the evidence need be submitted to the jury. 
 
 On a trial for murder by shooting, where the evidence for the prose- 
 cution was of a deliberate shooting, and the accused giving evidence 
 on his OA\Ti behalf claimed that the shooting was accidental, and there 
 was no evidence of provocation, a verdict of guilty will not be set 
 aside on the ground that the trial Judge withdrew from the jury the 
 question of manslaughter by instructing them that their verdict on 
 the evidence must be one of either guilty of murder or one of acquittal. 
 The King v. Barrett, 14 Can. Cr. Cas. 464. 
 
 Sec. 4. — Conviction of Offences not Specifically Charged. 
 
 When only Part Proved of Offence Charged. — Code sec. 951. 
 
 Conviction of 3Ianslaughter on Charge of Murder. — Code sec. 
 951(2). 
 
 Indictment for Same Offence with Averment of Intention after 
 Previous Acquittal. — Code sec. 909(1). 
 
 Previous Conviction, or Acquittal, Effect of. — Code sec. 909(2). 
 
 An acquittal on a charge of manslaughter is not a bar to a charge 
 of inflicting bodily harm based upon the same circumstances. R. v. 
 Shea, 14 Can. Cr. Cas. pt. 3, page 319. 
 
 It is not necessary that the lesser offence should be expressly 
 charged on the face of the indictment. It will be sufficient if the 
 charge must of necessity include it. Per Richards, C.J., R. v. Smith 
 (1874), 34 U.C.Q.B. 552, following R. v. Bird (1850), 5 Cox C.C. 1; 
 2 Den. C.C. 94.
 
 CHAP. I.] Previous Conviction or Acquittal. 828i 
 
 On an indictment for murder in the statutory form, the prisoner, 
 under 32-33 Vict. ch. 29, sec. 51 (Canada), cannot be convicted of an 
 assault, and his acquittal of the felony is, therefore, no bar to a sub- 
 sequent indictment for the assault, R. v. Smith, 34 U.C.Q.B. 552; R. 
 V. Ganes, 22 U.C.C.P. 185 ; R. v. Dingman, 22 U.C.Q.B. 283. 
 
 Upon an indictment for shooting with felonous intent, the prisoner 
 if acquitted of the felony, may be convicted of common assault. R. 
 V. Cronan, 24 U.C.C.P. 106. 
 
 An acquittal on a charge of manslaughter is not a bar to a charge 
 of inflicting bodily harm based upon the same circumstances. The 
 King V. Shea, 14 Can. Cr. Cas. 319.
 
 ( 829 ) 
 
 CHAPTER THE SECOND. 
 
 OF PROCURING OR ATTEMPTING ABORTION. 
 
 An infant in its mother's womb, not being in rerum natura, is not 
 considered as a person who can be killed within the descrir)tion of 
 murder (a). But an unsuccessful attempt to effect the destruction of 
 such an infant appears to have been treated as a misdemeanor at common 
 law (6). As to the liability for killing the mother by attempts to procure 
 miscarriage or causing by such attempts the death of the child after 
 actual birth, vide ante, p. 663. 
 
 By the Offences Against the Person Act, 1861 (24 & 25 Vict. c. 100), 
 s. 58 (c), ' Every woman, beiny with child, icho, with intent to "procure 
 her own miscarriage {d), shall unlawfully administer to herself any poison 
 or other noxious thing, or shall unlawfully use any instrument or other 
 means whatsoever ivith the like intent, and whosoever, with intent to 
 procure the miscarriage of any woman, luhether she he or he not with 
 child, shall unlawfully (e) administer to her or cause to be taken by her 
 any poison or other noxious thing (/), or shall unlawfully {g) use any 
 instrument or other means whatsoever with the like intent, shall be 
 guilty of felony, and being convicted thereof shall be liable ... to 
 be kept in penal servitude for life . , .' {gg). 
 
 Sect. 59 {h), ' Whosoever shall unlawfully supply or procure any 
 poison or other noxious thing, or any instrument or thing whatsoever, 
 knowing that the same is intended to be unlawfully used or employed 
 with intent to procure the miscarriage of any woman, whether 
 she be or be not with child, shall be guilty of a misdemeanor, and 
 
 (a) Aule, p. GG3. 
 
 (6) 1 Hawk. c. 3, s. 13. 3 Co. Inst. 51. 
 See a precedent of an indictment for this 
 offence as a misdemeanor at common law 
 in 3 Chit. Cr. L. 798, procured from the 
 Crown Office, Mich. T. 42 Geo. III. 
 
 (c) Framed on 7 Will. IV. and 1 Vict. 
 c. 85, s. (5, with the additions indicated by 
 italics. The second part in terms makes 
 it immaterial whether the woman were 
 or were not with child, in accordance with 
 the decision in R. v. Goodhall, 1 Den. 187, 
 or R. V. Goodchild, 2 C. & K. 293. 
 
 {d) See Taylor, Med. Jurisprudence 
 (5th ed.), ii. 149. 
 
 (e) The word ' maliciously ' was in 
 9 Geo. IV. c. 31, s. 13. 
 
 (/) The words of 43 Geo. III. c. 58, in 
 8. 1, were ' any deadly poison or other 
 noxious and destructive substance or 
 
 thing ' ; in s. 2, ' any medicines, drug or 
 other substance or thing whatsoever. 
 The words in 9 Geo. IV. c. 31, where the 
 woman was quick with child, were, ' any 
 poison or other noxious thing.' Where 
 the woman was not quick with child, 
 ' any medicine or other thing.' See note 
 (o), post, p. 830. 
 
 (^f) ' Unlawfully ' was not in 9 Geo. IV. 
 c. 31, s. 13. 
 
 {gg) Or for not less than three yeara, or 
 to be imprisoned with or without hard 
 labour for not more than two j'ears. 54 
 & 55 Vict. c. G9, 3. 1. Ante, pp. 211, 212. 
 The words omitted were repealed in 1892 
 (S. L. R.). 
 
 (/() This section was new in 1801, and 
 intended to check the obtaining of poison, 
 &c., for the purpose of causing abortion.
 
 830 
 
 Of Procuring or Attempting Abortion. [bookix. 
 
 being convicted thereof shall be liable . . . (i) to be kept in penal 
 servitude. 
 
 The word ' unlawfully' excludes from the section acts done in the course ■ 
 of proper treatment in the interest of the life or health of the mother (j). 
 
 In the case of an indictment against the mother under sect. 58 it is 
 necessary to prove that she was with child, but not that she was quick 
 with child (k), and in the case of any other person, it is immaterial whether 
 the woman were or were not with child. 
 
 On an indictment against a woman for being present aiding and 
 abetting the use of an instrument upon her to commit an offence against 
 sect. 58, it was held that the woman was properly convicted on proof 
 that she consented to the use of the instrument with the intent, &c., 
 and that she was with child though the indictment did not allege that 
 she was with child (l). Apparently the mother could be found guilty of 
 aiding and abetting an offence under the second part of the section even 
 if she was not with child (m). 
 
 Where a woman, being with child, with intent to procure abortion, 
 takes a thing which she believes to be noxious, but which is, in fact, 
 harmless, she may be convicted of an attempt to commit an offence 
 within sect. 58 (n). 
 
 Drugs. — An indictment upon 43 Geo. III. c. 58, s. 2, (rep.) charged the 
 prisoner with having administered to a woman a decoction of a certain 
 shrub called savin : and it appeared upon the evidence that the prisoner 
 prepared the medicine which he administered by pouring boiling water 
 on the leaves of a shrub. The medical men who were examined stated 
 that such a preparation is called an infusion, and not a decoction (which is 
 made by boiling the substance in the water), upon which the prisoner's 
 counsel insisted that he was entitled to an acquittal, on the ground that 
 the medicine was misdescribed. But Lawrence, J., overruled the objec- 
 tion, and said, that infusion and decoction are ejusdem, generis, and that 
 the variance was immaterial (o). 
 
 (i) The words omitted were repealed in 
 1892 (S. L. R.). The present punishment 
 under 54 & 55 Vict. c. 69, s. 1 is penal 
 servitude for not more than five nor less 
 than three years, or imprisonment with or 
 without hard labour for not more than 
 two years. Vide ante, pp. 211, 212. 
 
 (/) See Taylor, Medical Jurisprudence 
 (5th ed.) ii. 154, 155. 
 
 (k) The repealed enactments 43 Geo. 
 III. c. 58 and 9 Geo. IV. c. 31 drew 
 a distinction between cases in which a 
 woman was quick with child and cases 
 where she was not, even if she believed 
 herself to be so. R. v. Scudder, 1 Mood. 
 216. On this subject see R. v. Phillips, 
 3 Camp. 77. In R. v. Wycherley, 8 C. & 
 P. 262, where a jury of matrons was em- 
 panelled to determine whether a woman 
 convicted of murder was quick with child, 
 it was ruled that quick with child meant 
 pregnant. See Taylor, Med. Jurisp. (5th 
 ed.), ii. 35. 
 
 (0 R. V. Sockett, 24, T. L. R. 893 ; 72 
 
 J. P. 428. 
 
 (m) Ibid. 
 
 (n) R. V. Brown, 63 J. P. 790, Darling, 
 J. As to inciting to commit such offence, 
 inde ante, p. 203. 
 
 (o) He added that the question was 
 whether the prisoner administered any 
 matter or thing to the woman to procure 
 abortion. R. v. PhilUps, 3 Camp. 74. In 
 R. V. Coe, 6 C. & P. 403, where the jDrisoner 
 was indicted on 9 Geo. IV. c. 31, s. 13, for 
 administering saffron to a female, and his 
 counsel was cross-examining her as to her 
 having taken something else before the 
 saffron, and also as to the innoxious nature 
 of the article ; Vaughan, B., said : ' Does 
 that signify ? It is with the intention 
 that the jury have to do ; and if the 
 prisoner administered a bit of bread merely 
 with intent to procure abortion, it is 
 sufficient.' It is not stated upon which 
 branch of the section this indictment was 
 framed ; if upon the latter, which used 
 the woi'ds ' any medicine or other thing,' 
 
 A
 
 CHAP ii.i Of Administering Drugs, &c. 831 
 
 On an indictment for administering feverfew and other drugs to 
 procure abortion, it appeared that the prisoner gave the woman, who was 
 alleged to be with child by him, two powders, with directions to take one 
 on each of two successive nights, and said that the efiect would be to 
 cause miscarriage. She took one of the powders, with the feverfew, 
 which brought on violent sickness. The other powder was examined by 
 a physician, and he could not discover any mineral substance in it ; as 
 far as he could judge from the taste, smell, and appearance, it was a 
 mixture of savin and fenugreek, the latter being the larger ingredient. 
 The fenugreek would scarcely produce any effect at all ; savin, in that 
 quantity, might produce a little disturbance in the stomach for the time, 
 but would do no further injury. Feverfew (p) is an herb very similar to 
 camomile : it is a tonic in common use among the j^easantry, and has 
 nothing noxious in it. A mixture of the jJowder and decoction of this 
 herb would not alter the properties of either. The prisoner upon two or 
 three subsequent occasions had brought the woman other medicines to 
 take for the same purpose, some of which she had taken, but not the rest. 
 Wilde, C. J., held that the evidence was not sufficient to prove that the 
 drugs administered came within the meaning of the words ' poison or other 
 noxious thing ' {q). 
 
 Where the prisoner caused half an ounce of oil of juniper to be admin- 
 istered, and it was proved that quantities considerably less may be taken 
 without any ill effect, but that half an ounce produces ill effects and is 
 dangerous to a pregnant woman, it was held that there was evidence of 
 the administering of a ' noxious thing ' within the section (r). 
 
 In order to bring a case within sect. 59 of the Act of 1861, it is not neces- 
 sary that the intention of using the noxious substance should exist in the 
 mind of any other person than the person supplying it. InR. v. Hillman (s), 
 
 perhaps the dictum was riglit. But decision in this case seems open to grave 
 neither this dictum, nor that of Lawrence, doubt. It is submitted that the true 
 J., in R. V. Phillips, apply to s. 58, meaning of the words ' poison or other 
 «upra, which uses the words ' any poison noxious thing ' is such things as in their 
 or other noxious thing ' only in the case nature are poisonous or noxious ; and that 
 of administering or causing to be taken ; it is a misapprehension to suppose tliat 
 and although a doubt is suggested in a note the statute recjuires such a quantity of a 
 to R. V. Coe as to whether the words ' other poison or other noxious thing to be ad- 
 means ' might not be applied to other ministered as shall be noxious. If a per- 
 substances than such as are poisonous or son administers any quantity of a poison, 
 noxious ; it would seem that the words however small, it has never yet been 
 ' other means whatsoever ' cannot be so doubted, that, if it were done with intent 
 applied in s. .58 : firstly, because they are to murder, the ollence of administering 
 in an entirely distinct sentence ; secondly, poison with intent to murder was com- 
 because they are governed by the word plcte ; and R. i'. Cluderay, 1 Uen. 514, 
 'use,' and not by 'administer.' C. S. G. shews that if poison be administered in 
 See Rose. Cr. Evid. (13th ed.), 232. such a way that it cannot injure, the 
 
 ip) Or Featherfew Matricaria, so called offence is nevertheless complete. Wilde, 
 
 from its supposed use in disorders of the C.J., there said: 'The act of administering 
 
 womb. poison with intent to kill Ls proved. The 
 
 (q) R. V. Perry, 2 Cox, 223. Wilde, effect of that act is beside the question.' 
 
 C.J., also held that the other transactions It is submitted, therefore, that if there be 
 
 were admissible as showing the intent with an intent to procure abortion, it is quite 
 
 which the particular drugs referred to in the immaterial how small the quantity be of 
 
 indictment were administered. See post, the poison or other noxious thing that ia 
 
 Vol. ii. p. 2108 ct seq. As the prisoner ad- administered.' C. S. G. 
 ministered the drugs with intent to procure (r) R. v. Cramp, 5 Q.B.D. 307 ; 49 L. J. 
 
 a miscarriage, and as savin is unquestion- M. C. 144. 
 ably in its nature a noxious drug, the (s) L. & C. 343 ; 33 L. J. M. C. 60.
 
 832 Of Procuring or Attemfting Ahortion. [bookix. 
 
 the prisoner v/as indicted for supplying savin, knowing that it was intended 
 to be unlawfully used to procure a miscarriage, and it was contended that 
 there was no case against him, because it was necessary that he should 
 know that the savin was intended to be used with intent to procure the 
 miscarriage, whereas it was not intended, except by the prisoner himself, 
 to be so used ; the jury found that the case was in other respects proved, 
 but that the prosecutrix did not intend to take the savin, nor did any 
 other person, except the prisoner, intend that she should take it. Upon 
 a case reserved, it was held that the intention of any other person than the 
 prisoner was not necessary to the commission of the offence. The statute 
 is directed against the supplying of any substance with the intention that 
 it shall be employed in procuring abortion. The prisoner, in this case, 
 supplied the substance, and intended that it should be employed to 
 procure abortion. He knew of his own intention that it should be so 
 employed, and was therefore within the words of the statute. He was 
 also within the mischief of the statute, and was rightly convicted. 
 
 In R. V. Titley {t), on an indictment under sect. 59, it appeared that 
 the defendant supplied a mixture of ergot of rye and perchloride of 
 iron with intent that it should be used by a certain woman to produce 
 abortion {u). It was ruled that the defendant was liable, although the 
 woman for whom it was intended was not pregnant, and that the 
 enactment applied ' whether there is a woman in a state fit to be the 
 subject of the operation or not ' {v). 
 
 The thing supplied with intent to procure abortion must be noxious 
 in its nature, ' according to the form, quality, or frequency with which 
 it is administered ' {w). Where, therefore, an indictment charged the 
 prisoner with supplying a certain noxious thing with intent to procure 
 abortion, and a surgeon proved that the liquid was some vegetable 
 decoction of a harmless character, and such as would not procure a mis- 
 carriage ; but if taken with the belief that it would produce it, it might, 
 by acting on the imagination, produce that effect ; it was held that this 
 liquid was not within the clause, although the woman proved that, after 
 taking a wine-glassful, she felt dizzy in the head when she went to bed, 
 and felt stupid in the head the next morning (x). 
 
 But it need not be shewn what the noxious thing is ; it is sufficient if 
 something is administered that produces miscarriage {y). 
 
 To constitute an administering, or causing to be taken, it is not neces- 
 sary that there should be a delivery by the hand. Where, therefore, 
 on an indictment for administering poison and causing poison to be taken, 
 it appeared that the prisoner had mixed poison with coffee, and had told 
 her mistress that the coffee was for her, and the mistress took it, and drank 
 some of it ; it was held that this was sufficient (2;). In R. v. Cadman (a), 
 
 (0 14 Cox, 502, Stephen, J. (w) Taylor, Med. Jurisp. (5th ed.), 
 
 (u) The indictment as originally framed ii. 183, where numerous instances of trials 
 
 charged an intent to procure the miscar- for administering particular drugs are 
 
 riage of a certain woman not named. On collected. 
 
 objection it was amended to ' a woman to (x) R. v. Isaacs, L. & C. 220. 
 
 the jurors imknown.' (y) R. v. Hollis, 12 Cox, 463 (C. C. R.). 
 
 {v) For criticisms on these cases see R. (2) R. v. Harley, 4 C. & P. 369, Park, J. 
 
 V. Hyland [1898] 24 Victoria L. R. 101 ; (a) 1 Mood. 114; Carr. Supp. 237. 
 
 R. V. Sculley [1903], 23 N. Z. L. R. 380.
 
 CHAP. II.] Of Administering Poison, &c. 833 
 
 a mere delivery to the woman, however, was held insufficient, and it was 
 said that the poison must be taken into the mouth to constitute an 
 administering. But in K. v. Walford (6), it was held unnecessary for 
 proving administration to shew that the poison had been taken into the 
 stomach. 
 
 Upon an indictment for unlawfully administering to, and causing to be 
 taken by, C, poison, with intent to procure her miscarriage, it appeared 
 that she, being and believing herself to be pregnant, applied to the 
 prisoner to get her something to procure her miscarriage, and that the 
 prisoner accordingly purchased some preparation of mercury, which he 
 gave to her, directing her to take one half of the quantity in gin ; C. 
 accordingly procured the gin, and, in the absence of the prisoner, took the 
 dose, which produced a miscarriage. The jury found these facts, and 
 that the mercury was both given by the prisoner to C, and taken by her, 
 with intent to procure the miscarriage ; and, upon a case reserved, it 
 was held that the prisoner was properly convicted ; as there was a 
 ' causing to be taken ' within the meaning of the statute (c). So where on 
 a similar indictment it appeared that the prisoner had talked with C. 
 about her being with child, and brought her a bunch of savin, and told her, 
 if she put it in some gin, and took from half a glass to a glass two or three 
 times a week, it would destroy her child, and she took the savin and gin 
 three or four times accordingly ; and the prisoner afterwards induced C. 
 to get some blue pills from a chemist, which the prisoner made up with 
 some flour and tea into pills, of which C. took twenty or thirty, and was 
 very ill from the time of taking the pills till she was confined ; it was held, 
 upon a case reserved, that there was no distinction between this and the 
 preceding case [d). 
 
 Under the Act of 1861, in such cases as the two last, the woman being 
 with child would be a principal, and the man an accessory before the fact ; 
 but where the woman is not with child these cases will still apply ; for 
 there the woman's criminality will be exactly the same as it was under the 
 former Act. 
 
 On an indictment for administering savin with intent to procure 
 abortion, the administration of savin on one day was proved, and it was 
 proposed on the part of the prosecution to prove the administration of 
 similar drugs on many subsequent days for the purpose of shewing the 
 intent, and also as part of the same felony, and it was urged that the 
 substance of the felony was the administration of drugs for the purpose 
 of procuring abortion, and if that were done by homoeopathic doses, taken 
 for a long period, all would form part of one felony ; but Cresswell, J., 
 held that other matters of the same description might be proved 
 for the purpose of shewing the intent, but that the administration of 
 
 (b) [1899] 3-t L. .J. (Ncwsp.) 116, Wills, .J. distinguishes tlie case from R. v. Williams, 
 who questioned the accuracy of the report 1 Den. 39. 
 
 in R. V. Cadman. (d) R. v. Farrow, D. & B. 164. It is not 
 
 (c) R. V. Wilson, D. & B. 127. Cheney, stated expressly whetlier the savin and pills 
 though culpable, was not guilty of felony, were taken in the absence of the prisoner, 
 and therefore not guilty of the felony but the inference from the facts stated is 
 created by the statute, and tlie prisoner that they were. See also R. v. Gaylor, D. 
 was, therefore, the only person coming & B. 288. R, v. Fretwell, L. & C. 161. 
 within the words as the principal ; and this 
 
 "vol. I. 3 H
 
 834 Of Procuring or Attempting Abortion. [bookix. 
 
 other savin on other days could not be given in evidence as part of the 
 ofEence {e). 
 
 Instruments or other Means j- The decisions on criminal use of 
 instruments within sects. 58, 59, are to be found in medical rather than 
 in legal treatises (/). 
 
 In E,. V. Dale {g), where an instrument or appliance is used which might 
 be properly employed for innocent treatment of the woman, Charles, J., 
 ruled that evidence that the accused had by similar means caused or 
 attempted to cause miscarriages was admissible to prove that the act was 
 done with a guilty intent. In R. v. Bond {h), it was pointed out that the 
 evidence was not in fact admitted ; and that it would not be admissible 
 when the only question at issue was Avhether the instrument was in fact 
 used {i). But in that case, after full discussion, it was held by the majority 
 of the Court (/), that on an indictment under sect. 58 against a medical 
 man, to shew guilty intention, evidence might be admitted to prove the 
 use by him of instruments with the avowed intention of producing the 
 miscarriage of another woman, and of his then using expressions indicating 
 that he was in the habit of performing similar operations for the same 
 illegal purpose. 
 
 As to advertisements, &c., inciting to or advising the procuring of 
 miscarriage, see ante, p. 203, note (c). 
 
 A woman who wrongly believing herself to be with child conspires with 
 others to procure her miscarriage is liable to conviction for criminal 
 conspiracy {k). 
 
 Evidence. — As to the medical aspects of the evidence see Taylor, Med. 
 Jurisp. (5th ed.), ii. 180. Dying declarations are not admissible on 
 indictments for offences within this chapter {I). A statement made before 
 her death by the woman operated upon, tendered in evidence on an 
 indictment under sect. 58, was rejected on the ground that though made 
 in the presence and hearing of the accused, he had not a sufi&cient 
 opportunity of explaining or denying it (m). 
 
 Where the woman with resj)ect to whom an ofEence against sects. 58, 59 
 is alleged to have been committed or attempted is a witness for the 
 Crown, her evidence requires corroboration as that of an accomplice (w), 
 in a material particular implicating the accused (o). But this rule does 
 not apply where the woman has acted as a police spy with a view to 
 detect an abortionist (p). 
 
 (e) R. V. Calder, 1 Cox, 348. See R. v. (k) R. v. Whitchurch, 24 Q.B.D. 420, 
 
 Perry, ante, p. 831, note (q). ante, p. 151. 
 
 (/) See the cases noted in Taylor, Medical (I) Post, Vol. ii. p. 2084, ' Evidence.' 
 
 Jurisprudence (5th ed.), ii. 159-166. (m) R. v. Smith [1897], 18 Cox, 470, 
 
 (g) 16 Cox, 703. Hawkins, J. 
 
 (h) [1906] 2 KB. 389. (n) R. v. M , 72 J. P. 214, Bucknill, J. 
 
 (i) Ibid. p. 420, A. T. Lawrence, J. (o) R. v. Everest, 73 J. P. 269. 
 
 {/) Kennedy, DarUng, Jelf, Bray and (p) R. v. Bickley, 73 J. P. 239 ; 2 Cr. 
 
 A. T. Lawrence, JJ. Alverstone, C.J. and App. R. 53. 
 Ridley, J., dissented.
 
 ( 834:0 ) 
 
 CANADIAN NOTES. 
 
 OF PROCURING OR ATTEMPTING ABORTION. 
 
 Advertising or Having Drugs to Cause Abortion, etc. — Code sec. 
 207. 
 
 Administering Drugs or Using Instruments to Procure Abortion. — 
 Code sec. 303. 
 
 Attempt by Woman to Procure Abortion. — Code sec. 304. 
 
 Supplying Drugs or Instruments. — Code sec. 305. 
 
 Killing an Unborn Child. — Code sec. 306. 
 
 The statute 32-33 Vict. ch. 20, sec. 59, as well as the later Act 
 R.S.C. 1886, ch. 162, sec. 47, used the phrase "any poison or other 
 noxious thing." It was laid down under that statute that while 
 poisons are not noxious things when taken as medicine in ordinary 
 treatment, that if taken or administered in undue and immoderate 
 quantities the excess of the article becomes noxious, and it is not 
 essential to support a conviction that the article should be noxious 
 in itself. R. v. Stitt (1879), 30 U.C.C.P. 30, 33. 
 
 An indictment under sec. 304 of the Code charging accused "with 
 unlawfully using on her own person . . with intent thereby to 
 procure a miscarriage" (without stating whose miscarriage) is suffi- 
 cient. Rex V. Holmes, 9 B.C.R. 294, 6 Can. Cr. Cas. 402. 
 
 Counselling a woman in Canada to submit in a foreign country 
 to an operation to procure miscarriage is not indictable in Canada, 
 even if the operation be actually performed as counselled. R. v. 
 Walkem, 14 Can. Cr. Cas. 122. 
 
 In extradition proceedings for abortion alleged to have been com- 
 mitted by a physician at the instigation of the accused, it is necessary 
 to produce evidence to prove both that the physician's operation was 
 unnecessary and unlawful, and that the accused procured or abetted 
 such unlawful operation. The King v. McCready, 14 Can. Cr. Cas. 
 481.
 
 II
 
 ( 835 ) 
 
 ♦ CHAPTER THE THIRD. 
 
 OF CONSPIRACY, INCITEMENT AND ATTEMPTS TO MURDER : AND OF 
 WOUNDING AND CAUSING GRIEVOUS BODILY HARM. 
 
 Sect. I. — Of Conspiracy and Incitement to Murder. 
 
 By 24 & 25 Vict. c. 100, s. 4 (a), ' All persons who shall conspire, 
 confederate, and agree to murder any person, whether he be a subject of 
 His Majesty or not, and whether he be within the King's dominions or not, 
 and whosoever shall solicit, encourage, persuade, or endeavour to persuade, 
 or shall propose to any person, to murder any other j)erson, whether he be 
 a subject of His Majesty or not, and whether he be within the King's 
 dominions or not, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable ... to be kept in penal servitude for any term 
 not more than ten years . . . (6). 
 
 As regards conspiracy or incitement to murder within the realm or 
 within the Admiralty jurisdiction, this enactment does no more than 
 prescribe the punishment for an offence already recognised by the common 
 law. 
 
 In R. V. Macdaniel (c), a number of persons, in order to procure 
 rewards offered by Acts of Parliament for apprehending highway robbers, 
 concocted a false charge of robbery against one Kidden, who was convicted 
 and executed for it upon the evidence of two of the consj)irators. 
 Macdaniel and others were first tried and convicted on an indictment 
 for conspiring to procure Kelly and Ellis to go to Deptford, in Kent, and 
 there take money from Salmon on the King's highway, who should be 
 waiting there for that purpose, with intent to cause Kelly and Elhs to be 
 apprehended and convicted of highway robbery from Salmon, and so un- 
 justly and wickedly to procure to themselves the rewards (d). Macdaniel 
 and Berry were also indicted and convicted for the wilful murder of one 
 Kidden, in maliciously causing him to be unjustly apprehended, falsely 
 accused, tried, convicted, and executed, well knowing him to be innocent, 
 and with intent to share the reward (e). On this indictment a verdict of 
 
 (a) In Ireland, under 10 Geo. IV. c. 34, (6) The words omitted were repealed in 
 
 ss. 8, 9, the offences mentioned in this 1892 (S. L. R.), as superseded by 54 & S.! 
 
 section were capital felonies; and in the Vict. c. 69, s. 1, rDile, pp. 211, 212, under 
 
 Bill, as it passed the House of Lords, the which the minimum term of penal scrvi- 
 
 offences were continued as felonies, but tude is three years and imprisonment 
 
 made punishable by penal servitude for with or without hard labour for not more 
 
 life ; the House of Commons, however, two years may be awarded, 
 
 altered them to misdemeanors, punishable (c) Fost. 121 ; 19 St. Tr. 746. 
 
 with ten years' penal servitude, and as all (d) On their conviction they were sen- 
 
 the offences specified in this clause appear fenced inter alia to tlie pillory, and one of 
 
 to be misdemeanors at common law the them wliile m the pillory was killed by the 
 
 effect of this clause is merely to alter the populace. 19 St. Tr. 809. 
 
 punishment. (e) 19 St. Tr. 810. 
 
 3 H 2
 
 836 
 
 Of Conspiracy and Incitement to Murder, [bookix. 
 
 guilty was returned, but judgment was respited to allow a motion in arrest 
 of judgment, and the law officers declined to argue the point and the 
 prisoners were discharged on that indictment (/). 
 
 Conspiracy: — The words ' whether he be a subject of His Majesty or 
 not, and whether he be within the King's dominions or not,' were intro- 
 duced in order to make it perfectly clear that sect. 4 included cases 
 where the conspiracy was to murder a foreigner in a foreign country (g). 
 
 It is not essential that the conspiracy should have been formed in 
 England or Ireland. The Act, by sect. 68 (h) includes conspiracies within 
 the jurisdiction of the Admiralty of England or Ireland ; and even if that 
 section did not exist, British subjects who conspire on the high seas are 
 triable according to the course of the common law in any county in 
 England where any act in furtherance of such conspiracy is done by any 
 one of them, or by their innocent agent ; for the crime of conspiracy, 
 amounting only to a misdemeanor, may, like high treason, be tried 
 wherever one distinct overt act of conspiracy is in fact committed (i). 
 
 Although at common law the criminal jurisdiction of counties was 
 local (j), yet in conspiracy the jury could, as we have seen, at common 
 law take cognisance of acts done on the high seas or in another county, 
 provided there were an overt act done in the county where the indictment 
 was preferred : and it would therefore seem that if there were a conspiracy 
 on land abroad, a jury might try it in any place in England where any 
 overt act in pursuance of it was done. Lastly, suppose A. in England 
 
 (/) 19 St. Tr. 813 ; vide ante, p. 679. 
 
 (g) And to do away with questions which 
 had previously arisen see Y. B. ( 13 Ed w. IV. ) , 
 f . 9, pi. 5. The matter was much discussed in 
 R. V. Bernard, 1 F. & F. 240 ; 8 St. Tr. (N. S.) 
 857, an indictment for conspiracy to murder 
 the Emperor Napoleon III. Mr. Greaves' 
 view on the subject were as follows : ' The 
 words were introduced ex abundanti cautela 
 only, and tliis section cannot be cited as a 
 legislative declaration that a conspiracy in 
 England to murder a foreigner in a foreign 
 country is not a conspiracy indictable at 
 common law, or that the killing of a 
 foreigner in a foreign country, under such 
 circumstances as would amount to murder 
 if the killing were in England, is not 
 murder in contemplation of the law of 
 England. The introduction of the words 
 in question makes it iinnecessary to 
 discuss either of those questions ; but, 
 having with no small care examined all the 
 authorities to be found on the subject, I 
 may be pardoned for saying it is perfectly 
 clear to me that the killing of any person 
 anywhere in the world, whether on land or 
 sea, under such circumstances that if the 
 killing had been in England it would have 
 amounted to the crime of murder, has ever 
 been murder in contemplation of the law of 
 England. Wherever a murder has taken 
 place in England or on the narrow seas, the 
 Court of King's Bench, or Courts of Oyer 
 and Terminer or Gaol Delivery, have had 
 jurisdiction to try it by a jury. Wherever 
 a murder has taken place on the high seas, 
 
 the Court of Admiralty had jurisdiction to 
 try it according to the civil law ; and 
 wherever a murder has taken place on land 
 abroad, the Court of the Constable and 
 Marshal had jurisdiction to try it according 
 to the civil law. By sundry statutes in and 
 since the time of Henry VIII. the jurisdic- 
 tion to try murders committed on the high 
 seas and on land abroad, has been conferred 
 on certain tribunals with the aid of a jury ; 
 but none of these statutes either alters, or 
 professes to alter, the nature of the offence ; 
 on the contrary, they all treat it as murder, 
 and only provide a different mode of trial. 
 The doubt which has arisen, and not urma- 
 turally, seems to have sprung from suppos- 
 ing that, because the Common Law Courts, 
 trying all offences by the aid of a jury, had 
 only jurisdiction over offences committed 
 in England or on the narrow seas, therefore 
 murder and other offences against the law 
 of nature and nations were no offences at 
 all in the eye of the law of England. The 
 answer is, that the Courts of Admiralty and 
 of the Constable and Marshal did try such 
 offences from the earliest times ; and, 
 therefore, it is clear that they always were 
 offences in the eye of the law of England.' 
 See Greaves, Crim. L. Cons. Acts (2nd ed.) 
 34. 
 
 (h) Ante, p. 40. 
 
 («) See R. V. Brisac, 4 East, 166, ante, 
 p. 63. R. V. Bowes, cited in R. v. 
 Brisac. 
 
 (j) R. V. Weston, 4 Burr. 2507, Lord 
 Mansfield, C.J. ; vide ante, p. 19. 
 
 J
 
 CHAP. III.] Of Conspiracy and Incitemeyit to Murder. 837 
 
 conspired with B. abroad to commit a murder, and A. did some overt act 
 in England, it would seem that both A. and B. might be tried in England, 
 if B, was a British subject ; and that if B. was not a British subject, A. 
 might, nevertheless, be tried where he did that overt act ; for such an act 
 would be an act coupled with a criminal intent, and as such indictable, 
 within the principle laid down in R. v. Higgins (k), even if it should be 
 objected that a conspiracy between A. in England and B., a foreigner, 
 abroad, was not a conspiracy within the criminal law of England. And 
 as a letter written and sent, but intercepted, is an overt act in treason (?) ; 
 so a letter may be an overt act in conspiracy. The provisions of the 
 section apply to the overt acts of aliens within the realm or within 
 the jurisdiction of the Admiralty of England or Ireland (m). 
 
 If a question should be raised whether, if one of the conspirators were 
 to commit the murder, and the others were indicted as accessories before 
 the fact, it might not be objected that they could only be tried for a 
 misdemeanor under this clause ; the answers are, first, that this clause 
 has only altered the jDunishment, and created no new offence ; and at 
 common law the power to prosecute for a misdemeanor was not only 
 never suggested as in any way preventing a prosecution for felony, but 
 the best authorities always held that the misdemeanor merged in the 
 felony. But, secondly, nothing can be clearer than that if a statute 
 create a misdemeanor, and something be done in pursuance of, and in 
 addition to, that misdemeanor, which amounts to a felony, all persons 
 who have done acts which would make them accessories before the fact 
 to that felony, may be indicted as such (putting aside merger altogether), 
 on the plain ground that they are totally different offences. It has never 
 been suggested, that because wounding with intent to murder is made a 
 felony, therefore a man who killed another by wounding him could not be 
 indicted for murder. There is no such thing as merger of one felony by 
 another ; and when, as is often the case, the same acts constitute several 
 felonies, either at common law or by statute, the prosecutor may indict 
 for any of them [n). Thus, in cases of real murder, indictments for 
 manslaughter have often been preferred, and so also indictments for 
 administering poison where death has ensued. 
 
 Where on an indictment against three prisoners and others unknown, 
 for a conspiracy to murder, one of them was tried first, because they 
 severed in their challenges, and the evidence tended to affect him and the 
 others named in the indictment, and made a case to go to the jury as to a 
 conspiracy by the three : but there was no evidence to shew that any other 
 person was engaged in the conspiracy : and the jury found the prisoner 
 guilty, and on his being brought up for judgment it was objected that the 
 
 {k) 2 East, 5. Cf. R. r. Bull, 1 Cox, 281, of the King's subjects extend to aliens 
 
 ante, pp. 810, 815. within the realm {ex parte Barronet, 1 E. & B. 
 
 (I) R. V. Hensey, 19 St. Tr. 1341 ; 1 Burr. 1 ), for while there they are subjects by local 
 
 642. allegiance. 1 Hale, 542. Courtecn's case, 
 
 (m) Vide ante, pp. 45, 103. By 32 Hob. 270: 80 E. R. 41 G. And see Dc Jager 
 
 Hen. VIII. c. IG (rep. 18G3, 2G & 27 Vict. c. v. R. [1907], A. C. 32G. The rule does not 
 
 125.) all aliens who come into tlie realm apply to foreign sovereigns or other persons 
 
 shall be bounden by and unto the laws and enjoying the privilege of exterritoriality, 
 
 statutes of this realm and to all and singular Vide ante, pp. 103, 299. 
 
 the contents of the same. Statutes speaking (n) See 52 & 53 Vict. c. 63, s. 33 ante, p. 4.
 
 838 Of Conspiracy and Inciteynent to Murder, [bookix. 
 
 prisoner ought not by law to have been tried alone. The objection was 
 overruled and sentence passed. Upon a case reserved, it was contended 
 that the judgment was irregular : for if the others were acquitted, the 
 prisoner could not be guilty of conspiracy : that there was a contradiction 
 on the face of the record, for the others had not been found guilty, and 
 until they were his guilt was not proved : and that the judgment ought to 
 have been respited. But it was held that there were no grounds for 
 respiting or arresting judgment (o). 
 
 Incitement to Murder. — Upon an indictment for soliciting A. to murder 
 C, the evidence was that the prisoner gave poison to A. to administer 
 to C, and which A. accordingly did ; but C. having taken part of it, 
 discovered the fact in time to save his life. The jury found him guilty, 
 believing that the poison had been delivered to C, with intent to poison 
 him, and that the solicitation was to that effect ; the judges held both 
 indictment and conviction proper, in treating the prisoner as a princij)al 
 soliciting, and not as an accessory before the fact (p). 
 
 In R. V. Most (7), an indictment under the above section for 
 encouraging and endeavouring to persuade others to commit murder, 
 the alleged encouragement and endeavour to persuade to murder was 
 the publication and circulation by him of an article written in 
 German in a newspaper published in London exulting in the recent 
 murder of the Emperor of Russia, and commending it as an example. 
 The jury were directed that if they thought he intended to, and did, 
 encourage any person to murder any other person, whether a subject of 
 Her Majesty or not, and whether within her dominions or not, and that 
 such encouragement was the natural effect of the article, they should 
 find him guilty. It was held that such direction was correct, although 
 the encouragement was not addressed to any person in particular. 
 
 It is not necessary to prove that the mind of the person solicited 
 was affected by the solicitation (/). 
 
 In R. V. Antonelli (s), the indictment contained counts against A., for 
 encouraging and endeavouring to persuade persons unknown to murder 
 certain persons, to wit, sovereigns and rulers of Europe, ' not then being 
 within the dominions of our Lord the King, and not being subjects of 
 our said Lord the King,' and against B. ; and also a count for encouraging 
 and endeavouring to persuade persons unknown to murder Victor 
 
 (0) R. V. Aliearne, 6 Cox, 6, relying on sj^ired might be acqtiitted, and it would be 
 
 R. V. Cooke, 5 B. & C. 538. ' It has always absurd that he should thereby be exone- 
 
 appeared to me perfectly clear that even if rated. It is a fallacy to suppose that there 
 
 on a subsequent trial the others were ac- is any inconsistency on the face of a record 
 
 quitted, it would in no way affect the pre- containing an indictment, verdict, and 
 
 vious verdict or judgment. The jury who judgment, where any state of facts can be 
 
 convict a prisoner who is tried alone for suggested which is consistent with the 
 
 conspiracy, must have been satisfied both statements in that record.' C. S. G. 
 
 that he conspired with the other, and that {p) R. v. Murphy. Jebb. Circ. & Pr. Cas. 
 
 the other conspired with lum, and the sub- 315 (Ir.) : Hayes, Dig. 631. 
 
 sequent acquittal is in no respect necessarily [q) 7 Q.B.D. 244. 
 
 inconsistent with that verdict ; for it may (r) Ibid. R. v. Krause, 66 J. P. 121, 
 
 have proceeded on the want or failure of Alverstone, C.J. 
 
 evidence. Suppose a defendant pleaded (s) [1905] 70 J. P. 4, Phillimore, J. Cf. 
 
 guilty, or was convicted on his ovra written R. v. Bourtzeff, 129 Cent. Cr. Ct. Sess. Pap. 
 
 confession, it might well be that the person 284. 
 with whom he had admitted he had con-
 
 CHAP. III.] Attempts to Commit Murder. 839 
 
 Emmanuel III., King of Italy. The counts were challenged as bad for 
 indefiniteness. Phillimore, J., ruled that the sovereigns of Europe were 
 a sufficiently definite class, but considered that the word ' rulers ' w^as 
 somewhat vague and would have been better left out. The incitement 
 was contained in a pamphlet called ' L'Insurrezione/ published and put 
 on sale by A., on the anniversary of the murder of King Humbert of 
 Italy. Phillimore, J., ruled that so far as it merely contained invectives 
 on foreign systems of government it was not criminal ; but left the case 
 to the jury as to whether the document incited persons to murder the 
 sovereigns of Europe in general or the reigning King of Italy in particular. 
 The jury were also directed that B., who was charged with abetting, was 
 liable if he circulated the pamphlet knowing, or wilfully shutting his eyes to, 
 what it contained. 
 
 In R. V. Fox {t), on an indictment for soliciting H. to murder K., it 
 was proved that the defendant wTote and posted a letter addressed toH., 
 in which he requested him to murder K. ; but that letter by accident 
 fell into the hands of a fourth person and never reached H. It was 
 ruled that this evidence was insufficient to warrant a conviction on the 
 grounds that the words solicit, encourage, persuade, or endeavour to per- 
 suade all involved actual communication w4th the person to be influenced. 
 
 In R. V. Krause {u) the defendant was indicted for soliciting, persuading 
 and endeavouring to persuade B. to murder one Foster, and for 
 attempting to solicit, &c., B, to murder F. The case for the prosecution 
 rested on two letters alleged to have been sent by the defendant 
 to B., in South Africa. There was no evidence that the letters reached 
 B. It was ruled in accordance with R. v. Fox (supra) that to constitute 
 the statutory offence there must be evidence that there must be some 
 communication to the person said to have been solicited ; but the case 
 was left to the jury on the counts charging an attempt to commit the 
 statutory offence (i'). 
 
 Sect. II. — AxTEivirTS to Commit Murder. 
 
 Common law. — Attempts to murder are at common law misdemeanors 
 only (ic). Such attempts, with maiming, and doing or attempting great 
 
 (<) R. V. Fox [1871], 19 W. R. 109 (C. C. Sid. 230, where the defendant, having been 
 
 R. Ir.), Whiteside, C.J., Pigott, C.B., Fitz- convicted for lying in wait to kill Sir Har- 
 
 gerald, B., Fitzgerald, J., O'Brien, J., bottle Grimstone, the Master of tlie Rolls, 
 
 George, J. ; diss. Deasy, B., Lawson and was sentenced to fine and imprisonment, 
 
 Morris, JJ. the finding surety for his good behaviour 
 
 (u) [1902] 00 J. P. 121, Alvcrstone, C.J. for life, and acknowledging liis offence at 
 
 Cf. R. V. McCarthy [1903], 2 Ir. Rep. 140, the bar of the Court of Chancery. And see 
 
 154, a charge of inciting persons unknown two precedents of indictments at common 
 
 to intimidate certain otlier persons unknown, law, for misdemeanor in attempting to 
 
 and to take part in a criminal conspiracy. murder by poison, 3 Chit. Cr. L. 790. Where 
 
 [v) SecR. r. Ransford, 13Cox,9 (C. C. R.), the first count of an indictment charged 
 andante, p. 203, tit. 'Incitement.' In R. v. an assault with an intent to murder, Ken- 
 Fox there is some discussion as to whether yon, C.J., being of opinion, upon the facts 
 tiie word ' endeavour ' in the statute is given in evidence, tiiat if death had ensued 
 equivalent to 'attempt' in the common-law it would only have been manslaughter, 
 sense. See R. v. Watt, 20 Cox, 852 : 70 directed the jury to acquit the defendant 
 J.P. 29, as to evidence. upon that count. R. v. Mitton [1788], 1 
 
 (w) Staundf. 17. 1 East, P.C. 411. 1 East, P.C. 411. See Starkie, Ev. tit. 
 
 Hawk. e. 44. R. v. Bacon, 1 Lev. 140. 1 ' Assaults.'
 
 840 
 
 Attempts to Commit Murder. 
 
 [BOOK IX. 
 
 bodily harm, were severely punishable under a series of enactments now 
 repealed. 
 
 Former Statutes. — 5 Hen. IV. e. 5 {x) related to cutting tongues and 
 putting out eyes. Sir John Coventry's Act (22 & 23 Car. II. c. 1) {y) made 
 malicious maiming a capital felony. 9 Anne, c. 21 (c. 16, RufPhead) made 
 it a capital felony to attempt to kill, assault, wound, &c,, a privy 
 councillor. The Black Act (9 Geo. I. c. 22) made maliciously shooting 
 at any person a capital offence. 26 Geo. 11. c. 19, s. 1 punished the beating 
 or wounding persons shipwrecked with intent to kill them, &c., or putting 
 out false lights to bring a ship into danger. Lord Ellenborough's Act 
 (43 Geo. III. c. 58) dealt {inter alia), with malicious shooting. These 
 statutes were repealed in 1827 (7 & 8 Geo. IV. c. 27), 1828 (9 Geo. IV. c. 31), 
 and 1854 (17 & 18 Vict. c. 120), The substituted provisions contained 
 in those Acts were repealed in 1861 (24 & 25 Vict. c. 95). 
 
 Present Law. — The existing statute law punishing attemj^ts to murder 
 is contained in sects. 11-15 of the Offences against the Person Act, 1861 
 (24 & 25 Vict. c. 100) (z). 
 
 Poisoning, Wounding, &c., with Intent to Murder. — By sect. 11 (a), 
 ' Whosoever shall administer to or cause to he administered to or (b) to 
 be taken by any person any poison or other destructive thing, or shall 
 by any means ivhatsoever (c) wound (d) or cause any grievous bodily 
 harm (e) to any person, with intent in any of the cases aforesaid to commit 
 murder, shall be guilty of felony, and being convicted thereof shall be 
 liable ... to be kejDt in penal servitude for life . . . (/). 
 
 Use of Explosives with Like Intent. — By sect. 12 (g), ' Whosoever, by the 
 explosion of gunpowder or other explosive substance, shall destroy or 
 damage any building, with intent to commit murder, shall be guilty of 
 
 {x) Repealed in 1827 (7 & 8 Geo. IV. c. 27). 
 
 [y) Some old statutes, such as 5 Hen. IV. 
 C. 5, and 22 & 23 Car. II. c. 1, though re- 
 pealed in England, seem still to be in force 
 as common law in America ; but generally 
 speaking some State statute is substituted 
 for the old English statutes. See Bishop, 
 ii. ss. 1002, 1003, 1004. 
 
 (2) These sections do not apply to at- 
 tempts to commit suicide. R. v. Burgess, 
 32 L. J. M. C. 55 ; L. & C. 258. 
 
 (a) Framed from 7 Will. IV. & 1 Vict. 
 c. 85, s. 2, with the modifications indicated 
 in italics. The words ' by any means 
 whatsoever ' were intentionally inserted 
 to over-ride rulings Under the former Act, 
 that woiuiding must be with some instru- 
 ment. R.^^ Bullock, L.R. 1 C. C. R. 115, 117. 
 
 (h) As to the introduction of these words, 
 vide notes to s. 14, post, p. 841. 
 
 (c) Under 7 Will, IV. & 1 Vict. c. 85, s. 2, 
 it was necessary to prove that the woiind 
 was with an instrument. See R. t\ Jen- 
 nings, 2 Lew. 130, Alderson, B. R. i\ 
 Payne, 4 C. & P. 558. R. v. Withers, ] 
 Mood. R. 294. R. v. Smith, 8 C. & P. 173. 
 R. V. McLoughlin, 8 C. & P. 635. R. r. 
 Briggs, 1 Mood. 318. R, v. Sheard, 7 C. 
 & P. 846. R. V. Lancaster, 2 Stark. Ev. 
 (3rd ed.), 692. R. v. Shadbolt, 5 C. & 
 
 P. 504. R. V. Duffill, 1 Cox, 49. R. v. 
 Elmsley, 2 Lew. 126, where the question 
 arose whether the bite of a dog was within 
 9 Geo. IV. c. 31. 
 
 (d) 'Wound' was inserted as a general 
 term including every ' stab ' or ' cut,' All 
 that is now necessary to allege in the indict- 
 ment is, that the prisoner did wound the 
 prosecutor ; and that allegation will be 
 proved by any wound, whether it be a stab, 
 cut, or other wound. The words ' any 
 grievous bodily harm ' are inserted instead 
 of ' any bodily injury dangerous to life,' in 
 order to render the clause more comprehen- 
 sive. If in any case it be doubtful whether 
 the facts bring it within this clause, but 
 there is evidence that the acts were done 
 with intent to murder, a count on s. 15, 
 ■post, p. 841, alleging an attempt to murder, 
 should be added. 
 
 (e) Vide post, p. 854. 
 
 (/) For other punishments see 54 & 55 
 Vict. c. 69, s. 1, ante, pp. 211, 212. The 
 words omitted were repealed in 1892. 
 
 [g) Taken from 9 & 10 Vict. c. 25, s. 2. 
 In this and the next section, the words 
 ' unlawfully and maliciously ' are omitted 
 as unnecessary, and ' intent to commit 
 murder ' substituted for ' intent to murder 
 any person.'
 
 CHAP. III.] 
 
 Attempts to Commit Murder. 
 
 841 
 
 felony, and being convicted thereof shall be liable ... to be kept in 
 penal servitude for life . . . ' {gg). 
 
 By sect. 13 {h), ' Whosoever shall set fire to any ship or vessel, or 
 any fart thereof, or miij part of the tackle, apparel, or furniture thereof, or 
 any goods or chattels being therein, or shall cast away or destroy any ship 
 or vessel, with intent in any of such cases to commit murder, shall be guilty 
 of felony, and being convicted thereof shall be liable ... to be kept in 
 penal servitude for life . . . ' (gg). 
 
 By sect. 14 (i), ' Whosoever shall attempt to administer to or shall 
 attempt to cause to he administered to or to be taken by any person any 
 poison or other destructive thing, or shall shoot (/) at any person, or 
 shall, by drawing a trigger or in any other manner attempt to discharge 
 any kind of loaded arms (k) at any person, or shall attempt to drown (l), 
 suffocate, or strangle (m) any person, with intent, in any of the cases 
 aforesaid, to commit murder (n), shall, whether any bodily injury (o) be 
 effected or not, be guilty of felony, and being convicted thereof shall be 
 liable . , . to be kept in penal servitude for life . . . {gg). 
 
 By sect. 15 (p), ' Whosoever shall, by any means other than those speci- 
 fied in any of the preceding sections of this Act, attempt to commit 
 murder {q), shall be guilty of felony, and being convicted thereof shall 
 be liable ... to be kept in penal servitude for life . . . {gg). 
 
 It is to be observed that the punishment under each of these 
 
 {gg) For other punishments see 54 & 55 
 Vict. c. 69, s. 1, ante, pp. 211, 212. The 
 words omitted were repealed in 1892. 
 
 [h) Taken from 7 Will. IV. & 1 Vict. 
 c. 89, s. 4. The words in italics were 
 introduced for the same reason as it was 
 made felony to set fire to goods, &c., in 
 buildings. As to setting fire, see 'post, 
 Vol. ii. p. 1775. 
 
 (i) Taken from 7 Will. 4 1 Vict. c. 85, 
 s. 3. Where the prisoner delivered poison 
 to a guilty agent, with directions to him to 
 cause it to be administered to another in the 
 absence of the prisoner, it was held that the 
 prisoner was not guilty of an attempt to 
 administer poison within 7 Will. IV. & 1 
 Vict. c. 85, s. 3 ; R. v. Williams, 1 Den. 39 ; 
 and the words ' attempt to cause to be ad- 
 ministered to or to be taken by,' were intro- 
 duced in this section to meet such cases. 
 Of. R. V. Carr. R. & R. 377, and R. v. Harris, 
 5 C. & P. 159. 'The words ' whether any 
 bodily injury be effected or not,' are sub- 
 stituted for, ' although no bodily injury be 
 effected,' in order to prevent an objection 
 which might possibly have been raised on 
 an indictment under the former clause, if it 
 had appeared that any bodily injury had 
 been effected.' C. S. G. 
 
 (j) Vide post, p. 842. 
 
 (k) See s. 19, post, p. 842. 
 
 (I) See R. t'. Sinclair, 2 Lew. 49, where 
 the defendant in order to prevent boj-s 
 landing at a place where there was a dis- 
 puted right of ferry knocked holes in their 
 boat with a boathook, which caused the 
 boat to fill, and then pushed the boat away 
 
 from the shore. 
 
 (m) As to choking, &c., see post, p. 863. 
 
 in) 43 Geo. III. c. 58, and 9 Geo. IV. c. 
 31, s. 12, contained provisoes now omitted 
 directing that if the offence were committed 
 under such circumstances that if death had 
 ensued the same would not have been 
 murder, the prisoner should be acquitted, 
 as otherwise if the person injured did not 
 die the punishment would be death, but not 
 so if he died. 
 
 (o) Vide post, p. 854. 
 
 (p) ' This section, which was new law in 
 1861, is meant to include every attempt to 
 murder not specified in any preceding 
 section. It therefore embraces all those 
 atrocious cases where the ropes, chains, or 
 machinery used in lowering miners into 
 mines have been injured with intent that 
 they may break and precipitate the miners 
 to the bottom of the pit. So also all cases 
 where steam engines are inj ured, set on work, 
 stopped, or anything put into them, in order 
 to kill any person, will fall within it. So 
 also cases of sending or placing infernal 
 machines with intent to nuirdor. See R. 
 r. IMountford, 1 Mood. 441, 7 C. & P. 242. 
 Indeed every attempt to nnnder, whieli 
 perverted ingenuity may devise, or fiendish 
 malignity suggest, will fall within some 
 clause of this Act, and may be visited with 
 penal servitude for life. In any case where 
 there may be a doubt whether the attempt 
 falls within the terms of any of the pn-- 
 ceding sections, a count framed on this 
 clause should be added.' C. S. G. 
 
 (q) See note (d), ante, p. 840.
 
 842 Attempts to Commit Murder. [bookix. 
 
 sections is the same, and the effect of all could have been obtained 
 by omitting the words "other than ... to Act/' in sect. 15. Sect. 15 
 cannot be used to punish attempts specified in sects. 11-14. 
 
 Letters Threatening to Murder. — Sect. 16, which punishes written 
 threats to murder, is dealt with under the title ' Threats ' post, Vol. II. 
 p. 1161. 
 
 Impeding Escape from Wrecks. — By sect. 17 (r), ' Whosoever shall 
 unlawfully and maliciously prevent or impede any person, being on board 
 of or having quitted any ship or vessel which shall be in distress, or 
 wrecked, stranded, or cast on shore, in his endeavour to save his life, 
 or shall unlawfully and maliciously 'prevent or impede any person in his 
 endeavour to save the life of any such person as in this section first aforesaid, 
 shall be guilty of felony, and being convicted thereof shall be liable ... to 
 be kept in penal servitude for life ' . . . (rr). 
 
 Shooting or Attempting to Discharge Loaded Arms. — By sect. 19, 
 ' Any gun, pistol, or other arms which shall be loaded in the barrel with 
 gunpowder or any other explosive substance, and ball, shot, slug, or other 
 destructive material, shall be deemed to be loaded arms within the 
 meaning of this Act, although the attempt to discharge the samiC may 
 fail from want of proper priming or from any other cause ' (s). In sects. 14, 
 18 (post, p. 853), and 19, the word ' arms ' clearly means ' fire arms ' {t). 
 
 The words ' any other cause ' in this section appear to cover not only 
 defects in the loading, &c., but also prevention by the acts of a bystander, 
 or of the person attacked. R. v. St. George (u), in which it was held that 
 a man was not guilty of an attempt to discharge a loaded pistol which he 
 had drawn, because it was snatched from his hand, was overruled in R. 
 V. Duckworth (v), where it was held that where a man pulled out a loaded 
 revolver and tried to fire it, but was forcibly prevented by the bystanders, 
 he had committed an offence within sect. 14. 
 
 In H. V. Lewis (tv), an acquittal was directed where the weapon was 
 not in a condition to be discharged. 
 
 In R. V. Jackson {:k), an attempt to fire a revolver loaded in six cham- 
 bers was held to be an offence within sect. 14, though it failed because the 
 hammer fell over a chamber containing an empty cartridge case. In 
 
 (r) Taken from 7 Will. IV. & 1 Vict. not seem to have been called to this 
 
 c. 89, s. 7. The words ' milawfully and section. 
 
 maliciously ' are substituted for ' by force ' [t) Under 9 Geo. IV. o. 31, s. 11, a tin box 
 
 in the former Act. Under 7 Will. IV. & filled with gunpowder and peas was held 
 
 1 Vict. c. 89, s. 7, if A. were pulling B. out not to be a loaded arm. R. v. Mountford, 
 
 of the water, and C. j)revented A. from 1 Mood. 441 ; 7 C. & P. 242. But to dis- 
 
 doing so, C. would have been guilty of no charge the barrel of a gun when separated 
 
 offence except an assault. The words in from the stock by striking the percussion 
 
 italics were introduced to meet this and cap with a knife was held to be shooting, 
 
 similar cases. C. S. G. R. v. Coates, R. & R. 394 and MSS. C. S. G. 
 
 {rr) For other punishments see 54 & 55 Patteson, J., consulted several other judges 
 
 Vict. c. 69, s. 1, ante, pp. 211, 212. The who agreed with him in opinion, otherwise 
 
 words omitted were repealed in 1892. the point would have been reserved. 
 
 is) This section was new law in 1861, and (u) 9 C. & P. 483. 
 
 was intended to meet every case where a (v) [1892] 2 Q.B. 83. 
 
 prisoner attempts to discharge a gun, &c., (w) 9 C. & P. 523. The need for recon- 
 
 loaded in the barrel, but which misses fire sideration of this case was strongly suggested 
 
 for want of priming, or of a copper cap, or in R. v. Brown, 10 Q.B.D. 383, 385. 
 from any like cause. In R. v. Gamble, 10 (.v) 17 Cox, 104, Charles, J. 
 
 Cox, 545, the attention of the Court does 
 
 I
 
 CHAP. III.] Attempts to Commit Murder. 843 
 
 R. V. Jones {ij), it was held to be such attempt to pull the trigger of a 
 central fire revolver loaded with rim-fire cartridges. 
 
 In R. V. Kitchen (z), where the prisoner was indicted under 43 Geo. TIL 
 c. 58 (rep.) for shooting at the prosecutor with a loaded pistol, Le 
 Blanc, J., told the jury, that if it was loaded with powder and paper only, 
 but fired so near, and in such a direction, that it would probably kill or 
 do other grievous bodily harm, and with intent that it should do so, the 
 case was within the Act. The jury convicted, saying, they were satisfied 
 that the pistol was loaded with some other destructive material besides 
 130wder and paper. There was a petition to the Crown, on the ground 
 that the pistol was loaded with powder and paper only. On a case 
 reserved the judges held this direction to be right. 
 
 In R. V. Whiteley (a), where a similar indictment, under 9 Geo. IV. 
 c. 31, s. II (rep.), in different counts, alleged a gun to have been loaded 
 with shot and various destructive materials, and it appeared that a 
 watcher of game being out in the night, saw the prisoner crouching under 
 a wall, and said he knew him, when he instantly raised a gun to his 
 shoulder, and levelled it at him ; he stooped to avoid it, the gun went off, 
 and the charge, whatever it was, struck a hairy cap he had on his head, and 
 singed the hair. There was evidence of previous ill-will, and the prisoner 
 after his apprehension, had said, ' I did it, and I rued it the instant I 
 pulled the trigger.' A small bag of shot was found in the prisoner's 
 pocket after he was apprehended. It was objected that there was 
 no evidence to shew that the gun was loaded with shot, or any of the 
 destructive materials charged in the indictment, and Patteson, J., was 
 strongly of opinion that the objection ought to prevail ; and, after 
 consulting Alderson, B., he directed an acquittal. 
 
 The law seems to be that if a man does any act (such as pulling out a 
 loaded pistol and pointing it at a person, or fumbling with the trigger or 
 struggling to get free when seized and using words clearly indicating his 
 intention to use the weapon if he could (6) ) from which a jury might infer 
 that he intended to discharge it, he may be convicted under 24 & 25 Vict. 
 0. 100, s. 14, if his intent was to murder, or under sect. 18 [fost, p. 853), if 
 his intent was to do grievous bodily harm (c). 
 
 The prisoner was tried on an indictment under sects. 14 and 18, 
 charging him with feloniously attempting to discharge a certain revolver 
 loaded with gunpowder and leaden bullets, at one Houston, with the 
 intent, as alleged in one count, to murder him, as alleged in another, to 
 commit murder, and as alleged in a third, to do Houston grievous bodily 
 harm. The indictment did not contain the words ' by drawing a trigger ' 
 nor did it specify any other manner in which the attempt was made. The 
 prisoner was convicted on the third count. In the course of an interview 
 the prisoner put his hand in his pocket and commenced to pull out some- 
 thing, which turned out to be a revolver loaded in five barrels. Before he 
 could get it completely out, Houston sprang on him. The prisoner had 
 
 [y) 30 L.J. (Ncwsp.) (150. Kennedy. J., [a) 1 Lew. 123. See Blake v. Barnard, 
 
 seems to have thought tliat if tlie prisoner 9 C. & P. 020, post, p. 880. 
 
 knew the cartridge coukl not be discharged (b) R. v. Linnaker [1900], 2 K.B. 99. 
 
 he woukl not be guilty. (c) R. v. Brown, 10 Q.B.D. 381. R. v. 
 
 [z) R. & R. 95, and MS. Bayley, J. Duckworth [1892], 2 Q.B. 83.
 
 844 Attempts to Cmnm.it Murder. [booktx. 
 
 by this time got the revolver out of his pocket. Houston and the prisoner 
 struggled for a few minutes. During the struggle the prisoner said several 
 times ' You Ve got to die.' Eventually Houston wrested the revolver 
 from the prisoner. A case was reserved as to whether there was evidence 
 of an attempt within sections 14 & 18. The Court (Lord Alverstone, 
 C.J., Kennedy, Ridley, Darling and Walton, JJ.) upheld the conviction. 
 Kennedy, J,, added : ' It is, however, important to bear in mind that in 
 cases under this section, there must be evidence both of an attempt to 
 discharge the weapon and of an intent to do grievous bodily harm, and, 
 although an attempt implies the intent, an intent does not necessarily 
 imply an attempt. There may be cases which are very near the line as 
 regards the attempt, although there is no doubt as to the intent. It is 
 always necessary that the attempt should be evidenced by some overt act 
 forming part of a series of acts which, if not interrupted, would end in 
 the commission of the actual offence {d). 
 
 Shooting at large. — On an indictment for shooting at a person 
 unknown with intent to murder him, it appeared that the prisoner, being 
 irritated at a crowd of boys, who were following him, discharged a loaded 
 pistol among them, and thereby wounded a person who was passing along 
 the street ; there was nothing to shew any intent to shoot at any parti- 
 cular person, nor was the person injured one of those who were teasing 
 him. Jervis, C.J., (Alderson, B., being present), said : ' I do not think 
 that the charge contained in this indictment is proved ; doubtless at 
 common law, if the person wounded had been killed, it would have been 
 murder : but this is an offence under the statute, and must be proved 
 strictly in its very terms.' It was then proposed to amend the indict- 
 ment, by charging the prisoner with an intent to murder in the words of 
 7 Will. IV. & 1 Vict. c. 85, s. 2. Jervis, C.J., said : ' That would no 
 doubt be a good indictment after verdict under 7 Geo. IV. c. 64, s. 20, 
 being in the words of the statute ; but it may be a question whether it 
 would not be demurrable for generality. We think that if we amend, 
 we ought to do it in such a manner as that the indictment shall not be 
 in any way defective. The prisoner has pleaded, and he ought to have 
 an opportunity of demurring, which now of course he cannot do. We 
 must therefore refuse the application ' (e). 
 
 The prisoner was indicted for shooting at L. with intent to do him 
 grievous bodily harm. The prisoner had been assaulted and annoyed by 
 several persons, among whom was L. These persons were standing to- 
 gether in a group of about fifteen, and the prisoner fired a pistol into the 
 group, and L. received some severe shot wounds in the neck. The jury 
 found that the prisoner did not aim at L., or at any one in particular, 
 
 [d] R. V. Linnaker, ante, p. 843. ed.) iii. 691). I still venture to submit 
 
 (e) R. V. Lallement, 6 Cox, 204. Mr. that it is extremely questionable whether , 
 Greaves on this case says : ' It is clear that the indictment would not be equally bad ; 
 after the amendment the jury might have after verdict, and I doubt whether any case ' 
 been discharged under 14 & 15 Vict. c. 100, can occur where an indictment may not be 
 s. 1, and the Court might then have given so framed as to meet the facts, and avoid 
 the prisoner leave to withdraw his plea and the necessity for such a count ; for wher- 
 demur to the amended indictment. This ever it is possible to prove an intent to 
 case as to the general allegation being murder any person, it is plain a count may 
 insufficient on demurrer, accords with my be framed to meet that case.' 
 
 former note (Russell, CV. and M. (6th
 
 CHAP. III.] Attemjyts to Commit Murder. 845 
 
 but that he fired into the group, intending generally to do grievous bodily 
 harm, and so unlawfully wounded. Upon a case reserved, it was held 
 that he was rightly convicted of the felony (/), 
 
 Upon an indictment under 9 Geo. IV. c. 31, s, 12, for maliciously 
 shooting at C, it appeared that the prisoner fired into a room of C.'s 
 house where he supposed C. was; C. was in another part of the house, 
 where he could not by possibility be reached by the shot. Gurney, B., 
 suggested that a man could scarcely be said to be shot at who was not 
 near the place where the gun was fired. K. v, Bailey (R. & R. 1) was 
 then cited for the prosecution, where, on an indictment for shooting at 
 H. T., who was wounded with grape-shot out of a gun fired at a ship in 
 which he was. Lord Eldon told the jury that he was of opinion, that if 
 they thought the guns were fired at the vessel, and those on board her 
 generally, that the guns might be considered as shot at each individual 
 on board her, and therefore at H. T., the person named in the indictment : 
 Gurney, B., ' That case is perfectly distinguishable from the present ; 
 cannon-shot fired into a ship more or less endangers every individual in 
 it ; every part of the ship may be penetrated by cannon-shot ; but that 
 cannot be said of shot fired from a gun into a room where it is proved no 
 individual then was ' (g). 
 
 Where on an indictment for shooting at the prosecutor with intent 
 to maim, &c., it appeared that the prisoner had at various times been 
 annoyed by night by idle persons attempting to frighten him, and the 
 prosecutor returning home by night, passed near the prisoner's house with 
 a lantern ; the prisoner, seeing the light, thought that his nightly visitors 
 had again appeared, reached his gun, and fired in the direction of the 
 light, and wounded the prosecutor in the face : Patteson, J., thought 
 that the facts would hardly bear out the charge in the indictment {h). 
 
 Wound.— The word 'wound' was introduced in 1837 to obviate 
 difiiculties which arose in the construction of the words ' cut ' and 
 * stab ' in the Act of 1828 ; and in the Act of 1861 the latter words were 
 advisedly omitted as being included in the word 'wound' (i). It is now 
 immaterial by what means the wound is given, and the means need not 
 be stated in the indictment (ii). 
 
 In Moriarty v. Brookes (/), Lord Lyndhurst said that the ' definition 
 of a wound, in criminal cases, is an injury to the person, by which the 
 skin is broken. If the skin is broken, and there was a bleeding, it is a 
 wound.' In R. v. Withers (A), upon an indictment for cutting and 
 wounding, with intent to murder, it appeared that the prisoner threw a 
 
 (/) R. V. Fietwell, L. & C. 443. R. v. 1 Mood. 318, decided on 9 Geo. IV. c. 31, 
 
 Lallcraent, ante, p. 844, docs not appear to h. 12(rep.). Cf. Hollovvay v. R. 17Q.B. 317, 
 
 liavo been cited. See R. v. Stopford, 11 and R. v. Erie, 2 Lew. 133, Coleridge, J. 
 
 Cox, 643. R. V. Jarvi.s. 2 M. & Rob. 40. R. v. Piatt, 69 J. P. 424. 
 R. V. Lewis, 6 C. & P. 161. (ii) See Greaves, Crim. Cons. Acts (2nd 
 
 (f/) R. V. Lovell, 2 M. & Rob. 39. ed.) 25. 
 
 (h) R. V. Porter, 5 Cox, 148. The (;) 6 C. & P. 684. In R. v. Wood (1 
 
 prisoner was convicted of an assault. A Mood. 278.) 4 C. & P. 381 ; it was held by 
 
 question was raised in R. v. Turner, 2 M. & all the judges except Bay ley and Park tliat 
 
 Rob. 213, whetlier the facts sliewed an striking a man witli an iron bar and liamnier 
 
 intent to maim the prosecutor ; but Patte- whereby his collar-bone had l)een broken was 
 
 son, J., expressed no opinion on it. not a wound within 9 Geo. IV. c. 31, s. 12. 
 
 (0 Wliethcr with a weapon or instru- (A") 1 l\Iood. 294 ; 4 C. & P. 446. 
 
 ment, a blow or a lack. ISec R. v. Briggs,
 
 846 Attempts to Commit Murder. [bookix. 
 
 hammer at the prosecutor, and hit him over his right eye and nose, and 
 made a wound on the eye, and by the side of the nose ; his head was very 
 bloody ; the hammer was a blacksmith's finishing hammer ; one end of 
 it round, and the surface flat, the other end sharp, to draw out with. 
 Upon a case reserved, the judges were unanimously of opinion that the 
 injury stated in the case amounted to a wound within the statute. 
 
 In R. V. Beckett (I), it appeared that the prisoner attacked the prose- 
 cutor with a butcher's knife, and, drawing him backwards, attempted to 
 cut his throat. The prosecutor succeeded in warding off all hurt except 
 what he described as a slight scratch on his throat, by lifting his two 
 hands up to his throat, but in doing this his hands struck against the 
 knife and were cut. Parke, B., said : ' A scratch is not a wound within 
 the statute ; there must at least be a division of the external surface of 
 the body ; the cuts on the hands are indeed wounds ; but it appears that 
 they were inflicted by the prosecutor himself in the attempt to defend 
 himself from the prisoner's attack ; those cuts, therefore, cannot be con- 
 sidered wounds inflicted by the prisoner with intent to murder or maim 
 the prosecutor.' 
 
 In R. V. McLoughlin [m), a medical man stated that there was a 
 slight abrasion of the skin, not exactly a wound, but an abrasion of the 
 cuticle ; it did not penetrate farther than that ; the cuticle is the upper 
 skin ; blood would issue, but in a different manner, if the whole skin 
 was cut. Coleridge, J. (Bosanquet and Coltman, JJ., being present), 
 told the jury : ' It is essential for you to be quite clear that a wound was 
 inflicted. I am inclined to understand, and my learned brothers are of 
 the same opinion, that if it is necessary to constitute a wound that the 
 skin should be broken, it must be the whole skin ; and it is not sufficient 
 to shew a separation of the cuticle only. You will, therefore, have to 
 say on the first three counts whether there was a wounding in the sense 
 in which I have stated, viz., was there a wound — a separation of the 
 whole skin ? ' 
 
 In R. V. Smith (n), a surgeon stated ' that the lower jaw on the left 
 side was broken in two places ; the skin was broken internally, but not 
 externally ; there was not a great deal of blood ; one fracture was near 
 the chin, and the other near the ear.' The prisoner had struck the 
 prosecutor with a hammer on the left side of the face, but there was no 
 wound on the outside of the face. It was objected that this was not a 
 wounding within 7 Will. IV. & 1 Vict. c. 85, Park, J, said : ' When I first 
 read the deposition I thought there might be some doubt. In consequence 
 of this, I consulted with my Lord Chief Justice, and considered the ques- 
 tion very much in my own mind, and we are of opinion that it is a wound- 
 ing within the meaning of the Act,' Denman, C.J. : ' If it is the 
 immediate effect of the injury, we think we cannot distinguish this from 
 the cases which have been already decided.' Park, J., in summing up : 
 ' A question was very properly put to us, as to whether we thought there 
 was a wound within the meaning of the statute. We were of opinion that 
 there was a wound ; and upon consideration, I am more strongly of that 
 opinion than I was at the outset. There must be a wounding ; but if 
 
 (I) 1 M. & Rob. 526. (m) 8 C. & P. G35. (n) 8 C. & P. 173.
 
 CHAP. III.] Attempts to Commit Murder. 847 
 
 there was a wound (that is, if the skin is broken, whether there be an 
 effusion of blood or not), it is within the statute, whether the wound is 
 internal or external/ 
 
 In R. V. Jones (o), on an indictment for wounding with intent to do 
 grievous bodily harm, it appeared that the prisoner had given the pro- 
 secutrix a violent kick in the private parts, and that it had been followed 
 by an occasional discharge of blood mingled with urine, but the surgeon 
 could not say from what precise vessels the blood originally flowed, 
 Patteson, J,, held that the charge was not sustained ; there might 
 have been no lesion of any vessels at all ; but the blood might have been 
 discharged simply from natural causes. 
 
 In R, V. Waltham (p), on a similar indictment, it appeared that a 
 policeman had received a violent kick on his private parts, and the 
 external skin was unbroken, but the lining membrane of the urethra 
 was ruptured, which caused a small flow of blood, mingled with urine, 
 for two days. Cresswell, J., held that this case was very different from 
 the preceding, and that there was a wounding within the statute. 
 
 In R, V. Warman (q), there was no external breach of the skin, 
 but a collection of blood between the scalp and the cranium just above 
 the spot where within the cranium there was an extravasation of blood 
 pressing on the brain, and the surgeon called it a contused wound with 
 effusion of blood. The internal part of the skin was broken. Medically 
 the breaking of the skin, whether internally or externally, is a wound. 
 It was held that this internal wound was a sufficient wound to 
 support the allegation of a wound in an indictment for murder, whether 
 it would have been so or not on an indictment on the statute for 
 wounding with intent, &c. 
 
 In R. V. Sheard (r) it appeared that the prisoner struck the prosecutor 
 with an air-gun twice on the left side of a thick hat that he had on his 
 head. The prosecutor had a contused wound on the left side of his head, 
 which was made by the hard rim of the prosecutor's hat, by the violence 
 with which the hat was struck by the prisoner, and was not occasioned 
 by the gun alone, as the prosecutor said the gun had never come directly 
 in contact with his head. Upon a case reserved upon a doubt 
 whether, as the wound must have in fact have been caused by the hat, 
 and not by the gun barrel, the prisoner ought to have been convicted, 
 the conviction was held right. 
 
 In R. V. Day (s), an indictment for wounding with intent to maim, &c., 
 the prosecutor proved that he endeavoured to persuade the prisoner to 
 leave a public-house, and that the prisoner knocked him over a form with 
 his fists, in one of which he appeared to have some instrument ; when the 
 prosecutor recovered his legs, he put forth his hand to ward off the attack 
 of the prisoner, and in so doing he pushed it against the right hand 
 of the prisoner, in which was a penknife, which ran into the prosecutor's 
 finger just deep enough to bring blood. The prisoner seemed to hold the 
 knife in his hand, and to use it as if he was attempting to cut the frock of 
 the prosecutor, and the frock bore three long marks as if it had been slit 
 
 (o) 3 Cox, 441. (r) 7 C. & P. 846. 
 
 (p) 3 Co.x. 442. (s) 1 Cox, 207. Cf. R. r. Beckett. 1 M. 
 
 (q) 1 Den. 183. & Rob. 526, ante, p. 846.
 
 848 Attempts to Commit Murder. [bookix. 
 
 downwards by cuts from the knife, and there were several scars through 
 which the knife had not penetrated, Parke. B., held that there was an 
 end to the charge of felony, as the prosecutor's hand came in contact 
 with the knife at a moment when no intention existed in the mind of the 
 prisoner to inflict any wound on his person. 
 
 In E,. V. Spooner (t), on an indictment for wounding with intent 
 to do grievous bodily harm, it appeared that the prisoner knocked the 
 prosecutor down with a stick on a tram-road ; and it was contended that 
 the wound was caused by the fall on the iron trams. Talfourd, J., told 
 the jury, that in order to convict the prisoner the wound must be direct, 
 and if they should be of opinion that the injury was the result of a fall, 
 although occasioned by a blow from the prisoner, that would not be 
 sufficient. 
 
 Proof of Intent. — Upon an indictment for shooting, or wounding, or 
 administering poison, &c., to another, with intent to murder him, or to 
 do him some grievous bodily harm, ' whether the act was done by the 
 prisoner, with the particular intention wherewith it is charged to have been 
 done, is, as in other cases of specific malice and intention, a question for 
 the jury. The inference upon this important point, as in other cases of 
 malicious intention, must be founded upon a consideration of the situation 
 of the parties, the conduct and declarations of the prisoner, and, above 
 all, on the nature and extent of the violence and injurious means he has 
 employed to effect his object. In estimating the prisoner's real intention, 
 it is obviously of importance to consider the quantity and quaUty of the 
 poison which he administered, the nature of the instrument used, and 
 the part of the body on which the wound was inflicted, according to the 
 plain and fundamental rule, that a man's motives and intentions are to 
 be inferred from the means which he uses and the acts which he does. 
 If, with a deadly weapon, he deliberately inflicts a wound upon a vital 
 part, where such a wound would be likely to prove fatal, a strong inference 
 results that his mind and intention were to destroy. It is not, however, 
 essential to the drawing of such an inference, that the wound should have 
 been inflicted on a part where it was likely to prove mortal ; such a 
 circumstance is merely a simple and natural indication of intention, and 
 a prisoner may be found guilty of a cutting with an intention within the 
 statute, although the wound was inflicted on a part where it could not have i 
 proved mortal, provided the criminal intention can be clearly inferred j 
 from other circumstances ' (u). 
 
 Intent to Commit Murder. — The common element in sects. 11-15, is 
 the ' intent to commit murder,' generally. Under the Act of 1828 (9 
 Geo. IV. c. 31), s. 11, it seems to have been necessary to allege an intent 
 to murder a particular person, which caused difficulties in cases where 
 poison meant for A. was taken by B., or a shot aimed at A. hit B. (v). 
 
 (t) 6 Cox, 392. succeeded in reaching a vital part.' — Note 
 
 (n) R. V. Case, York. Sum. Ass. 1820, by Mr. Starkie. 
 cited 2 Stark. Ev. (3rd ed.) 692, note [h), (v) In R. ■;;. Ryan, 2 M. & Rob. 213, 
 
 where Park, J., said that it had been so held Parke and Alderson, BB., declined to allow 
 
 by the judges. ' It is obvious that a case a conviction on an indictment for causing 
 
 may fall both within the letter and the poison to be taken by G. on evidence that 
 
 spiiit of the statute, although from acci- the poison was intended for G. but was 
 
 dent or from ignorance the prisoner has not taken by C, but directed a fresh indictment
 
 CHAP. III.] 
 
 Attempts to Commit Murder. 
 
 849 
 
 It is generally considered that under the existing enactments a count 
 alleging a general ' intent to commit murder ' is good (iv). 
 
 It is a very important question, whether on a count charging an 
 intent to murder, it is essential that the jury should be satisfied that 
 that intent existed in the mind of the prisoner at the time of the offence, 
 or whether it is sufficient that it would have been a case of murder had 
 death ensued (x) ; and this question does not seem to be completely 
 settled. In R. v. Cruse (y), where a man was indicted for inflicting an 
 injury dangerous to life on a child, with intent to murder it, and his wife 
 as principal in the second degree, for aiding and abetting him, where it 
 appeared that the prisoners had inflicted great violence on the child, 
 Patteson, J., told the jury, * Before you can find the prisoner, T. C, 
 guilty of this felony, you must be satisfied that when he inflicted this 
 violence on the child, he had in his mind a positive intention of murdering 
 that child. Even if he did it under circumstances which would have 
 amounted to murder if death had ensued, that will not be sufficient, 
 unless he actually intended to commit murder. With respect to the wife, 
 
 to be prepared alleging the intent to be to 
 commit murder generally, upon which the 
 defendant was convicted and sentenced. 
 They doubted R. v. Lewis, 6 C. & P. 161, 
 decided on 9 Geo. IV. c. 31, s. 11, where 
 Gurney, B., on a similar indictment and 
 similar evidence had said : ' The question 
 is, whether the prisoner laid this poison on 
 the shop counter, intending to kill some one. 
 If it was intended for Mrs. Daws, and finds 
 its way to Mrs. Davis, and she takes it, the 
 crime is as much witliin this Act of Parha- 
 ment as if it had been intended for Mrs. 
 Davis. If a person sends poison with m- 
 tent to kill one person, and another person 
 takes that poison, it is just the same as if it 
 had been intended for such other person.' 
 
 {w) See Archb. Cr. PI. (23rd ed.), 815. 
 Mr. Greaves' note on the subject is as 
 follows : ' Where a mistake of one person 
 for another occurs, the cases of shooting, 
 &c., may, perhaps, admit of a different 
 consideration from the cases of poisoning. 
 In the case of shooting at one person under 
 the supposition that he is another, althougli 
 there be a mistake, the prisoner must intend 
 to murder that individual at whom he 
 shoots ; it is true he may be mistaken in 
 fact as to the person, and that it may be 
 owing to such mistake that he shoots at 
 such person, but still he shoots with intent 
 to kill that person. So in the case of 
 cutting ; a man may cut one person under 
 a mistake that he is another person, but 
 still he must intend to murder the man 
 whose throat he cuts. In R. v. Mister, 
 Salop Spr. Ass. 1841, cor. Gurney, B., the 
 only count charging an intent to murder 
 was the first, and that alleged the intent to 
 be to murder Mackreth ; and although on 
 the evidence it was perfectly clear tiiat 
 Mister mistook Mackreth for Ludlow, whom 
 he had followed for several days before, yet 
 
 VOL. I. 
 
 he was convicted and executed, and I be- 
 lieve the point never noticed at all. The 
 case of poisoning one person by mistake for 
 another, seems different, Lf the poison be 
 taken in the absence of the prisoner ; for in 
 such case he can have no actual intent to 
 injure that person. These difficulties, how- 
 ever, seem to be obviated by 1 Vict. c. 85 
 (see now 24 & 25 Vict. c. 100, s. 11), which 
 instead of using the words ' with intent to 
 murder such person,' have the words ' with 
 intent to commit murder.' It may perhaps 
 be doubted whether this alteration was not 
 intended to enable the prosecutor to charge 
 a shooting at one person with intent to 
 murder another person ; and doubts may 
 perhaps be entertained, notwithstanding 
 the very great weight due to any opinion of 
 the judges in R. v. Ryan {supra), whether a 
 count, stating a shooting with intent to 
 commit murder, would not be bad on 
 demurrer, and in arrest of judgment, for not 
 stating the person intended to be murdered. 
 It is true that it would follow the words of 
 the Act ; but in many cases that is not 
 sufifieient. Thus in R. v. Martin, 8 A. & E. 
 481, it was held that an indictment for ob- 
 taining goods by false pretences was bad on 
 error, on the ground that it did not state 
 that the goods obtained were the property 
 of any person. In all cases of doubt as to 
 tlic intention, it would be jirudent to insert 
 one count for shooting at A. with intent to 
 murder him ; another ' with intent to com- 
 mit murder ' ; and a third for shooting at 
 A. with intent to murder tiic person really 
 intended to be killed ; and if tiic party in- 
 tended to be killed were unknown, a count 
 for shooting at A. with intent to murder 
 a person to the jurors unknown. 
 
 (x) R. V. Jones, 9 C. & P. 258, Patteson, 
 J. 
 
 (y) 8 C. & P. 541. 
 
 3i
 
 850 Attempts to Commit Murder. [book ix. 
 
 it is essential not only that slie should have assisted her husband in the 
 commission of the offence, but also that she should have known that it 
 was her husband's intention to commit murder/ In K. v. Jones (2), 
 where the first count charged the prisoner with shooting at Vaughan 
 with intent to murder him, and the facts were such as only to amount to 
 manslaughter, the same judge said, in summing up, ' It is a very important 
 question, whether on a count charging an intent to murder, it is essential 
 that the jury should be satisfied that that intent existed in the mind of 
 the prisoner at the time of the offence, or whether it is sufficient that it 
 would have been a case of murder if death had ensued. However, if it 
 be necessary that the jury should be satisfied of the intent, I have no 
 doubt that the circumstance, that it would have been a case of murder 
 if death had ensued, would be of itself a good ground from which the 
 jury might infer the intent, as every one must be taken to intend the 
 necessary consequences of his own acts. In the present case, I think 
 you may dismiss the first count from your consideration, as it would be 
 very difficult to say, that if Mr. Vaughan had died, this would have been 
 a case of murder. 
 
 Upon an indictment for feloniously wounding with intent to murder, 
 disable, &c., it appeared that the prisoner, being confined in gaol, knocked 
 the turnkey down by a blow on the head vnih a towel-roller, and thereby 
 wounded him. He did this in order to effect his escape. In summing up, 
 Maule, J., said : ' If the prisoner had killed this man it would have been 
 murder, whether he intended to kill him or not ; but I think that there 
 is hardly evidence here to support the charge of an intent to murder. 
 A person cannot have an intent to murder, or an intent to do any other 
 thing, without intending to commit murder, or to do that other thing. 
 It would be a contradiction in terms if it were otherwise. You will, 
 therefore, consider whether the prisoner had an intent to kill this man, 
 or only an intent to disable him, or to do him some grievous bodily 
 harm ' (a). 
 
 So where upon an indictment for attempting to suffocate and strangle 
 with intent to murder, it appeared that the prisoner had put a bed over 
 his wife, and pressed it down upon her, and put a rope round her neck 
 with a running noose on it, by which she was nearly prevented from 
 breathing ; Maule, J., told the jury, that in many cases a party might be 
 guilty of murder if he caused the death by an illegal act, although at the 
 time he did not actually intend to kill, and that in this case the prisoner 
 would have been guilty of murder if his wife had died ; but upon this 
 indictment the jury must be satisfied that at the time the prisoner did 
 the acts in question, he did intend to murder his wife (6). And in a 
 later case, Coleridge, J., told the jury that the words ' with intent to 
 commit murder ' meant ' with intent to kill under such circumstances as 
 would amount to the crime of murder, if death ensued " (c). 
 
 Upon an indictment for wounding with intent to murder, &c., it 
 appeared that the prosecutor had given evidence against some wood- 
 stealers, with whom the prisoner was intimate ; the prisoner struck him 
 
 [z) 9 C. & p. 258. 1843. MSS. C. S. G. 
 
 (a) R. V. Bourdon, 2 C. & K. 366. (c) R. v. Daviea, Gloucester Spr. Ass. 
 
 (b) R. V. Caldecott, Hereford Sum. Ass. 1844. MSS. C. S. G.
 
 CHAP, in.] Attempts to Commit Murder. 851 
 
 with a tin can four times on the head, knocked him about, and said he 
 would break his neck ; and there were two cuts on the prosecutor's 
 scalp, which laid his skull bare. Alderson, B., in summing up, said : ' You 
 will have to consider in this case whether, if death had ensued, the prisoner 
 would have been guilty of murder ; and in giving your judgment on that 
 question, you will have to consider whether the instrument employed 
 was, in its ordinary use, likely to cause death ; or though an instrument 
 unlikely under ordinary circumstances to cause death, whether it was 
 used in such an extraordinary manner as to make it likely to cause death, 
 cither by continued blows or otherwise. A tin can, in its ordinary use, 
 was not likely to cause death or grievous bodily harm ; but, if the 
 prisoner struck the prosecutor repeated blows on the head with 
 it, you will say whether he did this merely to hurt the prosecutor 
 and give him pain, as by giving him a black eye or a bloody nose, or 
 whether he did it to do him some substantial grievous bodily harm. The 
 former enactments on this subject were confined to cutting instruments, 
 and perhaps wisely ; but now the matter is much more vague, and cases 
 ought therefore to be Avatched carefully. When a deadly weapon, such 
 as a knife, a sword, or gun, is used, the intent of the party is manifest ; 
 but with an instrument like the present, you must consider whether the 
 mode in which it was used satisfactorily shews that the prisoner intended 
 to inflict some serious or grievous bodily harm with it ' {d). 
 
 Upon an indictment for administering opium with intent to commit 
 murder, it appeared that the prosecutrix had been left in charge of her 
 master's house, and going out into the yard at night the prisoners threw 
 her down, and said they would kill her if she did not swallow some stuff 
 out of a phial which they held to her mouth, and which stuff the evidence 
 tended to prove was a preparation of opium. She struggled, but was 
 compelled to swallow it ; they then tied her apron tight over her face, 
 and left her lying on her back in the yard. She was afterwards found 
 almost insensible and very ill : by proper treatment she recovered in a 
 few days ; but there was reason to conclude, that had she remained much 
 longer undiscovered, her life would have been in very great peril. When 
 her master returned he found the house robbed. For the prosecution it 
 was contended, that if the main object of the prisoners was to steal from 
 the house, and in order to effect that they committed an act in itself 
 unlawful, they must be taken to have intended all the consequences 
 likely to result from such act, and death was one of those consequences : 
 it was immaterial which was the principal and which the subordinate 
 intent. Coltman, J., told the jury that ' it would undoubtedly appear 
 probable that one intention of the prisoners was to rob the house ; but 
 they might have had that intention and also another, namely, to destroy 
 life ; and if a noxious drug is administered, which is likely to occasion 
 death, and the party administering it is indifferent whether it occasion 
 death or not, that party must be looked upon as contemplating the 
 probable results of his own action ' (e). 
 
 [d) R. V. Hewlett, 7 C. & P. 274. This case would fall within 24 & 25 Vict. 
 
 (e) R. V. Dilworth, 2 M. & Rob. 531. c. 100, s. 22, post. p. 803. 
 
 3 i2
 
 852 
 
 Of Causing Bodily Barm. 
 
 [BOOK IX. 
 
 Sect. III. — Of Unlawful Acts causing or intended or 
 
 CALCULATED TO CAUSE BODILY HaRM. 
 
 A. Common Law. 
 
 Mayhem. — Mayhem, or the maiming of persons, was probably at 
 one time a felony at common law, as the judgment was membrum fro 
 membro (/). But this judgment afterwards went out of use; partly 
 because the law of retaliation is at best an inadequate rule of punish- 
 ment (g). The offence, therefore, appears to have been considered in 
 later times, as a misdemeanor ; and the only judgment which now 
 remains for it at common law is fine and imprisonment {h). It is, 
 however, spoken of by Coke as the greatest ofience under felony (i). 
 
 A bodily hurt whereby a man is rendered less able in fighting, to 
 defend himself or to annoy his adversary, is properly a maim at common 
 law (j). Therefore cutting off, or disabling, or weakening a man's hand 
 or finger, or striking out his eyes 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 Hke, are not held 
 to be maims at common law ; because they do not weaken a man, but 
 only disfigure him {k). In order to support an indictment for mayhem the 
 act must be done maliciously, though it matters not how sudden the 
 occasion (I). 
 
 If a person maims himself in order to have a more specious pre- 
 tence for asking charity, or to prevent his being impressed as a sailor, or 
 enlisted as a soldier, he may be indicted ; and, on conviction, fined and 
 imprisoned (m). For as the life and members of every subject are under 
 the safeguard and protection of the King ; so they are said to be in manu 
 regis, to the end that they may serve the King and country when occasion 
 shall require {n). 
 
 It would seem that there can be no accessories before the fact in 
 mayhem, at common law ; though there appears to have been some 
 difference of opinion, or rather misapprehension, upon the subject (o). 
 For, supposing the offence to be a misdemeanor only, the rule will apply, 
 that in crimes under the degree of felony there can be no accessories, but 
 
 (/) 3 Co. Inst. 118. 1 Hawk. c. 55, s. 3. 
 4 Bl. Com. 206. 
 
 (g) 4 Bl. Com. 20G. 
 
 {h) Id. ibid. 1 Hawk. c. 55, s. 3. 1 
 East, P.C. 393. But it is observed, that 
 perhaps mayhem by castration might have 
 continued an offence of higher degree, as 
 all our old writers held it to be felony. 4 
 Bl. Com. 206. 
 
 (i) Co. Lit. 127 a. 
 
 (j) Staundf. 3. Co. Lit. 126. 3 Co. Inst. 
 62, 118. 1 Hawk. c. 55, s. 1. 4 Bl. Com. 
 
 205. 1 East, P.C. 393. 
 
 (k) 1 Hawk. c. 55, s. 2. 4 Bl. Com. 205, 
 
 206. 1 East, P.C. 393. Bac, Abr. 'Maihem ' 
 (A.). 
 
 (I) 1 East P.C. 393. 
 
 (m) 1 Hawk. c. 55, s. 4, and Co. Litt, 
 127 a, where Coke says, ' In my circuit. 
 
 anno 1 Jacobi regis, in the county of 
 Leicester, one Wright, a yoimg, strong, and 
 lustie rogue, to make himself impotent, 
 thereby to have the more colour to begge, 
 or to be reheved without putting himself to 
 any labour, caused his companion to strike 
 off his left hand ; and both of them were 
 indicted, fined, and ransomed.' 
 
 (n) Co. Litt. 127 a. Bract. Ub. 1, fol. 6. 
 Pasch. 19 Edw. I cor. Reg. Rot. 36, Northt. 
 
 (o) Hale (1 P.C. 613) states that there 
 are no accessories before in mayhem, but 
 that they are in the same degree as prin- 
 cipals. Hawkins, on the contrary, says, 
 that it seems there may be accessories be- 
 fore the fact in mayhem. 2 Hawk. c. 29, 
 s. 5. In 1 East, P.C. 401, there is a learned 
 argument to shew that the latter opinion 
 proceeded on a mistake. 
 
 II
 
 CHAP. III.] Felonious Wounding. 853 
 
 that all persons concerned therein, if guilty at all, are principals (/j). 
 It does not appear to have been anywhere supposed that there can be 
 accessories after the fact in mayhem {q). 
 
 Maiming is not now indicted at common law, but under the enact- 
 ments next to be noticed. 
 
 B. Statutes. 
 
 Felonious Wounding — By 24 & 25 Vict. c. 100, s. 18 (r), ' Whosoever 
 shall unlawfully and maliciously by any means whatsoever {s) wound {t) or 
 cause {u) any grievous bodily harm to any person, or shoot at any person (v), 
 or, by drawing a trigger or in any other manner, attempt to discharge 
 any kind of loaded arms {w) at any person, with intent, in any of the cases 
 aforesaid, to maim, disfigure, or disable any person, or to do some other 
 grievous bodily harm to any person (x), or with intent to resist or prevent 
 the lawful apprehension or detainer of any person, shall be guilty of 
 felony, and being convicted thereof shall be liable, ... to be kept in 
 penal servitude for life' . . . {y). Under this section the intent to 
 maim, &c., is an essential element in the offence and must be charged and 
 found (2), and the malicious intent must be found (22). 
 
 Where D. at night heard a person in her house, and reasonably believ- 
 ing that he was there for a felonious purpose, shot at him with intent to 
 frighten him, and hit him ; it was held that D. had not committed an 
 offence within sect. 18 (a). 
 
 Shoot and Wound. — The decisions as to these words are collected, 
 ante, pp. 842-848. 
 
 Intent to Maim, Disfigure, or Disable, or to do some other Grievous 
 Bodily Harm. — The meaning of the word ' maim ' is stated, ante, p. 852. 
 ' Disfigure ' appears to mean an external injury which may detract from 
 
 (p) Ante, p. 138. be inconsistent with R. v. Hunt, 1 Mood. 
 
 (q) 1 Hawk. c. 55, s. 13. 2 Hawk. c. 29, 93, and R. v. Smith, 1 Cox, 51. 
 
 s. 5. 1 East, P.C. 401. (s) Vide ante, p. 840, note («). 
 
 (r) Taken from 7 Will. IV. & 1 Vict. c. 85, [t) Vide ante, p. 845. 
 s. 4. The words in italics at the beginning (it) An indictment under this section 
 of this section were introduced to make it charging the prisoner that he did ' inflict ' 
 correspond with s. 11, ante, p. 840. As grievous bodily harm has been held good, 
 to the word ' wound,' see the note to that R. v. Bray, 15 Cox, 197 (C. C. R.). The 
 section. The word ' any ' is substituted in word ' inflict ' is used in s. 20, post, p. 859. 
 two places for ' such ' in order to provide {v) It was suggested that where an 
 for cases where the prisoner wounds, &c., efi'ectual exchange of shots took place in a 
 A., when he intends to wound B., and the deliberate duel both parties might be con- 
 like. In R. V. Hewlett, 1 F. & V. 91, where victed under 43 Geo. III. c. 58 of malici- 
 on an indictment under 7 Will. IV. & 1 ously shooting. 3 Chit. Cr. L. 848, note (w). 
 Vict. c. 85, 8. 4, for wounding with intent to Shooting or attempting to shoot in duels 
 do grievous bodily harm to the prosecutor, seems to fall within s. 18. Sec R. r. 
 it appeared that the prisoner with a knife Douglas, C. & M. 193. 
 
 struck at Withy, and the prosecutor inter- (w) Defined in sect. 19, q. v. ante, p. 842. 
 
 fered and caught the blow on his arm ; {x) Vide ante, note (r). 
 
 Crowdcr, J., held that this would not sus- (//) For other punishments, see 54 & 55 
 
 tain the charge ; but the prisoner might be Vict. 69, s. 1, ante, pj). 211, 212. The 
 
 convicted of unlawfully wounding. There words omitted are repealed, 
 
 was no intent to injure the person wounded; (z) Fide Arch b. Cr. PI. (23rd cd.) 841. 
 
 it is therefore quite different from the cases (zz) See Slaughenwhite v. R. [1905], 9 
 
 where, though there is a mistake as to the Canada Cr. Cas. 173. 
 
 person, the injury is intended for the per- (a) R. v. Dennis, G9 J. P. 352, Fulton, 
 
 son on whom it falls. This case is doubted Recorder, 
 in R. V. Stopford, 11 Cox, 643, and said to
 
 854 Of Causing Bodily Harm, {bookix. 
 
 personal appearance, such as slitting nose or ears (6). The word ' disable ' 
 in 43 Geo. III. c. 58, s. 1 (rep.) was held to mean permanently and not 
 temporarily disable (c). But for the words in the statute., ' to do some 
 other grievous bodily harm,' it would be unnecessary in any indictment 
 to charge an intent to maim, disfigure, or disable. 
 
 ' Bodily harm ' is not defined. It may mean internal as well as 
 external injuries {d) and need not be permanent, nor dangerous, nor 
 amount to maiming, disfigurement, or disablement. It is not grievous 
 unless it seriously interferes with health or comfort (e). The following 
 decisions on enactments superseded by 24 & 25 Vict. c. 100, ss. 11-15, 
 18, are of some value as a guide on the question of the various 
 intents. 
 
 On an indictment for wounding with intent to murder, maim, disable, 
 or do some grievous bodily harm, it appeared that the prisoner's goods 
 had been distrained for rent, and one of the broker's men turned out of 
 the room, and the broker said, ' Break the door open and go in and take 
 possession again ; ' and the prisoner said, ' he would split open the head 
 of any person who opened the door ' ; the door was then forced open, 
 and as the prosecutor was entering the room, the prisoner, who had an 
 axe in his hand, struck him on the head with it and inflicted a cut of 
 about a quarter of an inch, and a graze of about half an inch on the fore- 
 head ; the axe had cut through the skin and flesh, but very little below 
 the surface of the skin. Parke, B., told the jury ' there was no proof of 
 an intent to maim and disable, as the blow was aimed at the head of the 
 prosecutor ; it would have been otherwise if it had been aimed at his 
 arm to prevent him being able to use it. The c[uestion, therefore, was, 
 whether there was a wounding with intent either to murder the 
 prosecutor or to do him some grievous bodily harm (/). 
 
 On an indictment for shooting at M., with a gun loaded with powder 
 and blood, with intent to do grievous bodily harm, it appeared that M. 
 was preaching in church when the gun was fired through a hole previously 
 cut in the window : he was struck on the temple, knocked back and 
 stunned ; his face being sprinkled with blood ; there was no wound, but 
 grains of powder were embedded in the forehead ; the eye was weak, and 
 the effect of the blow felt for two months after. The surgeon said that 
 had the charge struck the eye, or a place nearer to the eye, the result 
 would have been much more serious ; Willes, J,, told the jury, ' You 
 must be satisfied that the prisoner had an intent to do grievous bodily 
 
 (6) The words ' intent to maim or dis- inch in length, not deep nor dangerous, 
 
 figure'arederivedfromSir John Coventry's because below the hymen; but if it had 
 
 Act, 22 & 23 Car. II. c. 1, s. 7. See R. v. entered the hymen it would have been 
 
 Woodburn and Coke, 16 St. Tr. 53. dangerous. Graham, B., left it to the jury 
 
 (c) R. V. Boyce, 1 Mood. 29. Bed qucere. to say, whether this was not a grievous 
 
 {d) As to bodily harm by infection with bodily injury ; and if so, then, though there 
 
 disease, see R. v. Clarence, 22 Q.B.D. 23, might have been an ulterior intention to 
 
 doubting R. v. Sinclair, 13 Cox, 28. commit a rape, yet, if there was an intent 
 
 (e) In R. V. Cox, R. & R. 362, the prisoner to do grievous bodily hai'm, the case was 
 
 cut a female child, ten years old, in her within the Act ; and that the intention 
 
 private parts, probably to enlarge them to might be inferred from the cutting. The 
 
 admit his entrance, but he was interrupted jury found the prisoner guilty, and the 
 
 and fled ; the wound was small, but bled judges held the conviction right. 
 a good deal ; and when a surgeon saw it, (/) R. v. Sullivan, C. & M. 209. 
 
 four days afterwards, he found it near a,u 
 
 ll
 
 CHAP. III.] Felonious Wounding, 855 
 
 harm : it is not necessary that such harm should have been actually done, 
 or that it should be either permanent or dangerous ; if it be such as 
 seriously to interfere with comfort or health, it is sufficient ' (f/). 
 
 On an indictment for shooting at a person with intent to maim, 
 &c,, it appeared that the prosecutor was hunting small birds, when 
 the prisoner, a gamekeeper, came up with his gun, and ordered him off ; 
 the prosecutor ran away, but had not got more than forty or fifty yards 
 off when he heard the report of a gun, and at the same moment felt 
 several shots rattling against his back and arms, one of which lodged in 
 his finger : the prisoner afterwards said, ' He had warmed their tails a 
 goodish bit for them ' ; Parke, B. : ' There can be no doubt that this is 
 an assault, but I think the felonious part of the charge cannot be supported 
 on these facts. In order to do so, it must appear clearly that the prisoner 
 discharged the gun at the prosecutor with the intent laid in the indictment ; 
 but he seems to have waited till the prosecutor had attained such a dis- 
 tance from him as not to be injured by the shot. He would rather appear 
 to have fired after the prosecutor with a view of frightening him than 
 with any serious intention of inflicting any injury on his person. This 
 conduct, though very reprehensible, is not sufficient to bring the case 
 within the Act, and he ought, therefore, to be acquitted of the 
 felony ' {li\. 
 
 On an indictment for feloniously wounding, it appeared that the pro- 
 secutor and his companion came up to the prisoner, who was fighting 
 with his brother, and the prosecutor's companion said they were very 
 quarrelsome people ; whereupon the prisoner knocked him down, and 
 said he would do the same to the prosecutor, if he would fight ; the pro- 
 secutor refused, and threatened to take the law, and then the prisoner 
 struck the prosecutor a blow with his fist, which broke the prosecutor's 
 jaw on both sides of his face ; Alderson, B., told the jury that striking a 
 blow, even though grievous bodily harm is done, is not in itself sufficient 
 to shew an intent to do such grievous bodily harm ; that must be proved 
 by other circumstances (i). 
 
 On an indictment for wounding with intent, &c., and for unlawful 
 wounding, it appeared that the police ordered some gipsies to remove from 
 a common by the direction of the owner of a neighbouring plantation, 
 but not the lord of the manor ; they refused to do so, and one of them 
 assaulted one of the police, who thereupon proceeded to take him into 
 custody. The prosecutor took hold of two of the women, find while 
 holding them the prisoner struck him on the back with a scythe, the edge 
 of which was fenced, except two inches at the end, inflicting a wound 
 half an inch deep, and an inch long ; it was contended that the prisoner 
 could not be convicted even of wounding ; it was like the case where a 
 person inflicted a wound with a nail on a stick, unknown to the ])orson 
 using it. Bramwell, B., said, ' The police had no right to interfere with the 
 gipsies, except by the order of the owner of the land, and their resistance, 
 without the use of weapons, would have been justifiable. As to the felony 
 charged, a man is generally supposed, by the law, to intend the natural 
 
 ((7) R. V. Asliniaii, 1 F. & F. 88. (/) R. v. Wliecler, 1 Cox, 100. 
 
 \h) R. V. Abraham, 1 Cox, 208.
 
 856 Of Causing Bodily Harm. [book ix. 
 
 consequence of his act ; but in this case it is not so, and to find the prisoner 
 guilty of the felony you must be satisfied of the existence of the actual 
 intent (to wound) charged in the indictment. As to the unlawful wound- 
 ing, if this case were like that put by the counsel for the prisoner, she 
 would not be guilty, as it would be a mere accident. But it is for you to 
 say whether, though the prisoner did not intend to wound, she did not 
 know that the end of the scythe was uncovered, and therefore likely to 
 wound. Suppose you fired a gun loaded with shot, at a person, but at 
 such a distance, that you did not think it would reach him, and some of 
 the shots did, that would be an unlawful wounding. You will say whether 
 the prisoner is guilty of wounding with intent, or of unlawful wounding, 
 or not guilty ' {j). 
 
 Upon an indictment for maliciously wounding with intent to do 
 grievous bodily harm, it appeared that the prisoner got into an altercation 
 with the prosecutor, and challenged him to fight ; that he put down the 
 blade of a scythe, and advanced towards the prosecutor to fight, but was 
 prevented ; afterwards the prosecutor challenged the prisoner to fight, 
 but they were again prevented, and the prosecutor and his party left, 
 and some time after the prisoner and two other men followed the prosecutor 
 and passed him. The prosecutor and his party followed, and challenged 
 the prisoner to fight, and used provoking language. The prisoner then 
 took his own road, and the prosecutor followed him, and again 
 challenged him to fight, which the prisoner refused, and said he would go 
 back and take the peace of him, and actually went back a few steps for 
 that purpose : but the prosecutor got before him, and was making to- 
 wards him, when the prisoner flourished his scythe, and told him to stand 
 back, or he would cut him down, and himself retreated a few steps ; the 
 prosecutor sprang on him, and seized him by the collar ; a scuffle ensued, 
 in which the prisoner struck the prosecutor across the shoulder with the 
 scythe, and produced a severe wound. Cresswell, J., said : ' The recent 
 Act (7 Will. IV. & 1 Vict. c. 85), having omitted the proviso contained in 
 the 9 Geo. IV. c. 31, the judges have determined that the facts will bring 
 a case within this statute, if the offence would have amounted to man- 
 slaughter, in case death had ensued. If the act was done unlawfully and 
 maliciously, that is, without lawful excuse, and intentionally, it is enough. 
 Maliciously does not mean with premeditated malice, as in murder ; an 
 intention to do the mischief unlawfully will satisfy the statute. Now, in 
 order to render a case of homicide, committed with a deadly weapon, 
 lawful on the ground of self-defence, it must appear that the party 
 retreated as far as he possibly could, and then only used the weapon to 
 avoid his own destruction. It is impossible to contend that the prisoner 
 was so driven to use the scythe in this case; the offence would have 
 amounted to manslaughter if death had ensued, though certainly not 
 an aggravated one ; and therefore you will be bound to say that the 
 prisoner is guilty, if you believe he really intended to do grievous bodily 
 harm' {k). 
 
 Upon an indictment for wounding with intent to do grievous bodily 
 
 ij) R. V. Cox, 1 F. & F. 664. See 14 & 15 reported with accuracy. 
 Vict. 0. 19, s. 5. This case is evidently not {k) R. v. Odgers, 2 M. & Rob. 479. 
 
 fl
 
 CHAP. III.] Felonious Wounding. 857 
 
 harm, it appeared that the prosecutor and the prisoner were fellow- 
 servants, and the prosecutor had told the prisoner to cut some grass, which 
 he ought to have done, but did not do, Avhereupon the prosecutor took a 
 strap, and beat the prisoner with it, when the prisoner, who had lost his 
 right arm, took out a clasp knife, and wounded the prosecutor with it. 
 Piatt, B. : ' One servant has clearly no right to strike another ; and if an 
 under-servant conducts himself in a way in which the upper-servant 
 thinks he ought not, the latter should inform his master, and let him act 
 as he thinks proper, either by dismissing the under-servant or otherwise. 
 In an ordinary case, a wrongful beating with a strap would not justify the 
 other party in resorting to a knife, but there is certainly in this case 
 the distinction that the prisoner has lost his right arm. The assault of 
 the prisoner by the prosecutor was clearly illegal and unjustifiable, and 
 if, under all the circumstances, you think that the prisoner acted in self- 
 defence only, you ought to acquit him ; but if you think that in defending 
 himself the prisoner used more violence than was necessary, you ought 
 to find him guilty of wounding without the intent mentioned in the 
 indictment ' (l). 
 
 It was held that if a wound was inflicted for the purpose of accom- 
 plishing a robbery, the defendant might be convicted under 9 Geo. IV. 
 c. 31, s. 12 (rep.), if the jury found that he intended to disable or do 
 grievous bodily harm (m). 
 
 Although the intent laid is that of doing grievous bodily harm, and 
 upon the evidence it appears that the prisoner's main and principal intent 
 was to prevent his lawful apprehension, yet he may be convicted, if, 
 in order to effect the latter intent, he also intended to do grievous bodily 
 harm (n). 
 
 A sexton and others surprised two body-stealers, and attempted to 
 take them ; one of them cut the sexton's assistant with a sabre : and was 
 indicted on 43 Geo. III. c. 58, s. 1 (rep.), for cutting, with the intent to 
 murder, disable or do some other grievous bodily harm. The jury found 
 that he cut with the intent to resist and prevent their apprehension, and 
 for no other purpose. Upon a case reserved, the judges held, that the case 
 would not have been within the Act unless the apprehension would have 
 been lawful ; and that if the cutting was to resist or prevent a lawful 
 apprehension, it should have been so stated, this being one of the intents 
 mentioned in the Act ; and that, as the jury had negatived the intent 
 stated, the conviction could not be supported (o). 
 
 Upon an indictment for shooting with intent to do grievous bodily 
 harm, it appeared that the prisoner, being a constable, was employed to 
 guard a copse from which wood had been stolen, and for this purpose he 
 carried a loaded gun. From this copse he saw the prosecutor come out, 
 carrying wood which he was stealing, and called to him to stop. The 
 prosecutor ran away, and the prisoner, having no other means of bring- 
 ing him to justice, fired and wounded him in the leg. It was alleged that 
 the prosecutor was actually committing a felony, he having been before 
 
 (I) R. V. Huntley, 3 C. & K. 142. (n) R. v. Gillow, 1 Mood. 85. Cf. R. v. 
 
 (m) R. V. Bowcn, C. & M. 149. Cf. R. v. Davis, 1 C. & P. 300, Garrow, B. 
 
 Cox, R. & R. 362, ante, p. 854, note (e). R. (o) R. v. Duffin, R. & R. 305, Baylcy J., 
 
 V. Shadbolt, 5 C. & P. 504. and MS.
 
 858 Of Causing Bodily Harm. [bookix. 
 
 repeatedly convicted of stealing wood ; but these convictions were un- 
 known to the prisoner, and there was no reason for supposing that he 
 knew the difierence between the rules of law relating to felony and those 
 relating to less offences. Erie, J., told the jury, that ' shooting with 
 intent to do grievous bodily harm amounted to the felony charged, unless 
 from other facts there was a justification ; and that neither the belief 
 of the prisoner that it was his duty to fire, if he could not otherwise 
 apprehend the prosecutor ; nor the alleged felony, it being unknown to 
 him, constituted such justification/ The jury convicted ; and, upon a 
 case reserved, the judges were unanimously of opinion that the prisoner 
 was not justified in firing at the prosecutor, because the fact that the 
 prosecutor was committing a felony was not known to the prisoner at the 
 time, and therefore the conviction was right {p). 
 
 P., the prosecutor, who was a gamekeeper, proved that he met the 
 prisoner sporting upon his manor, and remonstrated with him for so doing ; 
 and proposed that the prisoner should go with him to the steward, saying, 
 that if the steward would pardon him he should have no objection. The 
 prisoner assented to go with him, and they walked together until they 
 came near to the gamekeeper's horse, which was about sixty yards off, when 
 P. went on before him towards the horse ; and when he was at a short 
 distance from the prisoner, the prisoner fired at his back, and ran away. 
 On his way home P. saw the prisoner again, and the moment he looked 
 round at him the prisoner again fired his gun, the discharge from which 
 beat out one of P.'s eyes and several of his teeth. Between the first and 
 second firing was about a quarter of an hour. In the course of the trial 
 it was suggested that the prosecutor ought not to give evidence of two 
 distinct felonies ; but the learned judge thought it unavoidable in this 
 case, as it seemed to him to be one continued transaction, in the prosecu- 
 tion of the general malicious intent of the prisoner. Upon another ground 
 also the learned judge thought such evidence proper. The counsel for 
 the prisoner, by his cross-examination of P., had endeavoured to shew 
 that the gun might have gone off the first time by accident ; and, although 
 the learned judge was satisfied that this was not the case, he thought that 
 the second firing was evidence to shew, that the first, which had preceded 
 it only a quarter of an hour, was wilful ; and to remove the doubt, if any 
 existed, in the minds of the jury. The prisoner having been convicted, 
 the matter was submitted to the consideration of the judges, who were of 
 opinion that the evidence was properly received, and the prisoner rightly 
 convicted {q). 
 
 On an indictment charging the defendant with wounding A. with 
 intent to do him grievous bodily harm the defendant may be properly 
 convicted on evidence that he wounded A. in belief that he was some one 
 else (r). 
 
 (p) R. V. Dadson, 2 Den. 35. defendant meant to do grievous bodily 
 
 (q) R. V. Voke, R. & R. 531. harm to the man when he struck. He held 
 
 (r) R. V. Stopford, 11 Cox, 643. Brett, R. v. Hewlett, 1 F. & F. 91 to be inconsis- 
 
 J., after consulting Mellor, J., told the tent with R. v. Smith, 1 Cox, 51, and R. v 
 
 jury tha,t the question was whether the Hunt, 1 Mood. 93. 
 
 1
 
 CHAP. III.] Unlawful Wounding, &c. " 859 
 
 Sect. IV. — Of Unlawful Wounding. 
 
 By 24 & 25 Vict. c. 100, s. 20 (s), ' Whosoever shall unlawfully and 
 maliciously wound or inflict any grievous bodily harm upon any other 
 person, either with or without any weapon or instrument, shall be guilty of 
 a misdemeanor, and being convicted thereof shall be liable to be kept in 
 penal servitude . . .' {t). 
 
 In R. V. Martin (m), the defendant, with the intention of causing terror 
 in the minds of persons leaving a theatre, put out the gaslights on the 
 staircase, and also, with the intention of obstructing the exit, placed an 
 iron bar across the doorway. Several of them were injured. It was held 
 that he had been rightly convicted on an indictment under this section 
 of unlawfully and maliciously inflicting grievous bodily harm upon two 
 of the audience named in the indictment. 
 
 If in consequence of a reasonable and well-grounded fear of violence, 
 a person jumps from a window, or into a river, to escape the threatened 
 violence, and sustains grievous bodily harm ; or if the person sustains 
 grievous bodily harm in escaping from the threatened violence, this 
 will amount to inflicting grievous bodily harm und^r the section. 
 
 A prisoner was charged under the section. He was drunk, and threat- 
 ened his wife. He asked if she was in bed, she said she was not. He then 
 said, ' I'll make you so that you can't go to bed/ The prisoner's wife 
 was frightened and opened the window and got one leg out, to get out. 
 Her daughter caught hold of her and held her. The prisoner had got 
 within reach of his wife, and was calling out to let her go ; whereupon the 
 daughter left hold, and the prisoner's wife fell into the street and broke 
 her leg. It was held (following E. v. Martin {v) ) a correct direction to the 
 jury, that if the prosecutrix's apprehension was well grounded, taking into 
 account the circumstances in which she was placed, and if getting out 
 of the window was an act such as under the circumstances a woman 
 might reasonably be led to take, they should find the prisoner guilty {«'). 
 
 Sect. V. — Of Setting Engines calculated to destroy Human 
 Life or inflict Grievous Bodily Harm. 
 
 By 24 & 25 Vict. c. 100, s. 31, ' Whosoever shall set or place, or cause 
 to be set or placed, any spring gun, man trap, or other engine calculated 
 to destroy human life or inflict grievous bodily harm, with the intent that 
 the same or whereby the same may destroy or inflict grievous bodily 
 harm upon a trespasser or other person coming in contact therewith, 
 shall be guilty of a misdemeanor, and being convicted thereof shall be 
 
 (f) Taken from 14 & 15 Vict. c. 19, .s. 4 ; R. v. Petci-s, 1 Cr. App. R. 141, and nnte, 
 
 and sec 10 (ico. IV. c. 34, s. 29 (I). The pp. 211, 212. 
 
 word ' wound " lias been so ))laced in tliis (u) 8 Q.B.D. o4. 
 
 clause that the words 'cither with or without (v) Ubi supra. 
 
 any wca])on or instrument,' may apply to it. («•) R. r. Halliday, 38 W. K. 25(5. Seo 
 
 (t) The words omitted were repealed in also R. v. Hickman. 5 C. & P. 151. R. v. 
 
 1892 as superseded by .54 & .55 Vict. c. 69, Pills, 5 C. & P. 284. R. r. Curley, 2 Cr. App. 
 
 8. 1, under which the term of penal scrvi- R. 109. R. v. Grimes, 15 N. S. Wales Rep. 
 
 tude is from three to five years, and the (Law), 209; ante, p. (i()(i, note (a). These 
 
 term of imprisonment not more than two cases appear to over-rule R. v. Donovan, 
 
 years with or without hard labour. Vide 4 Cox, 399, ante, p. 666, note (a).
 
 860 Of Causing Bodily Harm. [bookix. 
 
 liable ... to be kept in penal servitude ...(»); and whosoever shall 
 knowingly and wilfully permit any such spring gun, man trap, or other 
 engine which may have been set or placed in anyplace then being in or after- 
 wards coming into his possession or occupation by some other person, to 
 continue so set or placed, shall be deemed to have set and placed such gun, 
 trap, or engine with such intent as aforesaid : Provided that nothing in 
 this section contained shall extend to make it illegal to set or place any 
 gin or trap such as may have been or may be usually set or placed with 
 the intent of destroying vermin : Provided also, that nothing in this 
 section shall be deemed to make it unlawful to set or place, or cause to 
 be set or placed, or to be continued set or placed, from sunset to sunrise, 
 any spring gun, man trap, or other engine which shall be set or placed, 
 or caused or continued to be set or placed, in a dwelling house, for the 
 protection thereof (?/). 
 
 It has been ruled that an alarm gun loaded with a shotted cartridge 
 may be an engine calculated to destroy life within the section {z). 
 
 Causing death by engines set in contravention of this enactment is 
 manslaughter (a). 
 
 Setting dog-spears in a wood is not an illegal act at common law, 
 and it was not rendered so by 7 & 8 Geo. IV. c. 18 (6). 
 
 Sect VI. — Of Causing Bodily Harm by Furious Driving or 
 OTHER Wilful Misconduct or Wilful Neglect. 
 
 By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100) (c), 
 sect. 35/ Whosoever, having the charge of any carriage or vehicle, shall, by 
 wanton or furious driving or racing, or other wilful misconduct, or by 
 wilful neglect, do or cause to be done any bodily harm (c) to any person 
 whatsoever, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the discretion of the Court, to be imprisoned 
 for any term not exceeding two years, with or without hard labour' (^). 
 
 The section extends to bicycles (e), and to all carriages whether 
 drawn by animals or propelled by steam, petrol, electricity, or other 
 mechanical means. Where death is caused by contravention of the 
 enactment the slayer is liable to conviction of manslaughter (/). 
 
 (x) The punishment is now penal servi- driving or racing, or wilful misconduct of 
 
 tude from three to fiveyears or imprisonment coachmen and others having the charge of 
 
 with or without hard labour for not over such coaches or carriages. The present 
 
 two years. S-i & 55 Vict. c. 69, s. 1, ante, section includes all carriages and vehicles, 
 
 pp. 211, 212. The words omitted are and extends also to wilful neglect. As to 
 
 repealed. the meaning of the term ' wilful,' see fost, 
 
 (y) Framed from 7 & 8 Geo. IV. c. 18, p. 876. As to furious riding or driving in 
 
 with some slight verbal alterations. the metropolis, see the Metropolitan Police 
 
 [z) R. V. Smith [1902], noted 37 L. J. Act, 1839 (2 & 3 Vict. c. 47), s. 54 (5) and by 
 
 (Newsp.) 89, Bruce, J. See Archb. Cr. PI. licensed drivers, the London Hackney Car- 
 
 {23rd ed.), 853. riages Act, 1843 (6 & 7 Vict. c. 86), s. 28 ; 
 
 (n) R. r. Heaton, 60 J. P. 508, Kennedy, J. and in towns generally, the Town PoUce 
 
 (6) Jordin v. Crump, 8 M. & W. 782. Clauses Act, 1847 (10 & 11 Vict. c. 89), s. 28. 
 
 See Wootton v. Dawkins, C. B. (N. S.) 412. As to furious driving of motor cars, see 
 
 (c) Vide ante, p. 854. 3 Edw. VII. c. 36, s. 1. 
 
 {d) Taken from 1 Geo. IV. c. 4, which (e) R. v. Parker, 59 J. P. 793, Hawkins, J. 
 
 was confined to stage-coaches and public See Archb. Cr. PI. (23rd ed.), 855. 
 
 carriages, and to the wanton and furious (/) Vide ante, p. 794.
 
 CHAP. III.] Procedure. 861 
 
 Sect. VII. — Procedure, &c. 
 
 Where it is uncertain wtether the defendant intended by his act to 
 murder or to cause grievous bodily harm, &c., it is usual to insert counts 
 varying the intent {g). A person who is present aiding and abetting 
 when the criminal act is done is indictable as a principal, though his was 
 not the hand by which the mischief was attempted or effected (h). But, if 
 several are out for the purpose of committing a felony, and upon an alarm 
 run different ways, and one of them maims a pursuer to avoid being taken, 
 the others are not to be considered principals in such act {i). 
 
 Power to Convict of Unlawful Wounding on Indictment for Felonious 
 Wounding. — By 14 & 15 Vict. c. 19, s. 5, 'If upon the trial of any 
 indictment for any felony, except murder or manslaughter, where the 
 indictment shall allege that the defendant did cut, stab, or wound any 
 person, the jury shall be satisfied that the defendant is guilty of the 
 cutting, stabbing, or wounding, but are not satisfied that the defendant 
 is guilty of the felony charged in such indictment, then and in every 
 such case, the jury may acquit the defendant of such felony, and find 
 him guilty of unlawfully cutting, stabbing, or wounding (y), and there- 
 upon the defendant shall be liable to be punished in the same manner as 
 if he had been convicted upon an indictment for the misdemeanor of 
 cutting, stabbing, or wounding.' 
 
 This section appears to apply when the indictment alleges a felonious 
 wounding, and does not apply to a felonious shooting with intent, 
 &c. {k). 
 
 In E. V. Ward {I) the prisoner was indicted under 24 & 25 Vict, 
 c. 100, s. 18, for unlawfully, maliciously and feloniously woimding with 
 intent to do grievous bodily harm. The prosecutor was using a punt 
 in a creek of a river for the purpose of shooting wild fowl, lying with 
 his face downwards in the punt, and paddling with his arms over the 
 sides. When slewing the punt round to return home he suddenly heard 
 the report of a gun and found himself shot and wounded seriously. 
 The prisoner had fired the shot in the direction of the punt with the 
 intention of frightening the prosecutor from again coming into the 
 creek for the purpose of fowling, and not with the intention of doing 
 him grevious bodily harm. The prisoner at the time and afterwards 
 asserted that if the prosecutor had not slewed the punt round at the 
 moment of his shooting, the shot would not have struck him. The 
 jury found the prisoner guilty of unlawful woundmg. It was held that 
 14 & 15 Vict. c. 19, s. 5, must be construed as if the word 'malicious' 
 were applied to wounding ; and there was evidence of a malicious 
 wounding by the prisoner and that the conviction was right. 
 
 As to conviction of the attempt on an indictment for the complete 
 offence, see 14 & 15 Vict. c. 100, s. 9, fost, Vol. ii. p. 196G. 
 
 [g) Vide ante, p. 853. (j) Under 24 & 25 Vict. c. 100, s. 20, 
 
 (h) R. V. Towle, R. & R. 314 ; and vide ante, p. 859. 
 ante, p. 114. (k) R. v. Miller, 14 Cbx, 356, Bowen, J., 
 
 (i) R. V. White, R. & R. 99, and MSS. but sec R. v. Waudby, post, p. 862. 
 Bayley, J. Vide ante, pp. 123, 124. (/) L. R. 1 C. C. R. 356.
 
 862 Of Causing Bodily Harm. [BOOKi^t. 
 
 On an indictment under sect. 20 [ante, p. 859), the defendant may- 
 be convicted of a common assault (m). 
 
 In R. V. Sparrow (n), where some counts charged the defendant with 
 an assault on S. G., and with having thereby unlawfully and maliciously 
 inflicted grievous bodily harm upon him, and another count was for a 
 common assault, it appeared that the defendant struck the prosecutor 
 with his fists two violent blows on the mouth, another on the temple, and 
 a fourth on the back of the ear ; three of his front teeth, and other teeth 
 farther up were loosened ; his gums were lacerated, and the mouth was 
 swollen. The pain which was suffered immediately afterwards was 
 insufferable ; one of the front teeth and the back teeth had since partially 
 fastened, but the two front teeth had not, and the prosecutor must lose 
 them. The prosecutor had suffered much otherwise for a long time. The 
 jury were told that the injuries inflicted fell within the definition of 
 ' grievous bodily harm,' and that if they believed the witnesses, there 
 was evidence to support the first counts ; and that the question of whether 
 the defendant intended to inflict grievous bodily harm did not arise, but 
 that the simple point for their consideration was, ' did the defendant 
 unlawfully assault the prosecutor, and thereby inflict upon him grievous 
 bodily harm ? ' The verdict was, ' We find the defendant guilty of an 
 aggravated assault, but without premeditatioii ; it was done under the 
 influence of passion.' It was then contended that this was a verdict of 
 guilty upon the count for the common assault only ; but a verdict of 
 guilty was directed to be entered on the other counts, and, upon a case 
 reserved, io was urged that the jury might have intended not to find the 
 prisoner guilty of intending bodily harm, and that intention was a 
 necessary ingredient in the offence, and the word ' maliciously ' meant 
 something more than ' intentionally ' ; but it was held that the direction 
 was correct ; that the language used by the jury must be construed by 
 looking at the subject matter of the charge, and what was left to the jury ; 
 and that the assault was intentional in the eye of the law, though 
 committed without premeditation and under the influence of passion. 
 
 Upon an indictment against three for maliciously wounding with 
 intent to do grievous bodily harm, the jury may convict two of the 
 felony charged, and the third of unlawfully wounding (o). 
 
 In R. V. Waudby (p). one prisoner was charged on the first count 
 with feloniously shooting at F. with intent to do him grievous bodily 
 harm and another prisoner was charged with feloniously aiding and abett- 
 ing him to commit the felony, and on a second count with feloniously 
 wounding F. with like intent. The jury found the one guilty of unlaw- 
 ful wounding, and the other guilty of aiding and abetting. On a case 
 reserved, the question was raised whether the second prisoner could, 
 on such an indictment, be convicted of aiding and abetting in the 
 misdemeanor. The conviction of both was upheld {q). 
 
 (m) R. V. Yeadon, L. & C. 81. R. v. {q) The decision appears to be perfectly 
 
 Oliver, Bell, 728. Cf. R. v. Roxburgh, 12 correct if the conviction on the second 
 
 Cox, 8, as to plea of guilty to common count be kept in view. If it rested on the 
 
 assault. first count it would be inconsistent with 
 
 (n) [1860] Bell, 298. R, v. Miller (a/ife, p. 861), and with the words 
 
 (o) R. V. Cunningham, Bell, 72. of 14 & 15 Vict. c. 19, s. 5, ante, p. 861. 
 
 (p) [1895] 2 Q.B. 482. 
 
 i
 
 ( 862a ) 
 
 CANADIAN NOTES. 
 
 Sec. 1. — Of Conspiring and hicitement to Murder. 
 
 Conspiring and Counselling to Murder. — Code sec. 266. 
 
 Sec. 2. — Attempts to Commit Murder. — Code sec. 264. 
 
 An indictment that "A. B. attempted to kill and murder C. D." 
 sufficiently discloses an indictable ofiPence, and the Court has the 
 power to allow it to be amended so as to read that "A. B. with intent 
 to commit murder, shot at C. D." The King v. Mooney, 11 Can. Cr. 
 Cas. 333. 
 
 An indictment multifarious in that it combines a charge of a 
 failure to provide necessaries for a child under sixteen under sees. 
 242 and 244 with a charge of an attempt to murder the child, to 
 which indictment the prisoners pleaded, is sufficient upon which to 
 base a conviction thereon for the latter offence without a formal 
 amendment of the indictment, where the presiding Judge has with- 
 drawn from the jury that portion of the charge based upon sees. 
 242 and 244. R. v. Lapierre (1897), 1 Can. Cr. Cas. 413 (Que.). 
 
 The prosecution must prove the intent as well as the assault. Re 
 Kelly (1902), 5 Can. Cr. Cas. 541. 
 
 Upon a charge of causing grievous bodily harm to a child under 
 defendant's care with intent to bring about the child's death, evi- 
 dence of acts of cruelty by defendants to another child also in defen- 
 dant's care are irrelevant to the case and inadmissible. R. v. Lapierre 
 (1897), 1 Can. Cr. Cas. 413 (Que.). 
 
 On the trial of a person accused of attempt to murder by shooting, 
 evidence that he had burglar's tools in his possession at the time is 
 admissible, as tending to prove criminal intent. It is proper for the 
 Judge, in charging the jury in a trial for an attempt to murder, to 
 instruct them that they may draw an inference as to the prisoner's 
 intent to kill from the circumstances of his being a stranger loitering 
 in a street or park, between four and five o'clock in tlio morning, with 
 a loaded revolver and burglar's tools in his possession. The King v. 
 ]\rooney, 11 Can. Cr. Cas. 333. 
 
 Sec. 3. — Of Unlawful Acts Causing or Calculated to Cause Bodily 
 
 Ilarm. 
 
 Felonous Wounding. — Code sec. 273. 
 
 The intent may be inferred from the act committed. R. v. LeDante^ 
 2 Geldert & O.xley (N.S.) 401.
 
 862& Conspiring to Murder. [book ix. 
 
 Upon an indictment charging a shooting at a person with intent, 
 a verdict for common assault may be rendered. Re Cronan (1874), 
 24 U.C.C.P. 106. 
 
 Upon the trial of an indictment for woimding with intent to dis- 
 able, a verdict of "guilty without malicious intent" is equivalent 
 to a verdict of acquittal, although the jury were instructed that if 
 intent to disable were negatived they might still convict of the simple 
 offence of wounding. Such verdict is to be construed as a finding that 
 the act of the accused which resulted in wounding the complainant 
 was done without malice. (The King v. Slaughenwhite (No. 1), 9 
 Can. Cr. Cas. 53, 37 N.S.R. 382, reversed.) Slaughenwhite v. The 
 King; The King v. Slaughenwhite (No. 2), 9 Can. Cr. Cas. 173, 35 
 Can. S.C.R. 607. 
 
 Upon a charge of shooting with intent to do grievous bodily harm 
 in which the plea is self-defence, it is a question for the jury, whether 
 the assault upon the accused, which had provoked the shooting, had 
 ended or was still being pursued. It is mis-direction to charge the 
 jury that, to support the plea of self-defence to the infliction of 
 grievous bodily harm, they must find that the accused could not other- 
 wise have preserved himself from death or grievoiLS bodily harm, it 
 being a sufficient justification if the accused had a reasonable appre- 
 hension of grievous bodily harm to himself from the violence of the 
 assault upon him, and if he believed on reasonable grounds that he 
 could not preserve himself from grievous bodily harm otherwise than 
 by inflicting grievous bodily harm upon his assailant. The King v. 
 Hitter, 8 Can. Cr. Cas. 31, Cr. Code sees. 53 and 54. 
 
 Bodily Injury hy Unlatvfid Act or Omission. — Code sec. 284. 
 
 This sec. (284) is not in any English Act. The Imperial Com- 
 missioners on the Draft Code of 1879 recommended it, but there was 
 ■a minority report against it, and it was not enacted. 
 
 Although a corporation cannot be guilty of manslaughter, it may 
 be indicted under sec. 222 and possibly also under this section for 
 having caused grievous bodily injury by omitting to maintain in a safe 
 condition a bridge or structure which it was its duty to so maintain, 
 and this notwithstanding that death ensued at once to the person 
 sustaining the grievous bodily injury. A fine is the punishment 
 which must be substituted under Cr. Code sec. 920 in the case of a 
 corporation, in lieu of the imprisonment mentioned in Cr. Cede sec. 
 -284, and the amount is in the discretion of the Court (Cr. Code sec. 
 1029). The expression "grievous bodily injury" includes injuries 
 immediately resulting in death, and as a corporation is not amenable 
 to a charge of manslaughter, the death is as to it a circumstance in 
 aggravation of the crime, and does not enlarge the nature of the 
 offence. R. v. Union Colliery Co. (1900), 3 Can. Cr. Cas. 523 (B.C.) ;
 
 CHAP. III.] Cansinfi Bodily Harm. 862c 
 
 affirmed by the Supreme Court of Canada suh nom., Union Colliery 
 V. The Queen (1900), 4 Can. Cr. Cas. 400, 31 Can. S.C.R. 81. 
 
 Sec. 4. — Unlawful Wounding. — Code sec. 274. 
 
 A conviction for inflicting grievous bodily harm under sec. 274 
 which provides a punishment for the person ' ' who unlawfully wounds 
 or inflicts any grievous bodily harm upon any other person" need not 
 state that the act was done "unlawfully," that term in the section 
 being referable only to the offence of wounding. R. v. Treadwell 
 (1902), 5 Can. Cr. Cas. 461. 
 
 Sec. 5. — Of Setting Engines Calcidated to Destroy Human Life or 
 Inflict Grievous Bodily Harm. — Code sec. 281. 
 
 The words "actual bodily harm" in sec. 295 would be fully 
 covered by the least bodily harm, whilst the offence provided in sec. 
 274 has added to it an aggravating element which makes the bodily 
 harm grievous. R. v. Hostetter (1902), 7 Can. Cr. Cas. 221. 
 
 Justices of the peace have no power on a preliminary investigation 
 before them of a charge of unlawfully wounding, to reduce the charge 
 to one of common assault, over which they would have summary 
 jurisdiction. R. v. Lee (1897), 2 Can. Cr. Cas. 233; Miller v. Lea 
 (1898), 2 Can. Cr. Cas. 282. A conviction recorded by justices in such 
 a case upon a plea of guilty to the charge as reduced, is not a bar 
 to an indictment for unlawfully wounding, based upon the same state 
 of facts and does not support a plea of autrefois convict. Ibid. 
 
 Sec. 6. — Causing Bodily Harm by Furious Driving or Other Wilful 
 Misconduct or Wilful Neglect. 
 
 Punishment for. — Code sec. 285. 
 
 As to the meaning of the term "wilful neglect," e.g., wilfully 
 refusing or neglecting to maintain a wife, see Anonymous Case 
 (1902), 6 Can. Cr. Cas. 163 (Que.). A "wilful" refusal to allow a 
 person to vote means a refusal which is perverse or malicious. John- 
 son v. Allen, 26 O.R. 550.
 
 ( 863 ) 
 
 CHAPTER THE FOURTH. 
 
 DP ATTEMPTING TO CHOKE OR TO INJURE BY POISON OR EXPLOSIVES. 
 
 Sect. I. — Of attempting to Choke, &c,, and using Drugs 
 
 IN ORDER TO COMMIT OfFENCES. 
 
 Attempts to suffocate or strangle icith intent to commit murder are 
 punishable under 24 & 25 Vict. c. 100, s. 14, ante, p. 841. 
 
 By 24 & 25 Vict. c. 100, s. 21 {a), ' Whosoever shall, by any means 
 whatsoever, attempt to choke, suffocate, or strangle any other person, 
 or shall, by any means calculated to choke, suffocate, or strangle, attempt 
 to render any other person insensible, unconscious, or incapable of 
 resistance, with intent in any of such cases thereby to enable himself or 
 any other person to commit, or with intent in any of such cases thereby to 
 assist any other person in committing any indictable offence, shall be 
 guilty of felony, and being convicted thereof shall be liable ... to be 
 kept in penal servitude for life . . . (6). 
 
 A male person convicted under the above section may, in addition to 
 the punishment awarded by the section (as amended in 1891) or any 
 part thereof be sentenced to be whipped "under the Garrotters Act, 1863 
 (26 & 27 Vict. c. 44), which is set out ante, p. 216. 
 
 By 24 & 25 Vict. c. 100, s. 22 (c), ' Whosoever shall unlawfully apply 
 or administer to or cause to he taken by, or attempt to apply or administer 
 to or aftempt to cause to be administered to or taken by any person, any 
 chloroform, laudanum, or other stupefying or overpowering drug, matter, 
 or thing, with intuit in any of such cases thereby to enable himself 
 or any other person to commit or with intent in any of such cases 
 thereby to assist any other person in committing, any indictable offence, 
 shall be guilty of felony, and being convicted thereof shall be liable . . . 
 to be kept in penal servitude for life . . .' (/;). 
 
 By 48 & 49 Vict. c. 69, s. 3, sub-s. 3 [post, p. 956) it is an indictable 
 misdemeanor to apply, administer to, or cause to be taken by any 
 woman or girl, any drug, matter, or thing, with intent to stupefy 
 or overpower so as to enable any person to have a lawful carnal 
 connection with such woman or girl {d). 
 
 (a) This section was new law in 1801. (c) Taken from 14 & 1.3 Vict. c. 19, s. 3. 
 
 (h) Or not less than tlirce years or to ini- The words in itnUcs in (he beginning of this 
 
 prisonment with or without hard labour for section were introduced for the same reason 
 
 not more tlian two years ; 54 & 55 Vict. as those in s. 14. See the note to that 
 
 c. 69, s. 1, ante, pp. 211, 212. The words section, ante, p. 841. 
 
 omitted in s. 21, 22 were repealed in (d) Corroboration is necessary, s. 3, 
 
 1892, S. L. R. ; s. 21 was new law in proviso. 
 18G1.
 
 864 Of the Use of Poison. [bookix. 
 
 Sect. II. — Of the Use of Poison to commit Crime. 
 
 Persons who administer or attempt to administer or cause or attempt 
 to cause to be administered to or taken by any person, any poison or 
 other destructive things with intent to cotnmit murder are punishable 
 under 24 & 25 Vict. c. 100, sects. 11, 14, ante, pp. 840, 841. 
 
 By sect. 23 (e), ' Whosoever shall unlawfully and maliciously administer 
 to or cause to be administered to or taken by any other person any 
 poison or other destructive or noxious thing, so as thereby to endanger 
 the life of such person, or so as thereby to inflict upon such person any 
 grievous bodily harm, shall be guilty of felony, and being convicted thereof 
 shall be liable ... to be kept in penal servitude for any term not 
 exceeding ten years . . .'(/). 
 
 By sect. 24 (g), ' Whosoever shall unlawfully and maliciously ad- 
 minister to or cause to be administered to or taken by any other person 
 any poison or other destructive or noxious thing, with intent to injure, 
 aggrieve, or annoy such person, shall be guilty of a misdemeanor, and 
 being convicted thereof shall be liable ... to be kept in penal 
 servitude . . . ' (h). 
 
 By sect. 25, ' If upon the trial of any person for any felony in the 
 last but one preceding section mentioned, the jury shall not be satisfied 
 that such person is guilty thereof, but shall be satisfied that he is guilty 
 of any misdemeanor in the last preceding section mentioned, then and 
 in every such case the jury may acquit the accused of such felony, and 
 find him guilty of such misdemeanor, and thereupon he shall be liable to 
 be punished in the same manner as if convicted upon an indictment for 
 such misdemeanor ' (i). 
 
 Poison or Other Destructive Thing.— Upon an indictment for adminis- 
 tering poison with intent to murder, it appeared that the prisoner had 
 administered to a child nine weeks old two cocculus indicus berries. The 
 child vomited one of them up, and the other passed through her body in 
 the course of nature. Two medical men proved that the cocculus indicus 
 berry is classed with narcotic poisons : the poison consists in the presence 
 
 (e) Taken from 23 & 24 Vict. c. 8, s. 1. on the question whether the intent above 
 (/) For other punishments, see 54 & 55 stated was an intent to injure, aggrieve or 
 Vict. c. 69, s. 1, ante, pp. 211, 212. The annoy within the statute, the conviction 
 words omitted were repealed in 1892 was affirmed. R. v. Wilkins, L. & C. 89. 
 (S. L. R. ). But where cantharides was administered in 
 (g) Taken from 23 & 24 Vict. e. 8, s. 2. such a small quantity as to be incapable of 
 Upon an indictment on that section for doing any mischief, although administered 
 administering cantharides to a female, with with the intent to cause inconvenience and 
 intent to injure, aggrieve, and annoy her, amioyance, Cockburn, C. J., after consulting 
 it appeared that the prisoner, unknown to Hawkins, J., held that this was no ' ad- 
 the prosecutrix, put canthaiides into a cup ministering of a noxious tiling ' witliin the 
 of tea which she drank, and was very ill in section. R. v. Heimah, 13 Cox, 547. For 
 consequence. This drug taken in large decisions on the earlier law see R. v. Walk- 
 quantities is poisonous, but it is adminis- den, 1 Cox, 282. R. v. Hanson, 2 C. & K. 
 tered by medical men as a stimulant to the 912. R. v. Vaughan, 8 Cox, 256. 
 kidneys and bladder. The jury found that (h) For other punishments, see 54 & 55 
 the prisoner administered the cantharides Vict. c. 69, s. 1, ante, pp. 211, 212. The 
 with intent to excite the sexual passion and words omitted were repealed in 1892 
 desire of the prosecutrix, in order that he (S. L. R.). 
 
 might obtain connection with her, and on (i) This section re-enacts 23 & 24 Vict. 
 
 a case reserved, after a verdict of guilty, c. 8, s. 3.
 
 CHAP. I v.] Of the Use of Explosives, Corrosives, <&c. 865 
 
 of an alkaloid, which is extracted from the kernel ; all the noxious pro- 
 perties are in the kernel ; it has a very hard exterior or pod, to break 
 which much force is required. One of these witnesses added that the 
 berry, if the pod is broken, is calculated to produce death in an adult 
 human subject, though he did not know how many would be required for 
 the purpose : he thought the poison contained in the kernels of two 
 berries, if the pods were burst, and if retained on the stomach, might 
 produce death in a child of nine weeks old, but that the berry could not 
 be digested by the child, and that it would pass through its body without 
 the pod being burst, and so would be innocuous. It was objected that 
 the berries were not poison within the meaning of the statute ; for that 
 though the kernel of the berries contained poison, yet the pod rendered 
 the poison innocuous. The objection was overruled, and upon a case 
 reserved, the judges were unanimously of opinion that the conviction 
 was right. Wilde, C.J., said : ' It is admitted that the kernel is poison 
 though not the pod ; part of the berry is therefore admitted to be poison, 
 though not the whole. The whole berry was administered, and with 
 intent to kill. The act, therefore, of administering poison with intent to 
 kill is proved. The effect of that act is beside the question : the act was 
 an administering poison, which failed to produce the intended effect. 
 We all think the conviction right ' {j). 
 
 If a person mix poison with coffee, and tells another that the coft'ee is 
 for her, and she take it in consequence, it seems that this is an adminis- 
 tering, and at all events, it is a causing the j^oison to be taken {k). 
 
 On an indictment for attempting to administer poison it appeared that 
 the prisoner had bought some salts of sorrel, and put it in a sugar-basin 
 in order that the prosecutor might take it with his tea, and the prosecutor 
 and his wife took some of it with their tea, and discovered that something 
 was wrong, and this led to a discovery of the poison ; Wightman, J., 
 held, that if the prisoner put the poison in the sugar intending that it 
 should be taken, that was an attempt to administer it {/). 
 
 If A. delivered poison to B. for the purpose of his administering it to 
 C. in A.'s absence, A. was not liable to be convicted under 1 Vict, c, 85, 
 s. 3, of an attempt to admmister poison to C, if B. were a guilty agent (?»). 
 
 Sect. III. — Of the use of Explosives, Corrosives, &c,, 
 FOR Criminal Purposes. 
 
 The statutory provisions for preventing and punishing the use of 
 explosives (other than fiic arms) to commit crimes agamst person and 
 
 (/) R. V. Cludeiay, 1 Den. 514. In tlio because a child is supposed to be incapable 
 
 course of the argument, Alderson, B., said : of doing so ? ' 
 
 ' Suppose arsenic given in a globule of glass, [k) R. i\ Harlcy, 4 C. & P. 369. In this 
 
 would that be an administering of a dc- case the prisoner was indicted under 9 
 
 structive poison?' Williams, J.: 'Sup- t!co. IV. c. "31, s. 11. See the cases, ah /e, 
 
 pose a child to have a feeble digestion by p. 830, as to administering drugs to procure 
 
 reason of tender age, and the medical man abortion. 
 
 to say that it could not digest the pod for [1) R. v. Dale, Cox, 14, vide ante, p. 834. 
 that reason, could the amount of the diges- (m) R. r. Williams, 1 Den. 39 ; 1 C. & 
 tive power in the particular case affect the K. 589. The prisoners were afterwards 
 question ? ' Alderson, B. : ' Suppose a convicted on an indictment for the mis- 
 grown man could digest it, would it be demeanor of doing the acts with a criminal 
 poison ? if so, would it cease to be poison intent. See Dears. 547. 
 
 VOL. I. 3 K
 
 866 Of tJie Use of Exflosives, Corrosives, &c. [bookix. 
 
 property are, for reasons of practical convenience, dealt with together 
 in this chapter. 
 
 By the Malicious Damage Act, 1861 (24 & 25 Vict. c. 97), s. 9 (n), 
 ' Whosoever shall unlawfully and maliciously, by the explosion of 
 gunpowder or other explosive substance, destroy, throw down, or damage 
 the whole or any part of any dwelling-house, any person being therein, 
 or of any building, whereby the life of any person shall be endangered, 
 shall be guilty of felony, and being convicted thereof shall be liable at the 
 discretion of the Court to be kept in penal servitude for life, ... or 
 to be imprisoned, . . . and, if a male under the age of sixteen years, 
 with or without whipping ' (o). 
 
 On an indictment under this section it was held by Lopes, J., after 
 consulting Lord Coleridge, C.J., that the endangering of life must result 
 from the damage done to the building mentioned in the indictment, but 
 that it was not necessary that the persons whose lives were endangered 
 should have been inside the building. For the purpose of proving such 
 endangering of life evidence of damage to other buildings that might be 
 inhabited was inadmissible, though such evidence was admissible to shew 
 the nature and extent of the explosion and its tendency to destroy the 
 particular building. To endanger within this section includes not only 
 actual injury received but also exposure to, or chance of, injury (p). 
 
 By sect. 10 (9), ' Whosoever shall unlawfully and maliciously place or 
 throw in, into, upon, under, against, or near any building any gunpowder 
 or other explosive substance, with intent to destroy or damage any 
 building or any engine, machinery, working tools, fixtures, goods, or 
 chattels, shall, whether or not any explosion take place, and whether or 
 not any damage be caused, be guilty of felony, and being convicted 
 thereof shall be liable at the discretion of the Court, to be kept in penal 
 servitude for any term not exceeding fourteen . . . years, or to be 
 
 {n) This section embodies 9 & 10 Vict. c. were put out of Gate's house. They then 
 
 25, ss. 1, 2. Under s. 2 of tliat Act, where began to fire the gun ; at first in front of the 
 
 Hfe was endangered, the offence was capital. house ; then they fired under the door. 
 
 See 24 & 25 Vict. c. 100, s. 12 [ante, p. 840). filling the house with smoke. They fired 
 
 (o) For other punishments see 54 & 55 off the gun next through the keyhole of the 
 
 Vict. c. 69, s. 1, ante, pp. 211, 212. The door, and, being out of percussion-caps, 
 
 words omitted are repealed. applied a candle to the nipple for the pur- 
 
 (p) R. V. McGrath, 14 Cox, 598. pose. The effect of this shot was to drive 
 
 (q) Taken from 9 & 10 Vict. c. 25, s. 6. the key with great violence into the house, 
 In R. V. Brown, 3 F. & F. 821, the iwisoners cutting the arm of Mrs. Gate, and knocking 
 were indicted under this section for damag- Gate insensible off his chair, by striking 
 ing the house of J. Gate by the explosion of him on the head. It also blew the lock of 
 gunpowder, J. Gate and his wife being the door to pieces, and split the door. The 
 therein. In Cumberland there is a custom prisoners were afterwards very abusive and 
 in country places, when a wedding has violent on the inmates rushing out to cap- 
 taken place, for the neighbours to assemble ture them and their gun. Martin, B., was 
 with guns, and fire a kind of /ew de joie in of opinion that the statute was not meant 
 honour of the event, the bridegroom or his to apply to such a case as this, but rather 
 friends treating them. In pursuance of to malicious injuries to houses, by placing 
 this custom the prisoners and others went or throwing explosive substances against or 
 with a gun thus to celebrate the marriage of into them, with intent to destroy the house 
 Gate's daughter with one Noble. On arriv- or injure the inmates. This was more in 
 ing at Gate's house they asked for drink, the nature of wanton mischief or assault, 
 and said they had come to shoot. Noble and he directed an acquittal. ' If this case 
 treated them to beer, and gave the one who is correctly reported, it deserves reconsidefisi- 
 had the gun 2s. Q>d. not to fire. Having got tion,' C, S, G. 
 the beer, they wanted something to eat^ but
 
 CHAP. IV.] Of the Use of Explosives, Corrosives, c&c. 867 
 
 imprisoned, . . . and, if a male under the age of sixteen years, with or 
 without whipping (r). 
 
 By sect. 45 (rr), ' Whosoever shall unlawfully and maliciously place or 
 throw in, into, upon, against, or near any ship or vessel any gunpowder 
 or other explosive substance, with intent to destroy or damage any ship 
 or vessel, or any machinery, working tools, goods, or chattels, shall, 
 whether or not any explosion take place, and whether or not any injury 
 be effected, be guilty of felony, and being convicted thereof shall be 
 liable, at the discretion of the Court, to be kept in penal servitude for any 
 term not exceeding fourteen years, ... or to be imprisoned, . . . and, 
 if a male under the age of sixteen years, with or without whipping (r). 
 
 Shooting into a house has been held not to be within sect. 9 (s). 
 
 The prisoners were indicted under sect. 10 for throwing gunpowder 
 against a house with intent to damage. It appeared that they had 
 thrown a bottle containing gunpowder against a window of a house, and 
 that in the neck of the bottle there was a fuse, and Kelly, C.B., held that 
 unless the fuse in the bottle was lighted at the time the bottle was thrown 
 against the house the offence was not made out, but said : ' I do not say that 
 it is necessary that the light should pass from the fuse to the powder in the 
 bottle and that an explosion should take place. It is enough to consti- 
 tute the offence if once the light was ap2:>lied to the fuse before the bottle 
 was thrown, although it might go out before the bottle struck the house 
 and no explosion actually resulted from it. . . . If anybody merely threw 
 a bottle containing gunpowder that would not comply with the con- 
 ditions of the statute. If the fuse was not lighted, it could not cause 
 an explosion, and it would be merely throwing a bottle agamst a house ' (t). 
 
 By the Offences against the Person Act,' 1861 (24 & 25 Vict. c. 100), 
 s. 28 (u),' Whosoever shall unlawfully and maliciously, by the explosion 
 of gunpowder or other explosive substance, burn, maim, disfigure, disable, 
 or do any grievous bodily harm to any person, shall be guilty of felony, 
 and being convicted thereof shall be liable at the discretion of the Court 
 to be kept in penal servitude for life ... or to be imprisoned . . , and if 
 a male under the age of sixteen years, with or without whipping (r). 
 
 By sect. 29 (v), ' Whosoever shall unlawfully and maliciously cause 
 any gunpowder or other explosive substance to explode, or send or deliver 
 to or cause to be taken or received by any person any explosive substance 
 or any other dangerous or noxious thing, or fut or Imj at any place, or cast 
 or throw at or upon or otherwise apply to any person, any corrosive fluid 
 or any destructive (vv) or explosive substance, with intent in any of the 
 cases aforesaid to burn, maim, disfigure, or disable any person, or to do 
 some grievous bodily harm to any person, shall, whether any bodily harm 
 
 (r) For other punishments sec 54 & 55 placed an infernal machine in anj' jilace 
 
 Vict. c. 69, 8. 1, a7ite, pp. 211, 212. The where he believed another would tread on 
 
 words omitted are repealed. it and thereby cause it to explode, he would 
 
 (rr) Taken from 9 & 10 Vict. c. 25, s. (5. not have been guilty of an ofTence. The 
 
 («) R. V. Brown, 3 F. & F. 821. words ' put or lay at any place ' were intro- 
 
 (l) R. V. Shejjpard, 11 Cox, 302. duced to meet all such cases. As to the 
 
 («) Taken from 9 & 10 Vict. c. 25, s. 3. words ' whether any bodily injury,' &c., 
 
 ((;) Taken from 9 & 10 Vict. c. 25, s. 4, see the note to s. 14, avif, p. 841. 
 
 and 7 Will. IV. and 1 Vict. c. 85, s. 5. (vv) Includinfr. it would seem, boiling 
 
 Under those sections, if any person had water. R. v. Crawford, 1 Den. 100. 
 
 3k2
 
 868 Of the Use of Explosives, Corrosives, dc. [bookix 
 
 be effected or not, be guilty of felony, and being convicted thereof shall be 
 liable/ at the discretion of the Court to be kept in penal servitude for life 
 ... or to be imprisoned . . . and if a male under the age of sixteen 
 years, with or without whipping' (w). 
 
 This section is by the Gunbarrel Proof Act, 1868 (31 & 32 Vict. c. cxiii.), 
 s. 123, extended to persons knowingly sending for proof a gun barrel 
 containing any explosive substance. 
 
 Where the prisoner threw an electric fuse detonator out of a railway 
 carriage window, and it was picked up by the prosecutor, and exploded 
 and injured him, it was held that it was a question for the jury as to the 
 intent with which the prisoner had acted (x). 
 
 By sect. 30 (y), ' Whosoever shall unlawfully and maliciously place or 
 throw in, into, upon, against, or near any building, ship, or vessel, any 
 gunpowder or other explosive substance, with intent to do any bodily 
 injury to any person, shall, whether or not any explosion take place, 
 and whether or not any bodily injury be effected, be guilty of felony, 
 and being convicted thereof, shall be liable at the discretion of the Court 
 to be kept in penal servitude for any term not exceeding fourteen years . . . 
 or to be imprisoned . . . and if a male under the age of sixteen years, 
 with or without whipping ' (w). 
 
 By sect. 64 (z), ' Whosoever shall knowingly have in his possession, 
 or make or manufacture any gunpowder, explosive substance, or any 
 dangerous or noxious thing, or any machine, engine, instrument, or thing, 
 with intent by means thereof to commit, or for the purpose of enabling 
 any other person to commit, any of the felonies in this Act mentioned, 
 shall be guilty of a misdemeanor, and being convicted thereof shall be 
 liable, at the discretion of the Court, to be imprisoned for any term not 
 exceeding two years, with or without hard labour, . . . and, if a male 
 under the age of sixteen years, with or without whipping . . . ' (a). 
 
 By sect. 65, ' Any justice of the peace of any county or place in which 
 any such gunpowder, or other explosive, dangerous, or noxious substance 
 or thing, or any such machine, engine, instrument, or thing, is suspected 
 to be made, kept, or carried for the purpose of being used in committing 
 any of the felonies of this Act mentioned, upon reasonable cause assigned 
 upon oath by any person, may issue a warrant under his hand and seal for 
 searching in the day-time any house, mill, magazine, storehouse, ware- 
 house, shop, cellar, yard, wharf, or other place, or any carriage, waggon, 
 cart, ship, boat, or vessel, in which the same is suspected to be made, kept, 
 or carried for such purpose as hereinbefore mentioned ; and every person 
 acting in the execution of any such warrant shall have, for seizing, 
 removing to proper places, and detaining all such gunpowder, explosive, 
 dangerous, or noxious substances, machines, engines, instruments, or 
 things, found upon such search, which he shall have good cause to suspect 
 to be intended to be used in committing any such offence, and the barrels, 
 packages, cases, and other receptacles in which the same shall be, the 
 
 (iv) As to other punishments see 54 & 55 {z) Taken from 9 & 10 Vict. c. 25, s. 8. 
 
 Vict. c. 69, s. 1, pp. 211, 212. The words There is a hke provision in 24 & 25 Vict. 
 
 omitted are repealed. c. 97, s. 54. 
 
 (x) R.?>. Saunders, 14 Cox, 180, Denman, J. (a) The words omitted were repealed in 
 
 (y) Taken from 9 & 10 Vict. c. 25, s. 6. 1893 (S. L. R.).
 
 CHAP. IV.] Of the Use of Ex'plosives, Corrosives, &c. 869 
 
 same powers and. protections which are given to persons searching for 
 unlawful quantities of gunpowder under the warrant of a justice by the 
 Act passed in the session holden in the 23 & 24 Vict. c. 139 ..." (6). 
 
 By the Explosive Substances Act, 1883 (46 & 47 Vict, c. 3), s. 2, '' Any 
 person who unlawfully and maliciously causes by any explosive sub- 
 stance an explosion of a nature likely to endanger life, or to cause serious 
 injury to property, shall, whether any injury to person or property has 
 been actually caused or not, be guilty of felony, and on conviction shall 
 be liable to penal servitude for life, or for any less term (not less than 
 the minimum term allowed by law) (c) or to imprisonment with or without 
 hard labour for a term not exceeding two years/ 
 
 By sect. 3, ' Any person who within or (being a subject of His Majesty) 
 without His Majesty's dominions unlawfully and maliciously — 
 
 (a) does any act with intent to cause, by an explosive substance, or 
 conspires to cause by an explosive substance, an explosion in the 
 United Kingdom of a nature likely to endanger life or to cause 
 serious injury to property, or, 
 
 (b) makes or has in his possession or under his control any explosive 
 substance with intent by means thereof to endanger life or cause 
 serious injury to' property in the United Kingdom, or to enable 
 any other person by means thereof to endanger life or cause 
 serious injury to property in the United Kingdom, 
 
 shall, whether any explosion does or does not take place, and whether any 
 injury to j)erson or property has been actually caused or not be guilty of 
 felony, and on conviction shall be liable to penal servitude for a term 
 not exceeding twenty years {d), or to imprisonment with or without 
 hard labour for a term not exceeding two years, and the explosive 
 substance shall be forfeited/ 
 
 By sect. 4 (1), 'Any person who makes or knowingly has in his 
 possession or under his control any explosive substance under such 
 circumstances as to give rise to a reasonable suspicion that he is not 
 making it, or does not have it in his possession or under his control for a 
 lawful object, shall, unless he can shew that he made it, or had it in his 
 possession, or under his control foralawful object, beguiltyof felony, and on 
 conviction shall be liable to penal servitude for a term not exceeding four- 
 teen years (e), or to imprisonment for a term not exceeding two years with 
 or without hard labour, and the exj)losive substance shall be forfeited ( /'). 
 
 ' (2) In any proceeding against any person for a crime under this 
 section, such person and his wife or husband, as the case may be, ma}^ 
 if such person thinks fit, be called, sworn, examined, and cross-examined 
 as an ordinary witness in the case ' (g). 
 
 (b) There is a like provision in 24 & 2.5 (c) Nor less than three yeai-s, atde, p. 211. 
 Vict. c. 97, s. 55. 23 & 24 Vict. c. 139 was (f) If several persons are connected in a 
 repealed by the Explosives Act, 1875 (38 common design to have an exj)losive sub- 
 & 39 Vict. c. 17), s. 122. By s. 86 of the Act stance made for an unlawful purpose, each 
 of 1875 the power of search for gunpowder of the confederacy is responsible in respect 
 under the repealed enactment is now exer- of such articles as are in the possession of 
 cised under the Act of 1875. others for the earr3ing out of their common 
 
 (c) Now three years : 54 & 55 Vict. c. 69, design. R. v. Charles, 17 Cox, 499. 
 
 9. 1, a7ite, p. 211. {(j) As to present position of this sub- 
 
 (d) The minimum term is three years ; section see 61 & 62 Vict. c. 36, post, Bk. 
 vide ante, p. 211. xiii. c. v.
 
 870 Of the. Use of Exflosives, Corrosives, <&c. [booK: IX. 
 
 By sect. 5, ' Any person who within or (being a subject of His Majesty) 
 without His Majesty's dominions by the supply of or solicitation for 
 money, the providing of premises, the supply of materials, or in any 
 manner whatsoever procures, counsels, aids, abets, or is accessory to the 
 commission of any crime under this Act, shall be guilty of felony, and 
 shall be liable to be tried and punished for that crime as if he had been 
 guilty as a principal/ [Vide ante, Book I. Chapter V.) 
 
 Sect, 6 gives power to the Attorney-General, where he has reason to 
 believe that a crime has been committed under the Act, to authorise any 
 justice of the peace to hold an inquiry. The evidence taken at such 
 inquiry is, however, not to be used against the witness giving such evidence 
 except in case of perjury. Absconding witnesses may be arrested. 
 
 By sect. 7 (1), ' If any person is charged before a justice with any 
 crime under this Act, no further proceeding shall be taken against such 
 person without the consent of the Attorney-General, except such as the 
 justice may think necessary by remand or otherwise to secure the safe 
 custody of such person. 
 
 ' (2) In framing an indictment the same criminal act may be charged 
 in different counts as constituting different crimes under this Act, and 
 upon the trial of any such indictment the prosecutor shall not be put to 
 his election as to the count on which he must proceed. 
 
 ' (3) For all purposes of and incidental to arrest, trial, and punish- 
 ment, a crime for which a person is liable to be punished under this Act, 
 when committed out of the United Kingdom, shall be deemed to have 
 been committed in the place in which such person is apprehended or is in 
 custody. 
 
 ' (4) This Act shall not exempt any person from any indictment or 
 proceeding for a crime or offence which is punishable at common law or by 
 any Act of Parliament other than this Act ; but no person shall be 
 punished twice for the same criminal act ' [h). 
 
 Sect. 8 deals with the search for the seizure of explosive substances {i), 
 and by sect. 9 (1), ' The expression " explosive substance " shall be deemed 
 to include any materials for making any explosive substance, also any 
 apparatus, machine, implement, or materials used or intended to be used 
 or adapted for causing or aiding in causing any explosion in or with any 
 explosive substance, also any part of any such apparatus, machine, or' 
 implement' {j). 
 
 Any part of a vessel which, when filled with an explosive substance, 
 is adapted for causing an explosion, is an explosive substance {h). 
 
 (h) Vide ante, pp. 27, 31, (j) The Act applies to the whole of the 
 
 (/) It applies ss. 73-75, 89 and 96 of the United Kingdom, tide s. 9 (1) (2). 
 Explosives Act, 1875 (38 & 39 Vict c. 17). (k) R. v. Charles, mite, p. 869.
 
 ( SlOa ) 
 
 CANADIAN NOTES. 
 
 Sec. 1. — Of Attempting to Choke or to Injure by Poison or 
 
 Explosives. 
 
 Of Attempting to Choke, etc., and Using Drugs in Order to Commit 
 Offences. — Code sec. 276. 
 
 Sec. 2. — Of the Use of Poison to Commit Crime. 
 
 Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who unlawfully administers to, or causes to be 
 administered to or taken by any other person, any poison or other 
 destructive or noxious thing, so as thereby to endanger the life of such 
 person, or so as thereby to inflict upon such person any grievoiLs 
 bodily harm. Code sec. 277. 
 
 Every one is guilty of an indictable offence and liable to three 
 years' imprisonment who unlawfully administers to, or causes to be 
 administered to or taken by, any other person any poison or other 
 destructive or noxious thing, with intent to injure, aggrieve or annoy 
 such person. Code sec. 278. 
 
 Sec. 3. — Of the Use of Explosives, Corrosives, etc., for Criminal 
 
 Purposes. 
 
 Causing Bodily Injury. — Code sec. 279. 
 Using with Intent to Harm. — Code sec. 280.
 
 I
 
 (871 ) 
 
 CHAPTER THE FIFTH. 
 
 OF OFFENCES RELATING TO RAILWAYS AND PASSENGERS THEREON. 
 
 Although, perhaps, it may be departing from a strictly accurate 
 distribution of offences to collect the clauses creating offences relating 
 to railways and railway trains in one chapter, yet, as such a course 
 appears to be likely to be of more practical utility, it has been adopted. 
 
 By the Railway Regulation Act, 1840 (3 & 4 Vict. c. 97, s. 13), ' It 
 shall be lawful for any officer or agent of any railway company, or for 
 any special constable duly appointed, and all such persons as they may 
 call to their assistance, to seize and detain any engine driver, guard, 
 porter, or other servant in the employ of such company who shall be found 
 drunk while employed upon the railway, or commit any offence against 
 any of the byelaws, rules or regulations of such company, or shall wil- 
 fully, maliciously, or negligently do or omit to do any act whereby the life 
 or limb of any person passing along or being upon the railway belonging 
 to such company, or the works thereof respectively, shall be or might be 
 injured or endangered, or whereby the passage of any of the engines, 
 carriages, or trains shall be or might be obstructed or impeded, and to 
 convey such engine driver, guard, porter, or other servant so offending, 
 or any person counselling, aiding, or assisting in such offence, with all 
 convenient despatch, before some justice of the peace for the place within 
 which such offence shall be committed, without any other warrant or 
 authority than this Act ; and every such person so offending, and every 
 person counselling, aiding, or assisting therein as aforesaid, shall, when 
 convicted before such justice as aforesaid (who is hereby authorised and 
 required, upon complaint to him made, upon oath, without information 
 in writing (a), to take cognisance thereof, and to act summarily in the 
 premises), in the discretion of such justice, be imprisoned, with or without 
 hard labour, for any term not exceeding two calendar months, or, in the 
 like discretion of such justice, shall for every such offence forfeit to His 
 Majesty any sum not exceeding ten pounds, and in default of pay- 
 ment thereof shall be imprisoned, with or without hard labour as 
 aforesaid . . . ' (6). 
 
 By sect. 14, * Provided always, and be it enacted, that (if upon the 
 hearing of any such complaint he shall think fit) it shall be lawful for such 
 justice, instead of deciding upon the matter of complaint summarily, to 
 commit the person or persons charged with such offence for trial for the 
 
 («) Qn. wliethcr this exception to the to iniprisonnient in default of paj-ing the 
 
 general rules under tlie Indictable Offences fine were repealed in 1884(47 & 48 Vict. 
 
 Act, 1848 (11 & 12 Vict. c. 42) or the c. 43, s. 4), as having been superseded by 
 
 Summary Jurisdiction Acts is still in force. s. 5 of the Summary Jurisdiction Act, 1879 
 
 (b) The provisions of the section as (42 & 43 Vict. c. 49).
 
 87^ Of Offences Relating to Railways, &c. [bookix. 
 
 same at the Quarter Sessions for the county or place wherein such offence 
 shall have been committed, and to order that any such person so com- 
 mitted shall be imprisoned and detained in any of His Majesty's gaols or 
 houses of correction in the said county or place in the meantime, or to 
 take bail for his appearance, with or without sureties, in his discretion ; 
 and every such person so offending, and convicted before such Court of 
 Quarter Sessions as aforesaid (which said Court is hereby required to 
 take cognisance of and hear and determine such complaint), shall be 
 liable, in the discretion of such Court, to be imj)risoned, with or without 
 hard labour, for any term not exceeding two years/ 
 
 By sect, 21, ' Wherever the word " railway " is used in this Act it shall 
 be construed to extend to all railways constructed under the powers of 
 any Act of Parliament, and intended for the conveyance of passengers in 
 or upon carriages drawn or impelled by the power of steam or by any 
 other mechanical power ; and wherever the word " company " is used in 
 this Act it shall be construed to extend to and include the proprietors 
 for the time being of any such railway, whether a body corj)orate or 
 individuals, and their lessees, executors, administrators, and assigns, 
 unless the subject or context be repugnant to such construction/ 
 
 By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100) 
 s. 32, (c) ' Whosoever shall unlawfully and maliciously put or throw upon 
 or across any railway any wood, stone or other matter or thing, or shall 
 unlawfully and maliciously take up, remove, or displace any rail, sleej^er, 
 or other matter or thing belonging to any railway, or shall unlawfully 
 and maliciously, turn, move, or divert any points or other machinery 
 belonging to any railway, or shall unlawfully and maliciously make or 
 shew, hide or remove, any signal or light upon or near to any railway, 
 or shall unlawfully and maliciously do or cause to be done any other 
 matter or thing, with intent, in any of the cases aforesaid, to endanger 
 the safety of any person travelling or being uj^on such railway, shall be 
 guilty of felony, and being convicted thereof shall be liable . . . to be 
 kept in penal servitude for life . . . or to be imprisoned . . . and, if a 
 male under the age of sixteen years, with or without whipping ' ((?). 
 
 By sect. 33 (e), ' AVhosoever shall tinlawfuUy and mahciously throw, 
 or cause to fall or strike, at, against, into, or upon any engine, tender, 
 carriage, or truck used upon any railway, any wood, stone, or other 
 matter or thing, with intent to injure or endanger the safety of any person 
 
 (c) Taken from 14 & 15 Vict. c. 19, s. 6, In R. v. Court, 6 Cox, 202, the prisoner was 
 
 and the word ' unlawfully ' is substituted indicted for throwing a stone against a 
 
 for ' wilfully ' throughout. tender with intent to endanger the safety of 
 
 {d) For present punishments see 54 & 55 persons on the tender, and it appeared that 
 
 Vict. c. 69, s. 1, ante, pp. 211, 212. The the stone fell on the tender, but there was 
 
 words omitted are repealed. no person on it at the time, and it was held 
 
 (e) Taken from 14 & 15 Vict. c. 19, s. 7. that the section was limited to something 
 
 The word ' unlawfully ' is substituted for thrown upon an engine or carriage ha\'ing 
 
 ' wilfully.' The introduction of the word some jDcrson therein, and consequently that 
 
 ' at ' extends tliis section to cases where the no offence within the statute was proved, 
 
 missile fails to strike any engine or carriage. but this case would clearly come witliin the 
 
 The other words in italics were introduced clause. As to punisMng youthful offenders 
 
 to meet cases where a person throws into in a summary manner, see 42 & 43 Vict, 
 
 or ujDon one caniage of a train, when he c. 49 (E), 47 & 48 Vict. c. 19 (I), wliich 
 
 intended to injure a person in another sui^ersede 34 & 35 Vict. c. 78, s. 13. 
 carriage in the same train, and similar cases.
 
 CHAP, v.] Of Offences Relating to Railways, &c. 873 
 
 being in or upon such engine, tender, carriage, or truck, or in or upon any 
 other engine, tender, carriage, or truck of any train of which such first-men- 
 tioned engine, tender, carriage, or truck shall form part, shall be guilty of 
 felony and being convicted thereof shall be liable ... to be kept in 
 penal servitude for life . . . (/). 
 
 An accjuittal of the felony created by sect. 32 has been held to be no 
 bar to a prosecution on the same facts for an offence against s. 33 (g). 
 
 By sect. 34, ' Whosoever by any unlawful act (h), or by any wilful 
 omission or neglect, shall endanger, or cause to be endangered, the safety 
 of any person conveyed or being in or upon a railway, or shall aid or 
 assist therein, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the discretion of the Court, to be imprisoned for 
 any term not exceeding two years, with or without hard labour' {i). 
 
 By the Malicious Damage Act, 1861 (24 & 25 Vict. c. 97) s. 33, it 
 is a felony unlawfully and maliciously to pull down or destroy a bridge 
 or viaduct or aqueduct over or under which a railway passes, with intent 
 to render the bridge, &c., dangerous or impassable (;'). 
 
 By sect. 35 {k), ' Whosoever shall unlaufully and maliciously put (?) 
 place, cast, or throw upon or across any railway any wood, stone, or 
 other matter or thing, or shall unlawfully and maliciously take up, remove, 
 or displace any rail, sleeper, or other matter or thing belonging to any 
 railway, or shall unlawfully and maliciously turn, move, or divert any 
 points or other machinery belonging to any railway, or shall unlawfully 
 and maliciously make or shew, hide or remove, any signal or light upon 
 or near to any railway, or shall unlaufully and maliciously do or cause 
 to be done any other matter or thing, with intent, in any of the cases 
 aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine, 
 tender, carriage, or truck using such railway, shall be guilty of felony, 
 and being convicted thereof shall be liable at the discretioii of the Court 
 
 (/ ) For present punishments see 54 & .55 twice shouted for the gate-man, who was 
 
 Vict. c. 69, s. 1, ante, pp. 211, 212. The in a hut close by, without receiving any 
 
 words omitted are repealed. answer, opened the gates himself and 
 
 (fj) R. ■?'. Gilmore, 15 Cox, 85, Huddle- crossed the line. A passing train colhded 
 
 ston, B. with tlic cart and sustained injury. He 
 
 (h) Two boys went upon premises of a was indicted under s. 3G of the Malicious 
 
 railway company and began playing with a Damage Act, 1861 (24 & 25 Vict. c. 97), and 
 
 heavy cart which was near the line. Being s. 34 of the Offences against the Person 
 
 started by the boys, the cart ran down an Act, 1861, but the jury acquitted him, 
 
 embankment by its own impetus. One boy liokiing the gate-man to blame. R. t\ 
 
 tried to divert its course ; tlie other cried to Strange, 16 Cox, 552. See R. v. Pittwood, 
 
 him, ' Let it go.' The cart ran on until it 19 T. L. R. 37. 
 
 passed tlirough a hedge and a fence of posts (i) Framed from 3 & 4 Vict. c. 97, s. 15, 
 
 and rails and over a ditch to the railway, the words of which were, any person who 
 
 and it rested so close to the railway lines as ' shall wilfully do, or cause to be done, any- 
 
 to obstruct any carriage passing upon them. thing in such a manner as to obstruct any 
 
 The boys did not attempt to remove it. It engine or carriage using any railway, or to 
 
 was held, that as the first act of removing endanger the safety of persons conveyed in 
 
 the cart was a trespass, and therefore an or upon the sanies.' The present section 
 
 unlawful act, and as the jury found that the extends to any unlawful act and any wilful 
 
 natural consequence of it was, that the cart omission or neglect. 
 
 ran through the hedge, and so on to the (j) Vide post. Vol. ii. p. 1819. 
 
 railway, the boys might be properly con- (k) Framed from 14 & 15 Vict. c. 19. ?. 6, 
 
 victed under the Offences against the Per- with the substitution of ' unlawfully ' for 
 
 son Act, 1861 (24 & 25 Vict. c. 100), s. 34. ' wilfully.' 
 
 R. V. Monaghan, 11 Cox, 608 (Ir.), Piggott, (/) Erroneously printed ' cut ' in Rev. 
 
 B. The defendant with a cart arrived at Statt. (2nd ed.), Vol. x. p. 710. 
 the gates of a level crossing, and having
 
 874 
 
 Of Ojfences Relating to Railways, &c. [bookix. 
 
 to be kept in penal servitude for life ... or to be imprisoned . . . and, 
 if a male under the age of sixteen, with or without whij)ping ' (?n). 
 
 By sect. 36, 'Whosoever hy any unlawful act, or hy any wilful omission 
 or neglect, shall obstruct or cause to be obstructed (n) any engine or 
 carriage using any railway, or shall aid or assist therein, shall be guilty of 
 a misdemeanor, and being convicted thereof, shall be liable, at the 
 discretion of the Court, to be imprisoned for any term not exceeding two 
 years, with or without hard labour ' (o). 
 
 An acquittal on an indictment for felony under sect. 35 has been 
 held no bar to a subsequent indictment on the same facts for a 
 misdemeanor under sect. 36 (p). 
 
 Malice. — In the case of an indictment for off ences under the Malicious 
 Damage Act, 1861, it is not necessary to prove malice against the owner 
 of the property against which the offence is committed {q). There is 
 no similar provision in the Offences against the Person Act, 1861. 
 Maliciously, in the enactments above set forth appears to mean 
 
 (m) For present punishments see 54 & 55 
 Vict. c. 69, s. 1, ante, pp. 211, 211. The 
 words omitted are repealed. 
 
 (n) Where a drunken man got upon a 
 railway and altered the signals, in conse- 
 quence of which a luggage train shut olif 
 steam, and was brought ' very near to a 
 stand,' it was held there was an ' obstruc- 
 tion ' within 24 & 25 Vict. c. 97, s. 36. R. 
 V. Hadfield, L. R. 1 C. C. R. 253 ; 39 L. 
 J. M. C. 131 ; 11 Cox, 574, Martin, B., diss. 
 The defendant placed himself on the space 
 between two lines of railways, at a spot 
 between two stations, and held up his arms 
 in the mode used by inspectors of the line 
 when desirous of stopping a train between 
 two stations, and the driver of a goods 
 train, acting upon the supposition that he 
 was signalled by an inspector to slacken 
 speed, shut off steam, and reduced his speed 
 from twenty miles an hour to four miles an 
 hour, and the defendant by this means was 
 enabled to jump into the guard's van, and 
 thereupon the train resumed its natural 
 speed, and without stopping proceeded on- 
 ward : Held, that the defendant had unlaw- 
 fully obstructed the train within the mean- 
 ing of the above section of the said statute. 
 R. V. Hardy, L. R. 1 C. C. R. 278 ; 40 L. J. 
 M. C. 62 : Bovill, C.J., said : ' Upon the 
 facts stated in this case there can be no 
 doubt but that the defendant made a signal 
 by holding up his arms in the mode used by 
 inspectors of the line. He thereby made a 
 signal to the driver of the train with the 
 intention of inducing him to reduce the 
 speed of his train, and the driver did so in 
 consequence ; so there can be no doubt but 
 that he in one sense obstructed the train ; 
 but the question is raised whether s. 36 
 of 24 & 25 Vict. c. 97 did not contemplate 
 a physical obstruction. If the words used 
 had been " whosoever shall obstruct the 
 line of railway," there might have been 
 ground for that contention, but those 
 
 are not the words used. S. 36 enacts 
 that, " whoever by any unlawful act, or by 
 any wilful omission or neglect, shall obstruct 
 or cause to be obstructed any engine or 
 carriage using any railway," &c. That 
 section refers to acts of wilful omission or 
 neglect, which shews that acts of physical 
 obstruction of the line were not alone 
 contemplated. That section seems rather 
 to point to acts of servants which might 
 effect the stoppage of the carriages of a 
 train. But all doubt is removed by refer- 
 ence to s. 35, which provides against the 
 maliciously doing certain acts which are 
 enumerated to be placing objects upon the 
 railway, removing part of a line, turning 
 the points, and " making or shewing, hiding 
 or removing, any signal, &c.," and " any 
 other matter or tiling " with intent to ob- 
 struct. The acts there enumerated are 
 clearly not matters necessarily of physical 
 obstruction. The acts contemplated by 
 s. 36 must be taken to be ejusdem generis 
 with those in s. 35 ; and the same con- 
 struction must be put on both sections. 
 " Any unlawful act " in s. 36 includes 
 the acts mentioned in s. 35, therefore on 
 that point this case is clear, and R. v. Had- 
 field was decided on the same principle. 
 In that case, however, there was an altera- 
 tion made of an actual fixed signal belong- 
 ing to the line ; but the words of this in- 
 dictment following the statute are " by 
 making a signal," which the defendant 
 undoubtedly did, and therefore is within 
 the statute. The two cases are not dis- 
 tinguishable.' 
 
 (o) Taken from 3 & 4 Vict. c. 97, s. 15. 
 In place of the words in italics that section 
 had ' shall wilfully do or cause to be done 
 anything in such manner as to.' 
 
 {p) R. V. Gilmore, 15 Cox, 85, Huddle- 
 ston, B. ; vide post, Vol. ii. p. 1982, ' Autrefois 
 acquit.^ 
 
 iq) 24 & 25 Vict. c. 97, 3.58, post,]). 1771.
 
 CHAP, v.] Of Offences Relating to Railways, &c. 875 
 
 deliberately and intentionally or recklessly, as distinct from inadvertently 
 or accidentally {qq). 
 
 Upon an indictment on 3 & 4 Vict. c. 97, s. 15 (r), it aj^peared that the 
 railway was constructed under an Act of Parliament, and was intended 
 for the conveyance of passengers in carriages drawn by steam, but that 
 at the time of the offence the conveyance of passengers for hire had not 
 commenced, and the traffic was confined to the carriage of materials and 
 workmen. A railway truck was placed by the prisoners across the 
 railway so as to obstruct the passage of any carriage and endanger the 
 safety of persons conveyed therein, but its position was discovered, and it 
 was removed before any collision occurred ; it was objected that the case 
 was not within the statute — 1st, because the railway was not used for 
 the conveyance of passengers for hire ; 2ndly, because no actual obstruc- 
 tion took place. On a case reserved, it was held that the case was within 
 the statute. It must be assumed that the railway was completed, and 
 that all that required to be done was to open it for the public traffic. The 
 case came within both branches of the section ; there was an obstruction 
 put on the line by the prisoners, and it was put in such a position so as to 
 endanger the safety of the persons conveyed. It was contended that there 
 could be no obstruction until some train were absolutely obstructed ; but 
 such a construction could not be maintained. The object of the legislature 
 was obviously to prevent any disaster to those using the railway, and to 
 punish those who put obstructions in such a manner as was likely to cause 
 such disaster. The case was, therefore, within the intention of the statute ; 
 and though, in the ordinary course of things, it would generally be after 
 the railway was fully opened that the public required to be protected, yet 
 an obstruction before that time was within the mischief as well as the 
 words of the statute {s). 
 
 On an indictment on 3 & 4 Vict. c. 97, s. 15 (r), for throwing a stone upon 
 a railway in such a manner as thereby to endanger the safety of one G. C. 
 and of divers other persons being conveyed on the engines and carriages 
 then using the railway, it appeared that the defendant was on a bridge 
 over the railway, and let droj) a stone on a train that was passing ; the 
 stone was a thin flat stone, and the train was travelling at the rate of 
 about fifteen miles an hour. The railway was opened in January. 1845, 
 but no Act of Parliament was obtained until the July following. It was 
 objected that this railway was not constructed under an Act of Parliament, 
 but Alderson, B., held that the effect of the definition of railway in the 
 interpretation clause {t), was to extend and not to weaken the effect of 
 sect. 15 (u). And he told the jury, ' there are two propositions for you 
 to consider : — First, did the defendant wilfully cast or drop this stone 
 on the railway ? and secondly, did the casting that stone on the railway 
 in the manner in which it Avas cast endanger the safety of any of the 
 persons travelling on the railway at that time ? If you are satisfied on both 
 these points, he is guilty. If the defendant had this stone in his hand 
 
 (qq) Vide R. r. Latimer. 17Q.B.D. 359; (u) Ante, note (r). Alderson. B.. said 
 
 R. V. Senior [1899]. 1 Q. B. 283. it would have been wiser if a count had 
 
 (r) Repealed antl replaced by 24 & 25 been inserted at common law for throwing 
 
 Vict. c. 97. s. 30 ; c. 100. s. 34. a stone at a railway carriage, which is an 
 
 (s) R. r. Bradford. Bell, 268 (C. C. R.). offence at common "law. 
 
 (/) S. 21, ante, p. 872.
 
 876 
 
 Of Offences Relating to Railways, &c. [book ix. 
 
 at the time when the train was passing, and it dropped accidentally from 
 his hand on the railway, you should acquit him ; for that which occurs 
 by accident cannot be said to be wilful. Should you think that the 
 defendant did cast the stone on the railway wilfully, the next question is, 
 was it cast there by him under such circumstances as to endanger the 
 safety of G. C, the guard, the engineer, or any of the passengers or persons 
 in the carriages ? Now that would depend very much on the rate at 
 which the train was proceeding at the time, and the weight and the size 
 of the stone droj)ped. The former is material, because it is the same thing 
 whether I throw a stone at your head or you run your head against the 
 stone. If, therefore, the train were coming along at the rate of fifteen 
 miles an hour, it would strike with that velocity a stone that meets it. 
 You might drop a stone on a broad- wheeled waggon without doing any 
 harm ; but it may be very different when you drop it on a machine 
 going at an enormous rate. Suppose a passenger in this train, going at 
 the rate of fifteen miles an hour, had put his head out of the window, 
 or the guard were to do so, which his duty might render necessary, a blow 
 from a stone of this size and weight certainly might endanger his safety.' 
 The jury found that the defendant foolishly dropped the stone on the 
 railway, but not with the intention of doing any injury ; Alderson, B. : 
 ' The intention of the prisoner in dropping the stone is not the question. 
 It is, " did he purposely drop the stone on the railway, and would the effect 
 of the stone's being so dropped be to endanger the safety of the persons 
 on the railway ? " ' (v). 
 
 Where on an indictment under 3 & 4 Vict. c. 97, s, 15, it appeared 
 that large quantities of earth and rubbish were found placed across the 
 railway, and the prosecutor's case was that this had been done by the 
 defendant wilfully and in order to obstruct the use of the railway ; and 
 the defendant's case was, that the earth and rubbi.sh had been accidentally 
 dropped on the railway ; Maule, J., told the jury that if the rubbish had 
 been dropped on the rails by mere accident, the defendant was not guilty ; 
 but ' it was by no means necessary, in order to bring the case within this 
 Act, that the defendant should have thrown the rubbish on the rails 
 expressly with the view to upset the train of carriages. If the defendant 
 designedly placed these substances, having a tendency to produce an 
 obstruction, not caring whether they actually impeded the carriages or 
 not, that was a case within the Act.' And on the jury asking ' what was 
 the meaning of the term ^'wilfully " used in the statute V the learned judge 
 added, * he should consider the act to have been wilfully done, if the 
 defendant intentionally placed the rubbish on the line, knowing that it 
 was a substance likely to produce an obstruction ; if, for instance, he 
 had done so in order to throw upon the company's officers the necessary 
 trouble of removing the rubbish ' {w). 
 
 In another case upon 3 & 4 Vict. c. 97, s. 15, it was strongly intimated 
 that the neglect of a driver and stoker of an engine to keep a good look-out 
 for signals, according to the rules of the railway company, whereby a 
 collision occurred, and the safety of the passengers endangered, was not 
 
 {v) R. V. Bowray, 10 Jurist, 211. 
 {iv) R. V. Holroyd, 2 M. & Rob. 339. 
 See Roberts v. Preston, 9 C. B. (N. S.) 208 ; 
 
 and R. v. Senior [1899], 1 Q.B. 283, as to 
 the meaning of ' wilfully.'
 
 CHAP, v.] Of Offences Relating to Railways, (&c. 877 
 
 an offence within the section {x). But such neglect may come within the 
 words of 24 & 25 Vict. c. 97, s. 36, or 24 & 25 Vict. c. 100, s. 34, ante, 
 p. 873, or both, ante^ p. 874. 
 
 On an indictment under 14 & 15 Vict. c. 19, s, 6 (?/), for maliciously- 
 placing a stone upon a railway with intent to obstruct the carriages 
 travelling thereon, it appeared that the prisoners, two boys, were seen 
 to go upon the railway, and whilst one held the lever by which the points 
 were turned, so as to separate two portions of the rails, the other dropped 
 a stone between them, so as to keep them separated ; the result would 
 have been, had the act not been detected, that the carriages would have 
 been thrown off the rail. No motive was suggested except that of wanton 
 mischief. The jury were told that it was not necessary that the prisoners 
 should have entertained any feeling of malice against the railway company 
 or against any person travelling upon it ; it was quite enough to support 
 the charge if the act was done mischievously and with a view to cause 
 an obstruction of a train {z). 
 
 The prisoner was indicted under 14 & 15 Vict. c. 19, ss. 6, 7 (a), for 
 maliciously throwing a torch at a railway truck with intent in one count 
 to injure it, in another to endanger the safety of persons travelling in the 
 truck ; there was, however, no one on the truck upon which the prisoner 
 let the torch fall ; and Channell, B., held that there was no evidence to 
 support the second count (6). 
 
 On an indictment under 14 & 15 Vict. c. 19, s. 7 (a), for maliciously 
 throwing a stone into a railway carriage with intent to endanger the 
 safety of any person in it, it appeared that there had been considerable 
 popular excitement against a person who was about to travel by the train, 
 and there was a crowd assembled at the time of its departure, and the 
 prisoner had thrown a stone intending to hit him, but without any previous 
 ill-will. It was urged that the statute did not apply ; its objects was to 
 protect passengers by railways, and not to afford any additional protection 
 against common assaults. Erie, J., after consulting Williams, J., said : 
 ' Looking at the preamble of the sections relating to this class of offences, 
 which recites that it is " expedient to make further provision for the 
 punishment of aggravated assaults," and looking also to the provision of 
 these clauses as indicated by the terms of sect. 6, immediately preceding 
 the section upon which this indictment is framed, I consider that the 
 " intent to endanger the safety of any person" travelling on the railway, 
 spoken of in both sections, must appear to have been an intent to inflict 
 some grievous bodily harm, and such as would sustain an indictment for 
 
 (r) R. V. Pardcnton, G Cox, 247, Cress- words ' matter or thing ' were cjusdem 
 
 well and Williams, JJ. generis with the other words employed, and 
 
 (y) S. 6 was repealed in 1861, and re- did not include the case of a combustible 
 
 placed by 24 & 25 Vict. c. 100, s. 32, ante, wliich could only injure a truck by means 
 
 ]). 872. of fire ; for otherwise the eighth section 
 
 (c) 11. V. Upton, Greaves' Campb. Acts, wouldbenugatory, and that section requires 
 
 92 ; 5 Cox, 298, Wightman, J. proof of an intent to destroy the caniage by 
 
 (a) S. 7 was repealed in 1861 and tire. Now, this is an error, for s. 8 has 
 
 replaced by 24 & 25 Vict. c. 100, s. 33, ante, nothing to do witii railway carriages, but 
 
 p. 872. only with railway buildings, and it is quite 
 
 {b) R. V. Sandei-son, 1 F. & F. 37. See clear tliat s. 6, 7, include everything 
 
 R. i'. Court, a7ite, p. 872, note (e). It is whatsoever that Ls used with any of the 
 
 reported to have been objected that the intents therein mentioned.
 
 878 
 
 Of Offences Relating to Railways, &c. [book ix. 
 
 assaulting or wounding a person with intent to do some grievous bodily 
 harm ; but as that is a question of degree, which it is impossible to define 
 further than in those terms, it must be a question for the jury, upon the 
 facts, whether there has been such an intent ' ; and his lordship directed 
 the jury, that ' in order to convict the prisoner they must be satisfied 
 that he intended to inflict on the person at whom he aimed some grievous 
 bodily harm ' (c). 
 
 (c) R. V. Rooke, 1 F. & F. 107. ' This 
 case does not appear to have been argued 
 on the part of the Ci'own, and, with all 
 deference to the very learned judges, it 
 clearly proceeded on a mistake. 14 & 15 
 Vict. c. 19, contained a number of enact- 
 ments which had no bearing whatever on 
 each other ; the Act was framed to provide 
 for totally different matters, which at that 
 time called for a remedy for each. Ss. 1 
 and 2 related to persons found by night with 
 intent to commit felonies. S. 3 related 
 to administering chloroform. >S. 4 and 
 5 related to aggravated assaults. Then 
 ss. 0, 7 and 8 were railway clauses, and it 
 is perfectly clear that, although a person 
 who committed an offence within either 
 s. 6 or s. 7, may commit an assault, 
 it was not essential to prove an assault in 
 any offence contained in them, and no in- 
 dictment upon them ever does allege an 
 assault. They were most carefully framed 
 
 for the very purpose of including every 
 case where there was an " intent to injure 
 or endanger the safety of any person " ; 
 and those words were selected as much 
 more general than " with intent to do griev- 
 ous bodily harm." It is also a fallacy to 
 suppose that, even if the sections were to 
 be construed together, s. 4 warrants this 
 decision ; for though one branch of it is 
 " inflict any grievous bodily harm," the other 
 is " cut, stab, or wound " without any 
 aggravation ; so that a wound, however 
 slight, and given without any intention to 
 inflict grievous bodily harm, is within the 
 section. Every indictment must allege the 
 intent to be to injure or endanger the safety 
 of some person, and it is veiy confidently 
 submitted that the only proper question to 
 be left to the juiy in every case is, did the 
 defendant do the act with intent to injure 
 or endanger the safety of that person ? ' 
 C. S. G.
 
 { 878a ) 
 
 CANADIAN NOTES. 
 
 OF OFFENCES RELATING TO RAILWAYS AND PASSENGERS THEREON. 
 
 Acts Done with Intent to Injure Passengers. — Code sec. 282. 
 
 Wantonly Endangering Safety of Persons on Railivays. — Code 
 sec. 283. 
 
 Omission or Neglect of Duty. — There must be a duty to do the 
 thing omitted to be done ; a promise, not constituting a contract, 
 made by a railway manager to do something which the company was 
 under no legal obligation to do does not constitute a "duty" under 
 this section. Ex parte Brydges, 18 L.C. Jur. 141. 
 
 Wilfully Breaking Contract with Railivay Under Agreement to 
 Carry Mails. — Code sec. 499. 
 
 Baihvay Company Wilfully Breaking Contract to Carry Mails. — 
 Code sec. 499. 
 
 Damage to Railway with Intent to Render Impassable. — Code sec. 
 510. 
 
 Injuries Affecting Railway. — Code sec. 517. 
 
 Ohstructing Railways. — Code sec. 518. 
 
 Damaging Goods on a Railway .—Code sec. 519. 
 
 Offences Relating to Operation of Railway. — R.S.C. (1906), c. 37. 
 
 Conviction, etc. — A conviction under Code sec. 517 (/) for doing 
 an unlawful act on a railway in a manner likely to cause danger is 
 bad if it does not disclose the nature of the unlawful act. The King 
 V. Porte, 14 Can. Cr. Cas. 238.
 
 ( 879 ) 
 
 CHAPTER THE SIXTH. 
 
 OF ASSAULT AND BATTERY. 
 
 Sect. I. — Definition and Punishment. 
 
 Many of the crimes classed as offences against the person involve 
 assault and battery. 
 
 An assault is an attempt or offer to apply force of any kind to another 
 person, by striking, touching, or moving him or otherwise applying any 
 direct or indirect force to him : 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 an actual or apparent present 
 ability, of using actual force against the person of another, will amount 
 to an assault (a). 
 
 The Queensland Criminal Code, 1899 (6), appears correctly to embody 
 the common law in saying that force in the definition of assault and 
 battery includes light, heat, electrical force, gas, odour, or any other 
 substance or thing whatever if applied in such a degree as to cause 
 injury or personal discomfort. 
 
 No words, however provoking, can amount to an assault (c). Words 
 used at the time of the transaction may so explain the intention of the 
 party as to qualify his act, and prevent it from being deemed an assault. 
 Thus where A. laid his hand upon his sword, and said, ' If it were not 
 assize-time, I would not take such language from you,' it was held 
 not to be an 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 intention must 
 operate with his act in constituting an assault (d). 
 
 The threat or attempt must be of immediate and not of future or 
 contingent injury. 
 
 If a person presents a pistol, purporting to be a loaded pistol, so near 
 as to produce danger to life if the pistol had gone off, it is an assault in 
 
 (a) 1 Hawk. c. 62, s. 1. Bac. Abr. tit. prepared by tlie Right Hon. Sir S. Griffith 
 
 'Assault and Battery' (A.). 3 Bl. Ck)m. now Chief Justice of the High Ck)urt of the 
 
 120. Burn Just. (30th ed.) tit. 'Assault Australian Commonwealth, 
 
 and Battery.' 1 East, P. C. 40G. Bull (c) 1 Hawk. c. 02, s. 1. Bac. Abr. tit. 
 
 (N. P.) 15. Selw. (N.P.) tit. ' Assault and 'Assault and Battery' (A.). There were 
 
 Battery/ 1. Addison, Torts (8th ed.) 158. many ancient opinions to the contrary. 
 
 Dft. Criminal Code, 1880, cl. 19(5. (d) Tubervillc v. Savage, 1 Mod. 3; 8G 
 
 (6) 63 Vict. No. 9, s. 245. This code was E. R. 684 ; 2 Keb. 545.
 
 880 Of Battery. [book ix. 
 
 point of law, although in fact the pistol is unloaded. Parke, B., said : 
 ' My idea is, that it is an assault to present a pistol at all, whether loaded 
 or not. If you threw the powder out of the pan, or took the percussion 
 cap off, and said to the party this is an empty pistol, then that would 
 be no assault, for there the party must see that it was not possible that 
 he should be injured ; but if a person presents a pistol which has the 
 appearance of being loaded, and puts the party into fear and alarm, that 
 is what it is the object of the law to prevent (e). 
 
 However, where in an action for assault and presenting a loaded pistol 
 at the plaintiff, it appeared that the defendant cocked a pistol, and pre- 
 sented it at the plaintiff's head, and said that if he was not quiet he would 
 blow his brains out ; but there was no evidence that the pistol was loaded, 
 Abinger, C.B., held, that if the pistol was not loaded it would be no 
 assault (/). And in another case Tindal, C. J., ruled in the same way {g). 
 
 Pointing a loaded gun at half-cock at a person is an assault ; for there 
 is a present ability of doing the act threatened, as the gun can be cocked 
 in an instant (A). 
 
 It is not every threat, where there is no actual personal violence, that 
 constitutes an assault ; there must, in all cases, be the means or present 
 capacity of carrying the threat into effect. If, therefore, a man is ad- 
 vancing in a threatening attitude, e.g. with his fist clenched, to strike 
 another, so that his blow would almost immediately have reached such 
 person, and is then stopped, it is an assault in law, if his intent were to 
 strike the other man, though he was not near enough at the time to have 
 struck him {i). 
 
 Where the plaintiff was in the defendant's workshop and refused to 
 leave it, and the defendant and his v/orkmen surrounded him, and tuck- 
 ing up their sleeves and aprons, threatened to break his neck, if he did 
 not go out, and fearing that the men would strike him if he did not do 
 so, the plaintiff went out ; it was held that this was an assault ; for there 
 was a threat of violence exhibiting an intention to assault, and a present 
 ability to carry the threat into execution {j). 
 
 [e) R. V. St. George, 9 C. & P. 483, 490. same as if the gun were loaded ; for the act 
 
 R. V. St. George is over-ruled on another of the party presenting the gun led to the 
 
 point by R. v. Duckworth [1892], 2 Q.B. natural consequence that the party at whom 
 
 83, ante, p. 842. it was presented should defend himself, and 
 
 (/ ) Blake v. Barnard, 9 C. & P. 626. the party presenting the gun ought not to 
 
 See also an anonymous case, cor. Erskine, be permitted to shew the facts to be other- 
 
 J., cited by Ludlow, Serjt., 9 C. & P. 492. wise than he had himself held them out 
 
 It seems that a very reasonable distinction to be. C. S. G. 
 
 might be made in cases of this kind. If a (g) R. v. James, 1 C. & K. 530. In R. v. 
 
 person presents a gun at another, knowing Baker, 1 C. & K. 254, Rolfe, B., seems to 
 
 it not to be loaded, there can be no intent have held the same opinion, 
 to injure in any event, and therefore he [h) Osborn v. Veitch, 1 F. & F. 317, 
 
 ought not to be criminally responsible ; but Willes, J. 
 
 if the person, at whom such an unloaded (») Stephens v. Myers, 4 C. & P. 349, 
 
 gun was presented did anything in self- Tindal, C.J. 
 
 defence, his justification, whether in a civil {j) Read v. Coker, 13 C. B. 850. 
 
 or criminal proceeding, ought to be just the 
 
 American Note. 
 
 Bishop (Amcr. Crim. Law, ii. 32) agrees rather than with that of Blake v. Barnard 
 wjth the doctrine in R. v. St. George, and R. v. James. 
 
 II
 
 CHAP. VI.] Definition of Battenj. 881 
 
 The plaintiff was walking on a footpath by a roadside, and the defen- 
 dant, who was on horseback, rode after him at a quick pace ; the plaintiff 
 then ran away into his own garden, and the defendant rode up to the gate, 
 and shook his whip at the plaintiff, who w as about three yards off ; it was 
 held, that if the defendant rode after the plaintiff, so as to compel him to 
 run into his garden for shelter to avoid being beaten, it was an assault {k). 
 
 Battery. — A battery involves something more than an attempt to apply 
 force to another person ; but any force whatsoever, be it ever so small, 
 being actually applied to the person of a man adversely (i.e. without his 
 consent), 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 violentlyjostling 
 him out of the way, or throwing water over him, is a battery in law (l). 
 For the law cannot draw the li)ie between different degrees of violence, 
 and, therefore, totally prohibits the first and lowest stage of it ; every 
 man's person being sacred, and no other having a right to meddle with it 
 in any the slightest manner (m). Every battery includes an assault (n). 
 
 To cut a man's clothes whilst on his person is an assault, although 
 there is no intention to inflict any bodily injury, and in the ordinary case 
 of a blow on the back there is clearly an assault, though the blow is 
 received by the coat on the person (o). 
 
 Where a policeman was stationed at a door to prevent a person from 
 entering, it was held that, if he was entirely passive, like a door or a 
 wall put to prevent that person from entering that room, and simply 
 obstructing the entrance of that person, no assault was committed (p). 
 
 The injury need not be effected directly by the hand of the party. 
 Thus there may be an assault by encouraging a dog to bite ; by riding 
 over a person with a horse ; or by wilfully and violently driving a cart, 
 &c., against the carriage of another person, and thereby causing bodily 
 injury to the persons travelling in it (7). It is not necessary that 
 the assault should be immediate ; thus 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 adjudged that this was actionable as an assault and battery (r). 
 And the same has been held where a person pushed a drunken man 
 against another, who was thereby hurt {s), 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 (t). 
 
 For an assault or battery to be criminal it must be (1) intentional 
 and not merely accidental, (2) without legal justification or excuse, 
 and (3) committed mthont the consent of the person assaulted or struck, 
 
 (k) Mortin v. Shoppee, 3 C. & P. 37.3, Dcnnian, C.J. 
 
 Tenterden, C.J. (a) See Hopper v. Reeve, 7 Taunt. 698, 
 
 (I) Bac. Abr. tit. 'Assault and Battery' and the precedents for assaults of this kind, 
 
 (B.). 1 Hawk. c. 62, s. 2. Pursell r. Horn, (Vo. Circ. Conip. 82. 3 Chit. Cr. L. 823, 824, 
 
 8 A. & E. 002. 825. 2 Starkie. Cr. PI. '2d ed.), 388, 389. 
 
 (m) 4 Bl. Com. 120. (r) Scott r. Shepherd, 2 W. Bl. 892; 3 
 
 (n)Termesde la Ley, 'Battery.' 1 Hawk. Wils. K.B. 403: 1 Smith, L.C. (11th ed.), 
 
 c. 62. 8. 1. Bac. Abr. tit. 'Assault and 457. 
 
 Battery ' (A.). (s) Short v. Lovejoy [1752], Bull. (N. 
 
 (o) R. V. Day, 1 Cox, 207, Parke, B. P.) 16, Lee, C.J. 
 
 (p) Innes v. Wylie, 1 C. & K. 257, (0 Id. Ibid. 
 
 OL. I. 
 V 
 
 3l
 
 Of Assault and Battery. 
 
 [BOOK TX 
 
 or under circumstances which make consent no defence by reason of the 
 youth or mental incapacity of the person assaulted or because the consent 
 is extorted by fraud or force or is otherwise not really given, or is not by 
 law allowed to be given. 
 
 Intention. Accidents — It is not an assault or battery to lay a hand 
 gently on another without hostile intention, but merely to attract his 
 attention (m), nor, it is saidjto lay hands gently on a man against whom a 
 warrant is out and to tell the officer holding the warrant that that is the 
 man wanted [v). 
 
 It has be6n held not to be an actionable trespass to the petson when 
 a beatei? was wounded by a shot which glanced oft a tree (^^), This rule 
 Excluding civil liability in such a caSe applies a fortiori to criminal liability. 
 
 If one soldier accidentally hurts another by discharging a gun in 
 exercise, it is not a battery {x). And it is no battery if, by a sudden fright, 
 a hotse runs away with his rider, and runs against a man {y). So where 
 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 [z). 
 
 Accident is not a defence when the defendant meaning to strike one 
 person and unintentionally strikes another person. Thus if one of two 
 persons, who are fighting, strikes at the other, and hits a third person 
 unintentionally, this is a battery, and cannot be justified on the ground 
 that it Was accidental (a). 
 
 («) Coward V. Baddeley, 4 H. & N. 478 ; 
 S8 L. J. Ex. 200. 
 
 {v) 1 Hawk. c. 62, s. 2. Bac. Abr. tit. 
 'Assault and Battery' (B.). Griffin v. 
 Parsons, C41oucester Lent Ass. 1754. Sel- 
 wyn, N. P. (7th ed.), tit. ' Assault and 
 Battery,' 26 n. (1). 
 
 {w) Stanley v, Powell [1891], 1 Q.B. 86. 
 This decision is discussed and questioned, 
 1 Beven, NegUgence (3rd ed.), 569. 
 
 (x) Weaver v. Ward, Hob. 134. 2 Rolle 
 Abr. 548. Bac. Abr. tit. ' Assault and Bat* 
 tery' (B.). But if the act were done with- 
 out sufficient caution, the soldier would be 
 liable to an action at the suit of the party 
 injured ; for no man will be excused from a 
 tresjiass, unless it be shewn to have been 
 caused by inevitable necessity, and entirely 
 without iiis fault. Dickenson v, Watson, Sir 
 T. Jones, 205. Underwood v. Hewson, 1 
 Str. 595. 2 W. Bl. 896. Selw. (N. P.) tit. 
 ' Assault and Battery,' 27. 1 Beven, 
 Neghgence (3rd ed.) 555. 
 
 (y) Gibbons v. Pepper, 4 Mod. 405 ; 2 
 Salk. 637 ; 1 Ld. Raym. 38. But if the 
 horse's running against the man were occa- 
 sioned by a third person wliij^ping him, such 
 third person would be the trespasser. Bac. 
 Ab. tit. 'Assault and Battery' (B.). And 
 upon the princif)les which have been before 
 mentioned, such an act in a third person, 
 causing death to any one, may, under cer- 
 tain circumstances, amount to felony. 
 Ante, p. 781. The plaintiff was walking 
 along a public street when the defendant 
 
 seated on the box of his carriage, which 
 was drawn by two horses and driven by a 
 man tlien under his control, came down a 
 cross street. The horses, frightened by the 
 barking of a dog, ran away. The driver 
 was unable to hold them in, but told the 
 defendant to leave them to him. The de- 
 fendant accordingly sat passive, while the 
 driver, trying to turn the horses so as to 
 prevent them from running into a shop 
 window ojiposite, pulled them aside towards 
 the spot wliere the plaintiff then happened 
 to be ; but, on nearing her, endeavoured 
 vainly to draw them away from her. They 
 ran against her, and she being hurt, sued 
 the defendant for negligence, and trespass. 
 The jury found the defendant free from 
 negligence, and that the occurrence was 
 mere accident. Held, that he was not 
 liable in trespass. Holmes v. Mather, L. R. 
 10 Ex. 261 ; 44 L. J. Ex. 176. 
 
 [z] R. V. Gill and another, 1 Str. 190. 
 
 (a) James v. Campbell, 5 C. & P. 372, 
 Bosanquet, J. Cf. Foster, Cr. L. 261. 'As 
 the blow, if it had struck the party at whom 
 it was aimed, would have been a battery, 
 so it was though it struck another person ; 
 just in the same way as if a blow intended 
 for A. hits and kills B., it will be murder or 
 manslaughter, according as it would have 
 been murder or manslaughter if the blow 
 had hit A. and killed him.' C. S. G. See 
 R. V. Hunt, 1 Mood. 93. In Hall v. Fearnley, 
 3 Q.B. 919, it was held that inevitable 
 accident arising from superior agency is a 
 
 I
 
 CHAP. VI.] Of Lawful Force. 883 
 
 The prisoner, in striking at a man with whom he had been fighting, 
 struck and wounded a woman beside him. He was indicted for unlaw- 
 fully and maliciously wounding the woman. The jury found that the 
 blow was unlawful and malicious, but the striking of the woman was 
 purely accidental, and not such a consequence of the blow as the prisoner 
 ought to have expected. The prisoner was convicted, and it was held that 
 the conviction was right (6). 
 
 Justification of the Use of Force.— The use of force against the 
 person of another without his assent is in certain cases lawful, e.g. 
 where the force is used (a) in the due execution of the law, (b) in lawful 
 correction, (c) in defence of person or property. 
 
 Lawful Arrest. — The right to use force is correlative to the right to 
 arrest, whether with or without written warrant from a judicial officer (c). 
 
 If an officer of justice has a warrant for the arrest of a man who will not 
 suffer himself to be arrested, the officer may lay hands on the person to 
 be arrested and use such force as is necessary to effect the arrest. And it 
 may be lawful to lay hands on a man in order to serve civil process upon 
 him (fZ). 
 
 The force used is limited to that necessary for the purpose of effecting 
 the object in view, and if there is an excess of violence the officer is guilty 
 of assault {e). Where one of the marshals of the City of London, whose 
 duty it was on the day of a public meeting in Guildhall, to see that a 
 passage was kept for the transit of the carriages of the members of the 
 corporation and others, directed a person in the front of the crowd to 
 stand back, and on being told by him that he could not for those behind 
 him, struck him immediately on the face, saying, that he would make 
 him, it was held that a more moderate degree of pressure ought to have 
 been exercised, and some little time given to remove the party in a more 
 peaceable way, and that consequently the marshal had been guilty of a 
 too violent exertion of his authority (/). 
 
 An officer having a warrant to search for an illegal still in the defen- 
 dant's house, the defendant asked to see the warrant, and it was given 
 him, and he then refused to return it, upon which the officer endeavoured 
 by force to retake it, and a scuffle ensued, it was held that the officer was 
 justified in using so much violence as was necessary to retake the warrant, 
 and no more {g). 
 
 defence Undet the general issue ; but that a (6) R. v. Latimer, 17 Q.B.D. 359. In 
 
 defence which admits that the accident discussing R. v. Pembliton, L. R. 2 C. C. R. 
 
 resulted from an act of the defendant must 1 19, where in throwing a stone at a man the 
 
 be pleaded. In an action for assault, where prisoner broke a window, Bowen, J., sug- 
 
 the defendant had thrown a stick, and hit gested that, if in R. r. Latimer the facts 
 
 the plaintiff, but it did not appear tliat he were that the prisoner meant to strike a 
 
 threw the stick with the intention of hitting pane of glass and hit a ]5erson by accident, 
 
 the plaintiff ; Rolfe, B., is re])orted to have it might iiave been that the malice sliewn 
 
 held tliat tliis was not sufficient to consti- would be insufficient, 
 
 tute an assault, as it did not appear for (r) Vide ante. ])p. 721 et seq. 
 
 what purpose the stick was thrown ; and it (d) Harrison r. Hodgson, 10 B. & C. 445. 
 
 was therefore fair to conclude that it was See 2 Rolle Abr. 54(). 
 
 thrown for a proper purpose, and that the (e) Levy v. Edwards, 1 C. & P. 40, Bur- 
 striking of the plaintitf was merely acci- rough, J. 
 
 dental. Alderson v. Waistell, 1 C. & K. (/) Imason v. Cope, 5 C. & P. 193. Tin- 
 
 358. But this ruling may well be doubted, dal. C.J. 
 
 at all events as far as relates to a civil suit. (</) R. v. Milton, M. & M. 107 ; 3 C. & P. 
 
 See ante, p. 882, note {x). C. S. G. 31, Tenterden, C.J. 
 
 3l2
 
 884 Of Assault and Battery. [book ix. 
 
 The justification extends to persons lawfully acting in aid of the peace 
 officer and to private persons lawfully engaged in effecting an arrest, and 
 extends to preventing the escape before or after arrest of the person to be 
 arrested and to preventing his rescue from others. The causing of death 
 or grievous bodily harm is justifiable in cases where the arrest is for 
 felony (A). 
 
 Arrest by Railway Officer. — On an indictment for assaulting J. S., 
 it appeared that the prisoner got into an empty third-class carriage 
 proceeding from Manchester to Stoke-upon-Trent, and got out on the 
 wrong side at North Road Station, and being asked by the guard for his 
 ticket, he said he had none, and had intended to get out at the station for 
 Crewe. No other demand was made on the prisoner ; but the guard 
 ordered him to get into a second-class carriage, and locked the doors. 
 The train then proceeded to Stoke, a distance of several miles. The 
 prisoner, on getting out, was asked for his ticket ; and on his not pro- 
 ducing it, the second-class fare from Manchester to Stoke was demanded. 
 It not being paid, the policeman at the station collared the prisoner, 
 who gave him a blow and got away. He was pursued and retaken, when 
 he cut the policeman's hand. The reason alleged for bringing the prisoner 
 to Stoke was, that it was the headquarters of the railway authorities, and 
 there was no mode of dealing with the prisoner at the North Road Station. 
 Wightman, J., told the jury (after stating the facts that occurred at the 
 North Road Station), ' the guard, instead of then taking him on the 
 specific charge of going so far without his ticket, which perhaps he might 
 have done, takes him in a second-class carriage to Stoke, several miles out 
 of the way. A ticket from Manchester to Stoke is there demanded and 
 afterwards the full fare. It seems to me that this is clearly beyond the 
 law, and that the railway authorities had no right to demand the fare from 
 North Road to Stoke. I do not give any opinion as to the right to convey 
 a person refusing to produce his ticket at one station on to another, on the 
 charge of not paying his fare for that part of the journey which the prisoner 
 had voluntarily and fraudulently performed ; but whatever might have 
 been the situation of the parties, if, on demand and refusal of the ticket 
 or fare at North Road, the charge was there made, and he had been con- 
 veyed to Stoke for the purpose of dealing with it ; here, the arrest being for 
 non-payment of the fare to Stoke, the apprehension was illegal, and the 
 prisoner had a right to resist it ' (i). 
 
 Lawful Correction. — A parent may chastise his child {j), a school- 
 master his pupil {k), and a master his apprentice (/), if the chastisement 
 is moderate in the manner, the instrument, and the quality, and the child 
 is old enough to appreciate correction (m). But an upper-servant cannot 
 justify beating an under-servant for disobedience to orders (n). 
 
 (h) Vide ante, pp. 721, 727. (I) The right to chastise servants is 
 
 (*) R. i;. Mann, 6Cox,461. See Chilton v. recognised at common law. R. v. Maw- 
 London and Q-oydon Rail. Co., 16 M.&W. 2 12. gridge, 17 St. Tr. 57 ; Kel. (J.), 133; and 
 King v.Met. Dist. Rail. Co., 72 J. P. 294. see 33 Hen. VIII. c. 12, ss. 16, 19. But 
 
 (j) 1 Hawk. 0. 60, s. 23 : c. 62, s. 2. except as to servants to whom the master 
 
 Halliwell v. Counsell, 38 L. T. (N. S.) 176. is in loco 'parentis, it cannot now be safely 
 
 This parental power is expressly preserved exercised. See Macdonell, Master and Ser- 
 
 by 8 Edw. VII. c. 67, s. 37, post, p. 921. vant (2nd ed.), 29, 30. 
 
 (i) See Cleary v. Booth [1893], 1 Q.B. (m) R. v. Griffin, 11 Cox, 402, Martin, B. 
 
 654, and ante, p. 767- (w) R. v. Huntley, 3 C. & K. 142, Piatt, B. 
 
 11
 
 CHAP. VI.] Of Consent. 885 
 
 The infliction of corporal punishment under the lawful sentence of a 
 competent Court (o) is of course justifiable, if the punishment does not 
 exceed the number of stripes prescribed by the sentence and is inflicted 
 with the prescribed or a lawful instrument (p). 
 
 Use of Force by Commanders of Ships. — Ofiicers of a ship, whether 
 of the Royal Navy [q) or the merchant service (/), appear not now to be 
 entitled to inflict corporal punishment, in port or at sea, on any of the 
 crew, for disobedience to orders, or for any cause {s), except in the case of 
 ship's boys in the Royal Navy {t), or apprentices to the sea service [tt). 
 But the captain can justify the use for the purpose of maintaining good 
 order and discipline on the ship, such force as he believes on reasonable 
 grounds to be necessary and as is under the circumstances reasonable. 
 
 It was held in an old case that a defendant may justify even a mayhem, 
 if done by him as an officer in the army, for disobeying orders ; and that 
 he may give in evidence the sentence of a council of war, upon a petition 
 against him by the plaintiff ; and that if, by the sentence, the petition is 
 dismissed, it will be conclusive evidence in favour of the defendant {u). 
 
 Where parish ofl&cers, by force and against her consent, cut ofE the 
 hair of a young woman who was an inmate of a workhouse, it was held an 
 assault {v). 
 
 Consent. — The person assaulted may be too young to appreciate the 
 nature of the act done or to do more than submit without actually con- 
 senting to it ; and submission by a child in the hands of an older and 
 stronger person and possibly acting under fear or a sense of constraining 
 authority is not equivalent to consent. Where two boys of eight years 
 of age submitted to indecent acts on the part of a grown-up man in 
 ignorance of the nature of the acts to be done and done, the man was 
 held to be rightly convicted of an indecent assault (w). 
 
 By the Criminal Law Amendment Act, 1880 (43 & 44 Vict. c. 45), in 
 the case of an indecent assault on a child of either sex under thirteen, it 
 is no defence that he or she consented {x). 
 
 Fraud. — A consent obtained by fraud, or threats, or violence, is no 
 answer to proceedings for assault. Where the defendants told the mother 
 of a child of which she had been delivered that it was to be taken to a 
 nursery or institution to be brought up, and they put the child in a bag 
 and hung it upon some park-pales at the side of a footpath, and it was 
 likely that the putting a child of so tender an age into a bag and hanging 
 the bag on the pales would cause its death ; Tindal, C.J., held that the 
 
 (o) Vide ante, p. 215. 744, 789. 
 
 (p) Flogging i.s not now inflicted as a (it) Vide ante, p. 884. 
 
 sentence of a court-martial, nor has any («) Lane i>. Hcgberg, 1698, per Treby, 
 
 officer now any right to .strike a soldier C.J. ; cited in Bull. (N. P.) 19. 
 
 except in necessary defence, or in order to (t'j Forde v. Skinner, 4 C. <fe P. 239, 
 
 effect a lawful arrest. As to former law see Bayley, J. 
 
 R. V. Wall, 28 St. Tr. 51, 145. {w) R. v. Lock, L. R. 2 C. C. R. 10; 42 
 
 (7) See p. 767. L. J. M. C. 5. See R. v. Woolaston, 12 Cox, 
 
 (r) See 57 & 58 Vict. c. 60, ss. 220-238. 180. 
 
 Macdonell, Master and Servant (2nd ed.), (x) As to consent in the case of .sexual 
 
 31. ofifences, vide jkisI, p. 934 et seq. Though a 
 
 (s) A contrary opinion seems at one time girl of 12 is old enougii to contract a lawful 
 
 to have been held. The Ayincovrt, 1 Hagg. marriage, she cannot consent to unlawful 
 
 Adm. 271. Lamb v. Burnett, 1 Cr. & J. 291. carnal intercourse so as to relieve the male 
 
 {I) 29 &J30 Vict. 0. 108, s. 56, as modified party to the intercoui-sc from criminal 
 
 by the King's Regulations (cd. 1908), Arts. responsibility.
 
 886 
 
 Of Assault and Battery. 
 
 [BOOK IX. 
 
 defendants were guilty of an assault ; for the mother gave consent in 
 reliance on the pretence that the child was to be taken to some institution, 
 and as that pretence was false, it was no consent at all {y). 
 
 Criminal responsibility for the use of any means intended to cause 
 death nor to the doing of any act which is in itself an offence against 
 the law, is not removed by the consent of the person on whom they are 
 used, to the use of the means (2), The same rule applies as to the use of 
 force likely to cause death or serious hurt, if used with knowledge of the 
 consequences likely to ensue and with indifference and recklessness as 
 to whether death or serious injury would ensue {a). 
 
 Consent may be given to acts done in the regular course of a lawful 
 game (6), such as cricket or football, which, apart from consent, would 
 be assault. Thus if two, by consent, play at cudgels, or singlestick, or 
 Avrestling, and one happens to hurt the other, it would not amount to a 
 battery, as their intent was lawful and commendable, in promoting 
 courage and activity (c). In playing such games disregard of the rules 
 might afford evidence of hostile intent or recklessness, or that the act 
 done was not of the class of act consented to by the person struck {d). 
 
 But this rule does not extend to protect persons who give blows in 
 a duel with dangerous weapons (e), or in fencing with naked sv/ords (/), nor 
 in a fight by consent, whether for a prize or not {g), nor where the 
 force used is such as to involve a breach of the public peace, and to afTect 
 the public as well as the person struck (fi). And where a prize or other 
 fight takes place, and a numiber of persons are assembled to witness it, if 
 they have gone thither for the purpose of seeing the combatants strike 
 each other, and were present when they did so, they are all in point of 
 law guilty of an assault ; and there is no distinction between those who 
 concur in the act and those who fight (/) ; and it is not at all material 
 which party struck the first blow, for if several are in concert, encouraging 
 one another and co-operating, they are all equally guilty, though one 
 only committed the actual assault (/). And if persons are voluntarily 
 
 (y) R.V.March, 1 C. & K. 496, Tindal, C.J., 
 avoided saying whether the act would 
 have been an assault if the mother had 
 consented to all that was done. The acts 
 of the prisoners would fall within 24 & 25 
 Vict. c. 100, s. 56, post, p. 904. 
 
 (z) e.g. illegal operations on women, 
 ante, p. 756. 
 
 (a) Ante, p. 756. 
 
 (6) As to the unlawfulness of certain 
 games or sports, vide ante, \i\>. 785, 786. 
 
 (c) Bac. Abr. tit. ' Assault and Battery, 
 referring to Dalton, c. 22. Bro. Coron. 229. 
 
 (d) See R. v. Bradshaw, 14 Cox, 83 : 
 charging at football. 
 
 (e) Ex parte Barronet, 1 E. & B. 1 ; 
 Dears. 51. In 1 East, P.C. 269, it is said : 
 In cases of friendly contests with weapons, 
 which though not of a deadly nature may 
 breed danger, there should be due warning 
 given that each party may start upon equal 
 terms. For if two were engaged to play at 
 cudgels and the one made a blow at the 
 
 other likely to hurt before he was on his 
 guard and without warning and death en- 
 sued, the want of due and friendly warning 
 would make such act amount to man- 
 slaughter.' 
 
 (/ ) 1 Hale, 473. 
 
 (g) In the notes to Bac. Abr. ubi supra, 
 the case of Boulter v. Clarke, Abingdon Ass. 
 cor. Parker, C.B., Bull. (N. P.) 16, is re- 
 ferred 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 the case 
 of Matthew v. Ollerton, Comb. 218, is also 
 referred to as an authority, that if one 
 license another to beat him, such licence is 
 no defence, because it is against the peace. 
 
 (h) Vide ante, p. 785. 
 
 (i) R. V. Perkins, 4 C. & P. 537, Patte 
 son, J. R. V. Hunt, 1 Cox, 177. 
 
 (j) Anon. 1 Lew. 17, Bayley, J. R. v 
 Lewis, 1 C. & K. 419. R. v. Coney, 8 Q.B 
 D. 534. Ante, p. 786. 
 
 I
 
 CHAP. VI.] Of Defence of Person or Property. 887 
 
 present, the mere presence unexplained may, it seems, afford 
 some evidence for the consideration of the jury, although voluntarily 
 presence would not of itself be necessarily conclusive evidence of an 
 assault {k). 
 
 In the case of dangerous exhibitions and performances, the question 
 may arise as to how far consent can be given to acts involving danger 
 to the life or limb of the person consenting. This is settled as to males 
 under sixteen and females under eighteen, by the Dangerous Performances 
 Acts, 1879 and 1897, post, p. 910. 
 
 Consent to a surgical operation frees the operator from criminal 
 responsibility for assault, when freely given with knowledge of the purpose 
 of the operation and when the purpose is lawful and the operation is 
 performed with professional skill, And the trend of legal opinion is 
 in favour of the proposition that no criminal responsibility is incurred by 
 a surgeon who, with proper care and skill, and for the physical benefit of 
 a sick person, performs on him a surgical operation even without his 
 consent (/). 
 
 Defence of Person or Property. — The use of force is lawful for the 
 necessary defence of self or others or of property ; but the justification 
 is limited by the necessity of the occasion and the use of unnecessary force 
 is an assault (m). 
 
 Thus if one confines a friend who is mad, and binds him, &c., in such 
 a manner as is proper in such circumstances ; or if a man forces a sword 
 from one who offers to kill another therewith ; or if a man gently lays his 
 hands upon another, and thereby stays him from inciting a dog against a 
 third person ; he cannot be indicted for assault or battery (w). So if A. 
 beats 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. And if a man 
 beats, wounds, or maims one who is making an assault upon his own 
 person, or that of his wife, parent, child, or master ; or if a man fights 
 with, or beats, one who attempts to kill any stranger ; in these cases 
 also it seems that the party may justify the assault and battery (o), and 
 a wife may justify an assault in defence of her husband i'p). 
 
 With respect to assaults by a master in defence of his servant. Lord 
 Mansfield said : ' I cannot say that a master interposing, when his servant 
 is assaulted, is not justifiable under the circumstances of the case ; as well 
 
 (A-) R. V. Coney, 8 Q.B.D. 534. Indian Penal Code, and has been embodied 
 
 (/) By the Draft Code of 1880, cl. (58, in tlie Criminal Codes of Canada (Rev. Stat t. 
 
 ' Every one is protected from criminal Can. 1900, c. 140, s. 0.")) ; New Zealand 
 
 responsibility for performing with reason- (1803, No. 50, s. 09); Queen.sland (1899, 
 
 able care aiul skill any surgical operation No. 9, s. 282); Western AustraHa (1901, 
 
 upon any person for his benetit : provided No. 14, s. 257) ; and Northern Nigeria, 
 
 that performing the operation was reason- (m) See R. v. DriscoU, C. & M. 214. 
 
 able, having regard to the patient's state at (n) 1 Hawk. c. (iO, s. 23 ; Bac. Abr. tit. 
 
 the time and to all the circumstances of the ' As.sault and Battery ' (C). 
 
 case' The proposition contains no direct (o) 1 Hawk. c. (iO, s. 23, and the numerous 
 
 reference to the consent or dissent of the authorities there cited. Bac. Abr. tit. 
 
 ])atient. It is accepted as the law by 'Assault and Battery' (C). 
 
 Sir J. F. Stephen (Dig. Cr. L. (0th ed.). Art. (/j) Leward i\ Baseley, 1 lA. Raym. 
 
 220). It corresponds to part of s. 92 of the 02.
 
 888 
 
 Of Assault and Battery. 
 
 [BOOK IX. 
 
 as a servant interposing for his master ; it rests on the relation between 
 master and servant ' (q). 
 
 Son assault demesne is a good defence to an indictment for assault and 
 battery (r). If one man strikes another a blow, or does that which amounts 
 to an assault on him, that other has a right to defend himself, and to strike 
 a blow in his defence without waiting till he is struck (rr), but he has no 
 right to revenge himself ; and if when all danger is past he strikes a blow 
 not necessary for his defence, he commits an assault and battery (s). It 
 is not, however, every trifling assault that will justify a grievous and 
 immediate mayhem, such as cutting off a leg or hand, or biting off a joint 
 of a man's finger ; unless it happen accidentally, without any cruel or 
 malignant intention, or after the blood was heated in the scuffle, but 
 it must appear that the assault was in some degree proportionable to the 
 mayhem {t). If a party raise up a hand against another, within a distance 
 capable of the latter being struck, the other may strike in his own defence, 
 to prevent him, but he must not use a greater degree of force than 
 is necessary (w). For if the violence used be more than was necessary to 
 repel the assault, the party may be convicted of an assault {v). 
 
 It should be observed, with respect to an assault by a man on a party 
 endeavouring to dispossess him of his land, that where the injury is a 
 mere breach of a close, in contemplation of law, the defendant cannot 
 justify a battery without a request to depart ; but it is otherwise where 
 any actual violence is committed, as it is lawful in such case to oppose 
 force to force : therefore, if a person break down the gate, or come into 
 a close vi et armis, the owner need not request him to be gone, but may 
 lay hands on him immediately ; for it is but returning violence with 
 violence (w). If a person enters another's house with force and violence, the 
 owner of the house may justify turning him out (using no more force than 
 is necessary), without a previous request to depart : but if the person 
 enters quietly, the other party cannot justify turning him out without a 
 
 (q) Tickel i;. Read, Lofft. 215; and see 
 1 Hawk. c. 60, s. 24. In one old case it was 
 said that a master cannot justify an assault 
 in defence of his servant because he may 
 have an action for loss of his services. 
 Leward v. Baseley, 1 Ld. Raym. 62. 1 
 Salk. 407. Bull. (N. P.) 18. It is said 
 that a servant cannot justify beating an- 
 other in defence 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 a like reason a tenant may not beat 
 another-in defence of his landlord. 1 Hawk, 
 c. 60, s. 24. 
 
 (r) 1 Hawk. c. 62, s. 3. 
 
 (rr) R. V. Carmen Deana, 73 J. P. 225 ; 
 25 T. L. R. 399, adopting the statement in 
 Archbold, Cr. PI. (23rd ed.), 837. 
 
 is) R. V. Driscoll, C. & M. 412, Cole- 
 ridge, J. Coke (Co. Litt. 162 a) cites from 
 Bracton, vim vi repeUere licet, modo fiat 
 moderamine inculpatce tuteloe, non ad sumen- 
 dam vindictam, sed ad propulsandam in- 
 juriam. Bull. (N. P.) 18. As to when 
 mere words will reduce a murder to man- 
 slaughter, see ante, p. 693. 
 
 {t) 1 East, P.C. 402. 
 
 (?() Anon. 2 Lew. 48, Parke, B. 
 
 {v) R. V. Mabel, 9 C. & P. 474, Parke, B. 
 R. V. Whalley, 7 C. & P. 245, Williams, J. 
 
 {w) Green v. Goddard, 2 Salk. 641. In 
 a case of this kind, however, it should seem 
 that the violence must be considerable, and 
 continuing, in order to justify the applica- 
 tion of force by the owner, without some 
 previous request to depart ; at least, if the 
 force applied be more than would be 
 justified under a molliter manws imposuit : 
 for in a case of assault and battery, where 
 the defendant pleaded son assaidt demesne, 
 and the plaintiff replied that he was pos- 
 sessed of a certain close, and that the de- 
 fendant broke the gate and chased his 
 horses in the close, and that he, for the 
 defending his possession, molliter insuUum 
 fecit upon the defendant, the replication 
 was adjudged to be bad ; and that it should 
 have been molliter m.anus imposuit, as the 
 plaintiff could not justify an assault in 
 defence of his possession. Leward v. 
 Baseley, 1 Ld. Raym. 62. Bull. (N. P.). 
 19. 
 
 ■I
 
 CHAP, vr.] Procedure. 889 
 
 previous request {r). For ' there is a manifest distinction between 
 endeavouring to turn a man out of a house or close into which he has 
 previously entered quietly, and resisting a forcible attempt to enter : in 
 the first case a request is necessary ; in the latter not ' (y). 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 (2). And the owner of 
 goods (or his servant, acting by his command) which are wrongfully in 
 the possession of another, may, after requesting him to dehver them up, 
 justify an assault in order to repossess himself of them (a). It seems also 
 that a person who has a right of way or other easement may justify using 
 so much force as maybe necessary to enable him to exercise that right, or 
 to prevent another from interrupting it (6). 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 him in the first instance, and not proceed 
 with greater force than is made necessary by resistance (c). Thus, where 
 a churchwarden 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 {d). And in 
 all cases where the force used is justified, under the particular circumstances 
 of the case, it must appear that it was not greater than was reasonably 
 necessary to accomplish the lawful purpose intended to be effected (e). 
 Therefore, 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 of the 
 defendant were excessive, and out of all proportion to the necessity or 
 provocation received (/). 
 
 Procedure. — Except in the cases falling within 24 & 25 Vict. c. 100, 
 ss. 44, 45 {fost, pp. 897, 898), the person assaulted may take both civil 
 and criminal proceedings against his assailant ; for the penalty imposed 
 in the criminal prosecution, and the damages to the party in the civil 
 action, are perfectly distinct in their nature {g), but the Court of Queen's 
 Bench refused to sentence a party convicted of an assault while an 
 action was pending for the same assault (li). 
 
 There is no objection to including assaults on two jiersons in the 
 same indictment (if they were committed as part of the same 
 transaction) (t), nor to inserting several counts in the same indictment 
 
 [x) Tullay v. Rccd, 1 C. & P. 6, Park, J. {d) Hawe v. Planner, 1 Wms. Saund. 13. 
 
 And see R. v. Meade, 1 Lew. 184. R. v. (e) 1 East, P.C. 40C. 
 
 Wild, 2 Lew. 214. (/) Bull. (N. P.) 18. 1 East, P.C. 406. 
 
 (y) Polkinghorn v. Wright, 8 Q.B. 197. See ante, pp. 692 ct seq. 
 
 {z) Green v. Goddard, 2 8alk. 641. (g) Jones v. Clay, 1 B. & P. 191. 1 Selw. 
 
 (a) Blades ?;. Higgs, 10 C. B. (N. S.) 713. (N.' P.) tit. 'Assault and Battery,' 27, 
 
 [h) Bird v. Jones, 7 Q.B. 742, Patteson, note (2). 1 Hawk. c. 02, s. 4. Bac. Ab. 
 
 J., 2 Rolle Abr. ' Trespass,' p. 547 (E.), pi. 1 tit. ' Assault and Battery ' (D.). 
 
 & 2, which rest on Y.B. 3 Hen. IV. f. 9, [h) R. v. Mahon, 4 A. & E. 575, and see 
 
 and 11 Hen. VI. f. 23. Ex parte , Gent., ibid., not«, and R. v. 
 
 (c) Weaver v. Busli, 8 T. R. 78. 1 Selw. Gwilt, 1 1 A. & E. 587. 
 
 N. P.), tit. ' Assault and Battery,' 39, 40. (/) The reason for the rule is that assault
 
 890 
 
 Of Assault and Battery, 
 
 [BOOK IX. 
 
 for distinct assaults, and it has long been the constant practice to 
 receive evidence of several assaults upon the same indictment [j) ; nor is 
 there any objection to an indictment charging an assault by two 
 persons jointly. On such indictment either or both may be convicted 
 according to the evidence {h). ' Cannot the King call a man to account 
 for a breach of the peace, because he broke two heads instead of one V {J). 
 
 Pleas. — Whatever is a legal justification or excuse for an assault or 
 imprisonment, such as son assault demesne, the arrest of a felon, &c., may, 
 upon an indictment, be given in evidence under the general issue (m). 
 
 As every battery includes an assault (n), it follows, that on an indict- 
 ment of assault and battery, in which the assault is ill laid, if the defendant 
 be found guilty of the battery it is sufficient (o), 
 
 Wherever a count for a misdemeanor contains a charge of assault 
 accompanied with circumstances of greater or less aggravation, the jury 
 may find the defendant guilty of a common assault, and acquit him of the 
 circumstances of aggravation (p). 
 
 Punishment. — By the Offences against the Person Act, 1861 (24 & 25 
 Vict. c. 100), s. 47 {q), ' Whosoever shall be convicted upon an indictment 
 of any assault occasioning actual bodily harm (r) shall be liable, at the 
 discretion of the Court, to be kept in penal servitude . . . [s), and tvhosoever 
 shall be convicted upon an indictment for a common assault shall be liable, 
 at the discretion of the Court, to be imprisoned for any term not exceeding 
 
 is a misdemeanor only ; and that the prose- 
 cutor is not, as in felony, required to 
 elect on which count he will proceed. But 
 if the joinder embarrass the defence the 
 Court can quash the indictment or sever 
 the trial of the counts. 
 
 (j) 1 Chit. Cr. L. 254. R. v. Davies, 5 
 Cox, 328. 
 
 [Ic) In two cases included in the sixth 
 edition of this work, Vol. iii. pp. 317, 
 318, rulings are reported which seem to 
 be incorrect and misleading. In the first, 
 R. V, Trough ton, 1 Cox, 197, on an indict- 
 ment against two defendants for com- 
 mitting an assault, the prosecution proved 
 an assault committed by one, with which 
 the other had nothing to do, and it was 
 urged that the latter was entitled to be 
 acquitted, as an assault answering the de- 
 cription of that in the indictment had been 
 proved, and, as there was only one count, 
 more than one assault could not be proved ; 
 and it was held that the latter must be 
 acquitted, on the ground that the assault 
 proved was not the assault charged. It 
 was then objected, for the other defendant, 
 that as the count was for a joint assault, 
 this defendant could not be convicted of an 
 assault by him alone, and that he only came 
 prepared to answer that joint assault ; and 
 it was held by Bullock, Commr., after 
 consulting the Recorder of London, that 
 this defendant must be acquitted. ' The 
 second ruling is clearly wrong, and the two 
 rulings are inconsistent.' C. S. G. In R. 
 V. Gordon, 1 Cox, 259, on an indictment 
 containing one count for an assault agains,t 
 
 two persons, an assault by one was proved, 
 in which the other was not at all implicated, 
 it was held by the same judge that one 
 assault to which the indictment was applic- 
 able having been proved, evidence of other 
 assaults could not be gone into. Mr. 
 Greaves on this case says : ' This ruling is 
 directly contrary to the second ruling in 
 the last case. The point is not a question 
 of law : it is merely a question for the dis- 
 cretion of the Court, and as any number of 
 assaults may be tried under one indictment 
 containing a count for each, there seems no 
 good reason for confining the evidence on 
 one count to the first assault that may 
 happen to be proved. Stante v. Pi-icket, 
 1 Camp. 437, was cited in support of the 
 objection.' 
 
 {I) Per Curiam in R. v. Benfield, 2 Burr. 
 984, over-ruling the contrary decision in 
 R. V. Clendon, 2 Ld. Raym. 1572 ; 2 Str. 
 870. 
 
 (m) 1 Hawk. c. 62, s. 3. 1 East, P.C. 
 400, 428. Bac. Abr. tit. 'Assault and 
 Battery.' 
 
 (n) Ante, p. 881. 
 
 (o) 1 Hawk. c. 62, s. 1. 
 
 (p) R. V. Oliver, Bell, 287. R. v. 
 Yeadon, L. & C. 81. R. v. Taylor, L. R. 
 1 C. C. R. 194. 
 
 (q) Taken from 14 & 15 Vict. c. 100, s. 29. 
 
 (r) Vide ante, p. 853. 
 
 (s) For not less than three nor more than 
 five years, or to imprisonment with or 
 without hard labour for not over two 
 years, 54 & 55 Vict. c. 69, s. 1, ante, pp. 211, 
 212.
 
 CHAP. VI.] Of Certain Aggravated Assaults. 891 
 
 one year, ivith or ivitJioiit hard labour ' (t). The Court may in addition to 
 or as an alternative to the above punishments impose a fine and (or) put 
 the offender under recognisances, with or without sureties, to keep the 
 peace, and be of good behaviour (u), or release him on probation (r). 
 As to the liability of the offenders to pay costs, see Book XII. 
 Chapter V. tit. ' Costs/ post, Vol. ii. p. 2039. 
 
 Sect. II. — Of Certain Aggravated Assaults. 
 
 Most crimes classed as offences against the person involving assault 
 or battery have been dealt with under their more special titles. But there 
 remain certain forms of assault which are punishable more severely than 
 common assault by reason of some circumstance of aggravation, either 
 from the place in which, or the jierson ui)on whom, the assault is com- 
 mitted, or else from the great criminality of the purpose or object intended 
 to be effected, or the amount of personal injury inflicted. 
 
 In Churches and Churchyards. — As to assaults in churches and 
 churchyards or on ministers of religion, vide ante, pp. 401-408. 
 
 In Royal Palaces. — By the ancient law before the Conquest, fighting 
 in the King's 'palaces, or before the King's judges, was punished with 
 death (w). 33 Hen. VIII. c. 12, provided severe punishment for all 
 malicious strikings by which blood was shed within any of the King's 
 palaces or houses, or any other house, at such time as the royal person 
 happened to be there abiding ; but these provisions were repealed in 1828 
 (9C4eo. IV. c.31,s. 1). 
 
 In Courts of Justice. — Striking in the King's superior courts of 
 justice in Westminster Hall, or in any other place, while the Courts were 
 sitting, whether the Court of Chancery, Exchequer, King's Bench, or 
 Common Pleas, or before justices of assize, or Oyer and Terminer, was 
 considered to be punishable even more severely than striking in the King's 
 palace ; perhaps for the reason that, those Courts being anciently held 
 in the King's palace, and before the King himself, striking there included 
 not merely contempt against the King's palace but something more, 
 namely, the disturbance of public justice {x). So that, though striking 
 in the King's palace was not punished with the loss of the offender's hand 
 unless some blood were drawn, nor even then with the loss of lands and 
 goods, the drawing of a weapon only upon a judge or justice in such Courts, 
 though the party struck not, was regarded as a great ' misprision,' 
 punishable by the loss of the right hand, perpetual imprisonment, and 
 forfeiture of the party's lands during life, and of his goods and 
 chattels (y). And a similar punishment might be inflicted on a man who, 
 in the same Courts, and within their view, struck a juror or any other 
 person, either with a weapon, or with hand, shoulder, elbow, or foot ; but 
 he was not deemed to be liable to such punishment if he made an assault 
 
 (I) The words in italics were now in 18()1. (v) Aiitr, p. 227. 
 
 The usual coninion-law ])unislinient for (w) 4 HI. Com. 124. 
 
 assault was tine, iini)iisoniuent witliout {x) .'i Co. Inst. 140. 4 ]i\. Coin. 12.'). 
 
 hard labour and (or) tiie tindinK of sureties (//) Staundf. :}8. 3 Co. Inst. 140, 141. 
 
 to keep the peace. See 4 Bl. Com. 217. 1 Hawk. c. 21, s. 3. 4 Bl. Com. 12."). 1 
 
 1 East, P.C. 40(), 428. Ea.st, P.C. 408. See R. v. Stobbs. 3 T. R. 
 
 (m) 24 & 25 Vict. c. 100, s. 11, ante, p. 218. 737, 738.
 
 892 Of Assault and Battery. [book ix 
 
 only, and did not strike (2). And a man guilty of this offence could not 
 excuse himself by shewing that the person so struck by him gave the first 
 offence (a). 
 
 The three first counts of an information set forth a special commission 
 for the trial of 0. and others for high treason ; and that, pending the 
 sessions, after the accpiittal of 0., and before any order or direction had 
 been made by the Court for his discharge^ the defendants, in open Court, 
 &c., made a great riot, and riotously attempted to rescue him out of the 
 custody of the sheriff, to whose custody he had been assigned by the 
 justices and commissioners ; and, the better to effect such rescue and 
 escaj)e, did, at the said sessions,, in open Court, and in the presence of the 
 said justices and commissioners, riotously, &c., make an assault on one 
 J. E.., heat, bruise, wound, and ill-treat the said J. E,., and thereby impede 
 and obstruct the said justices, &c. There were two other counts in the 
 information ; the one for riotously interrupting and obstructing the 
 justices in the holding of the session, and the other for a common riot (6). 
 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 judgment 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 
 nolle prosequi as to those parts of the information on which any doubt had 
 arisen, or might arise, whether the judgment thereon were discretionary 
 in the Court, and pray judgment only on such charges as left the judg- 
 ment in their discretion; and, accordingly, a nolle prosequi was entered on 
 the three first counts ; and on the others the Court gave judgment 
 against the defendants, of fine, imprisonment, and sureties (c). 
 
 A person who rescues a prisoner from any of the Courts which have 
 been mentioned, without striking a blow, is said to be punishable by 
 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 excused (d). And for the like reason, an affray or riot near 
 the said Courts, but out of their actual view, is said to be punishable by fine 
 and imprisonment during pleasure, but not with the loss of the hand (e). 
 
 There has not since 1799 been any prosecution on indictment based on 
 
 (2) Staundf. 38. 3 Co. Inst. 140, 141. Chief Justice of C. B., at tlie assizes at 
 
 1 Hawk. c. 21, s. 3. 4 Bl. Com. 125. 1 Salisbury, in the summer of 1631, was 
 East, P.C. 410. assaulted by a prisoner condemned there 
 
 (n) 1 Hawk. c. 12, s. 4. for felony, who, after his condemnation, 
 
 (b) See the precedent of this information threw a brickbat at the said judge, and 
 
 2 Chit. Cr. L. 208, et seq. which naiTowly missed ; and for this an 
 
 (c) R. V. Lord Thanet [1799], K. B. 1 indictment was immediately drawn by 
 East, P. C. 408, 409, 410. Tn R. v. Davis, Noy against the prisoner, and his right arm 
 2 Dy. 188 a, 188 b ; 73 E. R. 416, and the cut off and fixed to the gibbet upon which 
 notes thereto, are various instances of the he was himself immediately hanged in the 
 judgment having been executed to the presence of the Court.' 
 
 fullest extent. One of them is remarkable (d) 1 Hawk. c. 21, s. 5. 4 Bl. Som. 125< 
 
 for the speedy justice which appears to (e) 1 Hawk. c. 21, s. 6. 4 Bl. Com. 125 
 
 have been administered. ' Richardson, Vide ante, p. 427, 
 
 1 
 
 J
 
 CHAP. VI.] Of Certain Aggravated Assaults. 893 
 
 this antiquated view of the law (/). Assaults in Court are dealt with as 
 contempts of the Court (aw<e,pp, 537 et seq.), or by indictment, and in the 
 latter case the punishment meted out is that warranted by the Act of 1861. 
 
 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 (g). And it seems also that in order to warrant such judg- 
 ment, the indictment ought expressly to charge a stroke ; though it 
 does not appear whether any technical word would be necessary to be 
 used for that purpose (h). 
 
 Superior Courts. — Though an assault in any of the King's inferior 
 Courts of record did not subject the offender to lose his hand {i) ; yet, 
 upon an indictment for such an assault, the circumstances under which 
 it was committed would, doubtless, be considered as a matter of aggrava- 
 tion. And any affray or contemptuous behaviour in inferior Courts of 
 record is summarily punishable as contempt of Court, by the judges there 
 sitting (/), or where such offences are committed in a Court of summary 
 jurisdiction by proceedings in the High Court (k). 
 
 As to assaults punishable as piracy see 11 Will. III. c. 7. s. 8, ante, 
 p. 259; 7 Will. IV. & 1 Vict. c. 88, s. 2, ante, p. 266. 
 
 Assault with intent to Commit Felony. — It is a misdemeanor 
 punishable by imprisonment, with or without hard labour, for not more 
 than two years, to assault any person with intent to commit any felony (l). 
 Assault with intent to commit murder (m), or robbery (w), are specially 
 punishable, as are demands of property by menaces or force, with intent 
 to steal (o). As to assaults with intent to ravish or to commit an 
 unnatural offence, see jyost, pp. 942, 975. 
 
 Assaults on Officers of the Law.— By 24 & 25 Vict. c. 100, s. 37 {p), 
 ' Whosoever shall assault and strike or wound any magistrate, officer, 
 or other person whatsoever lawfully authorised, in or on account of the 
 exercise of his duty in or concerning the preservation of any vessel in 
 distress, or of any vessel, goods, or effects wrecked, stranded, or cast on 
 shore, or lying under water, shall be guilty of a misdemeanor, and being 
 convicted thereof shall be liable ... to be kept in penal servitude for any 
 term not exceeding .seven years ' . . . (q). 
 
 By sect. 38, ' Whosoever shall assault any person with intent to commit 
 felony (r), or shall assault, resist, or wilfully obstruct any peace officer in 
 the due execution of his duty (s), or any person acting in aid of such officer, 
 
 (/) The punishment of mutilation ap- (o) Vide post, Vol. ii. pp. 1127, 1156. 
 
 pears to have rested on the repealed portion (p) Taken from 9 Geo. IV. c. 31, s. 24 
 
 of 33 Hen. VIII. c. 12. (E), and 10 Geo. IV. c. 34, s. 30 (I.). 
 
 {g) 1 East, P.O. 410. 1 Hawk. c. 21, s. 3. (q) For other punishments see 54 & 55 
 
 (A) 1 East, P.O. 408, citing 1 Sid. 211. Vict. c. 69, s. 1, ante, pp. 211. 212. 
 
 (?) 3 Co. Inst. 141. 1 Hawk. c. 21, s. 10. The words omitted were repealed in 1892 
 
 (/) 4 Bl. Com. 126. 1 Hawk. c. 21, s. 10. (S. L. R.). 
 
 {k} It is more usual to deal with the (?) Vide supra. 
 
 ofifence under the appropriate penal enact- (s) Upon an indictment, under this sec- 
 
 ment. tion, for assaulting police officers in the 
 
 (I) 24 & 25 Vict. c. 100, s. 38, infra, execution of their duty, it was objected that 
 
 i.e. any felony, whether at common law or there was no offence, as the police were in 
 
 by statute, whenever passed. plain clothes, and the defendants did not 
 
 (m) 24 & 25 Vict. c. 100, ss. 11 15, an<e, know they were constables; but it was 
 
 pp. 840, 841. held that the the offence was not assaulting 
 
 (n) 24 & 25 Vict. c. 96, s. 42, post, p. 1 127. them, knowing them to be in the execution
 
 894 Of Assault and Battery. [book ix. 
 
 or shall assault any person with intent to resist or prevent the lawful 
 apprehension or detainer of himself or of any other person for any offence, 
 shall be guilty of a misdemeanor, and being convicted thereof shall be 
 liable, at the discretion of the Court, to be imprisoned for any term not 
 exceeding two years, with or without hard labour ' {t). 
 
 As to assaults occurring in the obstruction of officers executing 
 civil process or in effecting a rescue, vide ante, pp. 551, 567. 
 
 By the Poor Law Amendment Act, 1850 (13 & 14 Vict. c. 101), s. 9, 
 ' Where any person shall be charged with and convicted of any assault 
 upon any officer of a workhouse or relieving officer in the due execution 
 of his duty, or upon any person acting in aid of such officer, the Court 
 may sentence the offender to the same punishment as is provided by 
 law for an assault upon a peace officer {u), or revenue officer in the due 
 execution of his duty ' {v). 
 
 By the Poor Law Amendment Act, 1851 (14 & 15 Vict, c, 105), s. 18, 
 the preceding clause was extended to ' an assault upon any person 
 included under the word " officer " in the Poor Law Amendment Act, 1834 
 (5 & 6 Will. IV. c. 76), or upon any other person acting in his aid' ; and by 
 sect. 109 of the Act of 1834, the term ' officer ' includes ' any clerg}Tnan, 
 schoolmaster, person duly licensed to practise as a medical man, vestry 
 clerk, treasurer, collector, assistant overseer, governor, master or mistress 
 of a workhouse, or any other person who shall be employed in any parish 
 or union in carrying this Act or the laws for the relief of the poor into 
 execution, and whether performing one or more of the above-mentioned 
 functions.' 
 
 By the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), s. 12, 
 where any person is convicted of any assault on any constable when in the 
 execution of his duty, such person shall be guilty of an offence against this 
 Act, and shall, in the discretion of the Court, be liable to either pay a 
 penalty not exceeding twenty pounds, and in default of payment to be 
 imprisoned with or without hard labour, for a term not exceeding six 
 months, or to be imprisoned for any term not exceeding six, or in case such 
 person has been convicted of a similar assault within two years, nine 
 months with or without hard labour. 
 
 By the Prevention of Crimes Amendment Act, 1885 (48 & 49 Vict. c. 75) 
 s. 2, ' The provisions of 34 & 35 Vict. c. 112, s. 12, shall apply to all 
 cases of resisting or wilfully obstructing {vv) any constable or peace 
 officer when in the execution of his duty. Provided that in cases to which 
 the said Act is extended by this Act, the person convicted shall not be 
 liable to a greater penalty than five pounds, or in default of payment 
 to be imprisoned, with or without hard labour, for a greater term than 
 two months.' 
 
 of their duty, but assaulting them being former enactment, but are omitted in this, 
 
 in the execution of their duty. R. v. because assaults on them are provided for 
 
 Forbes, 10 Cox, 362 (Russell Gurney, by 44 & 45 Vict. c. 12, s. 12, ante, p. 374; 
 
 Recorder), approved in R. v. Maxwell, 73 53 & 54 Vict. c. 21, s. 11. 
 J. P. 174. {«) Under 24 & 25 Vict. c. 96, s. 38, 
 
 (t) Taken from 9 Geo. IV. c. 31, s. 25 (E) supra. 
 andlOGeo. IV. c. 34, s. 31 (I.). The section (r) As to the costs of prosecution, see 
 
 extends the former enactment to resisting post, Vol. ii. p. 2039. 
 
 and wilfully obstructing peace officers. [vv) See Bastable v. Little [1907], 1 K.B. 
 
 Revenue officers were included in the 59.
 
 CHAP. VI.] Of Certain Aggravated Assaults. 895 
 
 By 14 & 15 Vict. c. 19, s. 11 {w), any person whatsoever may apprehend 
 anv person who shall be found committing any indictable offence in the 
 night, and may convey or deliver him to any constable or police officer 
 in order to his being conveyed, as soon as reasonably may be, before a 
 justice of the peace, to be dealt with according to law ; and by sect. 12, 
 ' If any person liable to be apprehended under the provisions of this 
 Act, shall assault or offer any violence to any person by law authorised 
 to apprehend or detain him, or to any person acting in his aid or assistance, 
 every such offender shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable to be imprisoned, with or without hard labour, 
 for any term not exceeding three years/ 
 
 24 & 25 Vict. c. 100, sect. 38 is not limited to assaults on a peace 
 officer, but extends^ 
 
 (i) To persons acting in aid of such officer (in the due execution of his 
 duty) ; and 
 
 (ii) To any person who is assaulted with intent to resist the lawful 
 apprehension or detainer of the assailant or another for any offence 
 (whether indictable or not). 
 
 Head (i) applies whether the duty being executed relates to civil or 
 criminal matters ; but head (ii) is limited to the case of lawful arrests for 
 a criminal matter. 
 
 The expression ' in the execution of his duty,* includes all cases in which 
 the constable at common law or by statute is lawfully seeking to make an 
 arrest without warrant or with a warrant regular on the face of it, or to 
 prevent the commission of crimes or breaches of the public peace {x), 
 or to execute a search warrant, lawfully issued (?/), or is lawfully detain- 
 ing his prisoner or conveying him before a judicial officer (2). or is using 
 reasonable precautions to prevent escape (a). He appears also to be in 
 the execution of his duty in searching a person who is conducting himself 
 with violence, to see if he has weapons about him (&), or in searching a 
 person arrested on suspicion of larceny or unlawful possession. 
 
 Head (ii) applies to resistance to arrest by a private person authorised 
 by common law or statute to effect the arrest. 
 
 The words ' peace officer in the due execution of his duty ' are wide 
 enough to include the sheriff or his officers, when concerned in executing 
 civil process (c), and the bailiffs of County Courts (d). The words are not 
 restricted to arrests for crime and are wide enough to cover acts relating 
 to civil proceedings, e.g. the service of summonses relating to civil matters 
 
 {w) Ante, p. 729. v. Court, 4 B. & C. 59G. R. v. Taylor, 59 
 
 Ix) Vide ante, pp. 721 et seq. J. P. 393. R. v. Lockley, 4 F. & F. 155. 
 
 (y) See Jones v. German [189fi], 2 Q.B. (6) See Leigh v. Cole, G Cox, 329, 
 
 418. Crozier v. Cundey, (i B. & C. 232. Williams, J. Dillon v. O'Brien, 10 Cox, 
 
 Parton v. Williams, 3 B. & Aid. 330. Smith 245 (Ir. ). It is established practice to search 
 
 V. Wiltshire, 2 B. & B. (il9, and Theobald j^iiso'i^''^ *t police stations for weapons, 
 
 V. Crichmore, 1 B. ifc Aid. 227. 24 Geo. II. poison, or for anything wliicli may be 
 
 c. 44. evidence with respect to a criminal charge. 
 
 (z) He is bound to take his prisoner be- See Met. Pol. Guide (ed. 190(1), p. 55(5. 
 
 fore a magistrate as soon as he reasonably Criminal Appeal Rules, 1908, r. 31 (h). 
 can, and in the event of unreasonable delay (c) Resistance to execution of writs by 
 
 (i.e. for three days) becomes a trespasser. the sheriff is a misdemeanor, 50 & 51 Vict. 
 
 Wright V. Court, 4 B. & C. 596. c. 55, s. 8 (2), ante, p. 550. 
 
 (a) Handcuffing is legal where the (d) For summary remedy see 51 & 52 
 
 prisoner has tried to escape, or where it is Vict. c. 43, s. 48; Lewis v. Owen [1894], 
 
 necessary to prevent him doing so. Wright 1 Q.B. 102.
 
 96 Of Assault and Battery. [book ix. 
 
 within the jurisdiction of justices, and to revenue proceedings, e.g. 
 attending to prevent the use of violence to a tax collector (e). 
 
 Sect. III. — Summary Proceedings for Assault. 
 
 In the case of common or minor assaults, instead of proceeding by- 
 indictment, it is usual to resort to the alternative summary remedy 
 provided by the following enactments. 
 
 By 24 & 25 Vict. c. 100, s. 42, ' Where any person shall unlawfully 
 assault or beat any other j)erson, two justices of the peace, upon complaint 
 by or on helialf of the party aggrieved (/), may hear and determine such 
 ofTence, and the offender shall, upon conviction thereof before them, at 
 the discretion of the justices, either be committed to the common gaol or 
 house of correction, there to be imprisoned icitli or without hard labour, 
 for any term not exceeding two months [g) or else shall forfeit and pay 
 such fine as shall appear to them to be meet, not exceeding, together with 
 costs (if ordered), the sum of five pounds ; and if such fine as shall be so 
 awarded, together with the costs (if ordered), shall not be paid, either 
 immediately after the conviction or within such period as the said justices 
 shall at the time of the conviction appoint, they may commit the offender 
 to the common gaol or house of correction, there to be imprisoned, with 
 or without hard labour, for any term not exceeding two months, unless 
 such fine and costs be sooner paid ' (h). 
 
 By sect. 43, ' When any person shall be charged before two justices of 
 the peace with an assault or battery upon any male child whose age shall 
 not in the opinion of such justices exceed fourteen years, or upon any 
 female, either upon the complaint of the party aggrieved or otherwise, 
 the said justices, if the assault or battery is of such an aggravated nature 
 that it cannot in their opinion be sufficiently punished under the provisions 
 
 (e) R. V. Clark, 3 A. & E. 287. Much permits the complaint to be made by any 
 
 of this case turns on the authority of the one on its behalf, and so it might imder 
 
 collector under sections now repealed of 14 & 15 Vict. c. 92, s. 2 (I). Where a com- 
 
 the Land Tax Act, 1797 (37 Geo. III. c. 5). plaint has been made the justices may 
 
 ( /■ ) A prosecution under the section can- proceed, though the parties have made a 
 
 not be initiated by a police officer. Nichol- compromise. R. v. Wiltshii'e, 8 L. T. 242. 
 
 son V. Booth, 57 L. J. M. C. 43. Cf . R. v. But see 25 & 26 Vict. c. 50, s. 9, which was 
 
 Wicklow JJ., 30 L. R. Ir. 633. But where passed for the very purpose of enabling 
 
 the person assaulted, through age and justices in Ireland to proceed, even where 
 
 infirmity, is in such a feeble state of health the party assaulted declined to complain, 
 
 and so under the control of the assailant as By 9 Geo. IV. c. 31, s. 27, the justices had 
 
 to be incapable of instituting proceedings only power to fine in the first instance ; by 
 
 under this section, a third person may lay 14 & 15 Vict. c. 92, s. 2, they may either 
 
 an information even though not in fact fine or commit for two months ; and under 
 
 authorised by the party aggrieved. Pick- this clause they may either fine or commit, 
 
 ering v. Willoughby [1907], 2 K.B. 296. This clause also gives the justices power to 
 
 ig) Cumulative imprisonment for a commit to hard labour either in the first 
 
 period not exceeding in all six months may instance, or on default of payment of a 
 
 be imposed for several assaults committed fine. All summary proceedings under this 
 
 on the same occasion. 42 & 43 Vict. c. 49, section are taken under the Summary 
 
 s. 18. Jurisdiction Act, 1879, in England, and in 
 
 [h) Framed from 9 Geo. IV. c. 31, s. 27. Ireland under the Petty Sessions (Ireland) 
 
 Under that section the complaint could Act, 1851 (14 & 15 Vict. c. 93). The 
 
 only be made by the party aggrieved. R. offences punishable under this and the next 
 
 V. Deny, 2 L. M. & P. 230. This section, section are not offences as to which the 
 
 in order to enable parents and others to accused can elect to be tried on indictment, 
 
 complain on the part of an injured child. See 42 & 43 Vict. c. 49, s. 17, ante, p. 17.
 
 CHAP. VI.] Summary Proceedings for Assault. 897 
 
 hereinbefore contained as to common assaults and batteries, may proceed 
 to hear and determine the same in a summary way, and, if the same be 
 proved, may convict the person accused ; and every such offender shall 
 be liable to be imprisoned in the common gaol or house of correction, with 
 or without hard labour, for any period not exceeding six months, or to 
 pay a fine not exceeding (together with costs) the sum of twenty 
 pounds, and in default of payment to be imprisoned in the common 
 gaol or house of correction for any period not exceeding six months, 
 unless such fine and costs be sooner paid, and, if the justices shall so 
 think fit, in any of the said cases, shall be bound to keep the peace and 
 be of good behaviour for any period not exceeding six months from the 
 expiration of such sentence ' {i). 
 
 It would seem that the words ' aggravated nature ' mean aggravated 
 by circumstances of violence or the like, and do not apply to indecent 
 assaults which are indictable and not punishable on summary conviction. 
 A person charged under sect. 43 may be convicted under sect. 42 (7). 
 
 By sect. 44, ' If the justices upon the hearing of any such case of 
 assault or battery upon the merits where the complaint was preferred 
 by or on the behalf of the party aggrieved, under either of the last two 
 preceding sections, shall deem the offence not to be proved, or shall find the 
 assault or battery to have been justified, or so trifling as not to merit any 
 punishment, and shall accordingly dismiss the complaint, and shall 
 forthwith (k) make out a certificate {I) under their hands stating the fact 
 of such dismissal, and shall deliver such certificate to the party against 
 whom the complaint was preferred ' (m). 
 
 (i) Taken from IG & 17 Vict. c. 30, s. 1. summons having been issued, is sufficient 
 
 The pro\dsions of 8 Edw. VII. c. 67, jiost, evidence of those facts, without producing 
 
 pp. 918 et seq., as to presumption of age, the complaint or summons. R. i;. Westley, 
 
 evidence, &c., apply to proceedings under 11 Cox, 139. 
 
 ss. 42 & 43. (m) This section is limited to the case 
 
 (j) See Stone, Justices' Manual (41st ed.), where a complaint is made by or on behalf 
 
 pp. 141-145. of the party aggrieved. 9 Geo. IV. c. 31, 
 
 [k) In R. V. Robinson, 12 A. & E. 672 s. 27, only applied to a case where the com- 
 
 (decided on the similar enactment, 9 Geo. plaint was made by the party aggrieved, 
 
 IV. c. 31, s. 27), it was held that the certifi- and unless this clause had been limited as it 
 
 cate must be given before the justices is, any person who had committed an aggra- 
 
 separated ; but this was doubted in vated assault might have got some friend 
 
 Thompson v. Gibson, 8 M. & W. 281. The to make a complaint and get the case heard 
 
 act of granting the certificate is not judicial by the justices, on insufficient evidence, and 
 
 or discretionary, but ministerial only, and might, by virtue of ss. 44 and 45, have dc- 
 
 thcrcforc ' forthwith ' does not mean forth- prived the party aggrieved of any remedy 
 
 with upon the dismissal of the complaint, by action or indictment. Under 9 Geo. 
 
 but forthwith upon the demand of it by the IV. c. 31, s. 27, where a party aggrieved 
 
 person entitled to it. Costar v. Hethering- made a complaint, and obtained a summons 
 
 ton, 1 E. & E. 802. Hancock v. Somes, 1 E. and served it on the defendant, but before 
 
 & E. 795. the day for hearing, gave notice, both to the 
 
 (I) The certificate must state on which defendant not to attend, and to the niagis- 
 
 of the three grounds the complaint was dis- strates' clerk that he should not attend, but 
 
 missed, Skuse v. Davis, 10 A. & E. 635 ; the defendant attended, and claimed to 
 
 and must be specially pleaded in an action. have the information dismissed, and a 
 
 Harding v. King, 6 C. & P. 427. The pro- certificate of dismissal granted, not wit h- 
 
 duction of the certificate is sufficient evi- standing the prosecutor's absence, it was 
 
 dcnce of the dismissal by the justices with- held that the justices were warranted in 
 
 out proof of their signature or official granting such certificate, and that it was a 
 
 character, 8 & 9 Vict. c. 113, s. 1 ; and if bar to an action of the assault. Tunnicliflfe 
 
 the defendant appeared before the justices, v. Tedd, 5 C. B. 553. Vaughton v. Brad- 
 
 the recital in the certificate of the fact of a shaw, 9 C. B. (N. S.) 103. As to s. 44 these 
 
 complamt having been made, and of a cases are no authority ; for in order to 
 
 VOL. I. 
 
 3 M
 
 898 
 
 Of Assault and Battery. 
 
 BOOK IX. 
 
 By sect. 45, ' If any person, against whom any such complaint as in 
 either of the last three preceding sections mentioned shall have been 
 preferred by or on the behalf of the party aggrieved, shall have obtained 
 such certificate, or, having been convicted (n), shall have paid the whole 
 amount adjudged to be paid, or shall have suffered the imprisonment or 
 imprisonment with hard labour awarded, in every such case he shall be 
 released from all further or other proceedings, civil or criminal, for the 
 same cause ' (o). 
 
 By sect. 46, ' Provided, that in case the justices shall find (p) the assault 
 or battery complained of to have been accompanied by any attempt to 
 commit felony, or shall be of opinion that the same is, from any other 
 circumstance, a fit subject for a prosecution by indictment, they shall 
 abstain from any adjudication thereupon, and shall deal with the case in 
 all respects in the same manner as if they had no authority finally to hear 
 and determine the same : Provided also, that nothing herein contained 
 shall authorise any justices to hear and determine any case of assault or 
 battery in which any question shall arise as to the title {q) to any lands, 
 
 obtain a certificate under it the case must 
 be heard ' upon the merits ' ; that is, the 
 decision of the justices must be after having 
 heard the evidence. 14 & 15 Vict. c. 93, 
 s. 21 (I), required the justices to state in 
 the certificate that the dismissal was on the 
 merits, or that the assault was of a trifling 
 or justifiable nature. 
 
 {n) Hartley v. Hindmarsh, L. R. 1 C. P. 
 353 ; 35 L. J. M. C. 255. 
 
 (o) Taken from 9 Geo. IV. c. 31, s. 28 
 (E) ; and see 14 & 15 Vict. c. 93, s. 21 (I). 
 See the note to the last section. Several 
 decisions occurred under the former enact- 
 ment, whilst 1 Vict. c. 85, s. 11 (which 
 authorised a conviction of an assault on an 
 indictment for felony), was in force, as to 
 the cases in which a plea of autrefois acquit 
 and convict might be sustained, and these 
 will be found, together with remarks upon 
 them, in Greaves' Grim. Acts, p. 71 (2nd 
 ed.) ; but as that enactment was repealed 
 by 14 & 15 Vict. c. 100, s. 10, there can- 
 not now be a conviction of a common 
 assault upon an indictment for felony (as 
 to indecent assault, see post, p. 955) ; and 
 it seems clear that autrefois acquit or con- 
 vict by the common law cannot be pleaded 
 in any case, unless the prisoner might be 
 convicted on the former indictment, either 
 of the whole or at least of a part of the 
 criminal charge contained in it. See R. v. 
 Walker, 2 M. & Rob. 446. See post, Vol. ii. 
 p. 1982. In R. V. Ehington, 1 B. & S. 688 ; 
 31 L. J. M. C. 14 ; 9 Cox, 86, the first count 
 was for assaulting and doing grievous 
 bodily harm to the prosecutor ; the second 
 for assaulting, and doing actual bodily 
 harm to him ; and the last for a common 
 assault ; and it was held that pleas of a 
 dismissal of a complaint for the same assault 
 under 9 Geo. IV. c. 31, s. 27, were a bar to 
 the indictment, on the ground that the two 
 first counts only charged the same assault 
 with certain aggravations, and the last only 
 
 charged the same assault. See R. v. 
 Clare J J. [1905], 2 Ir. Rep. 510. 
 
 It has been held that the words ' same 
 cause ' mean the same assault or same 
 ofl^ence, and that the protection given by 
 24 & 25 Vict. c. 100, s. 45, is not hmited to 
 proceedings for the same cause of action. 
 Therefore a person who has been convicted 
 of a common assault on a married woman, 
 and who has paid the whole amount ad- 
 jiidged to be paid, may rely on the protec- 
 tion given by this section as a bar to an 
 action against him by the husband, for the 
 loss he, as such husband, has sustained by 
 the assault on his wife. Masper v. Brown, 
 1 C. P. D. 97 ; 45 L. J. C. P. 203. Where 
 a servant in the course of his employment 
 commits an assault his release under the 
 section does not exonerate his master. 
 Dyer v. Munday [1895], 1 Q.B. 742. 
 
 {■p) Where the defendant had been con- 
 victed of a common assault, though it was 
 alleged that the evidence shewed a felo- 
 nious assault, and a certiorari was moved for 
 on the ground that the justices had no 
 jurisdiction, the Court of Queen's Bench 
 lield that the justices had found that the 
 assault was not ' accompanied by any at- 
 tempt to commit felony,' which they had 
 jurisdiction to determine. Lord Tenterden 
 relying especially on the words ' in case the 
 justices shall find the assault or battery to 
 liave been accompanied by any attempt to 
 commit felony ' in 9 Geo. IV. c. 31, s. 29. 
 Anon. 1 B. & Ad. 382. S. C. as R. v. Virgil, 
 
 I Lew. 16. See In re Thompson, 6 H. & N. 
 193, where the information was for unlaw- 
 fully assaulting and abusing a woman. Ex- 
 parte Thompson, 3 L. T. (N. S.) 294 ; Wil- 
 kinson V. Dutton, 3 B. & S. 821 ; and R. v. 
 French, 20 Cox, 200. 
 
 (q) See Latham v. Spalding, 2 L. M. & 
 P. 378. R. V. Pearson, 39 L. J. M. C. 76 : 
 
 II Cox, 493.
 
 CHAP. VI.] Summary Proceedings for Assault. 899 
 
 tenements, or hereditaments, or any interest therein or accruing there- 
 from, or as to any bankruptcy or insolvency, or any execution under the 
 process of any Court of justice.' 
 
 The justices have jurisdiction under this section to commit for 
 trial even where the prosecution is not by nor on behalf of the person 
 assaulted (/•). 
 
 Assaults by Husbands or Wives.— By the Summary Jurisdiction 
 (Married Women) Act, 1895 (58 & 59 Vict. c. 39) s. 4, ' Any married 
 woman whose husband who shall have been convicted summarily of an 
 aggravated assault within the meaning of sect. 43 of the Offences against 
 the Person Act, 1861 {ante, p. 896), or whose husband shall have been 
 convicted on indictment of an assault on her and sentenced to pay a 
 fine of more than five pounds, or to a term of imprisonment exceeding 
 two months . . . {s), may apply to any Court of summary jurisdiction 
 acting within the city, borough, petty sessional or other division or 
 district in which any such conviction has taken place ... for an order 
 or orders under this Act : {i.e. for release from obligation to cohabit 
 with her husband, custody of the children of the marriage, and mainten- 
 ance, sect. 5). Provided that where a married woman is entitled to apply 
 for an order or orders under this section on the ground of the conviction 
 of her husband upon indictment, she may apply to the Court before 
 whom her husband has been convicted, and that Court shall, for the 
 purpose of this section, become a Court of summary jurisdiction and 
 shall have the power without a jury to hear an application and make the 
 order or orders applied for ' {s). 
 
 An order cannot be made under the Act if the wife is proved to have 
 been guilty of adultery, unless the husband has condoned, or connived 
 at, or by his wilful neglect or misconduct induced to, the adultery (sect. 6). 
 
 (r) R. I'. Gaunt, 18 Co.x, 210. to eighteen month.s' impri-sonment for 
 
 \s) Thi.s Act takes the place of 41 & 42 throwing corrosive ihiid on liis wife with 
 
 Vict. c. 19. In R. v. Knowles, fi.o J. P. 27, intent to burn (24 & 2.5 Vict. c. 100, s. 29, 
 
 an order was made under the proviso in the ante, p. 867). 
 
 case of a husband convicted and .sentenced 
 
 3m2
 
 ( 900a 
 
 CANADIAN NOTES. 
 
 OF ASSAULT AND BATTERY. 
 
 Sec. 1. — Definition of Assault. — Code sec. 290. 
 
 To discharge a pistol loaded with powder and wadding at a person 
 within such a short distance that the party might have been hit, is 
 an assault. R. v. Cronan (1874), 24 U.C.C.P. 106. And see, as to 
 pointing fire-arms. Code sec. 122. 
 
 A blow struck in anger or which is intended or is likely to do 
 corporal huri is a criminal assault, notwithstanding the consent to 
 fight of the person struck. R. v. Buchanan (1898), 1 Can. Cr. Cas. 
 442 (Man.). 
 
 A conviction for unlawfully assaulting V. by standing in front 
 of the horses and carriage driven by the said V. in a hostile manner, 
 and thereby forcibly detaining him, the said V. in the public highway 
 against his will, was held bad, in stating the detention as a conclusion 
 and not as part of the charge. It will not be inferred as a matter 
 of law that standing in front of the horses was a forcible detention, 
 there being no statement that the detention was by any other means 
 than mere passive resistance. R. v. McElligott (1883), 3 O.R. 535. 
 
 Justification of the Use of Force in. 
 
 (a) Lawful Arrest. 
 Force in Executing Process. — Code sec. 39. 
 
 Ee Arrest. — "Where the officer executing a warrant releases the 
 prisoner, at his request, for a temporary period on his promise to sur- 
 render himself, such does not constitute a volmitary abandonment of 
 the arrest, and a re-arrest is justified upon the same warrant. R. v. 
 ■O'Hearon (No. 2), 5 Can. Cr. Cas. 531. 
 
 (&) Peace Officer Preventing Escape. — Code sec. 41. 
 
 Shooting. — Only in the last extremity should a peace officer resort 
 to such a dangerous weapon as a revolver in order to prevent the 
 escape of an accused person who is attempting to escape by flight. R. 
 V. Smith (1907), 7 Western L.R. 92, 95, per Perdue, J. A. 
 
 (c) Private Person Preventing Escape. — Code sec. 42. 
 
 **It is the duty of every citizen to assist in the pursuit and capture 
 of a criminal who is fleeing from arrest, when such citizen is called 
 upon to do so by a peace officer." R. v. SmitTi (1907), 7 Western L.R. 
 92, 95, per Perdue, J.A. ; and see Code sec. 167.
 
 900b 
 
 Assault and Battery. 
 
 [book IX. 
 
 (d) Preventing Escape in Other Cases. — Code sec. 43. 
 
 (e) Preventing Escape or Rescue of Arrested Prisoner. — Code 
 sees. 44, 45. 
 
 (/) Preventing Breach of the Peace. — Code sec. 46. 
 
 (g) Arrest hij Railwatj Officer.— H.S.C. (1906) ch. 37, sec. 302. 
 
 (h) By Commander of Ship to Maintain Discipline. — Code sec. 64. 
 
 (i) Lawfid Correction of Child or Pupil. — Code sec. 63. 
 
 School Teacher and Pupil. — A school teacher who inflicts unrea- 
 sonably severe chastisement upon a pupil is criminally responsible, 
 under Code sees. 63 and 66, for the excess of force, used, although 
 the punishment occasional no permanent injury and was inflicted 
 without malice. R. v. Gaul (1904), 8 Can. Cr. Cas. 178. 
 
 The following principles are laid do\vn by Judge Chipman in the 
 Nova Scotia case of R. v. Robinson (1899), 7 Can. Cr. Cas. 52 : — 
 
 (1) The authority of a school teacher to chastise a pupil is to be 
 regarded as a delegation of parental authority. 
 
 (2) Corporal punishment inflicted by a school teacher upon a 
 pupil is presumed to be reasonable and for sufficient cause, until the 
 contrary is shewn. 
 
 (3) Where there is a -sufficient cause for punishing the pupil, and 
 the chastisement produces only temporary pain and no serious injury, 
 it will be presumed to be reasonable. 
 
 (4) Any punishment with an instrument calculated to produce 
 danger to life or limb is unreasonable and unlawful. 
 
 (5) Any punishment protracted beyond the child's powers of en- 
 durance is excessive and unlawful. 
 
 (6) Any punishment which ordinarily may seriously endanger life, 
 limbs, or health, or which disfigures the child, or causes any other 
 permanent injury, is in itself unreasonable and unlawful. 
 
 (7) If there is any reasonable doubt whether the pimishment was 
 excessive, the school teacher should have the benefit of the doubt. 
 
 (j) Consent. 
 
 (1) To the Infliction of Death. — Code sec. 67. 
 
 (2) By Child Under Fourteen. — Code sec. 294. 
 (k) Defence of Person or Property. — Code sec. 53. 
 
 Defendant being justified by this section if the force used by him 
 to repel an unprovoked assault was not meant to cause death or 
 grievous bodily harm, or was no more than was necessary for the pur- 
 pose of self-defence, and there being evidence which, if believed, would 
 have enabled the jury to find for defendant, the trial Judge erred in 
 charging the jury that there must be evidence that defendant could 
 not otherwise preserve himself from death or grievous bodily harm. R. 
 v. Ritter (1904), 8 Can. Cr. Cas. 31, 36 N.S.R. 417. 
 
 The trial Judge having instructed the jury that, to justify or 
 excuse the homicide, the prisoner must be found to have had reason-
 
 CHAP. VI.] Defence of Person or Property. 900c 
 
 able grounds for apprehending imminent peril to his life or the lives 
 of his wife and children, and having made no mention of a reasonable 
 apprehension of grievous bodily harm as a ground of justification 
 although the evidence pointed to both, a new trial was ordered. R. v. 
 Theriault (1894), 2 Can. Cr. Cas. 444. 
 
 {I) Self-defence in Case of Aggression. — Code sec. 54. 
 
 (m) Defence from Assault with Insult. — Code sec. 55. 
 
 An assault is not justified by the circumstance that the person 
 assaulted had then and there sworn at the defendant and used insult- 
 ing language towards him but without any attempt to assault the 
 defendant, whereupon the defendant assaulted the complainant. Went- 
 zell V. Winacht (1907), 41 N.S.R. 406. 
 
 Defence of Person or Property. 
 
 (a) Defence of Movable Property. — Code sec. 56. 
 (&) Defence with Claim of Right. — Code sec. 57. 
 
 (c) Defence without Claim of Right. — Code sec. 58. 
 
 (d) Defence of Dwelling House. — Code sec. 59. 
 
 (e) Defence at Night. — Code sec. 60. 
 
 The mere threat of parties standing outside of a dwelling house 
 that they will break in does not justify the householder in shooting at 
 and wounding them, unless the householder has first warned them to 
 desist and depart or that he would fire. Spires v. Barrick, 14 U.C.Q.B. 
 420. 
 
 (/) Defence of Real Property. — Code sec. 61. 
 
 The words are ' ' if such trespasser resists such attempt. ' ' The word 
 "such" applies to an attempt by force referred to in the former part 
 of the section, and will not apply to mere words of warning or of 
 request to leave. Packett v. Pool (1896), 11 Man. R. 275, 32 C.L.J. 
 523. The latter part of the section does not apply until there is an 
 overt act on the part of the person in possession towards prevention 
 or removal, and an overt act of resistance on the part of the tres- 
 passer. Ihid. 
 
 Trespass for assaulting the plaintiff, and shooting at and wounding 
 him with a pistol. Plea, that the plaintiff and thirty others threatened 
 to break into defendant's dwelling house where he was peacefully 
 residing with his family, and to assault, tar and feather, and ride 
 him on a rail ; that they were armed and riotously assembled in front 
 of the house, and apparently in the act of breaking into it to accom- 
 plish such threats; whereupon defendant, having good reason to 
 believe and verily believing that they were then l)reaking into his 
 house against his will, for the said purpo.se. in defence of himself and 
 his house, and in order to prevent them from entering and tarring 
 and feathering, etc., opposed such entrance, and in .so doing unavoid- 
 ably committed the trespasses in the declaration mentioned, as he law-
 
 900d Assault and Battery. [book ix. 
 
 fully might, using no unnecessary force or violence, and doing no more 
 injury to the plaintiff than was necessary to effect such purpose. 
 
 Held, on demurrer, plea bad, as shewing no defence, for before 
 firing defendant should have warned the plaintiff to desist and depart, 
 which was not averred. Spires v. Barrick, 14 U.C.Q.B. 420. 
 
 (g) Entry of House or Land in Day-time to Take Possession. — 
 Code sec. 62. 
 
 Punishment. 
 
 Common Assault. — Code sec. 291. 
 
 Assault on Female. — Code sec. 292, as amended by 8 & 9 Edw. 
 VII. ch. 9. 
 
 Assatdt Causing Actual Bodily Harm. — Code sec. 295. 
 
 Assatdt with Intent to Rob. — Code sec. 448. 
 
 A conviction for common assault would be a bar to a subsequent 
 prosecution for assault occasioning bodily harm. Larin v. Boyd, 11 
 Can. Cr. Cas. 74. 
 
 The term "actual bodily harm" does not imply a wounding or 
 breaking of the skin. R. v. Hostetter (1902), 7 Can. Cr. Cas. 221, 5 
 Terr. L.R. 363. 
 
 In a prosecution for an assault occasioning actual bodily harm, 
 it is improper to exclude evidence of statements sworn to by a witness 
 for the prosecution at a preliminary enquiry, the record of the deposi- 
 tions upon which had been lost, as to what was said by the accused 
 .at the time of the assault, as such statements of the witness had refer- 
 ence to statements of the accused forming a part of the res gestce. 
 R. V. Troop (1898), 2 Can. Cr. Cas. 22. 
 
 The fact that a prisoner committed for trial for assault occasioning 
 bodily harm was told by the constable removing hjm to gaol under the 
 commitment that the assaulted party would die, is not evidence of an 
 inducement or threat to the prisoner so as to make his subsequent 
 question, "What do you think I will get — about 15 years?" inadmis- 
 sible against him. The prisoner's question under the circumstances 
 raised a strong inference that he was present when the injuries were 
 inflicted. R. v. Bruce (1907), 12 Can. Cr. Cas. 275. 
 
 Sec. 2. — Of Certain Aggravated Assaults. 
 Punishment for. 
 
 Assault (a) with intent to commit indictable offences. Code 
 296(a). 
 (&) on officer in execution of his duty. Code sec. 296(6). 
 
 (c) with intent to resist lawful apprehension. Code sec. 
 296(c). 
 
 (d) with intent to rescue goods lawfully seized. Code sec. 
 296id). 
 
 (e) within two miles of polling booth on election day. Code sec. 
 296(e).
 
 CHAP. VI.] Aggravated Assaults. 900e 
 
 Assault on Wife or Other Female Doing Bodily Harm. — 8 & 9 
 Edw. VII. ch. 9, sec. 242. 
 
 Where a constable was assaulted while attempting to execute a 
 warrant issued by two justices for non-payment of a fine and costs 
 imposed on .a person convicted of an offence, and the justice had 
 jurisdiction over the offence, and the warrant was valid on its face, 
 it was held that a conviction for the assault would lie notwithstanding 
 the fact that part of the original conviction by the two justices was er- 
 roneous in awarding a punishment which was not authorized. R. v. 
 King (1889), 18 Ont. R. 566. The offence of obstructing a peace 
 officer in the execution of his duty is dealt with by Code sees. 168 
 and 169. 
 
 A fine as well as imprisonment may be imposed on the conviction 
 of the accused, if tried either by a Court of criminal jurisdiction or by 
 a "magistrate" under the Summary Trials Procedure. Sec. 1058, 
 Ex parte McClements (1895), 32 C.L.J. 39. 
 
 A magistrate summarily trying, with the consent of the accused, 
 a charge of aggravated assault has jurisdiction to award costs against 
 the accused as well as to impose both fine and imprisonment. R. v. 
 Burtress (1900), 3 Can. Cr. Cas. 536 (N.S.). 
 
 An assault on a constable attempting to serve a summons issued by 
 a magistrate on information charging violation of the Canada Tem- 
 perance Act is an assault on a peace officer in the due execution of his 
 duty. R. V. MacFarlane, 16 S.C.R. 393. 
 
 Opening a railway switch with intent to cause a collision whereby 
 two trains did come into collision, causing a severe injury to a person 
 on one of them, is not an assault. In re Lewis, 6 O.P.R. 236. 
 
 Sec. 3. — Summary Proceedings for Assault. 
 
 Justice May Try Common Assault. — Code sec. 732. 
 Justice May not Try Assault. 
 When question arises as to — 
 (a) title to land. 
 (6) bankruptcy or insolvency, or 
 
 (c) execution under process of any Court of Justice. Code 
 sec. 709. 
 Dismissal of Complaint. — Code sec. 733. 
 Release from Further Proceedings. — Code sec. 734. 
 Summary Trial of Indecent Assault (with Consent of Prisoner). — 
 Code sec. 773. 
 
 Summary Trial of Assault on Officer Engaged in Execution of His 
 Duty {with Consent of Prisoner). — Code sec. 773. 
 
 Where the accused found committing an offence is arrested with- 
 out warrant by a peace officer, and on being brought before a police
 
 900/ Assault and Battery. [book ix. 
 
 magistrate a written charge not under oath is read over to him, and 
 he thereupon consents to be tried summarily, the police magistrate has 
 jurisdiction to try the ease although no information has been laid 
 under oath. R. v. McLean (1901), 5 Can. Cr. Cas. 67 (N.S.). 
 
 Proceedings on Arraignment. — Code sec. 783. 
 
 Code sec. 169 deals with resistance or obstruction to, and Code 
 sec. 296 (&) with assault on, an officer in the execution of his duty. 
 Code sees. 773 and 783, treats of the trial of both offences. 
 
 The provisions of Cr. Code sec. 169 fixing the punishment for which 
 anyone guilty of obstructing a peace officer shall be liable "on sum- 
 mary conviction," are controlled by Code sees. 773 and 778, and the 
 charge cannot be summarily charged by a magistrate except the con- 
 sent of the accused is given in conformity with sec. 778. R. v. Crossen, 
 3 Can. Cr. Cas. 153. 
 
 By sec. 709 it is provided that no justice shall hear and determine 
 any case of assault or battery in which any question arises as to the 
 title to any tenements, hereditaments or any interest therein or accru- 
 ing therefrom, or as to any bankruptcy or insolvency, or any execu- 
 tion under the process of any Court of justice. Rent payable under a 
 lease of land is an incorporeal hereditament. Kennedy v. MacDonnell 
 (1901), 1 O.L.R. 250. 
 
 A summary conviction for .assault upon a female, causing bruises, 
 will be presumed one of common assault under Code sees. 291 and 732, 
 and not of an assault occasioning bodily harm under sec. 295 where 
 there has been no election of summary trial. Larin v. Boyd, 11 Can. 
 Cr. Cas. 7i. 
 
 A summary con\action imposing a sentence of sixty days is not 
 invalid where the statutory maximum is two months, unless there is 
 a reasonable probability of the sixty days' term being in the particular 
 case more than two months. R. v. Brindley (1906), 12 Can. Cr. Cas. 
 170, per Graham, E.J. ; but see contra the decision of Russell, J., in 
 the same case. And see note 12 Can. Cr. Cas. 173. 
 
 A magistrate holding a preliminary enquiry for an indictable 
 offence may not proceed to summarily convict on the evidence 
 given therein for both the accused and the prosecutor for a lesser 
 oft'ence included in the offence charged, although such lesser oft'ence, 
 if originally charged, would have been within his jurisdiction for 
 trial. Ex p. Duffy (1901), 8 Can. Cr. Cas. 277. 
 
 Upon a summary trial for inflicting grievous bodily harm, the 
 magistrate may convict instead for the lesser offence of common 
 assault in like manner as a jury might do. The punishment which 
 may be imposed by a city stipendiary magistrate convicting of com- 
 mon assault upon a summary trial for a greater oft'ence under sec. 
 777 is that which is provided in case of conviction upon indictment.
 
 CHAP. VI.] Proceedings Before Magistrate. 900g 
 
 i.e., one year's imprisonment or a fine of $100. R. v. Coolen (1903), 
 7 Can. Cr. Cas. 522. 
 
 Where the sentence imposed upon a summary trial by consent be- 
 fore a city stipendiary magistrate for common assault was, in the 
 first instance, three months' imprisonment without mention of hard 
 labour, and the minute of adjudication did not include hard labour, 
 a formal conviction, including hard labour, and a commitment thereon 
 in similar terms are invalid and the accused will be discharged on 
 habeas corpus. Ex parte Carmichael, 8 Can. Cr. Cas. 19. 
 
 A city stipendiary magistrate holding a summary trial under 
 Code sec. 777, may impose imprisonment not exceeding one year for 
 common assault although Code sec. 291 specifies such punishment with 
 the addition of the words "if convicted upon an indictment." Sec. 
 777 gives to police and stipendiary magistrates of towns and cities the 
 power to award on summary trials held with the consent of the 
 accused, the same punishment as an Ontario Court of General Ses- 
 sions might impose on a trial on indictment. R. v. Hawes (1902), 6 
 Can. Cr. Cas. 238, per Graham, E.J. In the same case Townshend, 
 J., held, that upon a summary trial for common assault, the imprison- 
 ment authorized by Code see. 291 can only be imposed in the first 
 instance, and that where a fine is imposed the imprisonment in default 
 of payment thereof is controlled by Code sec. 739 (&) and is there- 
 fore limited to three months.
 
 (901 ) 
 
 CHAPTER THE SEVENTH. 
 
 OF FALSE IMPRISONMENT, KIDNAPPING, AND CHILD-STEALING. 
 
 Sect. I. — False Imprisonment. 
 
 False imprisonment is unlawful and total restraint of the personal liberty 
 of another, whether by constraining him or compelling him to go to a 
 particular place (a) or by confining him in a prison or police-station or 
 private place, or by detaining him against his will in a public place (6). It 
 usually, but not necessarily involves an assault (c) or battery (d) or some 
 degree of threatened or actual violence to the person (e) ; but the essential 
 element in the offence is the unlawful detention of the person or the 
 unlawful restraint on his liberty. Such interference with the liberty of 
 another's movements is unlawful unless it can be justified at common law 
 or by statute as having been made under the lawful process or order of a 
 Court of Justice or a competent official, or in exercise of a lawful authority 
 to arrest without such warrant or order in respect of an offence committed, 
 or to restrain the person imprisoned from committing some crime or 
 act dangerous to others. Thus it is false imprisonment to detain a 
 
 (a) Pocock V. Moore, Ry. & M. 321, wliere 
 the defendant had given a man in charge 
 of a poHce officer to be taken to a police 
 station. 
 
 (b) 2 Co. Inst. 589. Com. Dig. tit. ' Im- 
 prisonment ' (G.). 3 Bl. Com. 127. In the 
 Queensland Criminal Code, 1899, the 
 common-law offence is tims described : 
 ' any person who unlawfully confines or 
 detains another in any ])lace against his 
 will, or otherwise unlawfully deprives an- 
 other of liis personal liberty is guilty of a 
 misdemeanor.' In Bird v. Jones, 7 Q.B. 
 742, the majority of the Court held that 
 where the ])laintiff in attemjjting to go in a 
 particular direction was prevented from 
 going in any direction but one, not being 
 that in which he endeavoured to ])ass, it 
 was not an imprisonment, and this, whether 
 the plaintiff had or liad not a right to pa.ss 
 in the first-mentioned direction. ' A prison 
 may have its boundary large or narrow, 
 visible and tangible, or, thoiigh real, still 
 in the conception only ; it may itself be 
 movable or fixed ; l)ut a boundary it must 
 have ; and that boundary the party im- 
 prisoned must be prevented from ])assing : 
 he must be prevented from leaving that 
 place, within the ambit of which the party 
 imprisoning him would confine him. except 
 by prison breach.' Coleridge, J., said : 
 ' In general, if one man compels anotlier to 
 
 stay in any given place against his will, he 
 imprisons that other just as much as if he 
 locked him up in a room ; and it is not 
 necessary in order to constitute an imi)ri- 
 sonment that a man's person should be 
 touched. The compelling a man to go in a 
 given direction against his will may amount 
 to imprLsonment.' Patteson, J., said : 
 ' Imprisonment is a total restraint of the 
 person for however short a time, and not a 
 partial obstruction of his will, whatever 
 inconvenience it bring on him.' See also 
 Warner v. Riddiford, 4 C. B. (N. S.) 180. 
 Where the schoolmaster of a Board School 
 kept in a child for not preparing his home 
 lessons, it was held that he was liable to be 
 convicted of an assault, since the Education 
 Acts do not authorise the setting of Home 
 lessons. Hunter v. Johnson, 13 Q.B.D. 22.5. 
 
 (c) R. V. Linsberg [190r>]. f)9 J. P. 107, 
 Bosanquct, Common Serjeant. 
 
 (d) Emmett v. Lyne. 1 B. & P. (N. R.) 
 2;i.'>. A contrary view is expressed in 
 Buller, (N. P.) 22. and is said to have been 
 adopted by Kenyon, C.J. in Oxley v. Flower 
 2 Selwyn (N. P.) tit. ' Impri.sonment ' (I.). 
 
 (e) See 3 Bl. Com. 127. Com. Digest, 
 tit. ' Imprisonment (H.). Bac. Abr. tit. 
 ' Trespass," (D. 3). 2 Seiw. (N. P.) tit. ' Im- 
 prisonment.' Clerk and Lindsell on Torts 
 {3rd ed.). 177. Addison on Torts (8th ed.), 
 I(i7.
 
 902 
 
 Of False Im^prisonment, Kidnapping, &c. [book ix. 
 
 prisoner after liis acquittal ( /") or after his term of imprisonment has 
 expired {g) ; and detention upon warrant or process which is regular in 
 form is unlawful if the warrant is executed at an unlawful time, e.g. 
 in case of civil process, on a Sunday {h), or on civil process in a privileged 
 place, such as a Royal palace (^) or a Court of justice {j) or of a person 
 privileged from arrest (k). 
 
 False imprisonment is indictable (Z) at common law as well as actionable, 
 and is punishable by fine and (or) imprisonment without hard labour (m). 
 But it is unusual to proceed by indictment for false imprisonment 
 alo-ne, though the fact of illegal detention may be stated as matter of 
 aggravation in an indictment for assault and battery. 
 
 In R. V. Lesley (n), the master of a British merchant ship was indicted 
 for false imprisonment of certain Chilians whom he had received on 
 board his ship in Chilian waters under contract with the C-hilian govern- 
 ment to convey them to Liverpool. On a case reserved it was held that 
 he had been properly convicted on the indictment, inasmuch as the 
 detention of the Chilians in the ship after it left Chilian waters was 
 wrongful by the law of the flag, and being intentionally planned and 
 executed in the pursuance of the contract, was in law indictable as false 
 imprisonment. 
 
 In E. V. Linsberg (o), on an indictment for false imprisonment it was 
 ruled that mere false imprisonment without belief in the existence of any 
 authority, was indictable, although no actual assault or battery took 
 place. 
 
 Sect. II. — Of Kidnapping. i 
 
 The stealing and carrying away, or secreting of any person of any age 
 or either sex against the will of such person,, or if he be a minor against 
 
 eu7ido, morando et redexmdo, and clergymen 
 in performing religious rites and duties 
 (24 & 25 Vict. c. 100, s. 36). See Mather, 
 Sheriff Law, 182. Short and Mellor, Cr. Pr. 
 (2nded.) 347. As to assaults on foreign 
 diplomatic officers, vide ante, p. 299. 
 
 {I) 1 Hawk. 0. 60, s. 7. 4 Bl. Com. 218. 
 For precedents of indictments for assaults 
 and false imprisonment, see Cro. Giro. Comp. 
 (10th ed.), 79. 2 Stark. Cr. PI. (2nd ed.) 
 385, 386. 3 Chit. Cr. L. 835 et seq. Archb. 
 Cr. PI. (23rd ed.) 891. 
 
 (m) Ante, p. 246. 
 
 (?i) Bell, 220. This case was cited with 
 approval in Phillips v. Eyre, L. R. 4 Q.B. 
 225, 240, on the question of the justifica- 
 tion under Cliilian law of what was done in 
 Chilian waters. Cf. Canadian Prisoners' 
 case, 9 A. & E. 7, 31. 
 
 (o) [1905] 69 J. P. 107, Bosanquet 
 Common Serjeant. Cf. Hunter v. Johnson, 
 13 Q.B.D. 225. 
 
 (/ ) Ince V. Cruikshank, 20 Cox, 210. 
 
 (g) Migotti V. Colvill, 4 C. P. D. 323. 
 
 (h) 29 Car. II. c. 7. Arrest for crime on 
 Sunday is lawful. 11 & 12 Vict. c. 42, s. 4. 
 Hawkins v. Ellis, 16 M. & W. 172. Ex parte 
 Eggerton, 23 L. J. M. C. 41. Johnson v. 
 Coultson, Sir T. Raym. 250, and see 
 Anon., Willes, 459. Atkinson v. Jameson, 
 5 T. R. 25. R. V. Myers, 1 T. R. 25. 
 
 (i) Mather, Sheriff Law, 181. Att.-Gen. 
 V. Dakin, L. R. 4 H. L. 338. Special pro- 
 vision is made in the Metropolitan Police 
 Acts for the police of Royal Palaces. 
 
 (j) Ibid. This does not apply if the arrest 
 is by order of the Court itself, e.g. for con- 
 tempt of court. 
 
 (k) e.g. in the case of purely civil process 
 a member of Parliament during the Session 
 (In re Gent. 40 Ch. D. 190 ; Be Onslow's and 
 Whalley's cases. L. R. 9 Q.B. 208), a 
 barrister or solicitor eundo, morando, et 
 redeundo from a Court on professional busi- 
 ness, and parties and witnesses in a cause 
 
 American and Colonial Notes. 
 
 ' It is said in America that a man would 
 be justified in resisting to the death an at- 
 tempt to forcibly carry him out of his 
 country. See Bishop, Amer.Cr. L. i. s. 868(3). 
 
 Kidnapping need only be the sending of the 
 person to any other place. See S. t'. Rol- 
 lins, 8 N. H. 550, and it is suggested that 
 a mere intent to carry away is sufficient,
 
 CHAR vll.1 Of Kidnapping. 003 
 
 the will of his friends or lawful guardians, sometimes called kidnapping, 
 is an offence at common law, punishable by fine and imprisonment with- 
 out hard labour (p). The most aggravated form of kidnapping is the 
 forcible abduction or stealing and carrying away of any person from his 
 own country into some other (</), or to parts beyond the seas, whereby he 
 is deprived of the friendly assistance of the laws to redeem him from 
 captivity (r). The carrying away of females is usually termed abduction, 
 and the statutes punishing various forms of such abduction are dealt with 
 post, p. 959. By the Habeas Corpus Act, 1679 (31 Car. IT. c. 2) s. 11, 'for 
 preventing illegal imprisonment in prisons beyond the seas,' it is enacted 
 'that no subject of this realm, that now is or hereafter shall be an in- 
 habitant or resiant of this Kingdom of England, dominion of Wales or 
 Town of Berwick-upon-Tweed, shall or may be sent prisoner into Scotland, 
 Ireland, Jersey, Guernsey, Tangier or into any parts, garrisons, islands, or 
 places beyond the seas, which are or at any time hereafter shall be within 
 or without the dominions of His Majesty, his heirs and successors.' Such 
 imprisonment is then declared to be illegal ; and an action for false 
 imprisonment is given to the party, with treble costs, and damages not 
 less than five hundred pounds (s). The section then proceeds thus : — 
 ' And the person or persons who shall knowingly frame, contrive, write, 
 seal or countersign, any warrant for such commitment, detainer, or 
 transportation, or shall so detain, imprison, or transport, any person or 
 persons, contrary to this Act, or be any ways advising, aiding, or 
 assisting therein,' being lawfully convicted thereof, shall be disabled from 
 thenceforth to bear any office of trust or profit within England, &c., or 
 the dominions thereunto belonging, and shall incur the pains, &c., of the 
 Statute of PrcBtnunire (16 Rich. II. c. 5), and shall be incapable of any 
 pardon from the King of such forfeitures or disabilities (t). Sect. 15 
 provides that oft'enders may be sent to be tried where their offences 
 were committed, and where they ought to be tried. Sect. 16 enacts, 
 that prosecutions for offences against the Act must be within two years 
 after the offence committed, if the party grieved be not then in prison; 
 and if he be in prison, then within two years after his decease, or delivery 
 out of prison, which shall first happen. 
 
 Though in terms applied to subjects the Act appears to extend 
 to persons owing temporary allegiance, and the removal of alien friends 
 
 (/)) 1 East, P.C. 42n. 430. R. v. Baily. counties was repealed in 1826 (7 & 8 Geo. 
 
 Comb. 10; 90 E. R. 312. See U. S. Statt. IV. c. 27). 
 
 Rev. (ed. 1873), ss. 5525-7). By the (r) 1 East, P.C. 430. 
 
 Queensland Criminal Code, 1899, s. 354, (.s) See Designy's case, T. Raym. 474; 
 
 ' any person who forcibly takes or detains 83 E. R. 247. 
 
 another with intent to compel that other (t) S. 12 excepts persons who have 
 
 person to work fur him ofjainst his n-ill ' contracted in writing to be transjmrted in 
 
 is said to commit an offence at common beyond seas, and have received earnest on 
 
 law described in the Code as kidnapping.' the contract, and s. 13 excepts convicted 
 
 As to Indian law. see iMayne, Criminal felons who iiave ])rayed to be transported 
 
 Law of India (ed. ISiXi), 1(J8, ()37. and have been remanded to prison for that 
 
 ((/) 43 Eli'/, c. 13, which provided for the purpose, 
 punisiiment of kidnapping in the Border 
 
 Bishop, 11. s. 750. It is not clear how far See Bishop ii. s. 752. By the law of the 
 
 fraud or threats are sufficient, without any United States Rev. Statt, s. 5377, it is an 
 
 force being used, to constitute tlie offence offence to bring into .•\merica any ])erson 
 
 of kidna])[)ing under American statutes. of colour kidnapped in any other country.
 
 904 
 
 Of False Imprisonment, Kidnapping, &c. [Booic iX, 
 
 from the realm would seem to be unlawful unless effected in accordance 
 with the Extradition Acts and Treaties or the Aliens Act, 1905 (5 
 Edw. VII.c. 13) {u). 
 
 As to the slave trade and the kidnapping of Pacific Islanders, see 
 ante, Book II. Chapter IL pp. 271 et seq. 
 
 Sect. III. — Of Child-Stealing. 
 
 By 24 & 25 Vict. c. 100, s. 56, ' Whosoever shall unlawfully, either by 
 force or fraud, lead or take away, or decoy or entice away or detain, any 
 child under the age oi fourteen years, with intent to deprive any parent, 
 guardian, or other person having the lawful care or charge of such child, 
 of the possession of such child, or with intent to steal any article upon or 
 about the person of such child, to whomsoever such article may belong, 
 and whosoever shall, with any such intent, receive or harbour any such 
 child, knowing the same to have been, by force or fraud, led, taken, 
 decoyed, enticed away, or detained as in this section before mentioned, 
 shall be guilty of felony, and being convicted thereof shall be liable at 
 the discretion of the Court, to be kept in penal servitude for any term not 
 exceeding seven years ... or to be imprisoned . . . (v), and, if a male 
 under the age of sixteen years, with or without whipping : Provided that 
 no person who shall have claimed any right to the possession of such 
 child, or shall he the mother or shall have claimed to be the father of an 
 illegitimate child, shall be liable to be prosecuted by virtue hereof on 
 account of the getting possession of such child, or taking such child out 
 of the possession of any person having the lawful charge thereof ' (w). 
 
 The provisions as to evidence, &c., of the Children Act, 1908 (x), 
 apply to this offence. 
 
 In P. V. Duguid (y), it was held that a conspiracy with the mother of 
 a child under fourteen to carry the child away from its lawful guardian 
 was indictable even if the mother could not herself be convicted of an 
 offence against sect. 56 or of a conspiracy to commit it (z). 
 
 A person may be convicted under this section even though the child 
 is no longer in his custody and there is no evidence to shew where it is (a). 
 The force or fraud may be committed on the parent or guardian of the 
 child, or on the child itself, or upon any other person (b). 
 
 (u) Ante, p. 208. As to the right to ex- 
 clude or expel aliens, see Musgrove v. Chung 
 Teeong Toy [1891], A. C. 272. Att.-Gen. 
 for Canada v. Cain and Gilhula [1906], 
 A. C. 542. Robtelmes v. Brenan [1906], 
 4 Australian C. L. R. 395. Law Quarterly 
 Revieic, 1890, p. 27. 
 
 {v) For other punishments see 54 & 55 
 Vict. c. 69, s. \,ante, pp. 211, 212. The 
 words omitted were repealed in 1892. 
 
 [w) Taken from 9 Geo. IV. c. 31, s. 21 
 (E), and 10 Geo. IV. c. 34, s. 25 (I). The 
 word 'unlawfully ' is substituted for 
 ' maliciously,' which was inaccurately used 
 in the former enactments. The age of the 
 child is extended from ten to fourteen 
 years, and ' guardian ' is introduced ; and 
 
 in the proviso words are added to include 
 the mother of an illegitimate child. 
 
 {x) Post, p. 918. 
 
 (y) 75 L. J. K. B. 470 ; 21 Cox, 200 ; 70 
 J. P. 294 (C. C. R.). 
 
 (z) An application to quash a warrant 
 issued against the mother was refused. 
 The Court declined to decide the question 
 of criminal liability of the mother on such 
 an application. See ex parte Chetwynd, 
 43 L. J. (Newsp.), 125, 223. 
 
 [a) R. V. Johnson, 15 Cox, 481 (C. C. R.). 
 
 {b) R. V. Bellis, 62 L. J. M. C. 155 ; 17 
 Cox, 660 (C. C. R.), over-ruling R. v. 
 Barrett, 15 Cox, 658, where A. L. Smith, J., 
 held that the force must be on the child.
 
 CHAP. VII.] iUegalty Leaving Merchant Seamen BeJiind. 905 
 
 Sect. IV. — Illegally Leaving Merchant Seamen Behind (c). 
 
 By the Merchant Shipping Act, 1906 (6 Edw. VII. c, 48) s. 43 (d), ' A 
 person belonging to a British ship shall not wrongfully force a seaman (e) 
 on shore and leave him behind, or otherwise cause a seaman to be wrong- 
 fully left behind at any place either on shore or at sea, in or out of His 
 Majesty's dominions, and if he does so he shall in respect of each offence 
 be guilty of a misdemeanor Qi). 
 
 By sect. 36 (1), ' The master of a British ship shall not leave a sea 
 man id) behind at anyplace out of the United Kingdom, ashore or at sea, 
 exce2)t where the seaman is discharged in accordance with the Merchant 
 Shipping Acts, unless he previously obtains endorsed on the agreement 
 with the crew, the certificate of the proper authority (/) as defined for 
 that purpose in this Act stating the cause of the f^eiman being left 
 behind, whether the cause be unfitness or inability to proceed to sea, 
 desertion, or disappearance or otherwise {(j). 
 
 (3) If the master of a ship fails to comply with this section he shall 
 (without prejudice to his liability under any other provision of the 
 Merchant Shipping Acts, be guilty in respect of each offence of a mis- 
 demeanor {h), and in any legal proceeding for the offence it shall be on the 
 master to prove that the certificate was obtained or could not be obtained 
 without unreasonable delay to the ship or was unreasonably withheld.' 
 
 As to the jari;~diction and venue on trials for theve offence-i, see 57 
 58 Vict. c. 60 S3. 684, 6S5, 6S6, 687 {ante, p. 43). 
 
 On an indictment on 5 & 6 Will. IV, c. 19 (rep.), against a master of 
 a vessel for leaving one of his crew at Quebec, in Lower Canada, for the 
 defence a certificate was put in evidence which stated that the defendant 
 appeared before E. B. a commissioner for carrying the Act into effect, and 
 being duly sworn, said that the seaman in question did desert from the 
 vessel while at Quebec, and was then absent without leave. It was held 
 that this certificate was insufficient, inasmuch it did not certify the facts 
 as ascertained by the pro[)cr officer, that the c.n])tain deposed to certain 
 things before him (?'). 
 
 The defendant was master of a merchant ship, belonging to a subject 
 of the United Kingdom (/). namely, J. H. and E. W. and 11. G. were 
 
 (c) ' Marooning.' certificate, l)iit may not unreasonably 
 
 (d) This section re-enacts with variations refuse it. (i Edw. VII. c. 48, s. 3U (2). 
 
 57 & .')8 Vict. c. ()0, s. 187. whicli took tlie (ij) Tin's section supersedes 57 & 58 Vict, 
 
 place of 17 & 18 Vict. c. 120, s. 20.3, which c. (iO, s. 188. 
 
 section superseded and replaced the earlier (/<) Punisjiable under 57 & 58 Vict. c. (JO. 
 
 enactments, 5 & (i Will. IV. c. 10, ss. 40, 42 s. 080, by fine or iin]>risonnient with or 
 
 and 7 & 8 Vict. c. 112, s. 1. without hard labour for not over two years 
 
 (<■) Including apprentices to the sea ser- on a conviction on indictment. It may be 
 
 vice. () Edw. VII. c. 48, s. 4!) (2). prosecuted siim?narily. in which event the 
 
 (/) The proper authority in a foreign maxinnun tine is £100. and the maximum 
 
 country is a British Consular ofhcial. or, if term f)f im))risonment is six months with or 
 
 there be none, two, or if tiiere are not two, without hard labour. 
 
 one Hiitish merchant ; in a British posses- {/) H. v. Smison, 1 Cox. 188. Bullock, 
 
 sion, the Chief Ofticer of Customs at or near Commr., after consulting the Recorder, 
 
 the place. Edw. VII. c. 48, .s. 49 (1). (j) It would seem to be enough to name 
 
 The authority is to examine into the or describe the ship sufliciently to identify 
 
 grounds of ai)])lication, and may take evi- her, or to aver that she is British, 
 dence on oatli, and may grant or refuse the
 
 906 Of False tmfrisonment, Kidna'pfmg, &c. [booK IX. 
 
 persons belonging to the crew, duly engaged to serve in a voyage, which 
 was not then completed ; the indictment alleged that the defendant at 
 B. unlawfully, wilfully, and wrongfully did leave the said E. W. and H. G. 
 behind on shore, before the completion of their voyage, on the plea that 
 they were not in a condition to proceed on the voyage, he not having 
 obtained a previous certificate in writing of the said consul or of any such 
 functionary of their not being in such condition, there being time to obtain 
 such certificate (k). It appeared that E. W. and H. G. were both ill when 
 the vessel put into B. on her voyage, and went ashore, and saw the doctor, 
 who said they were not sick enough to be left on shore, and go to the 
 hospital, as they wished ; they then went to the English consul, who said 
 he could do nothing without the doctor's certificate, that they came again 
 and asked for their clothes, and the mate, believing that they had got 
 their discharge, thovigh they did not say so, let them have them ; that 
 they were very ill, and if they had not gone on shore at B. and got medical 
 advice, one of them would have died. The collector of customs of the 
 port of Harwich produced a certificate of the registry of the .ship with the 
 name J. H. in it, which he knew to be his signature, but did not see him 
 write it : the declaration was signed by him. He knew H. personally. 
 He did not know where he was born : he was a British subject ; he knew 
 he was so by the declaration which he had made. He believed him to be 
 an Englishman. Cresswell and Coleridge, JJ., were of opinion, first, 
 that the allegation of ownership was a material allegation, and must be 
 proved as laid ; secondly, that the 41st {!) and 42nd sections of 5 & 6 
 Will. IV. c. 19, did not create separate offences, but that they should be 
 taken together, and were intended to shew that certain conduct on the 
 part of the seaman will not excuse the captain, unless he produce the 
 required certificate ; and therefore, thirdly, that on this indictment, 
 which charged the defendant with wrongfully and wilfully leaving behind 
 him two persons belonging to his crew, the only answer he could give would 
 be either to prove the certificate, or shew the impossibility of obtaining 
 it ; and not having done either of these things, if the jury believed the 
 evidence, he must be found guilty (>w). 
 
 [k) The count concluded with an aver- sary. See fost, p. 981. 
 
 ment that the defendant was found within {I) Qucere, 40th. 
 
 the jurisdiction of the Central Criminal (m) R. v. Dunnett, 1 C. & K. 425. 
 Court, which appears to be now unneces- 
 
 1
 
 ( 906a 
 
 CANADIAN NOTES. 
 
 OF FALSE IMPRISONMENT, KIDNAPPING, AND CHILD-STEALING. 
 
 Sec. 1. — False Imprisonment. 
 
 This is not the subject of any provision of the Code. It is, however, 
 still an offence at common law. 
 
 To compel a man to go in a given direction against his will may 
 amount to an imprisonment ; but if a man merely obstructs the pas- 
 sage of another in a particular direction whether by threats of per- 
 sonal violence or otherwise, leaving him at liberty to stay where he is 
 or go in any other direction if he pleases, he cannot be said to thereby 
 imprison him. Bird v. Jones (1845), 7 Q.B. 742, per Patteson, J. 
 
 Detention of a prisoner after expiry of his sentence is false im- 
 prisonment. Moone v. Rose (1869), L.R. 4 Q.B. 486. 
 
 Sec. 2. — Kidnapping. — Code sec. 297 (as amended by 8 & 9 Edw. 
 VII. ch. 9). 
 
 Sec. 3. — Child Stealing. — Code sec. 316. 
 
 The child's own father may be guilty of child-stealing within the 
 Code, if after a divorce by a^ Court of competent jurisdiction and the 
 award thereon of the custody of the child to the mother, the father 
 wilfully removes the child from her custody. R. v. Watts, 5 Can. Cr. 
 Cas. 538. 
 
 Wliere a divorce decree of a Court of competent jurisdiction in 
 the United States has awarded the custody of a child to the father as 
 against- the mother, and the mother thereafter removes and conceals 
 the child for the purpose of evading the decree, a prima facie ease 
 for extradition is thereby made out against the mother upon a charge 
 of child-stealing. And, sem])le, the offence of child-stealing under the 
 Code, may be complete against the child's mother although the father, 
 to whom the child's custody has been awarded, has never had any 
 actual separate possession of the child. Re Lorenz (1905), 9 Can. Cr. 
 Cas. 158. 
 
 Sec. 4. — Illegally Leaving Merchant Seaman Behind. 
 R.S.C. (1906), eh. 113, sees. 265, 266.
 
 ( 907 ) 
 
 CHAPTER THE EIGHTH. 
 
 OF NEGLECT AND ILL-TREATMENT OF THE YOUNG, THE HELPLESS 
 AND THE INSANE. 
 
 Sect. I. — Common Law. 
 
 It is an indictable misdemeanor at common law to refuse or neglect to 
 provide sufficient food or other necessaries for any person such as a child, 
 apprentice, or servant, unable to provide for and take care of himself, 
 whom the party is obliged by duty or contract to provide for ; so as 
 thereby seriously to injure health (a). The obligation is, it would seem, 
 limited to cases where the person neglected is of tender years or helpless 
 or so dominated by the parent or employer as to be unable to do for 
 itself (6). It has been extended to cases where an aged or sick person, 
 neither servant nor apprentice, but under the care or control of another, 
 is neglected so as to cause death or injury to health (c). Where an 
 indictment stated that W., ' an infant of tender years,' was placed ' under 
 the care and control of ' the prisoners as a servant, and that it was their 
 duty to supply her with sufficient food, &c., and also to permit her to 
 have sufficient food, &c., and that they neglected to supply her with 
 sufficient food, &c. ; and refused to let her have sufficient food, &c. ; 
 whereby her health was injured. W. was between fourteen and seventeen 
 years of age during the time of the ill-treatment alleged, and it did not 
 appear that she was prevented from going out and complaining of 
 the treatment she received. It was held, first, that W. was not 
 an infant of tender years. A person of tender years is a person in- 
 capable of acting or judging for himself. And children of much earlier 
 age may contract marriage and other relations, and are competent in law 
 to act for themselves. Secondly, that the terms ' under the care and 
 control ' of the prisoners meant under such control as to be prevented 
 from acting for herself, and that this girl was a free agent ; and, therefore, 
 the indictment was not proved {d). 
 
 (ct) R. v. Friend, R. & R. 20, and MS. of proper care, it is murder in the party 
 
 Bayley, J. Chambre, J., ditlered, thinking neglecting it,' Denman, C..T., said : ' If the 
 
 it not an indictable offence, but a matter person has the actual custody,' and Patte- 
 
 founded wholly on contract, in this which son, J., added : ' Or the child be part of his 
 
 was the case of an apprentice. See R. v. family, would it be murder in the parent to 
 
 Senior [1899], 1 Q.B. 283, 289. As to the abscond ? ' As regards ill-treatment, this 
 
 neglect of paupers by overseers of the poor, opinion seems to be over-ridden by R. v. 
 
 see ante, p. GOt). Connor [1908], 2 K.B. 2(1, po.^l. p. 914. 
 
 {b) The obligation has been held to apply (d) Anon. 5 Cox, 279, Coleridge anfl 
 
 to a servant (R. v. Ridley, 2 Camp. 050), Cresswell, J.T. The latter said, ' If being 
 
 except where the servant was of full age of ordinary or even superior intellect and 
 
 and able to take care of herself and to leave capacity, she was so luidcr the control of 
 
 the service. R. v. Smith. L. & C. GOT, 020, the defendants, so imi)resscd with fear 
 
 02.'5. either from being watched or being thrcat- 
 
 (c) R. V. Tnstan [1893], 1 Q.B. 400. anie. ened, as to be unable to re.sort to the a.ssis- 
 
 p. 078. As to lunatics, vide pout, p. 924. tance of her natural defenders or of other 
 
 In Urmston i\ Nowcomen, 4 A. & E. 899, persons, then a duty would devolve on the 
 
 in answer to a remark ])y counsel, that, ' by defendants greater than that arising from 
 
 the common law if a child perish for want the civil contract.'
 
 908 Of Neglect and Ill-treatment of the Young, ^c. [book ix. 
 
 In these cases it must be both alleged and proved that the health was 
 seriously injured. In R. v. Phillpot (e), the indictment alleged that the 
 prisoner was the mother, and had the care of an infant female child 
 unable to support itself, and that it was the duty of the prisoner to support 
 the child, but that the prisoner unlawfully neglected to support it, and 
 unlawfully abandoned it without necessary food for a long space of time, 
 whereby the child was greatly injured and weakened. The prisoner was 
 the wife of a seaman, and received a portion of his pay, and was able to 
 work and get her living if she chose ; she left the child without food 
 from Monday evening till Thursday morning, and but for the attention 
 of a poor neighbour, the child must have suffered most severely, and 
 might probably have died for want of food, and though it did suffer 
 in some degree from want of food, it was not to any serious extent ; and 
 it was held that the conduct of the prisoner in absenting herself, irre- 
 spective of any actual injury to the child, was not a misdemeanor at 
 common law, and therefore it was necessary to prove the averment that 
 the child was greatly injured and weakened ; and that the evidence that 
 the child had suffered to some but not to any serious extent was not 
 sufficient, as it did not shew any injury to health (/). 
 
 It is the duty of all persons having children of tender age, whom they 
 cannot support, to endeavour to obtain the means of getting them support, 
 and if they wilfully abstain for several days from resorting to the poor- 
 law authorities of the place where they have by law a right to support, 
 they are criminally responsible for the consequences (g). 
 
 In R. V. Chandler (h), the indictment alleged that the prisoner was a 
 single woman and the mother, of a child of very tender age and unable 
 to provide for itself, and that it was the duty of the prisoner to provide 
 food for the child, she ' being able and having the means to perform her 
 said duty,' and that she unlawfully neglected to provide sufficient food for 
 the child, v/hereby its Ufe was endangered. There was no evidence that 
 the prisoner actually had the means of supporting the child ; but it was 
 proved that she could have applied to the relieving officer of the union, 
 and, had she done so, she would have been entitled to and would have 
 received relief for herself and the child adequate to their due support 
 and maintenance, and that she had not made any such application. It 
 was held that the allegation in the indictment that the prisoner had the 
 means of maintaining the child was not proved. 
 
 In R. V. Rugg [i), the first count of the indictment charged the prisoner 
 with neglecting to provide sufficient food for her infant child, ' she being 
 able and having the means to perform her duty ' in that respect. The 
 jury found her guilty on the ground that ' if she had applied to the 
 guardians for relief _she would have had it,' and the Court held, on the 
 authority of R. v. Chandler (supra) that the finding of the jury was not 
 sufficient to maintain the count. A second count charged the neglect to 
 provide food, but omitted the allegation that she had means to do so, 
 and it was doubted if the count was good in law (?) ; Bovill. C. J., said : 
 
 (e) Dears. 179. VII. c. 67, s. 12, post, p. 913. 
 
 {/ ) See R. V. Cooper, 1 Den. 4.59; 20 L. (h) Dears. 453. 
 
 J. M. C. 219. R. V. Hogan, 2 Den. 277. (0 12 Cox, 16. 
 
 24&25 Vict. c. 100, s. 27, po5<, p. 911. 0) See R. v. Ryland, infra. R. v. 
 
 (g) R. V. Mabbet, 5 Cox, 339. 8 Edw. Shepherd, L. & C. 147, ante, p." 675.
 
 CHAP. VIII.] Common Laiv. 909 
 
 ' We have to consider the effect of the verdict of the petit jurv on the 
 first two counts. They found a verdict of guilty, but added, " we do so 
 on the ground that if she had applied " (to the guardians) " for relief, 
 she would have had it." The case of R. v. Chandler shews that that 
 finding was not sufficient to maintain the first count of the indictment, 
 which contains the allegation of ability and means on the part of the 
 prisoner. On the second count of the indictment, assuming that count 
 to be good, which we doubt, the allegation is, that the prisoner unlawfully 
 and wilfully did neglect and refuse to find and provide her child with 
 necessary food, &c. ; but there is no allegation that the prisoner had the 
 means of procuring, or could have procured it, and wilfully abstained 
 from doing so. The allegation in that count is not found by the jury. 
 On these grounds we are of opinion that the conviction should be quashed.' 
 This ruling conflicts with R. v. Mabbet {supra) and appears to be no longer 
 law : see the provisions in sect. 12 of the Children Act, 1908 {post, 
 p. 913). 
 
 An indictment for neglecting to provide sufficient food and sustenance 
 for a child of tender years, whereby the child became ill and enfeebled, 
 averred that it was the duty of the prisoner to provide for, give, and 
 administer to the said shild wholesome and sufficient meat, drink, and 
 clothing for the sustenance, &c., of the said child, and that he unlawfully, 
 and contrary to his said duty in that behalf, did omit, neglect, and refuse 
 to provide for, &c., the child : — It was held that the indictment sufficiently 
 alleged the breach of duty, and that the prisoner had the abiUty to provide 
 but omitted to exercise it {k). 
 
 A parent who wilfully withholds necessary food from his child, with 
 the wilful determination by such withholding to cause the death of the 
 child, is guilty of murder, if the child dies, and if he does so negligently 
 but not wilfully, and the child dies in consequence of the neglect, he is 
 guilty of manslaughter (l). 
 
 Medical Aid. — At common law a parent appears to be bound to provide 
 medical attendance for his child (m), and a master bound to provide 
 medical attendance for his apprentice {n). But the obligation is said not 
 to extend to servants (o). When the child is under sixteen want of 
 means is no excuse if the poor-law doctor is available. 
 
 As to liability for death caused by failure to provide medical advice, 
 see ante, p. 674. 
 
 Sect. II. — Of Ill-treatment of Apprentices and Servants. 
 
 In the case of apprentices and servants the common law is sujjple- 
 mented by 24 & 25 Vict. c. 100, s. 26 {p), ' Whosoever, being legally liable (r/), 
 
 (it) R. V. Ryland, L. R. 1 C. C. R. 99. v. Norman, 4 C. & P. 80. ^Vt■nnall v. 
 
 Tlie indictment should aver tliat the child Adney. 3 B. & P. 217. Vide (intc, p. (UiO. 
 
 was of tender years and unable to provide (o) R. i'. .Smith, ubi supra. 
 
 for itself. {p) Taken from 14 & 15 Vict. c. 11, s. 1, 
 
 (/) II. V. Condc, 10 Cox, 547. R. v. with the substitution of the words in italics 
 
 Senior [1899], I Q.B. 283. ante, pp. 072, 674. for the word ' assault.' 
 
 (w) R. V. Senior 11899], 1 Q.B. 283. (q) i.e. it would seem under contract. 
 
 For statutory obligations vide 8 Edw. VII. See ruling of Barton, J., Bclfa.st Assizes, 
 
 c. 67, s. 12, pofil, p. 913. 1901, cited by Clarke Hall, Law relating to 
 
 (n) R. V. Smith, 8 C. & P. 153. ScUeu Children (ed. 1900), p. 40.
 
 910 Of Neglect and Ill-treatment of the Young, &c. [book ix. 
 
 either as a master or mistress, to provide for any apprentice or servant 
 necessary food, clothing, or lodging, shall wilfully and without lawful 
 excuse refvise or neglect to provide the same, or shall unlawfully and 
 maliciously do or cause to he done miy bodily harm to any such apprentice 
 or servant, so that the life of such apprentice or servant shall be endangered, 
 or the health of such apprentice or servant shall have been or shall be 
 likely to be permanently injured, shall be guilty of a misdemeanor, and 
 being convicted thereof shall be liable . . . to be kept in penal 
 servitude . . . (r). This enactment contains no words making it 
 necessary to prove that the apprentice was of tender years or under 
 the dominion or control of the master or mistress. The words ' so 
 that . . . injure' appear to apply both to refusal or neglect to supply 
 food and to causing bodily harm. The enactment is silent as to medical 
 attendance. By sect. 73 guardians of the poor may be required (s) to 
 prosecute offenders under this sect. Where the apprentice or servant is 
 under sixteen the provisions as to evidence, &c., of the Children Act, 
 1908 {fost, p. 918) are apphcable. 
 
 By the Conspiracy and Protection of Property Act, 1875 (38 & 39 
 Vict. c. 86), s. 6, a master is punishable on summary conviction by 
 imprisonment not exceeding six months, with or without hard labour for 
 wilfully and without lawful excuse neglecting to supply necessary food, 
 &c., or medical aid, whereby the health of the servant or apprentice is 
 hkely to be seriously or permanently injured {ss). 
 
 Sect. III. — Dangerous Performances by Young Persons. 
 
 By the Children's Dangerous Performances Act, 1879 (42 & 43 Vict, 
 c. 34), s. 3 . . . ' Where in the course of a j)ublic exhibition or per- 
 formance, which in its nature is dangerous to the life or limb of a child 
 under such age as aforesaid ' (under fourteen years) ' taking part therein, 
 any accident causing actual bodily harm occurs to any such child, the 
 employer of such child shall be liable to be indicted as having committed 
 an assault, and the Court before whom such employer is convicted on 
 indictment shall have the power of awarding compensation not exceeding 
 £20, to be paid by such employer to the child, or to some person named 
 by the Court on behalf of the child, for the bodily injury so occasioned, 
 provided that no person shall be punished twice for the same offence (t). 
 
 By sect. 4 of the Act, if the child is apparently of the age alleged, it 
 Ues on the accused to prove that the child is not of that age (u). 
 
 By the Dangerous Performances Act, 1897 (60 & 61 Vict. c. 52) s. 1, 
 
 (r) For other punishments see 54 & 55 cumulative on or alternative to the punish- 
 
 Vict. c. 69, s. 1, ante, pp. 211, 212. The ment. The earlier part of the section 
 
 ■words omitted were repealed in 1892. imposes a penalty on summary conviction 
 
 (s) Tliis does not exclude prosecutions for causing a child under fourteen to take 
 
 by other persons. Caswell v. Morgan, 28 part in a public performance, whereby in 
 
 L. J. M. C. 209. Cf. 8 Edw. VII. c. 67, the opinion of the Court the life or hmbs 
 
 s. 34, fost, p. 921. of the child shall be endangered. 
 
 {ss) The accused may elect to be tried (u) Cf. 8 Edw. VII. c. 67, s. 123, post, 
 
 on indictment, vide ante, p. 17. p. 922. As to training children under 
 
 (t) It is difficult to see how this offence sixteen for exhibitions of a dangerous 
 
 should be described in an indictment, and nature, see 3 Edw. VII. c. 45, s. 3 (5). 
 it is not clear whether the compensation is 
 
 i
 
 CHAP. VIII.] Exposing or Abandoning Children under Two. 911 
 
 ' The Children's Dangerous Performances Act, 1879 (supra) shall apply in 
 the case of any male young person under the age of sixteen years and any 
 female young person under the age of eighteen years in like manner as it 
 applies in the case of a child under the age of fourteen years ' (v). 
 
 By sect. 2 (1) ' Except where an accident causing actual bodily harm 
 occurs to any child or young person no prosecution or other proceeding 
 shall be instituted for an offence against the Children's Dangerous Per- 
 formances Act, 1879, as amended by this Act without the consent in 
 writing (w) of the chief officer of police (x) of the area in which the offence 
 is committed. In the case of persons under 16 the provisions as to 
 evidence of the Children Act, 1908 [post, p, 918) are applicable. 
 
 Sect. IV. — Exposing or Abandoning Children under Two. 
 
 By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), 
 s. 27 (y), ' Whosoever shall unlawfully abandon or expose (z) any child, 
 being under the age of two years, whereby the life of such child shall be 
 endangered, or the health of such child shall have been or shall be likely 
 to be permanently injured, shall be guilty of a misdemeanor, and being 
 convicted thereof shall be liable . . . to be kept in penal servitude ... (a). 
 
 The provisions of 8 Edw. VII. c. 67, post, p. 918, as to presumption of 
 age, evidence, &c., apply to proceedings under this section. 
 
 The prisoners were convicted on an indictment under sect. 27, which 
 charged that they did abandon and expose a child, under the age of two 
 years, whereby the life of the child was endangered. One of the prisoners 
 was the mother of the child, which was illegitimate, and both prisoners 
 put the child in a hamper at S., wrapped up in a shawl, and packed with 
 shavings and cotton wool, and the mother took the hamper to the booking 
 office of the railway station atM., and left it, having paid the carriage of 
 it to G. The hamper was addressed to the lodgings of the father of the 
 child at G. She told the clerk at the office to be very careful of it, and 
 to send it by the next train, which was due in ten minutes from that time. 
 Upon the address were the words written ' With care ; to be delivered 
 immediately.' The hamper was carried by the passenger train, and was 
 delivered at its address in a little less than an hour from leaving M. On 
 its being opened the child was found alive. The child was taken by the 
 relieving ofl&cer the same evening to the union workhouse, where it lived 
 for three weeks afterwards, when it died from causes not attributable to 
 the conduct of the prisoners, or either of them. It was proved to have 
 
 {v) Vide supra, 910. may be, or be likely to be, endangered. See 
 
 (w) It is submitted that t liis means con- R. v. Hogan, 2 Den. 277 ; R. v. Cooper, 
 sent previous to the institution of the pro- 1 Den. 459, 2 C. & K. 870 ; R. v. Phillpot, 
 ceeding. See Thorpe v. Priestnall [1897], 1 Dears. 179; R. v. Gray, D. & B. 303, 
 1 Q.B. 159, decided on a similar provision which shew the necessity for tliis enact- 
 in the Simday Observance Prosecution Act, ment. In R. v. Hogan, an indictment at 
 1871 (34 & 35 Vict. c. 87). common law for abandoning was held bad 
 
 (x) In the City of London the Conimis- because it did not aver injury to the child 
 
 sioner of City Police, and elsewhere in nor means in the parent. 
 
 England delincd in tlic Police Act, 1890 {z) As to exposure amounting to assault, 
 
 (53 & 54 Vict. c. 45). vide post, p. 912. 
 
 (y) This section was new law in 1861, and («) For other punishments see 54 & 55 
 
 is intended to provide for cases where child- Vict. c. 69, s. 1, anfe, pp. 211, 212. The 
 
 ren ai'c abandoned or exposed under such words omitted are repealed, 
 ciicumstauces that their lives or health
 
 912 Of Neglect and Ill-treatment of the Young, &c. [book ix. 
 
 been a delicate child : — On a case reserved a conviction on these facts 
 was upheld (6). 
 
 The prisoner was the father of a child under two years of age. The 
 child was in the custody of the mother, who was living apart from the 
 prisoner. The mother brought the child to him and left it outside the 
 door of his house at about seven o'clock p.m. He was inside, and she 
 called out ' Bill, here 's your child, I can't keep it ; I am gone.' She left, 
 and the prisoner afterwards came out of the house, stepped over the child, 
 and went away. An hour and a half afterwards the child was still lying 
 in the road outside the wicket of the garden ; it was dressed in short 
 clothes, and had nothing on its head. The prisoner's attention was called 
 to the child when he came home, after a further interval of an hour and a 
 half. He said that he should not touch it, and that those that brought 
 it there must come and take it. The child was found at one a.m. lying cold 
 and stiff : — On a case reserved it was held, that the prisoner was rightly 
 convicted of having abandoned and exposed the child, within the meaning 
 of sect. 27 (c). 
 
 In R. V. Renshaw [d), a mother left her child, ten days old, at the 
 bottom of a dry ditch, by which there was a path, and a lane sejaarated 
 from the ditch by a hedge ; Parke, B., is reported to have said that 
 ' there were no marks of violence on the child, and it does not appear in 
 the result that the child actually experienced any inconvenience, as it 
 was providentially found soon after it was exposed, and therefore, 
 although it is said in some of the books that an exposure to the inclemency 
 of the weather may amoujit to an assault, yet, if that be so at all, it can 
 only be when the person suffers a hurt or injury of some kind or other 
 from the exposure (e), The acts made the subject of indictment in that 
 case now fall within 24 & 25 Vict. c. 100, s. 27, and Part II. of the 
 Children Act, 1908, fost, p. 913, and the provisions of that Act as to 
 evidence, &c. {fost, p. 918) apply. 
 
 Sect. V. — Cruelty to Children. 
 The common law liability for neglect of children has been stated, aw^e, 
 
 p. 907. 
 
 The history of legislation on the subject is as follows. By sect, 
 37 of the Poor Law Amendment Act, 1868 (31 & 32 Vict. c. 122), it was 
 made an offence for a parent wilfully to neglect to provide adequate food, 
 clothing, medical aid, or lodging for his child being in his custody under 
 the age of fourteen, whereby the health of such child shall have been or 
 shall be likely to be seriously injured (./"). This section was repealed in 
 1889 by 52 & 53 Vict. c. 44, which by sect. 1 made it a misdemeanor for 
 
 abandon it, as that is an unlawful act, 
 which she can neither justify nor excuse, 
 she is guilty of battery. C. S. G. 
 
 (e) Cf. R. V. Ridley, 2 Camp. 650. 
 
 (/) See R. V. Downes, 1 Q.B.D. 25; R. 
 V. Morby 8 Q.B.D. 571, ante, p. 674, as to 
 liability to indictment for manslaughter for 
 neglect to provide medical aid to a cliild. 
 And as to servants and apprentices, vide 
 ante, p. 909. 
 
 {&) R.w.Falkingham,L.R. 1 C. C. R. 222. 
 
 (c) R. V. Wliite, L. R. 1 C. C. R. 311. 
 
 (d) 2 Cox, 285. ' This case is open to 
 doubt on the ground that it seems to make 
 the question, whether the act of the prisoner 
 was a battery or not, depend on the result 
 of that act ; whereas, it is conceived that 
 that act was either a battery or not a 
 battery at the moment it was committed. 
 It is confidently submitted that the instant 
 a mother deposits a child with intent to
 
 cHAP.viii.] Of Cruelty to Children, 913 
 
 a person over sixteen, having the custody, control, or charge of a child 
 under sixteen wilfully to ill-treat, neglect, abandon, or expose such child in a 
 manner likely to cause such child unnecessary suffering or injury to its 
 health. 
 
 The Act of 1889 was repealed in 1894 and re-enacted without alteration 
 as sect. 1 (1) of 57 & 58 Vict. c. 41. 
 
 Sect. 1 (1) of the Act of 1894 was repealed in 1904 and re-enacted 
 without alteration as sect. 1 (1 ) of 4 Edw. VII. c. 15, 
 
 The Acts of 1889, 1894. and 1904 contain no reference to medical aid ; 
 but in R. V. Senior {<j) deliberate omission to obtain necessary medical or 
 surgical aid was held to fall within the words ' likely to cause unnecessary 
 sutfering, &c.' 
 
 Sect. 1 of the Act of 1904 was in 1908 repealed and re-enacted as sect. 
 12 of the Children Act, 1908 (8 Edw. VII. c. 67), in which section reference 
 to medical aid is again introduced (sub-sect. 1). 
 
 Part II. of the Children Act, 1908 (8 Edw. VII. c. 67), deals with 
 the prevention of cruelty to children and young persons. 
 
 By sect. 12, ' (1) If any person over the age of sixteen years, who has 
 the custody, charge, or care (/?) of any child or young person, wilfully 
 assaults, ill-treats, neglects, abandons, or exposes such child or young 
 person, or causes or procures such child or young person to be assaulted, 
 ill-treated {i), neglected, abandoned, or exposed, in a manner likely to 
 cause such child or young person unnecessary suffering or injury to his 
 health (including injury to or loss of sight, or hearing, or limb, or organ 
 of the body, and any mental derangement), that person shall be guilty of 
 a misdemeanor, and shall be liable — 
 
 (a) on conviction on indictment, to a fine not exceeding one hundred 
 pounds, or alternatively, or in default of payment of such fine, 
 or in addition thereto, to imprisonment, with or without hard 
 labour, for any term not exceeding two years ; and 
 (/>) on summary conviction, to a fine not exceeding twenty-five 
 pounds, or alternatively, or in default of payment of such fine, 
 or in addition thereto, to imprisonment, with or without hard 
 labour, for any term not exceeding six months (y) ; 
 and for the purposes of this section a parent or other person legally liable 
 to maintain a child or young person shall be deemed to have neglected 
 him in a manner likely to cause injury to his health if he fails to ])rovide 
 adequate food, clothing, medical aid, or lodging for the child or young 
 person, or if, being unable otherwise to provide such food, clothing, 
 medical aid, or lodging, he fails to take steps to procure the same to be 
 provided under the Acts relating to the relief of the poor (k). 
 
 ' (2) A person may be convicted of an offence under this section, either 
 
 (r/) [1809] 1 Q.B. 283, aw/e, p. G74 . 0) '^"'>*' section thus far rc-cnacts 4 
 
 (/() Tins is a matter of fact for the jury Edw. VII. c. 15, s. 1 (1) merely altering 
 
 subject to the defiuitinii in s. 38 (2). post, the position of the words italicised. The 
 
 p. 921. R. V. Cox [1898], 1 Q.B. 79, decided defendant may elect to be Iried by a jury. 
 
 on the Act of 1894. 24 & 43 Vict. c. 49, s. 17, ante, p. 17. 
 
 (i) Qmrre wiiether direct evidence is (k) A re-enactment of 4 Edw. VII, c. 15, 
 
 essential to prove this. R. v. Rrintoii s. 23 (2). As to common law, vide ante 
 
 111 C<>nt. Cr. Ct. Sess. Pap. 309, Dav, .1. p. 907. 
 
 Contra R. r. Ryland L. R. 1 C. C. R." 99. 
 
 VOL. I. 3 N
 
 914 Of Neglect and lU-treatment of the Young, &c. [Book ix. 
 
 on indictment or by a Court of summary jurisdiction, notwithstanding that 
 actual suffering or injury to health, or the likelihood of such suffering or 
 injury to health, was obviated by the action of another person. 
 
 ' (3) A person may be convicted of an offence under this section, either 
 on indictment or by a Court of summary jurisdiction, notwithstanding 
 the death of the child or young person in respect of whom the offence is 
 committed {I). 
 
 ' (4) Upon the trial of any person over the age of sixteen indicted for 
 the manslaughter of a child or young person of whom he had the custody 
 charge or care, it shall be lawful for the jury, if they are satisfied that the 
 accused is guilty of an offence under this section in respect of such child or 
 young person, to find the accused guilty of such offence ' (m). 
 
 In R. V. Connor [1908] 2 K.B. 26, it was held that the mere omisssion 
 by a father to pay any part of his earnings towards the support of 
 hii child might constitute wilful neglect within 4 Edw. VII. c. 15, s. 1, 
 although the child was living with its mother and the father was living 
 apart from her. In Cole v. Pendleton (60 J.P. 359), where the father was 
 living with his wife, a similar ruling was given. 
 
 By sub-sect. (5), 'If it is proved that a person convicted under this 
 section was directly or indirectly interested in any sum of money accruable 
 or payable in the event of the death of the child or young person, and 
 had knowledge that such sum of money was accruing or becoming 
 payable, then 
 
 (a) m the case of a conviction on indictment, the Court may in its 
 
 discretion .either increase the amount of the fine under this 
 
 section so that the fine does not exceed two hundred pounds ; 
 
 or, in lieu of aivarding any other 'penalty under this section, 
 
 sentence the person to penal servitude for any term not 
 
 exceeding five years (n) ; and 
 
 (h) in the case of a summary conviction, the Court in determining the 
 
 sentence to be awarded shall take into consideration the fact 
 
 that the person was so interested and had such knowledge (o). 
 
 ' (6) A person shall be deemed to be directly or indirectly interested 
 
 in a sum of money under this section, if he has any share in or any benefit 
 
 from the payment of that money, though he is not a person to whom it is 
 
 legally payable (/>). 
 
 '(7) A copy of a policy of insurance, certified by an officer or agent of 
 the insurance company granting the policy, to be a true copy, shall in any 
 proceedings under this section be prima facie evidence that the child or 
 young person therein stated to be insured has been in fact so insured, and 
 that the person in whose favour the policy has been granted is the person 
 to whom the money thereby insured is legally payable (q). 
 
 ' (8) An offence under this section is in this part of this Act referred 
 to as an offence of cruelty.' 
 
 (I) Taken from 4 Edw. VII., c. 15, s. 1 section is in substance taken from 4 
 
 (2). Edw. VII., c. 15, s. 1 (4); as to summary 
 
 (m) Taken from 4 Edw. VII., c. 15, s. 1 convictions it is new. 
 
 (3). ip) Taken from 4 Edw. VII.. c. 15, s. 1 
 
 (n) Nor less than three years. 54 & 55 (5). 
 
 Vict. c. f)9, s. 1, ante, p. 211. {q) Taken from 4 Edw. VII., c. 15, s. 1 (G) 
 
 (o) As to convictions on indictment this substituting ' Section ' for ' Act.' 
 
 H
 
 CHAP, viii.i Of Cruelty to Children. 915 
 
 By sect. 13 (r), ' Where it is proved that the death of an infant under 
 three years of age was caused by suffocation (not being suffocation caused 
 by disease or the presence of any foreign body in the throat or air passages 
 of the infant), whilst the infant was in bed with some other person over 
 sixteen years of age. and that that other person was at the time of going to 
 bed under the influence of drink, that other person shall be deemed to have 
 neglected the infant in a manner likely to cause injury to its health within 
 the meaning of this part of this Act.' 
 
 Sect. 19 (based on 4 Edw. VII. c. 15, s. 4) provides for the arrest by a 
 constable for offences under this part of the Act or within Sched. 1, fost, 
 committed in his view or persons who have committed or are reasonably 
 suspected of having committed such offences if the constable cannot get 
 their names and addresses or has reasonable ground for believing that they 
 will abscond. 
 
 Sect. 20 provides for the detention in a place of safety of children or 
 young persons against whom such offences have been committed or there 
 is reason to believe have been committed. 
 
 By sect. 21, ' (1) Where a person having the custody charge or care 
 of a child or young person has been — 
 
 (a) convicted of committing in respect of such child or young person 
 an offence under this part of this Act or any of the offences 
 mentioned in the First Schedule to this Act ; or 
 (6) committed for trial for any such offence ; or 
 (c) bound over to keep the peace towards such child or young 
 person, 
 by any Court, that Court, either at the time when the person is so con- 
 victed, committed for trial, or bound over, and without requiring any new 
 proceedings to be instituted for the purpose, or at any other time, and also 
 any petty sessional Court before which any person may bring the case, 
 may, if satisfied on inquiry that it is expedient so to deal with the child 
 or young person, order that the child or young person be taken out of the 
 custody, charge, or care of the person so convicted, committed for trial, 
 or bound over, and be committed to the care of a relative of the child or 
 young person, or some other fit person, named by the Court (such relative 
 or other person being willing to undertake such care), until he attains 
 the age of sixteen years, or for any shorter period, and that Court or any 
 Court of like jurisdiction may of its own motion, or on the application of 
 any person, from time to time by order renew, vary, and revoke any 
 such order [s). 
 
 '(2) If the child or young person has a parent or legal guardian no order 
 shall be made under this section unless the parent or legal guardian has 
 been convicted of or committed for trial for the offence, or is under 
 committal for trial for having been, or has been proved to the satisfaction 
 of the Court making the order to have been, party or privy to the offence, 
 
 (r) S. 14 relates to begginji. S. l.'j relates morals of chiklrcn, are dealt witli post, 
 
 to exposing children to risk of burning or pp. 952, 953. 
 
 scalding, and specially jjreserves liability for (.s) A re-enactment of 4 Edw. VII., c. 15. 
 
 any indictable offence constituted by the s. 6(1). Ai)])arently no casts can be given 
 
 acts referred to in the section. Ss. IG, 17, on varying an order. Re OHalloran, 70 
 
 and 18, which relate to the corruption of the J. P. 8. 
 
 3n2
 
 016 Of Neglect and Ill-treatment of the Young, &c. [Book IX. 
 
 or has been bound over to keep the peace towards the child or young 
 person, or cannot he found (t). 
 
 ' (3) Every order under this section shall be in writing, and any such 
 order may be made by the Court in the absence of the child or young 
 person ; and the consent of any person to undertake the care of a child 
 or young person in pursuance of any such order shall be proved in such 
 manner as the Court may think sufficient to bind him. 
 
 ' (4) Where an order is made under this section in respect of a person 
 who has been committed for trial, then, if that person is acquitted of the 
 charge, or if the charge is dismissed for want of prosecution, the order 
 shall forthwith be void, except with regard to anything that may 
 have been lawfully done under it (m). 
 
 '(7) Nothing in this section shall be construed as preventing the Court, 
 instead of making an order as respects a child under this section, from 
 ordering the child to be sent to an industrial school in any case in which 
 the Court is authorised to do so under Part IV. of this Act {v). 
 
 By sect. 22 ' (1) Any person to whose care a child or young person 
 is committed under this part of this Act shall, whilst the order is in force, 
 have the like control over the child or young person as if he were his 
 parent, and shall be responsible for his maintenance, and the child or 
 young person shall continue in the care of such person, notwithstanding 
 that he is claimed by his parent or any other person, and if any person 
 (a) Knowingly assists or induces, directly or indirectly, a child or 
 
 young person to escape from the person to whose care he is 
 
 so committed ; or 
 (6) Knowingly harbours, conceals, or prevents from returning to such 
 
 person, a child or young person who has so escaped, or 
 
 knowingly assists in so doing ; 
 he shall on summary conviction be liable to a fine not exceeding £20 or 
 to be imprisoned, with or without hard labour, for any term not exceeding 
 two months. 
 
 ' (2) Any Court having power so to commit a child or young person 
 shall have power to make the like orders on the parent of or other person 
 liable to maintain the child or young person to contribute to his main- 
 tenance during such period as aforesaid, and such orders shall be enforce- 
 able in like manner as if the child or young person were ordered to be sent 
 to a certified school {w) under Part IV. of this Act, but the limit on the 
 amount of the weekly sum which the parent or such other person may 
 be required under this section to contribute shall be one pound a week 
 instead of the limit fixed under Part IV. 
 
 ' (3) Any such order may be made on the complaint or application of 
 the person to whose care the child or young person is for the time being 
 committed, and either at the time when the order for the committal of the 
 child or young person to his care is made, or subsequently, and the sums 
 
 [t) A re-enactment of 4 Edw. VII., c. 15, 
 s. 6 (2) with amendments. 
 
 (m) Sub-ss. 5, 6, empower the Secretary 
 of State to discharge absolutely or on con- 
 ditions, or to authoiise emigration of the 
 
 child or young person. 
 
 (r) Vide ante, pp. 230 et seq. 
 
 (iv) i.e. to an industrial school or refor- 
 matory, see ss. 44 et seq.
 
 CHAP. VIII.] Of Cruelty to Children. 917 
 
 contributed by the parent or such other person shall be paid to such person 
 as the Court may name, and be applied for the maintenance of the child 
 or young person. 
 
 ' (4) Where an order under this part of this Act to commit a child or 
 young person to the care of some relative or other person is made in 
 respect of a person who has been committed for trial for aii offence, the 
 Court shall not have power to make an order under this section on the 
 parent or other person liable to maintain the child or young person pricr 
 to the trial of the person so committed. 
 
 ' (5) Any Court making an order under this section for contribution by 
 a parent or such other person may in any case where there is any pension 
 or income payable to such parent or other person and capable of being 
 attached, after giving the person by whom the pension or income is 
 payable an opportunity of being heard, further order that such part as 
 the Court may see fit of the pension or income be attached and be paid to 
 the person named by the Court. Such further order shall be an authority 
 to the person by whom such pension or other income is payable to make 
 the payment so ordered, and. the receipt of the person to whom the 
 payment is ordered to be made shall be a good discharge to such first- 
 mentioned person. 
 
 ' (6) An order under this section may be made by any Court before 
 which a person is charged with an offence under this part of this Act, and 
 without regard to the place in which the person to whom the payment 
 is ordered to be made may reside ' {x). 
 
 By sect. 23 iy), ' (1) In determining on the person to whose care the 
 child or young person shall be committed under this part of this Act, 
 the Court shall endeavour to ascertain the religious persuasion to which 
 the child or young person belongs, and shall, if possible, select a person 
 of the same religious persuasion, or a person who gives such undertaking 
 as seems to the Court sufficient that the child or young person shall be 
 brought up in accordance with its own religious persuasion, and such 
 religious persuasion shall be specified in the order. 
 
 ' (2) In any case where the child or young person has been placed 
 pursuant to any such order with.a person who is not of the same religious 
 persuasion as that to which the child or young person belongs, or who 
 has not given such undertaking as aforesaid, the Court which made the 
 order, or any Court of like jurisdiction, shall, on the application of 
 any person in that behalf, and on its appearing that a fit person, who is of 
 the same religious persuasion, or who will give such undertaking as afore- 
 said, is willing to undertake the care of the child or young person, make 
 an order to secure his being placed with a person who either is of the same 
 religious persuasion or gives such undertaking as aforesaid. 
 
 ' (3) Where a child or young person has been placed with a ])erson who 
 gives such undertaking as aforesaid, and the undertaking is not observed, 
 the child or young person shall be deemed to liave been placed with a 
 person not of the same religious persuasion as that to which the child 
 belongs, as if no such undertaking had been given (2). 
 
 (x) Except as to the parts in italics a c. 1.5, s. 8. 
 re-enactment of 4 Edw. VII., c. 15, s. 7. (z) S. 24 gives power to justices on sworn 
 
 (y) This section re-enacts 4 Edw. VII., infi.riuation to issue warrants to search for
 
 918 Of Neglect and Ill-treatment of tJie Young, &c. [book ix. 
 
 By sect. 26, ' Where it appears to the Court by or before which any 
 person is convicted of an offence of cruelty, or of any of the offences 
 mentioned in the First Schedule to this Act, that that person is a parent 
 of the child or young person in respect of whom the offence was committed, 
 or is living with the parent of the child or young person, and is a habitual 
 drunkard within the meaning of the Inebriates Acts, 1879 to 1900 [a), 
 the Court, in lieu of sentencing that person to imprisonment, may, if 
 it thinks fit, make an order for his detention in a retreat under the 
 said Acts, the licensee of which is willing to receive him, for any 
 period named in the order, not exceeding two years, and the order 
 shall have the like effect, and copies thereof shall be sent to the 
 local authority and Secretary of State in like manner, as if it were an 
 application duly made by that person and duly attested by a justice 
 under the said Acts ; and the Court may order an officer of the Court or 
 constable to remove that person to the retreat, and on his reception the 
 said Acts shall have effect as if he had been admitted in pursuance of an 
 application so made and attested as aforesaid : Provided that— 
 
 (a) an order for the detention of a person in a retreat shall not be 
 
 made under this section unless that person, having had such 
 
 notice as the Court deems sufficient of the intention to allege 
 
 habitual drunkenness, consents to the order being made ; and 
 
 (6) if the wife or husband of such person, being present at the hearing 
 
 of the charge, objects to the order being made, the Court 
 
 shall, before making the order, take into consideration any 
 
 representation made to it by the wife or husband ; and 
 
 (c) before making the order the Court shall, to such extent as it 
 
 may deem reasonably sufficient, be satisfied that provision 
 
 will be made for defraying the expenses of such person during 
 
 detention in a retreat ; and 
 
 {d) nothing in this section shall affect any power of the Court to 
 
 order the person convicted to be detained in a certified 
 
 inebriate reformatory (6). 
 
 Evidence and Procedure. — By sect. 27, 'As respects proceedings against 
 
 any person for an offence under this part of this Act, or for any of the 
 
 ofEences mentioned in the First Schedule to this Act, the Criminal 
 
 Evidence Act, 1898 (c), shall apply as if in the schedule to that Act a 
 
 reference to this part of this Act and to the First Schedule of this Act 
 
 were substituted for the reference to the Prevention of Cruelty to 
 
 Children Act, 1894 {d). 
 
 By sect. 28 ' (1) Where a justice is satisfied by the evidence of a 
 duly qualified medical practitioner that the attendance before a Court of 
 
 children or young persons alleged to have 
 suffered, or to be suffering, ill-treatment, 
 or to have been, or to be, subject to the 
 offences mentioned in the first schedule to 
 the Act. S. 25 relates to visitation of 
 homes for children. 
 
 (a) 42 & 43 Vict. c. 19 ; 51 & 52 Vict. 
 c. 19. Vide ante, p. 244. 
 
 (b) A re-enactment of 4 Edw. VII., c. 15. 
 s. 11. 
 
 (c) 61 & 61 Vict. c. 36, post Bk. xiii. c. v. 
 
 {d) A re-enactment of 4 Edw. VII., c. 15, 
 s. 12. On the trial of an indictment 
 against a husband and wife under the 
 corresponding section of 57 & 58 Vict. c. 41, 
 it was held that if either of them elected 
 to give evidence, the case as against the 
 other was not over until such evidence 
 had been heard. R. v. Martin, 17 Cox, 36, 
 Wills, J. See R. v. George, 73 J. P. 11.
 
 CHAP. VIII.] Of CrucUtj to Children. 919 
 
 any child or young person, in respect of whom an offence under this 
 part of this Act, or any of the offences mentioned in the First Schedule 
 to this Act, is alleged to have been committed, would involve serious 
 danger to the life or health of the child or young person, the justice may 
 take in writing the deposition of the child or young person on oath, and 
 shall thereupon subscribe the deposition and add thereto a statement of 
 his reason -for taking the deposition, and of the day when and place where 
 the deposition was taken, and of the names of the persons (if any) present 
 at the taking thereof. 
 
 ' (2) The justice taking any such deposition shall transmit it with his 
 statement — 
 
 (a) if the deposition relates to an offence for which any accused 
 
 person is already committed for trial, to the proper officer of 
 the Court for trial at which the accused person has been 
 committed ; and 
 
 (b) in any other case, to the clerk of the peace of the county or 
 
 borough in which the deposition has been taken ; 
 and the clerk of the peace to whom any such deposition is transmitted 
 shall preserve, file, and record the deposition ' (e). 
 
 By sect. 29, ' Where, on the trial of any person on indictment for an 
 offence of cruelty, or any of the offences mentioned in the First Schedule 
 to this Act, the Court is satisfied by the evidence of a duly qualified 
 medical practitioner that the attendance before the Court of any child 
 or young person in respect of whom the offence is alleged to have been 
 committed would involve serious danger to the life or health of the child 
 or young person, any deposition of the child or young person taken under 
 the Indictable Offences Act, 1848 (11 & 12 Vict! c. 42) or this part of this 
 Act, shall be admissible in evidence either for or against the accused 
 person without further proof thereof — 
 
 (a) if it purports to be signed by the justice by or before whom it 
 
 purports to be taken ; and 
 
 (6) if it is proved that reasonable notice of the intention to take the 
 
 deposition has been served upon the person against whom it 
 
 is proposed to use it as evidence, and that that person or his 
 
 counsel or solicitor had, or might have had if he had chosen to 
 
 be present, an opportunity of cross-examining the child or 
 
 young person making the deposition (/). 
 
 By sect. 30, ' Where, in any proceeding against any person for an 
 
 offence under this part of this Act, or for any of the offences mentioned 
 
 in the First Schedule to this Act (f/), the child in respect of whom the 
 
 offence is charged to have been committed, or any other child of tender 
 
 years who is tendered as a witness, does not in the opinion of the Court 
 
 understand the nature of an oath, the evidence of that child may be 
 
 received, though not given upon oath, if, in the opinion of the Court, 
 
 the child is possessed of sufficicjit intelligence to justify the reception of 
 
 the evidence, and understands the duty of speaking the truth ; and the 
 
 (e) A re-enactment of 4 Edw. VII. e. 15, Darling, J. 
 s. 13. {<j) Including indecent assault (24 & 25 
 
 (/) A re-enactment of 4 Edw. VII. c. 15, Vict. c. 100, a. 52). /w.sY. jip. 924, 955. R. v. 
 
 8. 14. See R. v. Katz, G4 J. P. 807, Paul, 25 Q.B.D. 202, is no longer law.
 
 920 Of Neglect and Ill-treatment of the Young, &c. [book ix. 
 
 evidence of the child, though not given on oath, liut otherwise taken and 
 reduced into writing in accordance with the provisions of section seventeen' 
 of the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), or of this part of 
 this Act, shall be deemed to be a deposition within the meaning of that 
 section and that part respectively {h) : — 
 Provided that — 
 (a) A person shall not be liable to be convicted of the offence unless 
 the testimony admitted by virtue of this section and given on 
 behalf of the prosecution is corroborated by some other 
 material evidence in support thereof implicating the 
 accused Qih) ; and 
 (6) Any child, whose evidence is received as aforesaid and who 
 wilfully gives false evidence under such circumstances that, 
 if the evidence had been given on oath, he would have been 
 guilty of perjury, shall, subject to the provisions of this Act, 
 be liable on summary conviction to be adjudged such punish- 
 ment as might have been awarded had he been charged with 
 perjury and the case dealt with summarily under section ten 
 of the Summary Jurisdiction Act, 1879 {i). 
 By sect. 31, ' Where in any ^proceedings with relation to an offence 
 under this part of this Act, or any of the offences mentioned in the First 
 Schedule to this Act, the Court is satisfied that the attendance before the 
 Court of any child or young person in resj^ect of whom the offence is 
 alleged to have been committed is not essential to the just hearing of the 
 case, the case may be proceeded with and determined in the absence of 
 the child or young person ' {j). 
 
 By sect. 32, ' (1) Where a person is charged with committing an 
 offence under this part of this Act, or any of thr? offences mentioned in 
 the First Schedule to this Act, in respect of two or more children or 
 young persons, the same information or summons may charge the offence 
 in respect of all or any of them, but the person charged shall not be liable 
 to a separate penalty for each child or young person excej)t upon separate 
 informations. 
 
 ' (2) The same information or summons may also charge any person 
 as having the custody, charge, or care, alternatively or together, and may 
 charge him with the offences of assault, ill-treatment, neglect, abandon- 
 ment, or exposure, together or separately, and may charge him with 
 committing all or any of these offences in a manner likely to cause 
 unnecessary suffering or injury to health, alternatively or together, but 
 when those offences are charged together the person charged shall not be 
 liable to a separate penalty for each (k). 
 
 ' (3) A person shall not be summarily convicted of an offence under 
 this part of this Act. or of an offenr-e mentioned in the First Schedule 
 to this Act, unless the offence was wholly or partly committed within six 
 months before the information was laid ; but, subject as aforesaid, 
 
 {h) This part gets rid of the difficuUies (j) A re-enactment of 4 Edw. VII. c. 15, 
 
 raised by R. v. Pruntey, 16 Cox, 344. s. 16. 
 
 {hh) See R. V. Everett, 2 Qx. App. R. 130. [k) As to charging neglect and assault 
 
 {i) A re-enactment of 4 Edw. VII. c. 15, of an imbecile son, see R, v, Watson, 30 
 
 s. 15. Ir. L. T. Rep. 135.
 
 CHAP. VIII.] Of Cruelty to Children. 921 
 
 evidence may be taken of acts constituting, or contributing to constitute, 
 the offence, and committed at any previous time. 
 
 ' (4) When an offence under this part of this Act, or any offence 
 mentioned in the First Schedule to this Act, charged against any person 
 is a continuous offence, it shall not be necessary to specify in the inform- 
 ation, summons, or indictment, the date of the acts constituting the 
 offence ' (/). 
 
 By sect. 33, 'When, in pursuance of this part of this Act, any person 
 is convicted by a Court of summary jurisdiction of an offence, or when in 
 the case of any application to a Court of summary jurisdiction under 
 this part of this Act for an order committing a child or young person to 
 the care of any person, or for an order for contribution to the maintenance 
 of a child or young person, any party thereto thinks himself aggrieved 
 by any order or decision of the Court, he may appeal against such a 
 conviction, or order, or decision to quarter sessions (m). 
 
 By sect. 34 ' (1) A board of guardians may institute any proceedings 
 under this part of this Act for any offence in relation to a child or young 
 person and may, out of their common fund, pay the reasonable costs and 
 expenses of any proceedings so instituted by them (n). 
 
 ' (2) The like powers of instituting proceedings may, in London, be 
 also exercised by a local authority for the purposes of Part I of this Act, 
 and the expenses of such proceedings shall be defrayed as expenses of 
 the authority under Part I ' (o). 
 
 By sect. 35, ' Every misdemeanor under this part of this Act shall be 
 deemed to be an offence within, and subject to, the provisions of the 
 Vexatious Indictments Act, 1859 (/)). and any Act amending that 
 Act' {q). 
 
 By sect. 36, ' Section ten of the Poor Law Act, 1879, shall be amended 
 so as to include in it as one of the associations or societies to which a board 
 of guardians may, with the consent of the Local Government Board, 
 subscribe, any society or body corporate for the prevention of cruelty to 
 children.' 
 
 By sect. 37, 'Nothing in this part of this Act shall be construed to take 
 away or affect the right of any parent, teacher, or other person having 
 the lawful control or charge of a child or young person to administer 
 punishment to such child or young person ' (r). 
 
 Interpretation. — By sect. 38. ' (1) In this Part of this Act, unless the 
 context otherwise requires, the expression "fit person," in relation to the 
 care of any child or young person, includes any society or body corporate 
 established for the reception or protection of poor children or the 
 prevention of cruelty to children. 
 
 (2) ' For the purposes of this part of this Act 
 'Any person who is the parent or legal guardian of a child or young 
 
 (/) A re-enactment of 4 Edw. VII. c. 1.5, of 4 Edw. VII., c. 15. s. 21. S. 36 extends 
 
 s. 18. s. 10 of the Poor Law Act, 1879. 
 
 (m) A re-enactment of 4 p]dw. VII. c. l/i, (;>) 22 & 23 Vict. c. 17, post. Vol. ii. 
 
 s. 19. As to costs see 8 Edw. VII. c. I.'), p. 1927. 
 
 post. Vol. ii. p. 2039. (q) A re-enactment of 4 Edw. VII. c. 
 
 {n) As to costs of prosecution and dc- If), s. 2o. 
 
 fence, vide post. Vol. ii. ])p. 2039. 2048. (r) A re-enactment of 4 Edw. VII. c. 
 
 (o) A re-enactment with modifications 15, s. 28. Vide ante, p. 767.
 
 922 Of Neglect and Ill-treatment of the Young, &c. [book ix. 
 
 person, or who is legally liable to maintain a child or young person, shall be 
 presumed to have the custody of the child or young person, and as 
 between father and mother the father shall not be deemed to have ceased 
 to have the custody of the child or young person by reason only that he 
 has deserted, or otherwise does not reside with, the mother and child or 
 young person ; and 
 
 ' Any j)erson to whose charge a child or young person is committed 
 
 by any person who has the custody of the child or young 
 
 person shall be presumed to have charge of the child or young 
 
 person ; and 
 ' Any other person having actual possession or control of a child or 
 
 young person shall be presumed to have the care of the child 
 
 or young person. 
 (3) ' This part of this Act shall apply in the place of a child or young 
 person who has before the commencement of this Act been committed to 
 the care of a relative or other fit person, bv an order made under the 
 Prevention of Cruelty to Children Act, 1904' ("4 Edw. VII. c. 15), ' as if the 
 order had been made under this part of this Act.' 
 
 By sect. 123, ' Where a person, whether charged with an offence or 
 not, is brought before any Court otherwise than for the purpose of giving 
 evidence, and it appears to the Court that he is a child or young person, 
 the Court shall make due inquiry as to the age of that person, and for 
 that purpose shall take such evidence as may be forthcoming at the hearing 
 of the case, but an order or judgment of the C*ourt shall not be invalidated 
 by any subsequent proof that the age of that person has not been correctly 
 stated to the Court, and the age presumed or declared by the Court to be 
 the age of the person so brought before it shall, for the purposes of this 
 Act, be deemed to be the true age of that person, and, where it appears 
 to the Court that the person so brought before it is of the age of sixteen 
 years or upwards, that person shall for the purposes of this Act be deemed 
 not to be a child or young person. 
 
 ' (2) Where in a charge or indictment for an offence under this Act, 
 or any of the offences mentioned in the First Schedule to this Act, except 
 an offence under the Criminal Law Amendment Act, 1885 (s), it is alleged 
 that the person by or in respect of whom the offence was committed was 
 a child or young person or was under or above any specified age, and he 
 appears to the Court to have been at the date of the commission of the 
 alleged oi?ence a child or young person, or to have been under or above 
 the specified age, as the case may be, he shall for the purposes of this Act 
 be presumed at that date to have been a child or young person or to have 
 been under or above that age, as the case may be, unless the contrary 
 is proved {t). 
 
 ' (3) Where in any charge or indictment for an offence under this Act 
 or any of the offences mentioned in the First Schedule to this Act it is 
 alleged that the person in respect of whom the offence was committed 
 was a child or was a young person, it shall not be a defence to prove that 
 the person alleged to have been a child was a young person or the person 
 
 (.s) 48 & 49 Vict. c. 69, post, pp. 946 (t) See 4 Edw. VII. c. 15, s. 17. R. v. 
 
 et seq. Hale [1905], 1 K.B. 126.
 
 CHAP. viiL] Of Cruelty to Children. 923 
 
 alleged to have been a young person was a child in any case where the 
 acts constituting the alleged offence would equally have been an offence 
 if committed in respect of a young person or child respectively. 
 
 ' (4) Where a person is charged with an offence under this Act in res2)ect 
 of a person apparently under a specified age it shall be a defence to prove 
 that the person was actually of or over that age.' 
 
 By sect. 131, 'For the purposes of this Act unless the context otherwise 
 requires — 
 
 ' The expression "child" means a person under the age of fourteen 
 
 years {u) ; 
 ' The expression " young person " means a person who is fourteen 
 
 years of age or upwards and under the age of sixteen years ; 
 ' The expression " guardian " in relation to a child, young person, or 
 
 youthful offender, includes any person who, in the opinion 
 
 of the Court having cognisance of any case in relation to the 
 
 child, young person, or youthful offender, or in which the child, 
 
 young person, or youthful offender is concerned, has for the 
 
 time being the charge of or control over the child, young 
 
 person, or youthful offender ; 
 ' The expression " legal guardian " in relation to an infant, child, 
 
 young person, or youthful offender, means a person appointed, 
 
 according to law, to be his guardian by deed or will, or by order 
 
 of a Court of competent jurisdiction ; 
 ' The expression "place of safety" means any workhouse or ])olice 
 
 station, or any hospital, surgery, or any other suitable place, 
 
 the occupier of which is willing temporarily to receive an 
 
 infant, child, or young person ; 
 ' The expression "common council "means the mayor, aldermen, 
 
 and commons of the City of London in common council 
 
 assembled ; 
 ' The expression " local education authority " means a local education 
 
 authority for the purpose of Part III. of the Education Act, 
 
 1902 ' (2 Edw. VII. c. 42) ; 
 ' The expressions " police authority " and " police fund " as respects 
 
 the City of London mean the Common Council and the fund 
 
 out of which the expenses of the City police are defrayed, 
 
 and elsewhere have the same meanings as in the Police Act, 
 
 1890 ' (53 & 54 Vict. c. 45) ; 
 ' The expression " common fund " means, as respects a poor law union 
 
 consisting of a single parish, the poor rate of that parish ; 
 ' The expression "street " includes any highway and any public bridge, 
 
 road, lane, footway, square, court, alley, or passage, whether 
 
 a thoroughfare or not ; 
 ' The expression " public place " includes any public park, garden, sea 
 
 beach, or railway station, and any ground to which the public 
 
 for the time being have or are permitted to have access, 
 
 whether on payment or otherwise ; 
 
 (m) By s. 128 (1) 'fourteen' is suksti- Jurisdiction Act, 1879 (42 & 43 Vict, 
 tutcd for ' twelve • in the deKnition of c. 49), and the first .schedule of that Act is 
 child and young jiorson in the Siiinniarv amended.
 
 924 Of Neglect and Ill-treatment of the Young, &c. [book ix. 
 
 ' The expression "intoxicating liquor" means any fermented, distilled, 
 or spirituous liquor which cannot according to any law for 
 the time being in force V^e legally sold without a licence from 
 the Commissioners of Inland Revenue,' 
 
 FIRST SCHEDULE. 
 
 Any offence under sections twenty-seven (v), fifty-five {iv), or fiftv- 
 six (a;)"of the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), 
 and any ofTence against a child or young person under sections five {y) 
 forty-two, forty-three {z), fifty-two (a), or sixty-two (6) of that Act, or 
 under the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69) (c). 
 
 Any offence under the Dangerous Performances Acts, 1879 and 1897(c?). 
 
 Any other offence involving bodily injury to a child or young person (e). 
 
 Sect. VI. — Of Offences with Reference to Lunatics. 
 
 Besides the general provisions of the criminal law with regard to 
 crimes irrespective of the mental condition of the person affected by 
 the crime, there are a number of special enactments punishing offences 
 with reference to lunatics. 
 
 A. Common Liw. 
 
 The ill-treatment of a lunatic by a person having duties towards him 
 by status or contract seems at common law to fall within the rule as to 
 sick or helpless persons [ante,])^. 667,678) (/). It would seem that to justify 
 conviction for neglect of a person of unsound mind as for a common 
 law misdemeanor it is necessary directly to aver and to prove that the 
 lunatic was under the control and care of the defendant or that the 
 defendant was under some duty to take care of the lunatic, that the 
 neglect occurred while the care and control continued, and that the neglect 
 was of a character to produce serious injury to the health of the lunatic, 
 and in fact caused such injury (r/). 
 
 (v) Exposing children, ante, p. 911. 
 (w) Abduction, post, p. 959. 
 (x) Child-stealing, ante, p. 904. 
 iy) Manslaughter, ante, p. 779. 
 (z) Assaults, ante, p. 896. 
 
 (a) Indecent assault, post, p. 955. 
 
 (b) Infamous crime, post, p. 975. 
 
 (c) Post, pp. 948 et seq. (d) Ante. p. 910. 
 (e) See Lord Advocate v. Fraser, 3 
 
 Fraser, Justiciary (Sc.) 67. R. v. Roberts, 
 18 Cox, 530. 
 
 (/ ) 'As a "person incapable of taking 
 care of himself through imbecility of mind, 
 is in contemplation of law in the same 
 situation as an infant (R. v. Much Cowarne, 
 2 B. & Ad. 861), it would seem that if a 
 person, who is the jjarent, or has the actual 
 custody of a lunatic, neglects to provide 
 for such lunatic, though more than twenty- 
 one years of age, whereby his health is 
 injured, such person would be indictable 
 in the same manner as if the lunatic were a 
 child of such tender years as to be unable 
 to provide for and take care of itself. See 
 
 R. V. Friend, R. & R. 20,' vide ante, 
 p. 907. C. S. G. And see Buchanan v. 
 Hardy, 18 Q.B.D. 486. 
 
 (y) R. V. Pelham, 8 Q.B. 959, where an 
 indictment of a mother for neglect of her 
 illegitimate lunatic son was held to be 
 defective. It charged unlawful confine- 
 ment in an unwholesome room, neglect 
 to clothe the lunatic and suffering him 
 to be covered with filth, and possession of 
 sufficient means for properly caring for 
 him. Such an offence is now covered by 
 53 & 54 Vict. c. 5, s. 322, post, p. 929. In R. v. 
 Smith, 2 C. & P. 449, Burrough, J., held that 
 it was not an indictable offence in a brother 
 to neglect to maintain another brother, 
 even though he was an idiot, helpless and 
 an inmate of the defendant's house. The 
 idiot was bed-ridden and was kept in a 
 dark room without sufficient warmth or 
 clothing, and so to keep him was held to be 
 neither an assault nor false imprisonment. 
 See R. V. Marriott, 8 C. & P. 425 Patte- 
 son, J., a7ite, p. 678,
 
 CHAP. VIII.] Of Offences with Reference to Lunatics. 925 
 
 B. Statutes. 
 
 (i.) Criminal Lunatics. — By the Criminal Lunatic Asylums Act, 
 1860 (23 & 24 Vict. c. 75) s. 13, ' Any superintendent, officer, nurse, 
 attendant, servant, or other person employed in any asylum for criminal 
 lunatics, who strikes, wounds, ill-treats, or wilfully neglects any person 
 confined therein, shall be guilty of a misdemeanor, and shall be subject 
 to indictment for every such offence, and, on conviction under the indict- 
 ment, to fine or imprisonment, with or without hard labour, or to both 
 fine and imprisonment at the discretion of the Court, or to forfeit for 
 every such offence, on summary conviction thereof before two justices, 
 any sum not exceeding twenty pounds nor less than two pounds.' 
 
 The treatment of criminal lunatics {h) is further regulated by the 
 Criminal Lunatics Acts of 1838 (1 & 2 Vict. c. 14) & 1884 (47 & 48 Vict, 
 c. 64) which extends to lunatic prisoners removed from the Colonies or 
 India (14 & 15 Vict. c. 81 ; 47 & 48 Vict. c. 3). 
 
 (ii.) Other Lunatics. — The other statutory offences against lunatics 
 are for the most part contained in the Lunacy Act, 1890 (53 & 54 Vict, 
 c. 5). That Act and the Lunacy Act, 1891 (54 & 55 Vict. c. 65) contain 
 regulations for the care and treatment of lunatics other than criminal 
 lunatics, and for the licensing of houses for the reception of lunatics. 
 
 By sect. 341 of the Act of 1890, ' In this Act if not inconsistent with 
 the context — 
 
 ' " Asylum " means an asylum for lunatics provided by a county or 
 
 borough, or by a union of counties or boroughs.' . , . 
 ' " Hospital " means any hospital or part of a hospital or other house 
 or institution not being an asylum where lunatics are received 
 and supported wholly or partly by voluntary contributions 
 or by any charitable bequest or gift only applying the excess 
 of payments by some patients for or towards the support, 
 provision, or benefit of other patients.' . . . 
 ' " Institution for lunatics " means an asylum, hospital or licensed 
 
 house ' {i). . . . 
 ' "Lunatic " means an idiot or person of unsound mind ' (/). . . . 
 ' " Manager " in relation to an institution for lunatics, means the 
 superintendent of an asylum, the resident medical officer or 
 superintendent of a hospital, and the resident licensee of a 
 licensed house.' 
 By sect. 7 (4), ' If after a petition ' (for a reception order) ' has been 
 dismissed, another petition is presented as to the same alleged lunatic, the 
 person presenting such other petition, so far as he has any knowledge or 
 information with reference to the previous petition and its dismissal, shall 
 state the facts relating thereto in his j)etition, and shall obtain from the 
 
 (/;) Defined in s. 16 of the Act of 1884 t lie jiKljre in lunacy extended (s. 1 l(i). In 
 for the i)urpo.sc.s of that Act. H. r. Shaw. L. H. 1 C. C. R. 14r>, it was held 
 (/) Licensed houses are governed by that imbecility and loss of mental ))ower. 
 ss. 207 229 of the Act: 'workhouses' whether arising from natural decay or from 
 are governed by ss. 24-27 of the Act of 1890 paralysis, softenin<; of the brain, or other 
 and by ss. 4, (i. 19 of the Act of 1891 (54 natural cause, and although unaccompanied 
 & 55 Vict. c. 05). by frenzy or delusion, constituted unsound- 
 ly) Vide ante. ])p. 04 ct .iiq. The delini- ness of mind within 8 & 9 Vict. c. 100, of 
 tion is for purposes of management and which the' Act of 1890 is to a large extent 
 control of persons and their property by a re-enactment.
 
 926 Of Neglect and Ill-treatment of the Young, c^c. [book ix. 
 
 commissioners at his own expense, and present with the petition a copy of 
 the statement sent to them of the reasons for dismissing the previous 
 petition, and if he wilfully omits to comply with this subsection he shall 
 be guilty of a misdemeanor/ 
 
 By sect. 8, provision is made for the right of a lunatic received as a 
 private patient to be examined by a judicial authority, and for notice 
 being given of his reception, and for notice to the patient of his right to have 
 an interview with the judicial authority and give him an opportunity 
 of making a request for interview and transmitting it when made, and 
 producing the certificate on which the jDatient was received. By sub- 
 sect. 5, ' If any manager of an institution for lunatics, or any person 
 having charge of a single patient, omits to perform any duty imposed 
 upon him by this section he shall be guilty of a misdemeanor.' 
 
 By sect. 38 (7), ' The manager of any institution for lunatics and any 
 person having charge of a single patient, who detains a patient {k) after 
 he has knowledge that the order for his reception {I) has expired shall 
 be guilty of a misdemeanor.' 
 
 By sect. 40 (1), ' Mechanical means {m) of bodily restraint shall not 
 be applied to any lunatic unless the restraint is necessary for the purposes 
 of surgical or medical treatment, or to prevent the lunatic from injuring 
 himself or others ' in which case a certificate of the grounds for using 
 such restraint shall be given (sub-sects. 2, 3), and a record of it shall be 
 kept and transmitted to the commissioners quarterly (sub-sects. 4, 5). 
 By sub-sect. 7, ' Any person who wilfully acts in contravention of this 
 section shall be guilty of a misdemeanor.' 
 
 By sect. 44 (4), 'if any person having charge of a single patient fails 
 to give effect to any direction of the commissioners under this sect.' (as 
 to visits by a medical practitioner) ' he shall be guilty of a misdemeanor,' 
 
 By sect. 76 (2), ' Any person who has been duly served with any 
 such order of discharge (n), and detains a patient after the date of discharge 
 appointed thereby, shall be guilty of a misdemeanor ' (o). 
 
 By sect. 158 (3), ' Any disqualified person (/>) continuing to act (as 
 commissioner or secretary or clerk to the commissioners) shall be guilty 
 of a misdemeanor.' 
 
 By sect. 177 (5), ' Any disqualified person {q) continuing to act' (as 
 visitor or clerk or assistant clerk to any visitor) 'shall be guilty of a 
 misdemeanor.' 
 
 Concealment of Buildings, Persons, or Facts from OflBcial Visitors.^ 
 By sect. 195 (2), ' Every manager of a hospital or licensed house (r) who 
 
 {k) This enactment does not apply to (o) The detention may perhaps be 
 
 lunatics so found by inquisition. S. 38 (10). justified at common law, if necessary for his 
 
 [1) As to the requirements and duration safety or the safety of others. See Brook- 
 
 of reception orders see ss. 28-37. shaw v. Hopkins, Lofft, 243. Symm v. 
 
 (m) By ' such instruments and appli- Fraser, 3 F. & F. 328. 
 
 ances as the commissioners by regulations (p) The disqualification is, to be, or to 
 
 to be made from time to time shall deter- have been, within one year prior to appoint- 
 
 mine.' S. 40 (6) The regulations in force ment, interested in a house licensed for 
 
 are dated April 17, 1895 (Stat R. & 0. lunatics. S. 158 (1). 
 
 1895 No. 212.) (q) The disquahfication is to be, or be- 
 
 (w) By the commissioners who, on mak- come, or to have been within one year prior 
 
 ing such order must forthwith serve it on to appointment interested in such licensed 
 
 the manager of the institution or the person house. S. 171 (3) (4). 
 
 having charge of a single patient. S. 70 (1). (?) These words are defined in s. 341. 
 
 i
 
 CHAP.viiL] Of Offences with Reference to Lunatics. 927 
 
 conceals or attempts to conceal or refnses or wilfully neglects to show 
 any part of the building, or any building communicating therewith or 
 detached therefrom but not separated as aforesaid (.«) or any part of the 
 ground or appurtenances held, used, or occupied therewith, or any 
 person detained or being therein, from anyone or more of the visiting 
 commissioners or visitors, or from any person authorised under this 
 Act to visit and inspect the hospital or house, or the patients therein 
 or any of them, or who does not give full and true answers to the 
 best of his knowledge to all questions which any visiting commis- 
 sioner or visitor asks in the execution of his office, shall be guilty of a 
 misdemeanor.' 
 
 By sect. 200 (2), ' If the person having charge of a single patient 
 refuses to shew to any commissioner, at his request, any part of the house 
 wherein the single patient resides, or any part of the grounds belonging 
 thereto, he shall be guilty of a misdemeanor.' 
 
 By sect. 214, ' If any person, for the purpose of obtaining a licence 
 or the renewal of a licence for a house for the reception of lunatics, 
 wilfully svipplies to the commissioners or justices any untrue or incorrect 
 information, plan, description, statement, or notice, he shall be guilty of 
 a misdemeanor.' 
 
 By sect. 222, ' If after the lapse of two months from the expiration 
 or revocation of the licence of any house, there are in the house two or 
 more lunatics, every person keeping the house or having the care or 
 charge of lunatics therein, shall be guilty of a misdemeanor.' 
 
 By sect. 231 (10), ' The superintendent of any hospital ' {ante,^. 925), 
 * who receives or detains any lunatic in the hospital contrary to the 
 provisions of this Act or to the terms of the complete certificate of 
 registration, shall be guilty of a misdemeanor.' 
 
 By sect. 233 (2), ' If the superintendent of a registered hospital know- 
 ingly permits any lunatic to be detained or lodged in any building not 
 shewn on the plans of the hospital sent to the commissioners, he shall 
 be deemed guilty of a misdemeanor.' 
 
 By sect. 237 (4), ' If any lunatics are detained or kept in the 
 hospital {t) after the date appointed by the order for closing the hospital, 
 the superintendent of the hospital shall be guilty of a misdemeanor.' 
 
 By sect. 315 (1), ' Every person who, except under the provisions of 
 this Act, receives or detains a lunatic (w), or alleged lunatic (r), in an 
 institution for lunatics, or for payment (v/') takes charge of, receives to 
 board or lodge, or detains a lunatic or alleged lunatic in an unlicensed 
 house, shall be guilty of a misdemeanor, and in the latter case shall also 
 be liable to a penalty not exceeding fifty pounds. 
 
 (s) By ground belonging to any other {v) As to the meaning of lunatic see 
 
 person. S. 194(1). R. v. Shaw, L. R. 1 C. C. R. 14.5, ante, 
 
 (t) i.e. a registered liospital which the p. 925, note (('). 
 
 commissioners have ordered to be closed {w) The former Act (8 & 9 Vict. c. 100), 
 
 under s. 237 sub-s. 1-3. s. 90 had tlic words ' for profit.' Under 
 
 (w) i.e. as a lunatic and to be subjected those words if the paj^ment made was not 
 
 to treatment ejusdem r/eneri.t with that liigli enougli to give a jjrolit the defendant 
 
 given to lunatics in public asylums. R. v. might liave been entitled to acriuittal. 
 
 Bishop, 5 Q.B.I). 259. R. v. Sharrard See R r. Vollan [1872], 28th Rep. of Lunacy 
 
 [1894], noted in Wood-Rcnton on Lunacy, Commissioners, 73. 
 074, ()75.
 
 928 Of Neglect and til-treatment of the Young, &c. [book ix. 
 
 ' (2) Except under the provisions of this Act, it shall not be lawful 
 for any person to receive or detain two or more lunatics in any house 
 unless the house is an institution for lunatics or workhouse. 
 
 ' (3) Any person who receives or detains two or more lunatics in any 
 house, except as aforesaid, shall be guilty of a misdemeanor ' (x). 
 
 By sect. 316, ' The manager of any hospital or licensed house, and 
 any person having charge of a single patient who omits to send to the 
 commissioners the prescribed documents and information upon the 
 admission of a patient, or to make the prescribed entries, and give the 
 prescribed notices upon the removal, discharge, or death of a patient, 
 shall be guilty of a misdemeanor, and in the case of a single patient shall 
 also be liable to a penalty not exceeding fifty pounds ' (^/). 
 
 By sect. 317 (1), ' Any person who makes a wilful misstatement of 
 any material fact in any petition, statement of particulars, or reception 
 order under this Act, shall be guilty of a misdemeanor. 
 
 ' (2) Any person who makes a wilful misstatement of any material 
 fact in any medical or other certificate, or in any statement or report of 
 bodily or mental condition under this Act, shall be guilty of a misdemeanor. 
 
 ' (3) A prosecution for a misdemeanor under this section shall not 
 take place except by order of the commissioners, or by the direction of 
 the Attorney-General or the Director of Public Prosecutions ' {%). 
 
 By sect. 318, ' Any person who in any book, statement, or return 
 knowingly makes any false entry as to any matter as to which he is by this 
 Act or any rules made under this Act required to make any entry shall 
 be guilty of a misdemeanor ' {a). 
 
 By sect. 319, ' If the manager of an institution for lunatics, or the 
 person having charge of a single patient, omits to send to the coroner 
 notice of the death of a lunatic within the prescribed time (6), he shall be 
 guilty of a misdemeanor,' 
 
 By sect. 321 (1), 'Any person who obstructs any Commissioner, or 
 Chancery or other visitor, in the exercise of the powers conferred by this 
 or any other Act, shall for each oiTence be liable to a penalty not 
 exceeding fifty pounds, and shall also be guilty of a misdemeanor. 
 
 ' (2), Any person who wilfully obstructs any other person authorised 
 under this Act by an order in writing under the hand of the Lord Chan- 
 cellor, or a Secretary of State, to visit and examine any lunatic or supposed 
 lunatic, or to inspect or inquire into the state of any institution for lunatics, 
 gaol, or place wherein any lunatic or person represented to be a lunatic 
 is confined or alleged to be confined, in the execution of such order, and 
 any person who wilfully obstructs any person authorised under this Act 
 by any order of the commissioners to make any visit and examination 
 or inquiry, in the execution of such order, shall (without prejudice to any 
 
 (x) It was decided on the corresponding poor-law union under this section, see Wood- 
 section (44) of 8 & 9 Vict. c. 100 to be no Renton, Lunacy, 676. 
 
 defence that the person so receiving the (z) As to this office, vid& post. Vol. ii. 
 
 lunatics honestly and reasonably believed p. 1924. 
 
 that they were not lunatics. R. v. Bishop, [a] For form of indictment see 5 Cox, 
 
 5 Q.B.D. 259. The ground of decision Appendix. 
 
 was that having regard to the scope and (ft) Within forty-eight hours of the death, 
 
 object of the enactment the word 'know- Rules of 1895, r. 27 (St. R. & 0. 1895, 
 
 ingly ' should not be imported into it. No. 281). 
 
 [y) As to the liability of the clerk of a
 
 CHAP. VIII.] Of Offences with Reference to I/unatics. 929 
 
 proceedings, and in addition to any punishment to which such person 
 obstructing the execution of such order would otherwise be subject) be 
 liable for every such offence to a penalty not exceeding twenty pounds.' 
 By sect. 322, ' If any manager, officer, nurse, attendant, servant, or 
 other person employed in an institution for lunatics, or any person having 
 charge of a lunatic, ivhether by reason of any contract, or of any tie of 
 relationship, or marriage, or otherwise (c) ill-treats or wilfully neglects a 
 patient, he shall be guilty of a misdemeanor, and, on conviction on 
 indictment, shall be liable to fine or imprisonment, or to both fine and 
 imprisonment at the discretion of the Court, or be liable on summary 
 conviction for every offence to a penalty not exceeding twenty pounds, 
 nor less than two pounds/ 
 
 Sect. 324. Carnal knowledge of female lunatics by officials, &c. 
 Vide post, p. 947. 
 
 Prosecution and Procedure. — By sect. 325 (1), ' Except as by this Act 
 otherwise provided, proceedings against any persons for offences against 
 this Act may be taken — 
 
 ' {a) By the secretary of the commissioners upon their order for 
 any offence ; 
 
 ' (6) By the clerk of the visitors of any licensed house for an offence 
 committed within their jurisdiction ; 
 
 ' (c) By the clerk of the visiting committee of an asylum for any 
 offence by any person employed therein. 
 
 ' And such proceedings shall not abate by the death or removal of the 
 prosecuting secretary or clerk, but the same may be continued by his 
 successor, and in any such proceedings the prosecuting secretary or clerk 
 shall be competent to be a witness. 
 
 ' (2) Except as by this Act otherwise provided, it shall not be lawful 
 to take such proceedings except by order of the commissioners, or of visitors 
 having jurisdiction in the place where the offence was committed (d), or 
 with the consent of the Attorney-CTcneral or Solicitor- General.' 
 
 By sect. 328, 'A Secretary of State on the report of the com- 
 missioners or visitors of any institution for lunatics may direct the 
 Attorney-General to prosecute on the part of the Crown any person 
 alleged to have committed a misdemeanor under this Act.' 
 
 Evidence. — By sect. 329 (1), ' Where any person is proceeded against 
 under this Act, on any charge of omitting to transmit or send any copy, 
 list, notice, statement, report, or other document required to be trans- 
 mitted or sent by such person, the burden of proof that the same was 
 
 (c) In R. V. Rundlc, Dears. 482, it was Rundle seems to have been virtually over- 
 held that 16 & 17 Vict. c. 9(), s. 9 did not ruled. In the latter case it was held that 
 cover the case of a husband iil-treatin<,' his jiarents Iiad l)een properly convicted of ill- 
 lunatic wife. In R. v. Porter, 3.3 L. J. M. C. treating a lunatic daughter. The words 
 126: 9 Cox, 449, it was held that persons italicised in the present enactment seem 
 who voluntarily undertook tlie charge of a to make it clear that it applies to all cases 
 lunatic were within tliat Act. In R. v. of persons ill-treating luiuitics in their 
 Smith[188t)J. loCox, 399(C. C. R.), the two clmrge. As to what is ill-treatment see 
 brothers of a lunatic were held liable under Wood-Renton, Lunacy, 681, 682. 
 that enactment for ill-treatment of a (d) In certain eases the time for prose- 
 lunatic sister who lived with them, though cution may be limited by the Public Authori- 
 they received no payment for or on account ties Protection Act, 1893 (56 & 57 Vict. 
 of any special eiiarge of her. In Buchanan c. 61). 
 4'. Hardy [1890], 18 Q.B.D. 486, R. r. 
 
 VOL. I. 3
 
 930 Of Neglect and Ill-treatment of the Young, &c. [book ix. 
 
 transmitted or sent within the time required shall lie upon such person : 
 but if he proves by the testimony of one witness upon oath that the copy, 
 list, notice, statement, report, or document in respect of which the pro- 
 ceeding is taken, was properly addressed and put into the post in due 
 time or (in case of documents required to be sent to the commissioners, 
 or a clerk of the peace, or a clerk to guardians) left at the office of the 
 commissioners, or of the clerk of the peace, or clerk to the guardians, 
 such proof shall be a bar to all further proceedings in respect of such 
 charge (e). 
 
 ' (2) In proceedings under this Act where a question arises whether 
 a house is or is not a licensed house or registered as a hospital, it shall be 
 presumed not to be so licensed or registered unless the licence or certificate 
 of registration is produced, or sufficient evidence is given that a licence 
 or certificate is in force ' (e). 
 
 A lunatic may be received as a witness on any criminal charge if 
 the Court considers him rational enough to be a competent witness (/). 
 
 Punishment. — The punishment for the above statutory misdemeanors 
 is by fine or imprisonment without hard labour unless another punish- 
 ment is prescribed by the enactment creating the offence (r/). 
 
 (e) Under 8 & 9 Vict. c. 100 there was produced them, 
 
 some doubt as to the burden of proof (/ ) See R. v. Hill, 2 Den. 254 ; 20 L. J. 
 
 in such cases. R v. Harris, 10 Cox, 541. M. C. 222. 
 
 There notice to produce the documents had {g) Vide ante, p. 249. 
 been given to the defendant, and he had not
 
 ( 930a ) 
 
 CANADIAN NOTES. 
 
 Sec. 2. — Ill-treatment of Apprentices and Servants. — Code sec. 243. 
 
 Pxmishment. — Code see. 244. 
 
 This section was adopted from the Imperial Statute 24-44 Vict, 
 eh. 100, sec. 26. The gist of the offence was the wilfully and with- 
 out lawful excuse refusing or neglecting to provide. R. v. Nasmith, 
 42 U.C.Q.B. 242. The words of the Code constitute a mere omission an 
 offence, if without lawful excuse. 
 
 This section does not impose a criminal responsibility upon the 
 master to provide the servant with medical attendance or medicine. 
 R. V. Coventry, 3 Can. Cr. Cas. 541. 
 
 The reason for the restriction (to those under sixteen) is, that 
 adults may, if not provided Avith proper nourishment, remonstrate, 
 and. if necessary, leave the service. R. v. Nasmith, 42 U.C.Q.B. 242. 
 
 In a case before the Code where a young farm-hand fifteen years 
 of age died from gangrene resulting from frost-bites through ex- 
 posure and neglect which the master could have obviated, it was held 
 that, in view of the age of the deceased, the circumstances of the coun- 
 try, the fact of there being no provision for maintaining poor people, 
 it was the duty of the prisoner, as a master towards the deceased as his 
 servant, to have taken care of him, and that by his omission to do so 
 he was guilty of gross negligence, to which the lad's death was 
 attributable, and that, therefore, the prisoner was guilty of man- 
 slaughter. R. V. Brown (1893), 1 Terr. L.R. 475. 
 
 Causing Bodily Harm to Apprentices or Servants. — Code sec. 249. 
 
 A verdict for conunon assault is maintainable upon an indictment 
 under this section. R. v. Bissonnette (1879), Ramsay's Cases (Que.) 
 190. 
 
 It is purely a question of fact whether the acts proved shew that 
 the health is likely to be permanently injured; and the words "per- 
 Jiianently injured" have no technical meaning as here used. R. v. 
 Bowman (1898), 3 Can. Cr. Cas. 410. 
 
 Sec. 5. — Of Cruelty to Children. 
 
 Duty of Head of Family to Provide Necessaries. — Code sec. 242. 
 Pu)iishment. — Code sec. 244. 
 Abandoning. — Code sec. 245. 
 
 Head of Family. — A person who engages the services of a cliild 
 under sixteen years, placed out with him ])y his legal guardian mider
 
 ii 
 
 9305 Duty to Provide 'Necessaries. [book ix. 
 
 a contract for the child's services for a fixed period, whereby the 
 party with whom he is placed engages to furnish the child with board, 
 lodging, clothing, and necessaries, is not as to such child a "guardian 
 or head of a family" so as to become criminally responsible as such, 
 under section 242, for omitting to provide "necessaries" to such 
 child while a member of his household. The relationship in such case 
 is that of master and servant, and comes within the provisions of sec. 
 243, under which the master is criminally responsible only in respect 
 of a failure to provide "necessary food, clothing, or lodging." R. v. 
 Coventry, 3 Can. Cr. Cas. 541. 
 
 Without Lawful Excuse. — It must be she^n that the parent or 
 guardian was in the actual possession of means to provide for the child. 
 R. V. Robinson (1897), 1 Can. Cr. Cas. 28. 
 
 Permanently Injured. — It is purely a question of fact whether the 
 acts proved are such that the health of the person is likely to be per- 
 manently injured by reason thereof; and the words "permanently 
 injured," as here used, have no technical meaning. R. v. Bowman 
 (1898), 3 Can. Cr. Cas. 410 (N.S.). 
 
 Where a child's toes were so badly frozen, through the neglect of 
 the person in whose charge the child was, that they had to be ampu- 
 tated, it was held in the Territories that the Court should not without 
 expert evidence upon the effect of the loss of the toes infer that the 
 child's health had thereby been or was likely to be permanently in- 
 jured, or that his life had thereby been endangered. R. v. Coventry, 
 3 Can. Cr. Gas. 541. 
 
 Sec. 6. — Of Offences with Reference to Lunatics. 
 
 Duty of Person in Charge of Lunatics to Provide Necessaries of 
 Life. — Code sec. 241. 
 
 Punishment. — Code sec. 244. 
 
 Preservation of Life. — Sections 241 and 242 appear in the Code 
 under the heading of "Duties Tending to the Preservation of Life." 
 As such headings have the same effect as preambles to statutes, the 
 terms "necessaries of life," and "necessaries" w^hich occur in the 
 respective sections, mean, when read in connection with the heading 
 mentioned, such necessaries as tend to preserve life, and not necessar- 
 ies in their ordinary legal sense. R. v. Brooks (1902), 5 Can. Cr. Cas. 
 372, 9 B.C.R. 13.
 
 (931 ) 
 
 CHAPTER THE NINTH. 
 Of Rape, and of the Defilement or Corruption of Females. 
 
 Sect. I. — Of Rape, 
 
 The definition of the crime of rape depends wholly on the common law 
 as explained by judicial decisions. The crime consists in having milawful 
 carnal knowledge of a woman without her consent (a), i.e. her free 
 and conscious permission (b). It is therefore an aggravated form of 
 assault (bb). The older definitions described the offence as committed 
 with violence, but as will be presently stated it is not necessary in all 
 cases to prove actual violence. 
 
 This offence does not appear to have been regarded as equally heinous 
 at all periods of our history. Anciently, indeed, it appears to have 
 been punishable with death ; but this was afterwards thought too hard ; 
 and in its stead, another severe but not capital punishment was inflicted 
 by William the Concpieror, namely, castration and loss of eyes, which 
 continued till after Bract on wrote, in the reign of Henry III. (c). The 
 punishment for rape was still further mitigated, in the reign of Edward 
 I., by the Statute of Westm. 1, 3 Edw. I. c. 13 (d), which reduced the 
 offence to a trespass, and subjected the party to two years' imprisonment, 
 and a fine at the King's will. This lenity, however, is said to have been 
 productive of terrible consequences ; and it was, therefore, found neces- 
 sary, by 13 Edw. I. (stat. Westm. sec.) c. 34 (e), to make punishable by 
 judgment of life and member the ravishing of a woman, whether married, 
 maid or other, where she did not consent, neither before or after. The 
 punishment was still further enhanced by 18 Eliz. c. 7, s. 1 (/), These 
 statutes were repealed and superseded by 9 Geo. IV. c. 31 (E.) & 10 Geo. IV. 
 c. 34 (I.). And by 24 & 25 Vict. c. 100, s. 48 (g), ' Whosoever shall be 
 convicted of the crime of rape shall be guilty of felony, and being convicted 
 thereof shall be liable ... to be kept in penal servitude for life . . . ' {h) 
 
 (a) 1 Hawk. c. 41, s. 2. 1 Hale, 027, Geo. IV. c. 31), as to Ireland in 1829 (10 
 
 628. Co. Litt. 123 b. 2 Co. In.st. 180. 3 Geo. IV. c. 34). 
 
 Co. Inst. 60, 4 Bl. Com. 210. 1 East, P.C. (e) Repealed as to England in 1828, as 
 434. Steph. Dig. Cr. L. (6tii cd.) art. 270. to Ireland in 1829 by the statutes specified 
 The line between rape and abduction was in note (d). In R. v. Fletcher, Bell, 63, 
 not distinct in the early stages of the this Act was referred to as being in force. 
 English criminal law. 2 Pollock and (/") Repealed in 1828 (9 fJeo. IV. c. 31). 
 Maitland, Hist. Eng. Law, 488, 489. See ((/) A re-enactment of 9 Geo. IV. c. 31, 
 R. V. Camplin, 1 Den. 89, post, p. 934. s. 16 (E) and 10 Geo. IV c. 19 (I) as modi- 
 It) Post, p. 934. fied by 4 & 5 Vict. c. 56, s. 3. 
 (bb) See R. v. Page, 3 Dyer, 404 a. (h) The words omitted were repealed in 
 73 E.R. 683, for a conviction of assault 1892 (S. L. R.). By 54 & 55 Vict. c. 69, s. 
 after acquittal of rape. l.ante, pp. 211, 212, the minimum term of 
 
 (c) 4 Bl. Com. 211. 1 Hawk. c. 41, s. penal servitude is three years and imprison- 
 11. 1 Hale, 627. Bract, lib. 3, c. 28. ment (with or without hard labour) for not 
 Leg. Gul. i. 1. 19. Wilk. Leg. Anglo-Sax. over two years may be substitut€<l. As to 
 222, 290. 2 Pollock and Maitland, 489. recognisances, vide ante, p. 218. 
 
 (d) Repealed as to England in 1828 (9 
 
 3o2
 
 932 
 
 Of Defilement or Corruption of Females, [book ix. 
 
 As to the punishment of principals in the second degree and accessories 
 before and after the fact see 24 & 25 Vict. c. 94, & 24 & 25 Vict. c. 100, 
 s. 67, ante, pp. 130, 133. 
 
 An indictment for rape may be prosecuted at any time, and notwith- 
 standing any subsequent assent of the woman alleged to have been 
 ravished (i). 
 
 All who are present, aiding and assisting a man to commit a rape, are 
 principal offenders in the second degree, whether they be men or women (/). 
 
 Capacity. — The law presumes absolutely that a boy under the age of 
 fourteen years is unable to commit the crime of rape ; and, therefore, 
 he cannot be guilty of it (k) ; or of an assault with intent to commit a 
 rape (l) ; and if he be under fourteen no evidence is admissible to 
 shew that he was in fact physically capable of sexual intercourse (m). 
 This presumption, however, proceeds upon the grounds of impotency, 
 rather than the want of discretion ; and such infant may, therefore, be 
 a principal in the second degree, 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 (n). 
 
 There are conflicting dicta as to whether a male under fourteen can 
 be convicted of an attempt to commit rape (o). 
 
 But it seems to be clear that a boy under fourteen may, on evidence 
 which would warrant a conviction of an older male of rape be convicted 
 of indecent assault (j)) or simple assault {(]). 
 
 It is said (r) that a husband cannot be guilty as a principal in the 
 first degree of a rape on his wife, on account of the matrimonial consent 
 which she has given and which she cannot retract. As to the correctness 
 of this opinion there is some difference of judicial opinion. 
 
 In E. V. Clarence (s). Wills, J., said, ' If intercourse under the circum- 
 stances now in question constitutes an assault on the part of the man, it 
 must constitute rape, unless indeed between married persons rape is 
 impossible, a proposition as to which I certainly am not prepared to 
 assent, and for which there seems to be no sufficient authority ' (t). But 
 Hale's view w^as accepted by A. L. Smith, J. (p. 37), Stephen, J. (p. 46), 
 
 {{) 1 Hale, 631 & 632. 1 East, P. C. 
 446. But delay in prosecution or failure 
 to make complaint on the earliest oppor- 
 tunity affords strong presumptive evidence 
 of consent. See R. v. Osborne [1905], 
 1 K.B. 551, jMst, p. 944. 
 
 (j) R. V. Vide, Fitz. Corone, pi. 86. 1 
 Hawk. c. 41, s. 10. Lord Baltimore's 
 case, 4 Burr. 2179. 1 Hale, 628, 633. 
 1 East, P. C. 435. R. v. Burgess, Trin. T. 
 1813, post, 13. 939. 
 
 (A) 1 Hale, 630. R. v. Brimilow, 2 Mood. 
 122. R. V. Groombridge, 7 C. & P. 582, 
 Gaselee, J., and Abinger, C.B. See R. v. 
 Waite [1892], 2 Q.B. 600, post, p. 932. 
 
 {I) R. V. Eldershaw, 3 C. & P. 396, 
 Vaughan, B. R. v. Philips, 8 C. & P. 736, 
 Patteson, J. See ante, p. 60. 
 
 (m) R. V. Philips, 8 C. & P. 736, Patte- 
 son, J. R. V. Jordan, 9 C. & P. 118, Wil- 
 liams, J. 
 
 (?0 1 Hale, 620. 
 
 (o) R. V. Waite, tibi supra. 
 
 (p) See R. V. Williams [1893], 1 Q.B. 
 320. 
 
 {q) R. V. Brimilow, tibi supra. R. v. 
 Waite, uhi supra. In R. v. Angus [1907], 
 24 N. Z. L. R. 948, where the above cases 
 are fully discussed, it was held as stated in 
 the text above, the Court observing that 
 an act of indecency may be independent 
 of sex. 
 
 (r) I Hale, 630. 
 
 (s) [1888] 22 Q.B.D. 23. In that case 
 a husband was indicted for an assault on 
 his wife causing grievous bodily harm, 
 and the evidence was that he knowing that 
 he was infected with a venereal disease 
 (of which she was ignorant) he carnally 
 knew her with her consent and infected 
 her with the disease. 
 
 (t) Opinions to the same effect were 
 expressed by Field, J. (p. 57).
 
 CHAP. IX.] Of Rape. 933 
 
 and Hawkins, J. (p. 51). The last-named judge said that, ' the ijitei- 
 course which takes place between husband and wife is not by virtue of 
 any special consent on her part, but is mere submission to an obhgation 
 imposed on her by law. Consent is immaterial.' Upon this opinion he 
 came to the conckision that the act of the husband was not the less an 
 assault because of the submission of the wife (u). 
 
 A husband may be guilty as a principal in the second degree to a rape 
 on his wife by assisting another person to commit a rape upon her, 
 for though in marriage the wnfe has given up her body to her husband, 
 she is not by him to be prostituted to another (r) : and a woman may be 
 convicted as a j)rincipal in the second degree or as an accessory before the 
 fact to a rape on another woman {w). 
 
 Carnal Knowledge. — There must be penetralia, or res in re in order to 
 constitute the ' carnal knowledge,' which is a necessary part of the 
 offences dealt with in this chapter (x). But a very slight penetration is 
 sufficient {y). Thus in R. v. Russen [z), it was proved on behalf of a 
 prisoner, who was charged with having ravished a young girl, that the 
 passage of her parts was so narrow that a finger could not be introduced ; 
 and that the membrane called the hymen, wdiich crosses the vagina, and 
 is an indubitable mark of virginity, was perfectly whole and unbroken ; 
 but it was admitted that the hymen is in some cases an inch, and in others 
 an inch and a half, beyond the orifice of the vagina (a). Ashhurst, J., 
 left it to the jury to say whether any penetration were proved : and 
 the judges afterwards held, upon a conference (De Grey, C.J., and Eyre, 
 B., being absent), that this direction was perfectly right ; and that the 
 least degree of penetration is sufficient, though it may not be attended 
 with the deprivation of the marks of virginity. 
 
 It is not essential to prove rupture of the hymen (6), but absence of 
 evidence of rupture of the hymen makes it necessary to caution the jury 
 to be careful about convicting of the complete offence (c). 
 
 By 24 & 25 Vict. c. 100, s. 63, * Whenever, upon the trial for any offence 
 punishable under this Act, it may be necessary to prove carnal knowledge, 
 it shall not be necessary to prove the actual emission of seed in order to 
 
 (m) Bishop, Amcr.Cr. L. vol. ii. .s. 72 (b) 2 102), and Dr. Parw (1 Par. & Fonb. Med. 
 
 expresses his concurrence with the minoiit}' .lur. 203), in whicli the liynicn was entire 
 
 of the judges. during the ])rei;nancy of the party, and in one 
 
 (v) Lord Castleliaven's case [lO.Sl], 3 St. ca.se was obliged to be divided by a surgical 
 
 Tr. 402. 1 Hale, G29. Hutt. 110. 1 Str. operation at the time of the accouchement. 
 
 633. With respect to the second proposition 
 
 (w) R. V. Ram, 17 Cox, 009, OlOn. ; cf. there may be some doubt, a.s in all the 
 
 Lord Baltimore's case [1708], 4 Burr. 2179. preparations in the museum of the Royal 
 
 (.r) 1 Hale, 028. 3 Co. Inst. 59, 00. 1 College of .Surgeons, in which the hymen is 
 
 Hawk. c. 41, 9. 3. Sum. 117. 1 East, shewn, it is not more than a quarter of an 
 
 P. C. 437. R. V. Page, 3 Dy. 304, «. in inch from the orifice of the vagina.' See 
 
 marg. : 73 E.R. 683: Cro. Car. 332. Taylor, Med. Jurisp. (oth ed.), vol. ii. pp. 
 
 {y) See R. v. Lines, 1 C. & K. 393, Parke, 31 el seq., 112. 
 
 B. (b) R. V. Hughes, 9 C. & P. 752 (all tl.t 
 
 (z) 0. B. Oct. 1777. Scrjt. Forster's judges) accepting R. v. Russen as good law. 
 
 MS. 1 East, P. C. 439. MS. Bayley, J. R. v. Jordan, iWd. 118, Williams, J. The 
 
 (a) Upon this statement the reporters, in ruling in R. i'. Gammon, 5 C. & P. 321, to 
 
 a note to R. v. Hughes, 9 C. & P. 752, ob- the contrary is not good law. 
 
 serve, ' The first proposition appears to be (c) R. v. McRue, 8 C. & P. 641, 
 
 much too strongly put, as several cases are Bosanquet, J. 
 mentioned bj^ Dr. Davis (Elem. of Midw.
 
 934 
 
 Of Defilement or Corruption of Females, [book ix. 
 
 constitute a carnal knowledge, but the carnal knowledge shall be deemed 
 complete upon proof of penetration only {d). A person may be convicted 
 of rape, even if the fact of emission is negatived by the evidence (e). 
 
 Consent. — If a man has connection with a woman who is in a state 
 of insensibility, knowing her to be in such state, he is guilty of rape, 
 as the offence of rape is ravishing a woman where she did not consent (/), 
 and not ravishing her against her will {y). Thus a man is guilty of a 
 rape if he has connection with a woman when she is asleep, he knowing 
 her to be so (/?). 
 
 Where upon an indictment for rape the prosecutrix, a girl of thirteen, 
 stated that she usually slept with the prisoner (her father) and having 
 gone to sleep by his side, on awaking she found him having connection 
 with her ; the prisoner had had connection with her before, but she had 
 never complained to anyone, nor would she of her own accord now, and 
 a woman, who saw them together on the bed on the occasion in question, 
 stated that the girl appeared to lie quiet for a moment while the prisoner 
 was upon her, but on seeing the witness she immediately attempted to 
 push him off. Coleridge, J., told the jury, ' The question is, was she a 
 consenting party ? and you cannot doubt, after the evidence you have 
 heard, that, although not in a state to give consent when the connection 
 began, she betrayed no disposition to resistance when she might have 
 done so, and that, too, before the connection was at an end. She had 
 been so treated before without complaining, nor would she, from her own 
 statement, have complained now. I think, therefore, there is not such 
 an absence of consent throughout as to justify a conviction of rape' (?"), 
 
 A consent or submission obtained by fraud is, it would seem, not a 
 defence to a charge of rape or cognate offences. 
 
 By the concluding clause of sect. 4 of the Criminal Law Amendment 
 Act, 1885 (48 & 49 Vict. c. 69), ' Whereas doubts (j) have been entertained 
 
 (d) Taken from 9 Geo. IV. c. 31, s. 18 (E) 
 and 10 Geo. IV. c. 34, s. 21 (I). As to the 
 reason for passing these enactments see R. 
 V. Allen, 9 C. & P. 31, Tindal, C.J. Before 
 these enactments there were great authori- 
 ties to shew that there need not have been 
 emissio seminis in order to constitute a 
 rape. 1 Hale, 628. 1 East, P. C. 438. 
 ■R. V. Blomfield, 1 East, P. C. ibid. R. v. 
 Sheridan, ibid. Fost. 274. See also R. v. 
 Reekspear, 1 Mood. 342. R. v. Cozens, 6 
 C. & P. 351. R. V. Brooks, 2 Lew. 267. 
 R. V. Jennings, 4 C. & P. 249, 1 Lew. 290. 
 But this was doubtful, and there were 
 many authorities to the contrary, 12 Co. 
 Rep. -37: Sum. 117. Staundf. 44. 1 Hawk, 
 c. 4, s. 2 ; c. 41, s. 3. 1 East, P. C. 437, 
 438, 439, 440. R. v. Flemming, 2 Leach, 
 854. R. V. Burrows, R. & R. 519 : 1 Lew. 
 288 
 
 (e) R. V. Cox [1832], 1 Lew. 292, 5 C. & P. 
 297, where the jury negatived emission and 
 the majority of the judges held a conviction 
 good. R. V. Marsden [1891], 2 Q.B. 149. 
 
 (/) See R. V. Camplin, 1 Den. 90. The 
 prisoner had caused the insensibiUty by 
 giving the woman liquor for the purpose of 
 
 exciting her. As to strangling or drugging 
 with intent to make such offence possible, 
 see 24 & 25 Vict. c. 100, ss. 21 & 22, ante, 
 p. 863. 
 
 {cj) R. V. Fletcher, Bell, 63, 71 : 28 L. J. 
 M. C. 85, after full discussion of. all the 
 authorities. As to rape on imbecile females 
 see post, p. 946. 
 
 {h) R. V. Mayers, 12 Cox. 311, Lush, 
 J. In R. V. Young [1878], 14 Cox, 114, 
 it was held rape carnally to know a married 
 woman when she was asleej:). She woke 
 up and when she found that the man was 
 not her husband flung liim off and cried 
 out. 
 
 («■) R. V. Page, 2 Cox, 133. 
 
 (j) The doubts referred to arose out of 
 the conflicting decisions in R. v. Barrow, 
 L. R. 1 C. C. R. 156, and R. v. Dee, 14 L. R. 
 (Ir.) 468 ; and of the disapproval of R. v. 
 Barrow by some of the English judges in 
 R. V. Flattery, 2 Q.B.D. 410. The enact- 
 ment only applies where the woman is 
 awake. The offence was in R. v. Williams, 
 8 C. &. P. 286, held to be an assault. Cf. 
 R. V. Saunders, ibid. p. 265. It is said to 
 have been ruled in R. v. O'Shay, 19 Cox,
 
 CHAP. IX.] Of Ra^e. 935 
 
 whether a man who induces a married woman to permit him to have 
 connection with her by personating her husband is or is not guilty of rape, 
 it is hereby enacted and declared that every such offender shall be deemed 
 to be guilty of rape/ 
 
 The question whether fraud as to the defendant's physical condition 
 is sufficient to deprive him of the defence of consent has been fully 
 discussed in R. v. Clarence (k) and elicited differences of opinion. 
 But the rule accepted by the majority of the judges was that where 
 the act is consented to with knowledge of its nature the fact that the 
 defendant has concealed, or lied about, his physical condition, or the 
 fact that bodily harm to the woman results from the act does not warrant 
 the inference in law or fact that she did not consent to the act. 
 
 Force, Consent, Submission. — It is an essential element in the crime of 
 rape that the woman should not be a consenting party at the time when 
 the incriminating act is done. When the female is under sixteen, oris an 
 imbecile, idiot, or lunatic, and in fact consents, the man is not guilty of 
 rape, but is punishable under the enactments set out post, pp. 946 et seq. 
 
 Where a party took a woman by force, compelled her to marry him, 
 and then had carnal knowledge of her by force, it appears to have been 
 held that she could not maintain an appeal of rape against her husband, 
 unless the marriage were first legally dissolved : but that when the 
 marriage was made void ab initio by a declaratory sentence in the 
 Ecclesiastical Court, the offence became punishable, as if there had been 
 no marriage {I). As to carrying away a woman by force or fraud with 
 intent to marry her, &c., see post, p. 968. 
 
 The offence of rape may be committed, though the woman at last 
 yielded to the violence, if her consent was forced by fear of death 
 or by duress (m). If non-resistance on the part of a prosecutrix proceeds 
 merely from her being overpowered by actual force, or from her not being 
 able, from want of strength, to resist any longer, or from the number of 
 persons attacking her, she considered resistance dangerous, and absolutely 
 useless, the crime is complete (w). And it is no excuse that she was 
 first taken with her own consent, if she were afterwards forced against her 
 will ; nor is it an excuse that she consented after the fact, or that she was 
 a common strumpet, or the concubine of the ravish er : for she is still under 
 the protection of the law, and may not be forced (o). Circumstances of 
 this kind, though they do not necessarily prevent the offence from 
 amounting to a rape, are material to be left to the jury, in favour of the 
 accused, especially in doubtful cases (p). The notion that, if the woman 
 conceived, it could not be a rape, because she must in such case have 
 consented, is exploded [q). 
 
 7<i, Ridley, J., that the cfTect of 48 & 40 (m) 1 Hawk. c. 41. s. G. 1 East, P. C. 
 
 Vict. c. (59 is to override R. v. Flattery 444 ; see post, j). 937. 
 
 and to cstahlisli that it is a good defence to (n) R.r. Hallett,9C.& P. 748, Coleridge, J. 
 
 a charge of rape to prove that consent was (o) 1 Hawk. c. 41, s. 7. 1 East, P. C. 
 
 obtained by fraud; sed qucere. 444, 445. 4 Bl. Com. 213. 
 
 (it) 22Q.B.D.23,a«/<',p.932. Inthiscase (p) 1 East, P. C. 44.x Sec R. r. Harri- 
 
 doubts were thrown on the correctness of son, 2 Cr. App. R. 94. 
 
 the decisions in R. v. Bennett, 4 F. & F. {q) 1 Hale, r.31. 1 Hawk. c. 41. s. 8. 
 
 1105, and R. v. Sinclair, 13 Cox, 28. 1 Ea.st, P. C. 445. Taylor, Medical Jurisp. 
 
 (I) 1 Hale, 629. (5th. ed.). Vol. ii. p. 146.
 
 936 Of Defilement or Corruftion of Females, [book ix 
 
 Submission without resistance is not necessarily tantamount to con- 
 sent. The person assaulted may be too young to appreciate the nature 
 of the act done or to do more than submit without actually consenting ; 
 and submission by a child in the hands of an older and stronger person, 
 and possibly under the influence of fear or of a sense of constraining 
 authority, is not equivalent to consent (r). 
 
 In R. V. Nichol \s), a master took very indecent liberties with a female 
 scholar of the age of thirteen, by putting her hand into his breeches, 
 pulling up her petticoats, and putting his private parts to hers : she did 
 not resist, but it was against her will. The jury found him guilty of an 
 assault with intent to commit a rape, and also of a common assault ; and 
 the judges thought the finding as to the latter clearly right {t). 
 
 In R. V. Jones (m), on the trial of a father for a rape on his daughter, 
 aged fourteen years, it appeared that her father laid hold of her and had 
 connection with her ; he had previously told her not to tell anyone what 
 he had done to her ; he had said he would throttle her and kill her, if she 
 told anything he had done ; he had throttled her, and had had connection 
 with her many times before ; and on these occasions he had told her not 
 to tell, and that was the reason she did not tell ; she had consented to the 
 prisoner's having connection with her because she was afraid of him ; 
 she was afraid of his choking her. Channell, B., told the jury that, 
 ' if it is made out to your satisfaction that a kind of reign of terror was 
 set up in this family, and in consequence of that terror and dread the 
 girl allowed the connection to take place without resistance, then I am 
 of opinion you may convict. It is possible she may have been a consent- 
 ing party, and not influenced by dread : that is a question for you. She 
 says the same thing had been done upon previous occasions, and her 
 father had told her he would throttle her if she told her mother, and 
 that is why she did not tell. She says she begged him not to do it, and 
 to be quiet and leave her alone. This, in ordinary case would be quite 
 insufficient ; but in this case, if you think she remained passive under 
 the influence of that dread and reign of terror which I have mentioned, 
 and that is clearly made out, you may find the prisoner guilty ' {v). 
 
 Submission to an act of carnal intercourse by a quack doctor on the 
 faith of his statement that he was performing a surgical operation was 
 held not to amount to consent, and he was convicted of rape {w). 
 
 A girl of sixteen was taken by her parents to the defendant, a German 
 quack, on account of fits, by which she was afflicted ; he said he would 
 cure her, and bid her come again the next morning ; she went accordingly 
 the next morning by herself, and he told her she must strip naked ; she 
 said she would not. He said she must, or he could not do her any good. 
 She began to untie her dress, and he stripj^ed off all her clothes ; she did 
 nothing ; he pulled off everything ; she told him she did not like to be 
 
 (r) R. V. Day, 9 C. & P. 722, Coleridge, {w) R. v. Flattery, 2 Q. B. D. 414. In 
 
 J. that case it was said that a conviction 
 
 (s) MS. Bayley, J., and R. & R. 130. for indecent assault could be had if the 
 
 {t) e.g., R. V. M'Gavavan, 3 C. &. K. consent was obtained by fraud. It seems 
 
 320, Williams, J. to have been ruled that this decision is 
 
 (w) [1861], 4 L. T. (N. S.) 154. overridden by 48 & 49 Vict. c. 09, s. 4. R. v. 
 
 (v) Cf. R. V. Day, ubi supra, R. r. Wood- O'Shay, 19 Cox, 76, Ridley, J. ; sed quaere. 
 house, 12 Cox, 443. 
 
 I
 
 CHAP. IX.] Of Rape. 937 
 
 stripped in that manner. When she was naked he rubbed her with a 
 liquid. The case was left to the jury to consider whether the defendant 
 believed that stripping the girl would assist his judgment, or whether he 
 did not strip her wantonly, without thinking it necessary ; and they were 
 told that the making her strip and pulling her clothes oflF might, under 
 the latter circumstances, justify a verdict for an assault. The jury found 
 the defendant guilty ; and, upon a case reserved, it was held that the 
 conviction was right (x). And it has been held that where a girl of fourteen 
 submitted without resistance to carnal intercourse with a medical man 
 who made her believe that he was treating her medically, he was guilty 
 of assault (y). 
 
 Upon an indictment containing a count for an assault with intent to 
 commit a rape, and a count for a common assault, it appeared that the 
 defendant, a surgeon, attended the prosecutrix for bleeding piles, and 
 had been with her to consult another surgeon, and afterwards went with 
 her into her bedroom, and told her he was ordered to give her an injection, 
 and directed her to put her head on the bed and her feet on the floor, 
 which she did, and her clothes were up over her back. He then began 
 to use the injection, and the water ran down her legs. She was going 
 to raise herself up, and he said, ' Put your head on the bed and do not 
 stir for a moment.' She had had injections before, and they keep persons 
 still for a little while after they are applied. As she lay she perceived 
 something very warm against her person ; she resisted, and rose up from 
 the bed, and said, ' Doctor, what do you mean ? ' His small clothes 
 were quite open. She felt the parts of the prisoner enter hers just a 
 little. Coleridge, J. : 'An assault with intent to commit a rape is very 
 different from an assault with intent to have improper connection. The 
 former is with intent to have connection by force ; but here, according 
 to the statement of the prosecutrix, the prisoner desists the moment she 
 resists, and at most it could only be an attempt by surprise to get posses- 
 sion of the person of the prosecutrix, and that is not an assault with 
 intent to commit a rape, but is an assault. If in this case the prisoner 
 had intended to have effected his purpose by force, the complete offence 
 of the rape would have been proved, as the prosecutrix states that the 
 prisoner penetrated her person, and the smallest penetration is sufficient 
 to complete the offence of rape ' (2), 
 
 Upon an indictment for assault it apj^eared that the prisoner was a 
 medical man, and that the girl alleged to have been assaulted was fourteen 
 years old, and had been placed under his professional care in consequence 
 of illness arising from su])pressed menstruation. The defendant gave her 
 medicines, and on her going to his house, and informing him that she was 
 no better, he observed, ' Then I must try further means with you.' He 
 then laid her down in the surgery, lifted up her clothes, and had connection 
 with her, she making no resistance, believing, as she stated, that she was 
 
 (x) R. V. Rosinski, MS. Bayley, J., and 1 liberties, but alleged that the connection 
 
 Mood. 19; 1 Lew. 11. was against her will. The accu.sed ad- 
 
 (y) R. r. Case, 1 Den. 580: lOL. J. M. C. mitted the attempt but said that the 
 
 174. woman then resisted and tliat he desisted. 
 
 (z) R. V. Stanton, 1 C. & K. 415. In The summing up of Cliannell, B., accorded 
 
 R. V. Wright. 4 F. & F. 967 the woman, with that in R. v. Stanton, 
 admitted that slie had allowed extreme
 
 938 Of Defilement or Corrwption of Females, [book ix. 
 
 submitting to medical treatment for the ailment under which she laboured. 
 The jury were directed that the girl was of an age to consent to a man 
 having connection with her, and that if they thought she consented to 
 such connection with the defendant, he ought to be acquitted ; but if 
 they were satisfied she was ignorant of the nature of the defendant's act, 
 and made no resistance solely from a bona-fide belief that the defendant 
 was (as he represented) treating her medically with a view to her cure, 
 his conduct amounted in point of law to an assault. The jury convicted, 
 and, upon a case reserved upon the question whether this direction to 
 the jury was correct in point of law, after argument, Wilde, C.J., thus 
 delivered judgment : ' This case is free from doubt. The finding of the 
 jury is clear. They are told that if they think she consented to the 
 connection, they must acquit ; that the girl was competent to consent ; 
 and that it is a question for them whether she did so or no. This is 
 said to be qualified by what follows, viz., that if they thought she made 
 no resistance, solely from the belief that the prisoner was treating her 
 medically, they should convict of an assault. I do not see that this is 
 any qualification ; it is a strictly correct direction. The girl is fourteen 
 years old. She might at that age be ignorant of the nature of the act, 
 morally as well as physically, and of its possible consequences. It is 
 said that, as she made no resistance, she must be viewed as a consenting 
 party. That is a fallacy. Children who go to a dentist make no resistance ; 
 but they are not consenting parties. The prisoner disarmed her by fraud. 
 She acquiesced under a misrepresentation that what he was doing was 
 with a view to a cure, and that only ; whereas it was done solely to gratify 
 the passion of the prisoner. How does this differ from a case of total 
 deception ? She consented to one thing ; he did another materially 
 different, on which she had been prevented by his fraud from exercising 
 her judgment and will. The cases (a) which have been referred to shew 
 that where consent is caused by fraud, the act is at least an assault, and 
 perhaps amounts to rape. It has been suggested that were the act to 
 be regarded in the light of medical treatment, it would be no offence, and 
 that it was not left to the jury whether the prisoner did not intend it 
 as such. That certainly was not left to them, nor need have been. The 
 notion that a medical man might lawfully adopt such a mode of treatment 
 is not to be tolerated in a court of justice. He would have committed a 
 high ecclesiastical offence at all events ' (6). 
 
 Indictment. — As the absence of previous consent is a material ingre- 
 dient in the offence of rape, it should be averred in the indictment by the 
 words ' violently and against her will ' or ' without her consent ' (c). It is 
 essential to aver, that the offender ' feloniously did ravish ' the party ; and 
 the omission of the word ' ravished ' will not be supplied by an averment 
 that the offender ' did carnally know,' &c. {d). It has been considered 
 that the words ' did carnally know' are not essential, on the ground that 
 rapere signifies legally as much as carnaliter coynoscere (e) ; but they are 
 
 (a) R. V. Saunders, 8 C. & P. 265. R. v. PI. ed. 409. 3 Chit. Cr. L. 815. 
 Williams, ibid. 286. (d) 1 Hale, 628-632. Br. Indict, pi. 7, 
 
 (6) R. V. Case, 1 Den. 580. See R. v. citing 9 Ed. IV. c. 6. 
 Rosinski, 1 Mood. 19, ante, p. 937. (e) 2 Co. Inst. 180, and see 2 Hawk. 
 
 (c) Cro. Circ. Comp. ed. 427. 2 Stark. Cr. c. 25, s. 56. Staundf. 81. Co. Litt. 137.
 
 CHAP. IX.] Of Rape. 939 
 
 appropriate to describe the nature of the crime, and appear to be generally 
 used (/), and this omission would not be prudent {(j). Six judges out 
 of twelve thought that omission in an indictment of the words ' carnaliter 
 cognovit ' was cured by verdict, because those words were not in 9 Geo. 
 IV. c. 31 ; but they thought it bad before verdict {h). Where an indict- 
 ment alleged that the prisoner in and upon E. F., ' violently and feloniously 
 did make (omitting '' an assault "), and her the said E. F., then and there 
 and against her will, violently and feloniously did ravish and carnally 
 know ' ; upon a case reserved, ten of the judges were of opinion that the 
 judgment ought not to be arrested, because of the omission of the words 
 ' an assault ' (r). 
 
 The indictment against aiders and abettors may lay the fact to have 
 been done by all, or may charge it as having been done by one and abetted 
 by the rest. Thus where, upon an appeal against several persons for 
 ravishing the appellant's wife, an objection was taken that only one 
 should have been charged as ravishing, and the others as accessories ; or 
 that there should have been several appeals, as the ravishing of one 
 would not be the ravishing of the others : it was answered that if two 
 come to ravish, and one by comport of the other does the act, both are 
 principals, and the case proceeded {I). And where the indictment was 
 against three persons for a rape, charging them all as principals in the 
 first degree, that they ravished and carnally knew the woman ; and the 
 prisoners were all found guilty ; the judge who tried them doubted whether 
 the charge could be supported ; and, at his desire, the case was mentioned 
 by Heath, J., to the other judges, and all who were present agreed that 
 the charge was valid, though the form was not to be recommended ; but 
 they gave no regular opinion, because the case was not regularly before 
 them (m). 
 
 On an indictment of one for rape and another for aiding and abetting 
 the rape, if the principal is (under 14 & 15 Vict, c, 100, s. 9) convicted of 
 an attempt to commit rape the other defendant may be convicted of 
 aiding and abetting the attempt (n). 
 
 An indictment in the first count charged F. with committing a rape, 
 and L. with being present, aiding and assisting ; the second count charged 
 L. as principal in the first degree, and F. as aiding and assisting ; the 
 third count charged an evil-disposed person, to the jurors unknown, as 
 principal in the first degree, and F. and L. as aidirig and assisting ; and 
 the fourth count charged a certain other evil-disposed person as principal, 
 
 (/) See the precedents referred to «n/e, to conclude the indictment against the 
 
 note (c). form of the statute and against the peace. 
 
 (r/) 1 East, r. C. 448. 2 Stark. Cr. PI. 1 Ea,st. P. C. 448 ; but see 2 Stark. Cr. 
 
 409, note {},). .'} Chit. Cr. L. 812. It is PI. 409. note. R. v. Scott, R. &. R. 415. 
 
 hiid down, generally, in some of the books Neither conclusion is now necessary, 
 
 that the indictment must be rapuil cl (/) R. r. Vide, Kitz. Corone. ])l. 8(). 
 
 curnaliier coijnovif, 1 Hale, ()28-()32. (/«) R. r. ]?urgess, Tr. T. 1813, Eilen- 
 
 (h) R. V. Warren, M. T. 1832, MSS. borougli, C.J., Sir James Manslield, C.J.. 
 
 Bayley, B. 3 Burns Justice (ed. 1). & W.) and (Jrose, J., were absent. In 5 Evans' 
 
 725. See 7 Geo. IV. c. 04, s. 21, {wst. Col. Stat. Cl. G, p. 31)9. note (12), the case 
 
 Vol. ii. p. 1930. 24 & 52 Vict. c. 100, s. 48 is mentioned as having occurred at the 
 
 {ante, p. 931) speaks of 'rape' without Chester Spr. Ass. 1813. 
 
 defining it. (?i) R. c. Hapgood and Wyatt, L. R. 1 
 
 (/) R. V. Allen, 9 C. & P. 521 ; 2 Mood. C. C. R. 221 : S. C. sub. nom. R. v. Wyatt, 
 
 179. It used to be considered necessary 39 L. J. M. C. 83.
 
 940 
 
 Of Defilement or Conuftion of Females, [book ix. 
 
 and F. and L. as aiders. For the defence, before pleading it was moved 
 to quash the indictment on the ground that it was bad for misjoinder of 
 two offences of a different nature, and not liable to the same punishment, 
 and that for aiding and abetting no provision was made by 9 Geo. IV. 
 c. 31. It was also contended that the indictment contained different 
 transactions and that the prosecutrix was bound to make an election. 
 The Court overruled both objections. L. was acquitted, and a general 
 verdict of guilty was found against F. It appeared that the prisoner, 
 together with three other men, committed at the same time and place, 
 the one after the other, successive rapes upon the body of the prosecu- 
 trix, the others aiding and abetting in turn ; and the evidence, if believed, 
 was sufficient to sustain the first count, as far as it charged F. as principal, 
 as the other counts which charged him as aiding and assisting ; and, 
 upon a case reserved, the judges held that the conviction was good on 
 the first count (o). Where the first count charged G. as principal in the 
 first degree, and W. as present, aiding and assisting : and the second 
 count charged W. as principal in the first degree, and G. as present, 
 aiding and assisting ; it was moved to quash the indictment, on the 
 ground of misjoinder, as the judgment might be different, and it was 
 said that this objection did not ultimately become material in the 
 preceding case, as one prisoner alone was convicted ; but Coleridge, J., 
 said: ' The 9 Geo. IV. c. 31, s. 16, awards the punishment of death to 
 " every person convicted of the crime of rape." Now, I take it that a 
 principal in the second degree falls clearly within that provision : and 
 that, therefore, the objection that the judgment might be different 
 entirely fails ' {p). A woman who has aided a man in the commission of 
 a rape may be indicted as a principal {q). 
 
 Evidence.— The unsworn evidence of young children is not admissible 
 on an indictment for rape (r), but is admissible on an indictment for 
 unlawfully and carnally knowing, or attempting to have unlawful carnal 
 knowledge of, a girl under thirteen (s). 
 
 The woman ravished is a competent witness : and indeed is so much 
 considered as a witness of necessity, that where a husband was charged 
 
 (o) R. V. Folkes, 1 Mood. 354. ' There 
 is an inaccuracy in the statement of this 
 case ; it treats the charge against the prin- 
 cipal in the first degree as one count, and 
 the charge against the principal in the 
 second degree as another count ; but that 
 is not so, as both charges only constitute 
 one count, as is plain from the indictments 
 in murder, in which the conclusion, " and 
 so the jurors, &c., say, that A., B., and C. 
 murdered," always follows the allegation 
 that B. and C. were present, aiding and 
 assisting.' C. S. G. 
 
 (p) R. V. Gray, 7 C. & P. 164. R. v. 
 Crisham, C. & M. 187. See also R. v. 
 Parry, 7 C & P. 836, where an indictment 
 against five charged each as principal in 
 one count, and the others as aiders and 
 abettors. 
 
 [q) R. V. Ram, 17 Cox, 609. 
 
 (r) In R. V. Nicholas, 2 C. & K. 246, 
 
 where on an indictment for abusing a child 
 under ten years of age, the child was 
 wholly ignorant of the nature of an oath, 
 and therefore not examined, and it was 
 proposed to give evidence of a statement 
 made by her relative to the offence, and 
 the name of the person who committed it ; 
 Pollock, C.B., refused to admit it, observ- 
 ing, ' If a man says to his surgeon, " I 
 have a pain in my head," or a pain in such 
 a part of the body, that is evidence ; but 
 if he says to his surgeon, " I have a wound," 
 and adds, " I met John Thomas, who had 
 a sword, and ran me through the body 
 with it," that would be no evidence against 
 John Thomas : and it is certainly a very 
 odd reason for receiving the evidence 
 of what a child has said, that that child 
 is not capable of taking an oath.' Cf. 
 R. V. Brasier, 1 East, P. C. 443. 
 
 (.s) 48 & 49 Vict. c. 69, s. 4, post, p. 948.
 
 CHAP. IX.] Of Rape. 941 
 
 with having assisted another man in ravishing his own wife, the wife was 
 admitted as a witness against her husband (t). 
 
 But though the party ravished is a competent witness, the credibihty 
 of her testimony must be left to the jury, upon the circumstances of fact 
 which concur with that testimony. Thus, if she is 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 probabiHty to her evidence (u). But if, on the other 
 hand, the witness is of evil fame, and stands unsupported by others ; if, 
 without being under control, or the influence of fear, she concealed the 
 injury for any considerable time after she had the opportunity of com- 
 plaining ; 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 Avrong descriptions of the place ; 
 these and the like circumstances, afford a strong, though not conclusive, 
 presumption that her testimony is feigned (v). 
 
 The offence of rape is not triable at quarter sessions (w). 
 
 On an indictment for rape, the jury, if not satisfied that the complete 
 offence has been committed, may convict of an attempt to commit 
 rape {x). And by sect, 9 of the Criminal Law Amendment Act, 1885 
 (48 & 49 Vict. c. 69), ' If upon the trial of an indictment for rape or 
 any offence made a felony by sect. 4 of this Act the jury shall be satisfied 
 that the defendant is guilty of an offence under sects. 3, 4, or 5 {vide post, 
 pp. 951-956) of this Act {y) or of an indecent assaidt but are not 
 satisfied that the defendant is guilty of the felony charged in such 
 indictment or of an attempt to commit the same, then, and in every 
 such case the jury may acquit the defendant of such felony and find him 
 guilty of such offence as aforesaid or of an indecent assault : and there- 
 upon such defendant shall be liable to be punished in the same manner 
 as if he had been convicted upon an indictment for such offence as 
 aforesaid or for the misdemeanor of an indecent assault ' (z). 
 
 Attempted Rape. — Attempts to choke, suffocate, or strangle a woman 
 with intent to commit rape fall within 24 & 25 Vict. c. 100, s. 21 (a), and 
 are punishable by flogging (6) in addition to and in su])stitution for the 
 
 (/) R. V. Lord Castk'haven, 3 8t. Tr. 402. under thirteen, wliicli are misdemeanors, 
 
 1 Hale, G29. Hutt. IK). 1 Str. (53.3. a conviction could he had for common 
 
 (ii) 1 Hale, G33. 1 East, P. C. 445. 4 Bl. assault. See R. v. Guthrie, L. R. 1 C. C. R. 
 
 Com. 213. R. V. Osborne [1905], 1 K. B. 241. As to the principle see R. v. Taylor, 
 
 551, 559. L. R. 1 C. C. R. 194, an indictment for 
 
 {v) 4 Bl. Com. 213, 214. 1 East, P. C. unlawful wounding. As to the double dc- 
 
 445, 446. fence, see R. v. Chadderton, 1 Cr. App. 
 
 (w) 5 & 6 Vict. c. 38, s. 1, being punish- R. 229. 
 
 able by penal servitude for life on a first (z) Punishment of Incest Act, 1908, i)<)il, 
 
 conviction. p. 973. 
 
 (x) 14 & 15 Vict. c. 100. s. 9, post, Vol. ii. ((/) Ante, p. 8()3. 
 
 p. 196(). (b) 20 & 27 Vict. e. 44, ante, p. 21(). In 
 
 (y) It is to be noted that a convi^ion R. v. Smallbones, Hant^j Winter Assizes, 
 
 for common a.ssault cannot be made on an 1898, a sentence of flogging was awaixled for 
 
 indictment for rape. But on an indictment an offence under s. 21 with intent to com- 
 
 for assault with intent to commit rape or mitrape. See Archb. Cr. PI. (23rd ed.) 239. 
 for an attempt carnally to know a girl
 
 942 Of Defilement or Corrwption of Females, [book ix 
 
 other punishments lawful under that section. Use of stupefying or 
 overpowering drugs with intent to commit an indictable offence is 
 punishable under 24 & 25 Vict. c. 100, s. 22 (c). 
 
 Where there is no reason to expect that the facts and circumstances 
 will suffice in evidence to prove commission of the complete offence, the 
 proper course is to indict for the common-law misdemeanor of an attempt 
 to commit rape (d), or for the misdemeanor of assault with intent to ravish, 
 which is, under 24 & 25 Vict. c. 100, s. 38 {ante, p. 893), punishable as 
 an assault with intent to commit felony, by imprisonment with or with- 
 out hard labour for not more than two years (e). Courts of Quarter 
 Sessions have jurisdiction to try this offence. Aiding and abetting an 
 attempt to ravish is punishable under 24 & 25 Vict. c. 94, s. 8, and 24 & 
 25 Vict. c. 100, s. 67 (ante, pp. 138, 139). 
 
 As to indecent assaults on females, vide 'post, p. 955. 
 
 Upon an indictment for an assault with intent to commit a rape, 
 Patteson, J., in summing up, said : ' In order to find the prisoner guilty of 
 an assault with intent to commit a rape, you must be satisfied that the 
 prisoner, when he laid hold of the prosecutrix, not only desired to gratify 
 his passions upon her person, but that he intended to do so at all events, 
 and notwithstanding any resistance on her part (/). He also ruled that 
 evidence that the prisoner, on a prior occasion, had taken liberties with 
 the prosecutrix was not admissible to shew the prisoner's intent (g). 
 
 Under a count for an assault with intent to commit rape, a prisoner 
 may be convicted of common assault (h). But on an indictment contain- 
 ing a count for an assault with intent to commit a rape, and a count for 
 a common assault, if the prisoner be acquitted on the count for an assault 
 with intent to commit a rape, on the ground that the prosecutrix consented, 
 he cannot be convicted on the count for a common assault ; for to sup- 
 port that count such an assault must be proved as could not be justified 
 if an action were brought for it, and leave and licence pleaded (i). 
 
 An indictment may contain two counts for two different attempts to 
 commit a rape on the same female, and evidence of both may be given 
 on the trial (/). And where one count charged the prisoner with an 
 attempt to commit a rape, and another count charged him with an assault 
 and the record stated that the jury found him ' guilty of the misde- 
 meanor and offence in the said indictment specified,' and it w^as adjudged 
 that ' for the said misdemeanor,' he shall be imprisoned for two years 
 and kept to hard labour ; it was held, upon error, that the word ' misde- 
 meanor ' was notnen collectivum, and therefore the finding of the jury 
 was in effect that the prisoner was guilty of the whole matter charged 
 by the indictment, and consequently the judgment was warranted by 
 the verdict (k). 
 
 Evidence of Fresh Complaint. — On a trial for rape the fact that a 
 
 (c) Ante, p. 863. (g) Ibid. 
 
 id) And see R. V. Hapgood, L. R. 1 C. C. R. (h) 1 Lew. 16, Hullock, B. 
 
 221, ante, p. 939. («) R. v. Meredith, 8 C. & P. 589, Abinger, 
 
 (e) As to fines and sureties see 24 & 25 C.B. 
 
 Vict. c. 100, s. 71, ante, pp. 217, 218, and (j) R. v. Davies, 5 Cox, 328. 
 
 as to probation vide ante, p. 227. As to (k) R. v. Powell, 2 B. & Ad. 75, Taun- 
 
 common law punishment see 1 East, P. C. ton, J., though the two counts only 
 
 441. charged one assault. 
 
 (/) R. V. Lloyd, 7 C. & P. 318.
 
 CHAP. IX.] Of Rape. 943 
 
 complaint was made by the prosecutrix shortly after the time when the 
 offence is alleged to have been committed and the particulars of the 
 complaint may, so far as they relate to the charge against the prisoner, 
 be given in evidence for the prosecutrix, not as evidence of the facts 
 complained of nor as part of the res gestce, but to shew the consistency 
 of the conduct of the prosecutrix with the evidence given by her at the 
 trial and as negativing consent on her part (l). 
 
 R. V. Clarke (m), cited in former editions of this work (n) as authoritv 
 for the proposition that the particulars of the complaint cannot be given 
 in evidence is said by Hawkins, J., in R. v. Lillyman (l) not to contain 
 any such ruling, but to decide only (1) that the fact of the woman 
 having made the complaint is admissible, (2) that the fact and the 
 particulars of the complaint are not evidence of the truth of the 
 complaint or of the statements of fact on which it was based ; and these 
 rulings he adopted as settled law (o). 
 
 The cases of R. v. Walker (p), R, v. Osborne {q) so far as they are 
 inconsistent with R. v. Lillyman are overruled. R. v. Wood (r) is in 
 accord with R. v. Lillyman (s), and so is R. v. Eyre (t) except as to the 
 ruling by Byles, J., that what was said to the woman in answer to what 
 she said immediately after the occasion was equally evidence with her 
 complaint (w), which is open to question. 
 
 The ruling in R. v. Lillyman makes it unnecessary to resort to the 
 modes of getting in the particulars of the complaint by indirect methods 
 countenanced in R. v. Wink (y), but disapproved in R. v. Osborne {nbi 
 sup.) and R. v. Taylor (?r) and in R, v. Lillyman (x). 
 
 The rule as to the admissibility of fresh complaint applies not only to 
 
 rape but also to attempts to have carnal knowledge of a girl of thirteen 
 
 and under sixteen (y), assaults with intent to ravish, and indecent assaults, 
 
 (I) R. V. Lillyman [1890], 2 Q.B. 167. particular person, but declined to allow her 
 
 See R. V. Brasier, 1 Leacli, 199, 1 East, P. C. to say whom. 
 
 443, and for a discussion of the law by the {r) [1877] 14 Cox, 4(5, Bramwell, L.J. 
 
 Rt. Hon. Sir J. H. de Villicrs, R. v. Jenkin- In R. v. Lillyman [I89G]. 2 Q.B. 175, the 
 
 son [1904], 21 Cape S. C. Rep. 233. Court agreed with the ruling that the 
 
 (/«) 2 Stark. (N. P.) 241, Holroyd, .1. complaint was not admissible as part of 
 
 (n) Gth ed. vol. iii. pp. 232, 233. the res rje-stce, tiivl doubted whether the 
 
 (o) [1896] 2 Q.B. 173, citing 1 Phillips evidence would have been rejected if it 
 
 and Arnold on Evidence (10th ed.), 204. had been i)rcssed on the judge that the 
 
 (p) [1839] 2 M. & Rob. 212, whore comj)laint in all its detail was nevertheless 
 
 Parke, B., after referring to the usage then a fact admissible to prove consistency of 
 
 prevailing of excluding particulars of the conduct on the part of the prosecutrix, 
 
 complaint, said he could not understand (s) [1896] 2 Q.B. 167. 
 
 the reasons for limiting the examination-in- (t) [1800| 2 F. & F. 579. 
 
 chief to the general inquiry whether a (u) See li. r. Lillyman [1896], 2 Q.B. 167, 
 
 complaint had been made and leaving the 176. 
 
 particulars to be elicited, if at all, by (r) [1834] 6 C. & P. 397, where Patteson, 
 
 cross-examination. See hereon R. i'. J., held that a party, who had been robbed, 
 
 Lillyman [1896], 2 Q.B. 173, 174. might be asked if he named any person 
 
 (q) [1842] C. & M. 622. In that case, as the person who had robbed him to a 
 
 Cresswell, J., ruled that what the prosecu- constable, but that he ought not to be 
 
 trix said at the time when the offence was asked what name he mentioned. This case 
 
 committed was admissible (as part of the was criticised by Mr. (Jreavcs. Russell on 
 
 res gestce), hec&uae the prisoner was present Crimes (6th ed.) vol. iii., 233 not<', as at 
 
 and the violence going on ; (2) that if the variance with R. v. Walker, ubi sup. 
 
 prisoner had gone away, and the prosecu- (w) [1874] 13 Cox, 77, Brett, J. 
 
 trix had in running away shouted out the (x) [1896], 2 Q.B.D. at p. 179. 
 
 name of the prisoner, they would not be (y) 48 & 49 Vict. c. 69,8.5, post, pp. 947, 
 
 admissible. He allowed the prosecutrix 951 < 
 to be asked whether she had named a
 
 944 Of Defilement or Corruption of Females, [book ix. 
 
 whether the female assaulted is (z) or is not (a) of an age to consent to an 
 indecent assault. 
 
 The question arose whether the rule in R. v. Lillyman was limited to 
 cases of offences against females, where the absence of consent was an 
 essential element in law of the offence. Upon this fact there were 
 inconsistent ruhngs (6), but in R. v. Osborne (c) it was decided that the 
 complaint in the case of offences against female chastity (d) is admissible, 
 not merely as negativing consent but establishing the consistency of the 
 story told by the prosecutrix at the trial, which, from the nature of the 
 case, is aided by proof of immediate complaint and discredited by failure 
 to make it, and that whether consent in the particular case is legally a 
 necessary part of the issue or is a collateral issue of fact or merely part 
 of the story of the prosecutrix, in either case it is equally admissible (e). 
 
 The rules now established are clearly exceptional, but are traced 
 historically to the old common-law rule applicable in appeals of rape, that 
 it was for the prosecution to shew whether, while the offence was recent, 
 the woman raised the hue and cry and shewed her injuries and clothing 
 to others (/). 
 
 The rule is obviously one to be kept carefully within due limits. ' It 
 applies only where there is a complaint, not elicited by questions of a 
 leading and inducing or intimidating character (g), and only when it is 
 made at the first opportunity after the offence which reasonably offers 
 itself within such bounds . . . the evidence should be put before the 
 jury, the judge being careful to inform the jury that the statement is 
 not evidence of the facts complained of and must not be regarded by 
 them, if believed, as other than corroborative of the complainant's 
 credibility, and when consent is an issue of the absence of con- 
 sent' (h). 
 
 The following rulings have been given as to the time within which the 
 complaint must be made for it to be admissible. Three weeks after the 
 alleged offence, indecent assault, has been held too late (i) and a complaint 
 was held too late when made on the Monday following the day of the 
 alleged offence, Saturday {j). It need not be made on the earliest possible 
 opportunity, but on the first opportunity which reasonably offers (Jc). 
 
 (z) R. V. Lillyman [1896], 2 Q.B. 167. ( /) R. v. Osborne [1905], 1 K.B. 551, 559. 
 
 (a) R. V. Osborne [1905], 1 K.B. 551. {rj) Ibid, at p. 561. 
 
 (b) In R. I'. Rowland [1898], 62 J. P. 459, (/;) R. v. Osborne [1905], 1 K.B. 561, 
 Hawkins, J., limited the rule to cases where Alverstone, L.C J., Kennedy, Ridley, 
 the question of consent was legally material. Channell, and Philhmore, JJ. This 
 In R. V. Kiddle [1898], 19 Cox, 77 ; and decision must be taken to overrule R. v. 
 R. V. Kingham [1902], 66 J. P. 393, Rowland [1898], 62 J. P. 459, Hawkins, 
 Lawrance, J., the rule was applied to .J., and R. v. Merry, 19 Cox, 442. See 
 indecent assault of a girl under thirteen. R. v. Jenkinson [1904], 21 Cape Sup. 
 
 (c) [1905] 1 K.B. 551. The indictment Ct. 233. In R. v. Spuzzum, 12 Canada 
 was for an indecent assault and a common Cr. Cas. 287, evidence was admitted of a 
 assault on a girl aged twelve, whose consent statement made by a girl of sixteen to her 
 to indecent assault was not in law a defence aunt (the first adult female she had seen 
 (43 & 44 Vict. c. 45, s. 2, post, p. 955). since the assault) in answer to a general 
 
 {d) The ruling of Hall, Recorder, on R. v. question, ' What is the trouble ? ' 
 
 Folley [1896], 60 J. P. 569, applying the (i) R. v. Pantaney, 71 J. P. 101 (C. C. R.). 
 
 rule to felonious wounding with intent to (j) R. ik Ingrey, 64 J. P. 107, Russell, 
 
 do bodily harm, is not warranted by the L.C.J. 
 
 authorities, except so far as the complaint (k) R. v. Osborne [1905], 1 K.B. 551, 
 
 was part of the res gestae. 561 ; R. v. Kiddle, 19 Cox, 77 ; and 
 
 (e) [1905] 1 K.B. 558. R. v. Spuzzum, ante, note (h).
 
 CHAP. IX.] Of Rafe. 945 
 
 The question whether the complaint was made reasonably soon appears 
 to be for the judge and not for the jury {I). 
 
 In E.. V. Megson (m) a woman who had undoubtedly been ravished 
 by some man had died before the trial without having made any admis- 
 sible deposition which could be placed before the jury. An attempt was 
 made to put in evidence a detailed account of the transaction in the 
 shape of a complaint by the woman with a view by that complaint alone 
 to shew the prisoner to be the guilty person. Rolfe, B., rejected the 
 evidence, saying : ' There is a wide difference between receiving such 
 statements as confirmation of a prosecutrix's credibility in a charge of 
 rape in which she is examined as a witness and a case like the present, 
 where the complaint made is to be received as independent evidence.' 
 
 In R. V. Guttridge (w), where the prosecutrix, though living, was not 
 examined as a witness, Parke, B., held that it was not competent to 
 prove that she made a complaint soon after the occurrence ; for such 
 evidence would be merely confirmatory of the story of the prosecutrix, 
 and no part of the res gestcc (nn). 
 
 The character of the prosecutrix, as to general chastity, may be 
 impeached by general evidence (o), as by shewing her general light 
 character, and giving general evidence of her being a street walker {p). 
 And the prosecutrix may be cross-examined as to particular discreditable 
 transactions (7) and as to her having had connection with the prisoner 
 previously to the alleged rape (r), and if she deny such connection, the 
 prisoner may shew that she has been previously connected with him (s). 
 On an indictment for an indecent assault, as in cases of rape, or attempt 
 to commit rape, the answer of the prosecutrix, to questions put to her 
 on cross-examination as to particular acts of connection with persons 
 named to her, other than the prisoner, is final, and the party questioning 
 is bound thereby, and if her answer be a denial, the persons named 
 cannot be called to contradict her (t). 
 
 Where, on a trial for rape, the prosecutrix was cross-examined as to 
 a charge of stealing money from a former mistress, and as to the account 
 she had given of the money found in her possession to a constable, and 
 she said that she told the constable a gentleman had given it her for 
 not telling of his insulting her, and denied that she had told him that it 
 
 (I) R. V. Ingrcy, ubi sup. Patteson, J., admitted evidence that the 
 
 (in) [1840] 9 C. & P. 420. Rolfe, B., in jji-osecutrix had been seen on the streets of 
 
 summing up, referred to the rule as to Shrewsbury as a reputed prostitute. In 
 
 admission of the complaint, in terms which R. v. Tissington, 1 Cox, 48, Abinger, C.B., 
 
 were in R. v. Lillyman [189G], 2 Q.B. 174, allowed witnesses to be called to prove 
 
 held consistent with the opinion that the general want of decency in the prosecutrix, 
 
 particulars as well as the fact of complaint and tiion pcrmilted tiic prosecutrix to call 
 
 are admissible. witnesses to rebut their evidence. 
 
 (w) [1840]9C. & P. 471. Cf. 1 East, P. C. (q) R. v. Barker, 3 C. & P. 589. See R. 
 
 443. This case ruled nothing as to the v. Holmes, infra. 
 
 admissibility of the particulars where the (r) R. r. Martin, fi C. & P. 562, approved 
 
 ravished woman was called. R. v. Lilly- in R. i: Holmes, infra. 
 man []89()1, 2 Q.B. 175. (f) R. v. Riley, 18 Q.B.D. 481. 
 
 (nn) In R. v. Harrison, 2 Cr. App. R. 94, {I) R. v. Holmes, L. R. 1 C. C. R. 334. 
 
 a conviction of indecent assault on an Srmhle, that the question may he put to 
 
 indictment for ra])c was upheld thougli her in cross-examination, but that she is 
 
 the prosecutrix had absconded. not bound to answer it : ibid. R. v. Hodgson, 
 
 (o) R. V. Clarke, 2 Stark. (N. P.) 241. R. & R. 211. R. v. Robins, 2 M. & Rob. 
 
 Taylor, Ev. (10th ed.), ss. 363, 1470. 512, is overruled ; and R. v. Cockcroft, 
 
 (p) R. V. Clay, 5 Cox, 140, where 11 Cox, 410, is approved in R. v. Holmes. 
 
 VOL. I. 3 P
 
 946 Of Defilement or Corruption of Females, [book ix. 
 
 was given her by the gentleman for having connection with her ; it was 
 held that the constable could not be called to contradict her, and to 
 prove that she told him the gentleman had given her the money for 
 having connection with her (m). 
 
 The aj^plication of these and other rules should always be made with 
 due regard to the caution given by Hale, who says : ' It is true, that rape 
 is a most detestable 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 ' [v). 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 we 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 indigna- 
 tion, that they are over-hastily carried to the conviction of the person 
 accused thereof, by the confident testimony, sometimes, of malicious and 
 false witnesses ' {w). 
 
 Where, on a trial for rape, the prosecutrix stated that she complained 
 almost immediately to her mistress, and the next day her clothes were 
 washed by a washerwoman, and they had blood on them ; Pollock, C.B., 
 directed these persons to be called as witnesses for the prosecution, 
 although they were attending as witnesses for the prisoner, but allowed 
 the counsel for the prosecution all latitude in examining them ix). 
 
 On a trial for rape it was proposed on the part of the prisoner to ask 
 a witness for the defence as to something that had been said by a relative 
 of the prosecutrix to a relative of the prisoner, in the presence of the 
 prosecutrix, about making it up ; it was objected that evidence of a 
 conversation between third persons, not made in the presence of the 
 prisoner, was inadmissible, Martin, B. : ' In a civil case, what is said 
 in the presence of either of the parties is admissible, because it is open 
 to the party so present to express assent or dissent to what is said, and 
 that would be admissible against him. In criminal cases, the prosecutor, 
 although not in strict law a party to the case, is so in fact ; and I think 
 that the rule applicable to conversation in the presence of a party in a 
 civil case may be fairly extended to a conversation in the presence of the 
 prosecutor in a criminal case ' {y). 
 
 Sect. II. — Unlawful Carnal Knowledge of Idiot, 
 Imbecile, and Lunatic Females. 
 
 Common Law. — On a trial for a rape upon an idiot girl, Willes, J., 
 directed the jury, that if they were satisfied that the girl was in such a 
 state of idiocy as to be incapable of expressing either consent or dissent, 
 
 (m) R. v. Dean, 6 Cox, 23, Piatt, B., was referred to arguendo in R. v. Holmes, 
 
 after consulting Wightman, J. but is not noticed in the judgments. In any 
 
 (w) 1 Hale, 635. event the suggested conversation appears 
 
 \iv) 1 Hale, 636. to have been meant to suggest evidence 
 
 \x) R. V. Stroner, 1 C. & K. 650. of subsequent consent, wliich is no defence 
 
 (y) R. V. Arnall, 8 Cox, 439. This case in rape, vide ante, p. 935.
 
 CHAP. IX.] Of Carnal Knowledge of Idiot, &c., Females. 947 
 
 and that the prisoner had connection with her without her consent, it 
 was their duty to find him guilty ; but that a consent produced by mere 
 animal instinct would be sufficient to prevent the act from constituting 
 a rape {z). 
 
 In a subsequent case it was held that there must be some evidence 
 of want of consent, even when the woman is an idiot, to warrant a convic- 
 tion for rape [a). This decision must be taken as a ruling on the 
 particular evidence : and in R, v. Barratt (6), the Court adopted the 
 rule of law as laid down in the earlier case of R. v. Fletcher (c). 
 
 In R. V. Barratt, the prisoner was convicted of attempting to rape a 
 girl of fourteen years of age who had been blind from six weeks old and 
 wrong in her mind, hardly capable of understanding anything that was 
 said to her, but capable of going up and down stairs by herself. If 
 placed in a chair by anyone she would remain there till night, passing 
 her evacuations in the chair. If told to lie down she would do so. She 
 could not communicate to her friends what she wanted. She could feed 
 herself a little, but was obliged to be dressed and undressed, and was 
 unable to do any work. The prisoner had known her and her family for 
 two years, and knew she was not right in her mind. There were no 
 marks of violence, but there had been recent connection, and the surgeon 
 thought she had been in the habit of having connection. The girl upon 
 being brought into Court was evidently idiotic, and it was found imjjos- 
 sible to communicate with her. She griimed, and made no reply to 
 questions except a vacant laugh. The prisoner was seen by the girl's 
 father lying on the girl, who was lying on a couch where she had been 
 placed by her sister. When the father entered the room the prisoner 
 was standing up buttoning his trousers, while the girl was lying quietly 
 on the couch. Blackburn, J., said there was ample evidence of the want 
 of capacity to give consent, and it was held that the act being done 
 without consent the prisoner was rightly convicted. 
 
 Statutes. — By sect. 5 of the Criminal Law Amendment Act, 1885 
 (48 & 49 Vict. c. 69), ' Any person who — 
 
 (2) Unlawfully and carnally knows or attempts to have unlawful 
 carnal knowledge (d) of any female idiot or imbecile woman or girl 
 under circumstances which do not amount to rape {d) but which 
 prove that the offender knew at the time of the commission of the 
 offence that the woman or girl was an idiot or imbecile, 
 
 shall be guilty of a misdemeanor, and being convicted thereof shall be 
 
 liable at the discretion of the Court to be imprisoned for any term not 
 
 exceeding two years with or without hard labour.' 
 
 By sect. 324 of the Lunacy Act, 1890 (.53 & 54 Vict. c. 5) (e), ' If any 
 
 manager, officer, nurse, attendant, or other person employed in any 
 
 (2) Anon, stated by Willcs, J., in R. v. (r/) R. v. Fletcher, L. R. 1 C. C. R. 39. 
 
 Fletcher, Bell, 63, 70; and approved by (h) L. R. 2 C. C. R. 81. 
 
 the C. C. R. in that case. See R. v. Rvan, (f) Bell, 03; 28 L. J. M. C. 172. 
 
 2 Cox, 1 15. In R. v. Pressy [1867], 10 Cox, (d) Vide ante, pp. 931 tt seq. 
 
 635 (C. C. R.), conviction of rape on a (c) Re-enacting s. 82 of the Lunacy 
 
 female evidently idiotic was upheld, though Act, 1889. Soe Wood-Rcnton on Lunacy, 
 
 there was no evidence of resistance. p. 214. 
 
 3p2
 
 948 
 
 Of Defilement or Corruption of Females, [book ix. 
 
 institution for lunatics (/) (including an asylum foi criminal lunatics {g) ) 
 or workhouse, or anvperson having the care or charge of any single patient, 
 or any attendant of any single patient, carnally knows or attempts to 
 have carnal knowledge of any female under care or treatment in the 
 institution or workhouse, or as a single patient {h), he shall be guilty of 
 a misdemeanor and on conviction on indictment, shall be liable to be 
 imprisoned with or without hard labour for any term not exceeding two 
 years ; and no consent or alleged consent of any such female thereto 
 shall be any defence to an indictment or prosecution for such offence ' (?'). 
 
 I 
 
 Sect. III. — Unlawful Carnal Knowledge of Girls 
 UNDER Sixteen. 
 
 It is an essential element in the crime of rape that the carnal knowledge 
 should be without the previous consent of the female. There has been 
 much legislation to deal with corruption of young girls (/), which is 
 cumulative on the law as to rape and indecent assault {k). That now in 
 force is contained in the Criminal Law Amendment Act, 1885 (48 & 49 
 Vict. c. 69). 
 
 Girls under Thirteen. — By sect. 4 (/), ' Any person vv^ho unlawfully 
 and carnally knows (m) any girl under the age of thirteen years shall 
 be guilty of felony, and being convicted thereof shall be liable . . . 
 to be kept in penal servitude for hfe . . . (w). 
 
 (/) i.e., an asylum, hospital, or licensed 
 house (s. 341, ante, p. 925). 
 
 {g) See 47 & 48 Vict. c. 64. 
 
 (h) It is to be noted that the female is not 
 described as a lunatic, but as under care or 
 treatment; i.e., it is not the fact of lunacy, 
 but the fact of being under treatment that 
 takes away the power to consent and 
 creates the liability of the person in charge. 
 
 {i) Prosecutions for the offence can be 
 taken only as prescribed by s. 325, ante, 
 p. 929. 
 
 [j) By 18 Eliz. c. 7, carnal knowledge 
 of any woman-cliild under the age of ten 
 years was made felony without benefit of 
 clergy, without reference to the consent 
 or non-consent of the child, which was 
 therefore considered as immaterial. It 
 appears at one time to have been thought 
 that the carnal knowledge of a child above 
 the age of ten and under twelve years was 
 rape, though she consented : twelve years 
 being the age of consent in a female, and the 
 Statute Westm. 1, 13 Edw. I. c. 13, which 
 enacted, ' That none do ra\ash any maiden 
 within age, neither by her own consent nor 
 without,' being admitted to refer, by the 
 words, ' witliin age,' to the age of twelve 
 years. (1 Hale, 631, 2 Co. Inst. 180, 3 Co. 
 Inst. 60. ) It was, however, afterwards well 
 c stablished that if the child was above ten 
 years old it was not a rape, unless it was 
 without her consent. Sum. 1 12, 4 Bl. Com. 
 212, 1 East, P. C. 436. But cliildren above 
 that age, and under twelve, were within the 
 
 protection of the Statute of Westm. 1, 
 c. 13, the law with respect to the carnal 
 knowledge of such children not having been 
 altered by either of the subsequent Statutes 
 of Westm. 2, Edw. I. c. 34, or 18 Ehz. c. 7. 
 The Statute Westm. 1, c. 13, made the 
 deflowering a cliild above ten years old, and 
 \mder twelve, though with her own consent, 
 a misdemeanor punishable by two years' 
 imprisonment, and fine at the King's 
 pleasure (4 Bl. Com. 212, 1 East, P. C. 436). 
 These statutes were repealed by 9 Geo. IV. 
 c. 31 (E), and 10 Geo. IV. c. 34 (I). Those 
 Acts in turn were repealed in 1861, and 
 such offences against girls under ten were 
 made punishable by 24 & 25 Vict. c. 100, 
 ss. 50, 51, which were repealed in 1875 (38 
 & 39 Vict. c. 94) making the age twelve. 
 The Act of 1875 was repealed in 1885 (44 & 
 45 Vict. c. 69). 
 
 [k) See 48 & 49 Vict. c. 69, s. 16, and 
 ante, p. 6. 
 
 (I) Th.\» clause replaced 38 & 39 Vict. 
 c. 94, s. 3, raising the age from twelve to 
 thirteen. 
 
 (to) Proof of penetration is sufficient, and 
 it is not necessary to prove emission. R. v, 
 Marsden [1891], 2 Q.B. 149. Vide ante, 
 p. 933. 
 
 [n) Now three years, 54 & 55 Vict. c. 69, 
 s. 1, ante, p. 211, or imprisonment with 
 or without hard labour for not more 
 than two years, ante, p. 212. The words 
 omitted are repealed.
 
 CHAP. IX.] Of Unlawful Carnal Knowledge of Girls. 949 
 
 ' Any person who attempts to have unlawful carnal knowledge of 
 any girl under the age of thirteen years shall be guilty of a misdemeanor, 
 and being convicted thereof shall be liable at the discretion of the Court 
 to be imprisoned for any term not exceeding two years, with or without 
 hard labour (o). 
 
 ' Provided that in the case of an offender whose age does not exceed 
 sixteen years, the Court may, instead of sentencing him to any term of 
 imprisonment, order him to be whipped, as prescribed by the Whipping 
 Act, 1862 (p), and the said Act shall apply so far as circumstances 
 admit as if the offender had been convicted in manner in that Act 
 mentioned ; . . . ' {'PTp). 
 
 Unsworn Evidence. — [' Where upon the hearing of a charge under 
 this section, the girl in respect of whom the offence is charged to have 
 been committed, or any other child of tender years who is tendered 
 as a witness, does not, in the opinion of the Court or justices, understand 
 the nature of an oath, the evidence of such girl or other child of tender 
 years may be received, though not given upon oath, if, in the opinion of 
 the Court or justices, as the case may be, such girl or other child of tender 
 years is possessed of sufficient intelligence to justify the reception of the 
 evidence, and understands the duty of speaking the truth {q). 
 
 Corroboration. — * Provided that no person shall be liable to be con- 
 victed of the offence unless the testimony admitted by virtue of this 
 section and given on behalf of the prosecution shall be corroborated ])y 
 some other material evidence in support thereof implicating the accused (r) : 
 Provided also, that any witness whose evidence has been admitted under 
 this section shall be liable to indictment and punishment for perjury 
 in all respects as if he or she had been sworn '](rr). 
 
 On an indictment for felony under this section the defendant may be 
 convicted of an indecent assault (s), to which the consent of a girl under 
 thirteen is no defence [t), but not of a common assault [u). On an indict- 
 ment for the attempt, a verdict of indecent assault or, unless there were 
 consent, of common assault, Avould seem to be possible. 
 
 The consent of a child under thirteen is immaterial both as to the 
 
 (o) This clause replaced part of 24 & 25 section would support a conviction for 
 
 Vict. c. 100, s. 52, raising the age from indecent assault on an indictment for an 
 
 twelve to thirteen. Tlie former enact- offence against sect. 4. R. v. Wealand, 20 
 
 ments contained the word 'abuse,' not Q.B.D. 827. As to receiving unsworn 
 
 here re-enacted. See R. v. Dawson [1821], evidence on an indictment for indecent 
 
 3 Stark. (N. P.) 62. assault, see 8 Edw. VII. c. f)7, schcd. 1, 
 
 (p) Ante, p. 215. Imprisonment of (inie, p. 924. 
 offenders of fourteen and under sixteen (>) Refusal by the defendant to submit 
 
 is restricted by the Children Act, 1908 to medical examination is not corroboration 
 
 (8 Edw. VII. c. 07, s. ion, ante, p. 231). within this section. R. r. Gray, 08 J. P. 327. 
 
 The punishment by whipping being alter- Cf. R. v. Everest. 2 Cr. App. R. 130. 
 native to the other punisliments for the (rr) The words in lirackcts were repcaletl 
 
 offence, in the event of an appeal, there by 8 Edw. VII. c. 07, s. 134. (as from April 1, 
 
 has been a difticulty as to detaining the 1909), as being superseded by the provisions 
 
 lad in custody during the time within of that Act. as to procedure and evidence 
 
 which he may a])peal from his sentence (anie, p. 918) and punishment (on/c, p. 230). 
 under the Criminal Appeal Act, 1907. («) 48 & 49 Vict. c. 69, s. 9. ante, p. 941. 
 
 {pp) Words here omitted were repealed (<) 43 & 44 Vict. c. 45, post, p. 955. 
 
 by 8 Edw. VII. c. 67, s. 134. («) See R. r. Catherall, 13 Cox, 109 
 
 {q) Unsworn evidence taken under this scd qua:re-
 
 950 
 
 Of Defilement or Corruption of Females, [book ix. 
 
 complete offence {v) and the attempt (w). But this enactment does 
 not exclude liability to prosecution for rape if the child did not in 
 fact consent (x) nor is proof of want of consent a ground for 
 acquittal (y). 
 
 A boy under fourteen cannot be convicted of the complete offence 
 under 48 & 49 Vict. c. 69, s. 4 (yy), but on an indictment under that 
 section he may be convicted of an indecent assault (z). The consent of a 
 girl under thirteen is no defence to proceedings under sect. 4. 
 
 Under the repealed enactments as to abusing children of tender years 
 it was considered, ' that although a child between ten and twelve cannot 
 by law consent to have connection, so as to make that connection no 
 offence, yet, where the essence of the offence charged is an assault (and 
 there can be in law no assault, unless it be against consent) (a), this 
 attempt, though a criminal offence, is not an assault ; and the indictment 
 must be for an attempt to commit a felony, if the child is under ten years 
 old, and for an attempt to commit a misdemeanor, if the child is between 
 the ages of ten and twelve ; for it is perfectly clear that every attempt 
 (not every intention, but every attempt) to commit a misdemeanor is a 
 misdemeanor ' (h). 
 
 On this view on failure to prove commission of the full offence against 
 a girl above ten and under twelve it was held that the defendant could 
 not be convicted on other counts of the indictment charging (1) assault 
 with intent carnally to know ; (2) common assault. The judges considered 
 that as consent in fact had been proved there could not be a conviction 
 of assault and that the proper charge was attempt to commit the statutory 
 offence (c). In a later case, R. v. Guthrie (d), on an indictment under 
 24 & 25 Vict, c, 60, s. 51, containing a single count for the misdemeanor 
 of carnally knowing a girl between ten and twelve years of age, the 
 principal offence was not proved, but there was evidence of indecent 
 assault. The jury returned a verdict of common assault, which was held 
 good, the Court considering that the indictment charged an assault as a 
 distinct, separable offence. In R. v. Catherall (e) it was held that the 
 
 {v) See R. v. Neale, 1 Den. 36. 
 {iv) R. V. Beale, L. R. 1 C. C. R. 10. 
 
 (x) See R. V. Dicken, 14 Cox, 8, Mellor, 
 J. 
 
 iy) R. V. Neale, 1 Den. 36. R. v. Ryland, 
 11 Cox, 101. R. V. Woodhouse, 12 Cox, 
 443. 
 
 {yy) R. V. Waite [1892], 2 Q.B. 600. 
 
 (2) R. V. Williams [1893], 1 Q.B. 320. 
 
 (a) In R. V. Cockburn, 3 Cox, 543, 
 Patteson, J., said : ' My experience has 
 shewn me that cliiklren of very tender age 
 may have vicious propensities. A child 
 under ten years of age cannot give consent 
 to any criminal intercourse, so as to deprive 
 that intercourse of criminality ; but she 
 can give such consent as to render the 
 attempt no assault. We know that a child 
 can consent to that which, without such 
 consent, would constitute an assault.' And 
 he refused to allow a conviction of assault 
 on an indictment for criminally knowing a 
 
 child under ten, too young to be sworn as 
 a witness. There was no evidence of 
 consent or non-consent except medical 
 proof of marks of violence, which might 
 have been inflicted by any foreign sub- 
 stance. 
 
 (h) R. V. Martin, 9 C. & P. 215. Patteson, 
 J. R. V. Meredith, 8 C. & P. 589, Abinger, 
 C.B. R. V. Reed, 1 Den. 377. Nor upon 
 an indictment for an indecent assault, R. 
 V. Johnson, 10 Cox, 114 ; L. & C. 632 : ' The 
 statutory offence may be committed though 
 there is consent ; but if there is consent 
 there cannot be an assault, R. v. Guthrie, 
 L. R. 1 C. C. R. 24, 243, Bovill, C.J. 
 
 (c) R. V. Martin, tibi sup. Consent would 
 be no defence on such indictment. R. v. 
 Beale, L. R. 1 C. C. R. 10, 12, Pollock, C.B. 
 
 (d) L. R. 1 C. C. R. 241. The indictment 
 charged that G. ' did . . . make an assault 
 and did carnally know and abuse.' 
 
 (e) 13 Cox, 109.
 
 CHAP. IX.] Of Unlawful Carnal Knowledge of Girls. 951 
 
 jury could not convict of common assault on an indictment charging the 
 felony, under 38 & 39 Vict. c. 93, s. 4 (rep.), of carnally knowing a girl 
 under twelve. 
 
 Upon an indictment for attempting to abuse (/)a child under the age 
 of ten, containing a count for a common assault, no proof was given of the 
 child being under ten years of age but it appeared that the prisoner made 
 an attempt on her, without any violence on his part, or actual resistance 
 on hers, and it was contended that as she offered no resistance it must 
 be taken that she consented, and therefore the prisoner must be acquitted. 
 Coleridge, J. : ' There is a difference between consent and submission ; 
 every consent involves a submission ; but it by no means follows that 
 a mere submission involves consent. It would be too much to say, that 
 an adult submitting quietly to an outrage of this description, was not 
 consenting ; on the other hand, the mere submission of a child, when 
 in the power of a strong man, and most probably acted upon by fear, 
 can by no means be taken to be such a consent as will justify the 
 j)ri-;oner in point of law. You will therefore say whether the submi.ssion 
 of the prosecutrix was voluntary on her part, or the result of fear under 
 the circumstances in which she was placed. If you are of the latter 
 opinion, you will find the prisoner guilty on the second count of the 
 indictment ' {<j). 
 
 Carnal Knowledge of Girls of Thirteen and under Sixteen. — By sect. 5, 
 ' Any person who (1) Unlawfully and carnally knows or attempts to have 
 unlawful carnal knowledge of any girl being of or above the age of 
 thirteen years and under the age of sixteen years ; . . . Qi) shall be 
 guilty of a misdemeanor, and being convicted thereof shall be liable 
 at the discretion of the Court to be imprisoned for any term not exceeding 
 two years, with or without hard labour. 
 
 ' Provided that it shall be a sufficient defence to any charge under 
 sub-section one of this section if it shall be made to appear to the Court 
 or jury before whom the charge shall be brought that the person so 
 charged had reasonable cause to believe that the girl was of or above the 
 age of sixteen years {i), 
 
 ' Provided also, that no prosecution shall be commenced for an offence 
 under sub-section one of this section more than six (A) months after the 
 commission of the offence ' [1). 
 
 Permitting Defilement of Girls under Sixteen. — By sect. 6, ' Any person 
 who, being the owner or occupier of any premises, or having, or acting 
 or assisting in, the management or control thereof, induces or knowingly 
 suffers any girl of such age as is in this section mentioned to resort to or 
 be in or upon such premises for the purpose of being unlawfully and 
 
 (/) This word is not in the existing the rule laid down in R. r. Prince, L. R. 2 
 
 enactment, vide ante, p. 948. C. C. R. 154, (tnle, p. 102, and ;;o.«/. p. 959. 
 
 (7) R. V. Day, 9 C. & P. 722, Coleridge, (k) Six months was suljstituted for three 
 
 J. Cf. R. V. Cutluie, L. R. I C. C. R. 241. montlis l)y 4 Edw. Vlf. c. 15, s. 27. .See 
 
 R. V. Lock, L. R. 2 C. C. R. 10. R. v. R. v. Chandra Diiarma [1905], 2 K.B. 335. 
 
 Woodhouse, 12 Cox, 443, Lush, J. (/) As to commencement of prosecution, 
 
 (h) The portion omitted hero is printed see R. v. West [1898], 1 Q.B. 74. R. v. 
 
 ante, p. 947. Beighton, 18 Cox, 535, and vide post. Vol. ii. 
 
 (»') This clause excludes the oiJeration of p. 1930.
 
 952 Of Defilement or Corruption of Females, [book ix. 
 
 carnally known by any man, whether such carnal knowledge is intended 
 to be with any particular man or generally (m), 
 
 ' (1) shall, if such girl is under the age of thirteen years, be guilty of 
 felony, and being convicted thereof shall be liable to be kept in penal 
 servitude for life, . . . (w) ; and 
 
 ' (2) if such girl is of or above the age of thirteen and under the 
 age of sixteen years, shall be guilty of a misdemeanor, and being con- 
 victed thereof shall be liable at the discretion of the Court to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labour. 
 
 ' Provided that it shall be a sufficient defence to any charge under 
 this section if it shall be made to appear to the Court or jury before whom 
 the charge shall be brought that the person so charged had reasonable 
 cause to believe that the girl was of or above the age of sixteen years/ 
 
 On an indictment containing (1) a count for an offence under sect. 5, 
 (2) a count for an indecent assault, the defendant may be convicted of 
 common assault (o). But it would seem that on an indictment under 
 sect. 5, there cannot be a conviction of indecent assault and common 
 assault if the girl consented to what was done, as 43 & 44 Vict. c. 45 does 
 not apply to a girl of thirteen or over. 
 
 A girl of thirteen or under sixteen cannot be convicted of aiding and 
 abetting the commission with herself of an offence against sect. 5 (/)). 
 
 Liability to punishment under sect. 5 does not exempt from liabihty 
 to prosecution and punishment for rape if the girl did not consent : but 
 a person may not be twice punished in respect of the same transac- 
 tion (7), or on an indictment under sect. 5, even if the facts proved 
 constituted a rape. It would seem that the accused might be convicted 
 of the misdemeanor under sect. 5, by virtue of 14 & 15 Vict. c. 100, 
 s. 12 (r). 
 
 Allowing Child or Young Person to be in Brothels. — Bv the Children 
 Act, 1908 (8 Edw. VII. c. 67), s. 16, ' (1) If any person having the 
 custody, charge, or oare of a child or young person between the ages 
 of four and sixteen, allows that child or young person (s) to reside in or 
 to frequent a brothel (t), he shall be guilty of a misdemeanor and shall be 
 liable on conviction on indictment or on summary conviction to a fine not 
 exceeding tv^enty-five fimnds, or alternatively or in default of payment 
 of such fine, or in addition thereto, to imprisonment, with or without 
 hard labour, for any term not exceeding six months {tt). 
 
 ' (2) Nothing in this section shall affect the liability of a person to be 
 indicted under section six of the Criminal Law Amendment Act, 1885 
 
 (m) Where an illegitimate girl lived with (p) R. v. Tyrrell [1894], 1 Q.B. 712 ; 
 
 her mother, and the premises, in respect of R. v. RatcUffe, 10 Q.B.D. 74, decided on 
 
 which the charge was made, were her home 38 & 39 Vict. c. 94, s. 4 (rep.), 
 
 where she resided with her mother, it was (7) kS. 16, vide ante, p. 6. 
 
 held that the mother could be convicted (r) Post, Vol. ii. p. 1965. 
 
 under the section. R. v. Webster, 16 (s) As introduced the bill applied only to 
 
 Q.B.D. 134. girls between 7 and 16. 
 
 (n) Nor less than three years, or to {I) As to definition of brothel, vide 
 
 imprisonment with or without hard Singleton v. Ellison [1895], 1 Q.B 607 ; 
 
 labour for not more than two years, ante, Durose v. Wilson, 70 J. P. 6, ipost. Vol. ii. 
 
 pp. 211, 212. The words omitted are p. 1893. 
 
 repealed. (tt) The accused may elect to be tried 
 
 (o) R. V. Bostock, 17 Cox, 700. on indictment, vide ante, p. 17.
 
 CHAP. IX.] Of Unlawful Carnal Kyiowledge of Girls. 953 
 
 {ante, p. 951), but upon the trial of a person under that section it shall 
 be lawful for the jury, if they are satisfied that the accused is guilty 
 of an offence under this section, to find the accused guilty of such 
 offence.' 
 
 By sect. 17/ (1) If any person having the custody, charge, or care of 
 a girl under the age of sixteen years causes or encourages the seduction 
 or prostitution of that girl, he shall be guilty of a misdemeanor and shall 
 be liable to imprisonment, with or without hard labour, for any term 
 not exceeding two years. 
 
 ' (2) For the purposes of this section a person shall be deemed to 
 haye caused or encouraged the seduction or prostitution (as the case 
 maybe) of the girl who has been seduced or become a prostitute if he has 
 knowingly allowed the girl to consort with or to enter or to continue 
 in the employment of, any prostitute or person of known immoral 
 character.' 
 
 The procedure and evidence on trials for offences under ss. 16,17 
 (supra) is regulated by Part II. of the Children Act, 1908, ss. 27-38 (vide 
 p. 918 et seq.). 
 
 By sect. 18, ' (1) Where it is shewn to the satisfaction of a Court of 
 Summary Jurisdiction that a girl under the age of sixteen years is, with 
 the knowledge of her parent or guardian exposed to the risk of seduction 
 or prostitution, or living a life of prostitution, the Court may adjudge her 
 parent or guardian to enter into a recognisance to exercise due care and 
 supervision with respect of the girl. 
 
 ' (2) The provisions of the Summary Jurisdiction Act, 1879, with 
 respect to recognisances to be of good beha,viour, (including the provisions 
 as to the enforcement thereof,) shall apply to recognisances under this 
 section.' 
 
 Girls under Eighteen. — As to abduction of girls under eighteen with 
 intent that they shall be carnally known, see 48 & 49 Vict. c. 69, s. 7, 
 post, p. 967. 
 
 By the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69), 
 sect. 12, * Where on the trial of any ofTence under this Act it is proved 
 to the satisfaction of the Court that the seduction or prostitution of a 
 girl under the age of sixteen has been caused, encouraged, or favoured 
 by her father, mother, guardian, master, or mistress, it shall be in the 
 power of the Court to divest such father, mother, guardian, master, or 
 mistress of all authority over her, and to appoint any person or persons 
 willing to take charge of such girl to be her guardian until she has attained 
 the age of twenty-one, or any age below this as the Court may direct, 
 and the High Court shall have the power from time to time to rescind or 
 vary such order by the appointment of any other person or persons as 
 such guardian, or in any other respect.' 
 
 This provision is supplemented by the provisions of the Children 
 Act, 1908 (8 Edw. VII. c. 67, s. 26, a»(e, p. 918). 
 
 Indictment. — In indictments for offences against girls under sixteen 
 care should be taken to specify the age of the girl, in accordance with 
 the terms of the section on which the charge is founded, i.e. ' under the 
 age of thirteen years ' or ' of the age of thirteen years and under the age 
 of sixteen years,' for the description appears to be matter of substance,
 
 954 Of Defiletnent or Corruftion of Females, [book ix. 
 
 and to amend the age might be to insert in the indictment an offence 
 distinct from that originally charged {u). 
 
 Proof of Age.— The provisions of the Children Act, 1908, as to 
 presumption of the age of children {v) do not apply to offences mider 
 the Criminal Law Amendment Act, 1885. It is therefore necessary in 
 prosecutions under sects. 4, 5 with respect to girls, to prove that the girl 
 against whom the offence is alleged to have been committed should be 
 proved by the prosecution to be under thirteen or under sixteen as the 
 case requires. The evidence of age should be clear and distinct. It is 
 usually given by producing a certified copy of the entry in the register 
 of births kept under the Births and Deaths Registration Act {iv), coupled 
 with evidence of the identity of the girl with the child referred to in the 
 entry. The certificate is evidence of the date as well as the fact and 
 registration of the birth (a;). It is immaterial whether the certified copy 
 emanates from the registry at Somerset House or from the district registry 
 or the office of the superintendent registrar of the district (?<'). But 
 production of the certificate is not essential, and the age may be proved 
 by any person who has sufficient knowledge of the facts {y). 
 
 Where the offence of carnally knowing a child mider ten years of age 
 was charged to have been committed on February 5, 1832, and the only 
 evidence of the age of the child was given by the father, who stated that 
 in February, 1822, he went from home for a few days, and that his wife 
 had not then been confined, and that on his return on February 9, he 
 found the child had been born, and he was told by his wife's mother that 
 it had been born the day before ; the grandmother was alive at the time 
 of the trial, but the mother was dead. It was held that the evidence was 
 not sufficient, and that the grandmother ought to have been called, for 
 in a matter of so much importance the best evidence ought to be 
 adduced (2). On a similar indictment, evidence by the child herself that 
 she was ten years old on a particular day, her mother being ill at home, 
 and her father being unable to state the precise time of her birth, was held 
 insufficient (a). But on an indictment for carnally knowing a child under 
 ten years of age the mother stated that she had never kept any account 
 of the child's age, but that her knowledge of it was derived from hearing 
 her husband speak of it, and from conversation with him and the child, 
 and that it had been usual to keep the birthday of the child on February 
 7, and there was no other evidence of the age : it was objected that more 
 certain evidence of the age ought to have been produced, and R. v. 
 Wedge (supra) was relied upon ; Coltman, J., however, observed, that 
 ' the evidence in that case was mere hearsay : but this evidence went 
 much farther, and must be submitted to the jury as some evidence, 
 though open to observation, as to the child's age (h). 
 
 (u) See R. v. Shott, 3 C. & K. 206, Maule, disapproved. 
 
 J. R. V. Martin, 9 C. & P. 215, Patteson, (y) R. v. Cox [1898], 1 Q.B. 179 : where 
 
 J. Cf. R. V. Benson [1908], 1 K.B. 270, the age was proved by a mistress of an 
 
 as to limits of amendment under 14 & 15 elementary school at which the child 
 
 Vict. c. 100, s. 1. attended. 
 
 (v) 8 Edw. VII. c. 67,s. 123,aTOfe,p. 922. (2) R. v. Wedge, 5 C. & P. 298 and 
 
 (iv) R. V. Weaver, L. R. 2 C. C. R. 85. MS. C. S. G., Taunton and Littledale, JJ. 
 
 (x) Re Goodrich [1904], Prob. 138, in (a) R. v. Day, 9 C. & P. 722, Coleridge, J. 
 
 which Be Wintle, L. R. 9 Eq. 373, was {b) R. v. Hayes, 2 Cox, 226. 
 
 1
 
 CHAP. IX.] Indecent Assault on Females. 955 
 
 Where the mother of a child swore that she was ten years old last 
 March, but did not know the year and month of the child's birth, and in 
 cross-examination gave confused and inconsistent answers as to the age 
 of her children, it was held that there was some evidence for the jury 
 as to the age of the child (c). 
 
 As to taking the evidence of the person charged and of the husband 
 and wife of the person charged, see 48 & 49 Vict. c. 69, s. 20 {d), 61 & 62 
 Vict. c. 36, .ss. 1, 4, and 8 Edw. VII. c. 67, s. 27, and 'post, Book XIII. 
 Chapter V. ' Evidence.' 
 
 Sect. IV. — Indecent Assault on Females. 
 
 Indecent Assault.— By 24 & 25 Vict. c. 100, s. 52, ' Whosoever shall 
 be convicted of an indecent assault upon any female ...(«?) shall be 
 liable at the discretion of the Court to be imprisoned for any time not 
 exceeding two years with or without hard labour.' 
 
 As to conviction of indecent assault on an indictment for rape or 
 felonious carnal knowledge of a girl under thirteen, see ante, p. 941 (/). 
 
 By the Children Act, 1908 (8 Edw. VII. c. 67), s. 127 (2), Courts of 
 Summary Jurisdiction are empowered to try adults for indecent assault 
 on a female who in the opinion of the Court is under sixteen, if the defend- 
 ant consents, vide 42 & 43 Vict. c. 49, s. 12. The maximum punishment 
 on summary conviction for the offence is six months' imprisonment. 
 
 By 43 & 44 Vict. c. 45, ' It shall be no defence to a charge or indictment 
 for an indecent assault on a young person {<j) under the age of thirteen 
 to prove that he or she consented to the act of indecency (A). In cases 
 of indecent assault on females of thirteen or over the defence of consent 
 is still available. The section applies to England and Ireland. (See 
 sect. 3.j 
 
 Sect. V. — Procuring the Defilement or Prostitution of 
 Women and Girls. 
 
 Procuration.— By the Criminal Law Amendment Act, 1885 (48 & 49 
 Vict. c. 69), sect. 2, ' Any person who, (1) Procures or attempts to procure 
 any girl or woman under twenty-one years of age, not being a common 
 prostitute, or of known immoral character, to have unlawful carnal 
 connection, either within or without the King's dominions, with any 
 other person or persons ; or (2) Procures or attempts to procure any 
 woman or girl to become, either within or without the King's dominions, 
 a common prostitute ; or (3) Procures or attempts to procure any woman 
 
 (c) R. V. NichoUs, 10 Cox, 470. Paul, 25 Q.B.D. 202. 
 
 (d) This section was in R. v. Owen, 20 (f) A boy under fourteen wlio is indicted 
 Q.B.D. 829, held to render a person charged under 48 & 49 Vict. c. 09, s. 4 (nntc, p. 950) 
 with indecent assault competent as a witness for carnally iinowing a girl under thirteen 
 in his own behalf. may on that indictment be convicted of 
 
 (p) The words omitted relating to indecent assault. R. v. Williams [1893J, 
 
 attempts to have carnal knowledge of 1 Q.B. 320. 
 
 girls under twelve were repealed in 1885, (f/) ( )f either sex, i'i<ie po5<, p. 975. 
 
 48 & 49 Vict. c. 69, s. 19. On proceedings (h) Tiiis enactment overrides the rulings 
 
 under s. 52, for indecent assault on a in R. v. Read, 1 Den. 377. R. v. Johnson, 
 
 female under sixteen, the unsworn evidence L. & C. (132. R. v. Lock, L. R. 1 C. C. R. 10. 
 
 of a child is admissible, 8 Edw. VII. c. 67, R. i-. Roadley, 14 Cox, 463 (C. C. R.). 
 s. 30 [ante, p. 919), wliich overrides R. v.
 
 956 Of Defilement or Corrwption of Females, [book ix. 
 
 or girl to leave the United Kingdom, with intent that she may become 
 an inmate of a brothel elsewhere ; or (4) Procures or attempts to procure 
 any woman or girl to leave her usual place of abode in the United Kingdom 
 (such place not being a brothel), with intent that she may, for the purposes 
 of prostitution, become an inmate of a brothel within or without the 
 King's dominions, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable at the discretion of the Court to be imprisoned 
 for any term not exceeding two years, with or without hard labour ' (i). 
 Corroboration. — ' Provided that no person shall be convicted of any 
 offence under this section upon the evidence of one witness, unless 
 such witness be corroborated in some material particular by evidence 
 implicating the accused/ {Vide post, Book XIII. Chapter V.) 
 
 Defilement by Threats, Fraud, or Drugs.— By sect. 3, ' Any person 
 who, (1) By threats or intimidation procures or attempts to procure any 
 woman or girl to have any unlawful carnal connection, either within or 
 without the King's dominions ; or (2) By false pretences or false represen- 
 tations procures any woman or girl, not being a common prostitute (j) 
 or of known immoral character, to have any unlawful carnal connection, 
 either within or without the King's dominions ; or (3) Applies, administers 
 to, or causes to be taken by any woman or girl any drug, matter, or thing, 
 with intent to stupefy or overpower so as thereby to enable any person 
 to have unlawful carnal connection with such woman or girl, shall be 
 guilty of a misdemeanor, and being convicted thereof shall be liable at 
 the discretion of the Court to be imprisoned for any term not exceeding 
 two years, with or without hard labour ' (k). 
 
 Corroboration. — ' Provided that no person shall be convicted of an 
 offence under this section upon the evidence of one witness only, unless 
 such witness be corroborated in some material particular by evidence 
 implicating the accused.' (See post, Book XIII. Chapter V.) 
 
 Detention in Brothels. — By sect. 8, ' Any person who detains any 
 woman or girl against her will, (1) In or upon any premises with intent 
 that she may be unlawfully and carnally known by any man, whether 
 any particular man or generally (l) ; or (2) In any brothel, shall be guilty 
 of a misdemeanor, and being convicted thereof shall be liable at the 
 discretion of the Court to be imprisoned for any term not exceeding 
 two years, with or without hard labour. 
 
 ' Where a woman or girl is in or upon any premises for the purpose 
 of having any unlawful carnal connection, or is in any brothel, a person 
 shall be deemed to detain such woman or girl in or upon such premises 
 or in such brothel, if, with intent to compel or induce her to remain in 
 or upon such premises or in such brothel, such person withholds from 
 such woman or girl any wearing apparel or other property belonging to her, 
 or, where wearing apparel has been lent or otherwise supplied to such 
 
 (i) As to acts of procuration outside the King's dominions. R. v. Gold and Cohen 
 
 King's dominions, see R. v. Blythe [1895], [1907], 71 J. P. 360, Bosanquet, C.S. 
 
 1 Canada Cr. Cas. 263. Re Gertie Johnson, (k) Sub-s. 3 supplements the provisions 
 
 [1904], 8 Canada Cr. Cas. 243. of 24 & 25 Vict. c. 100, s. 22, ante, p. 863. 
 
 (j) There can be no conviction of the See 48 &49Vict. c. 69,s. 16, anda?ite, pp. 4, 6. 
 
 attempt if the woman was already a {I) As to girls under sixteen, see 48 & 
 
 prostitute when the attempt is commenced 49 Vict. c. 69, s. 6, ante, p. 952. 8 Edw. 
 
 to procure her to become oiae \vithout the VII. c, 67, ss. 16, 17, ante, pp. 952, 953.
 
 CHAP. IX.] Procuring the Defile77ient of Women and Girls. 957 
 
 woman or girl by or by the direction of such person, such person threatens 
 such woman or girl with legal proceedings if she takes away with her 
 the wearing apparel so lent or supplied. 
 
 ' No legal proceedings, whether civil or criminal, shall be taken 
 against any such woman or girl for taking away or being found in posses- 
 sion of any such wearing aj^parel as was necessary to enable her to leave 
 such premises or brothel.' 
 
 Search Warrant.— By sect. 10, ' If it appears to any justice of the 
 peace, on information made before him on oath by any parent, relative, 
 or guardian of any woman or girl, or any other person who, in the opinion 
 of the justice is bona fide acting in the interest of any woman or girl, that 
 there is reasonable cause to suspect that such woman or girl is unlaw- 
 fully detained for immoral purposes by any person in any place within 
 the jurisdiction of such justice, such justice may issue a warrant (m) 
 authorising any person named therein to search for, and when found, to 
 take to and detain in a place of safety such woman or girl until she can 
 be brought before a justice of the peace ; and the justice of the peace 
 before whom such woman or girl is brought may cause her to be 
 delivered up to her parents or guardians, or otherwise dealt with as 
 circumstances may permit and require. 
 
 ' The justice of the peace issuing such warrant may, by the same or 
 any other warrant (w), cause any person accused of so unlawfully detaining 
 such woman or girl to be apprehended and brought before a justice, and 
 proceedings to be taken for punishing such person according to law. 
 
 ' A woman or girl shall be deemed to be unlawfully detained for 
 immoral purposes if she is so detained for the purpose of being unlawfully 
 and carnally known by any man, whether any particular man or generally, 
 and (a.) Either is under the age of sixteen years ; or (b.) If of or over 
 the age of sixteen years, and under the age of eighteen years, is so detained 
 against her will, or against the will of her father or mother or of any other 
 person having the lawful care or charge of her ; or (c.) If of or above the 
 age of eighteen years is so detained against her will. Any person 
 authorised by warrant under this section to search for any woman or 
 girl so detained as aforesaid may enter (if need be by force) any house, 
 building or other place specified in such warrant, and may remove such 
 woman or girl therefrom. 
 
 ' Provided always, that every warrant issued under this section shall 
 be addressed to and executed by some superintendent, inspector, or other 
 ofl&cer of police, who shall be accompanied by the parent, relative, or 
 guardian or other person making the information, if such person so 
 desire, unless the justice shall otherwise direct.' 
 
 A conspiracy by false pretences to procure a female under the age of 
 twenty-one years to have illicit carnal connection with a man has been 
 held to be an indictable misdemeanor at common law (o). 
 
 (m) The act of the justice in issuing such counts were framed on 12 & 13 Vict. c. 76, 
 
 warrants is a judicial act. Hope v. Evered, which was repealed in 1891 (S. L. R.), but 
 
 17 Q.B.D. 336. Lea v. Charrington, 23 no opinion was expressed aa to them. R. 
 
 Q.B.D. 45. V. Delaval. 3 Burr. 1434, was referred to 
 
 {n) Sec ante, note (m). by the Court. Vide ante, p. 158, tit. * Con- 
 
 (o) R. V. Mears, 2 Den. 79. The first spiracy.'
 
 ( 958a ) 
 
 CANADIAN NOTES. 
 
 OF RAPE, AND OF THE DEFILEMENT OR CORRUPTION OF FEMALES. 
 
 Sec. 1. — Of Rape, Definition of. — Code sec. 298. 
 
 Carnal Knowledge. — Code see. 7. 
 
 Female Under Fourteen. — An indictment for rape lies .against 
 one who has ravished a female under the age of fourteen years against 
 her will, notwithstanding the provisions of sec. 301, which enacts that 
 everyone is guilty of an indictable offence and liable to imprison- 
 ment for life, and to be whipped, who carnally knows any girl under 
 the age of fourteen years, not being his wife. -R. v. Riopel (1898), 
 2 Can. Cr. Cas. 225. 
 
 Consent. — By Child Under Fourteen, not a Defence. — Code sec. 
 294. 
 
 Consent. — It has been held that, in the case of alleged rape on an 
 idiot or lunatic the mere proof of connection will not warrant the case 
 being left to the jury ; that there must be some evidence that it was 
 without her consent, e.g., that she was incapable, from imbecility, of 
 expressing assent or dissent ; and that if she consent from mere animal 
 passion it is not rape. R. v. Connolly (1867), 26 U.C.Q.B. 317. 
 
 The question whether the act of connection was consummated 
 through fear, or merely through solicitation is a question of fact for 
 the jury. R. v. Day (1841), 9 C. & P. 722; R. v. Jones (1861), 4 
 L.T.N.S. 154; R. V. Cardo (1889), 17 Ont. R. 11. 
 
 Evidence of complaint made by the woman on a charge of rape as 
 corroborative of non-consent will be rejected if made only in answer to 
 questions suggesting the guilt of the accused. The King v. Dunning, 
 14 Can. Cr. Cas. 461. 
 
 Proof on behalf of the defence that the injured party or her 
 parents had instituted civil proceedings to recover damages arising 
 from the commission of the alleged rape is properly excluded upon 
 the criminal trial as irrelevant, unless other facts have been disclosed 
 in evidence which tend to shew an intent to thereby wrongfully extort 
 money from the accused. R. v. Riendeau (1900), 3 Can. Cr. Cas. 293. 
 
 On a charge of rape evidence is admissible on behalf of the defence 
 to contradict a statement of the complainant, made on her cross- 
 examination, denying that, on an occasion when she met the accused 
 subsequent to the alleged rape, she had refused to put an end to the 
 interview, as requested by her mother, and had struck her mother for
 
 958b Rape, etc. [book ix. 
 
 the latter 's interference. Such evidence is relevant to the charge not 
 only as affecting the credibility of the complainant's testimony gen- 
 erally, but as shewing conduct inconsistent with resistance to the 
 alleged offence. R. v. Riendeau (No. 2), 4 Can. Cr. Cas. 421 (Que.). 
 
 The prisoner's statement made at a previous trial through his 
 counsel may be given in evidence by the prosecution if it tends to 
 anticipate a possible defence which might be offered by the prisoner. 
 R. V. Bedere (1891), 21 O.R. 189. 
 
 Questions may be put to the complainant tending to elicit the fact 
 that she had previously had connection with other men. So w^here 
 the prosecutrix, after she had declared she had not previously had 
 connection with a man other than the prisoner, was asked in cross- 
 examination whether she remembered having been in the milk house 
 of G. with two men, D.M. and B.M., one after the other. Held, that 
 the witness may object, or the Judge, may, in his discretion, tell the 
 witness she is not bound to answer the question. R. v. Laliberte 
 (1877), 1 Can. S.C.R. 117. 
 
 The weight of authority arid the course of practice by the Judges 
 in England is to permit questions of the kind to be asked of a wit- 
 ness on cross-examination in oases of rape. The prosecuting officer 
 is not permitted to raise the objection. The witness may object, or 
 the Judge may tell the witness she is not obliged to answer, if he 
 thinks proper, though not bound to do so, and the Judge will decide 
 whether the witness is obliged to answer or not, when the point is 
 raised. R. v. Laliberte (1877), 1 Can. S.C.R. 117, 131, per Richards, C.J. 
 
 In the same case prisoner's counsel afterwards proposed to ask one 
 of the witnesses for the defence: "Did you see the prosecutrix with 
 D.M. and B.M. ? if you have, please state on which occasion, and 
 what were they doing?" This question was also disallowed by the 
 Judge, and the objection was sustained in the Supreme Court of 
 Canada on the authority of R. v. Cockroft (1870), 11 Cox Cr. Cas. 
 410, and R. v. Holmes (1871), L.R. 1 C.C.R. 234, upon the principle 
 that a witness cannot be contradicted in matters foreign to the issue, 
 which, on the trial of this indictment was, not whether the prosecu- 
 trix was unchaste, but whether the prisoner had had connection with 
 her by violence. R. v. Laliberte (1877), 1 Can. S.C.R. 117, 142. 
 
 Evidence is admissible for the defence of the general bad reputa- 
 tion of the prosecutrix for unchastity. R. v. Bishop (1906), 11 Can. 
 Cr. Cas. 30. 
 
 Where two prisoners are jointly indicted but an order is made 
 for their separate trial, the one is an admissible witness for the 
 other and is bound to testify although he may prevent his evidence 
 being used against himself at his subsequent trial. Only the person 
 then on trial is a " person charged ' ' within the meaning of the Canada 
 Evidence Act, sec. 4, and comment is not prohibited as to the failure
 
 CHAP. IX.] Evidence of Complaint. 958c 
 
 of the accused to call as a witness the person jointly indicted with him 
 but whose trial has been ordered to be separate. The King v. Blais, 
 10 Can. Cr. Cas. 354, 11 O.L.R. 345. 
 
 On a charge of aiding and abetting another to commit rape if it 
 appears that a man called as a witness for the prosecution had im- 
 mediately prior to the offence been in the company of the prosecu- 
 trix under circumstances making it probable that he had had illicit 
 connection with her, and that the man accused of the rape had taken 
 the prosecutrix away from the witness, the witness may be cross- 
 examined as to his relations with the prosecutrix for the purpose of 
 shewing prejudice against the accused, and for this purpose is bound to 
 answer whether he had had connection with the prosecutrix on that 
 occasion. And where the witness refused to answer as to his con- 
 nection with the prosecutrix and the trial Judge upheld his refusal, 
 and the prosecutrix also refused to answer as to same, but the guilt 
 of the accused was corroborated by independent testimony, Code sec. 
 1019 may be applied to uphold the conviction on the ground that 
 no substantial wrong has been occasioned by the ruling. The King v. 
 Finnessey, 10 Can. Cr. Cas. 347. 
 
 Evidence of Fresh Complaint. — Upon the trial of a charge of rape 
 the whole statement made by the woman by way of complaint shortly 
 after the alleged offence; including the name of the party com- 
 plained against .and the other details of the complaint, is admissible 
 in evidence as proof of the consistency of her conduct and as con- 
 firmatory of her testimony regarding the offence, but not as in- 
 dependent or substantive evidence to prove the truth of the charge. 
 "Whether or not the complaint was made within a time sufficiently 
 short after the commission of the offence as to admit evidence of the 
 particulars of the complaint, is a question to be decided by the Court 
 under the circumstances of the particular case ; but it is nevertheless 
 the province of the jury to take into consideration the time which 
 intervened in weighing the probability of its truth. R. v. Riondeau 
 (1901), 4 Can. Cr. Cas. 421, 10 Que. K.B. 584. 
 
 Upon a charge of rape, statements made by the complainant to a 
 police officer on the day after the offence was alleged to liave l)een 
 committed and in response to his inquiries, the complainant having 
 on the day of the offence complained to others of an assault but not 
 of rape, are not admi.ssible in evidence either as part of the rrs grsfce 
 or as in corroboration. But if the jury acquit the accused of that 
 offence but find him guilty of indecent assault, the verdict should 
 stand notwithstanding the improper admissions in evidence of state- 
 ments so made by the complainant after tiie alleged offence, if the 
 other evidence in the case is ample to warrant the verdict of indecent 
 assault. R. v. Graham (1899), 3 Can. Cr. Cas. 22 (Ont.).
 
 958d 
 
 Rape, etc. 
 
 [book IX. 
 
 Where the complainant makes a statement to a third party, not 
 in the presence of the accused, such statement may be given in evi- 
 dence, provided it is shewn to have been made at the first oppor- 
 tunity which reasonably ofifered itself after the commission of the 
 offence, and has not been elicited by questions of a leading and in- 
 ducing or intimidating nature. R. v. Spuzzum (1906), 12 Can. Cr. 
 Cas. 287. 
 
 Where the depositions at the preliminary enquiry on which an 
 indictment for rape is founded shew that the statements of the prose- 
 cutrix relied upon by the Crown to shew a complaint were not made 
 spontaneously, but in answer to questions by the police officer, evi- 
 dence of the answers so made is admissible against the accused at the 
 trial. R. v. Bishop (1906), 11 Can. Cr. Cas. 30. 
 
 Indictment. — A prosecution for rape is in fact and in substance 
 a prosecution for any offence of which, on an indictment for rape, 
 the prisoner could have been found guilty ; and the maxim Omne ma jus 
 continet in se minus applies. R. v. West, [1898] 1 Q.B. 174; R. v. 
 Edwards (1898), 2 Can. Cr. Cas. 96. 
 
 An indictment may now be laid under Cr. Code sees. 856 and 951 
 charging rape and also assault with intent to commit rape. 
 
 Attempted Rape. — Code sec. 300. 
 
 Capacity. — A boy under fourteen is incapable of committing rape, 
 but Code sec. 72 w^ould seem to render such a boy liable to punish- 
 ment for an attempt to commit rape. 
 
 Jurisdiction to Try. — Although a County Court Judge in the 
 Province of New Brunswick has no jurisdiction to try this offence, 
 he may proceed to try the offence of attempting to have carnal 
 knowledge of a girl under fourteen (Cr. Code 302), although the 
 evidence discloses the offence of attempting to commit rape. Code 
 sec. 583; R. v. Wright (1896), 2 Can. Cr. Cas. 83. The same rule 
 applies to restrict the jurisdiction of Courts of general sessions. Sec. 
 583. 
 
 Section 296 of the Code includes as an indictable offence for 
 which two years' imprisonment may be imposed, the case of any one 
 assaulting any person "with intent to commit any indictable offence," 
 but would probably be held to be exclusive of the offence of assault 
 with intent to commit rape, which is in itself, under the decision in 
 John v. The Queen, 15 Can. S.C.R. 384, an attempt to commit rape. 
 But see R. v. Preston, 9 Can. Cr. Cas. 201. 
 
 After a commitment upon a charge of "unlawful assault with in- 
 tent to carnally know," the accused cannot insist upon a trial, with- 
 out a jury under the Speedy Trial Clauses if the Cro\ATi express 
 an intention of indicting him for an attempt to commit rape, Avhich 
 latter offence is beyond the jurisdiction of a County Judge's Criminal
 
 CHAP. IX.] Attempts to Commit Rape. 958e 
 
 Court and is disclosed on the depositions returned. R. v. Preston 
 (1905), 9 Can. Cr. Cas. 201 (B.C.). 
 
 On the trial for an attempt to commit rape if the only issue in- 
 volved is as to the identity of the prisoner, it is unnecessary for the 
 trial Judge to point out to the jury that the law permits the finding 
 of a lesser offence than the one charged. R. v. Clarke (1907), 12 Can. 
 Cr. Cas. 300 (N.B.). 
 
 Evidence of Complaint. — On the trial of an indictment for an at- 
 tempt to commit rape statements of the person assaulted, and of 
 her companion present at the beginning of the assault, made to police 
 officers, some four hours after the assault; and that they had given 
 a description of the assailant, but not stating what the description 
 was; and evidence of the officers that in consequence of such descrip- 
 tion they had looked for the assailant, were properly received, al- 
 though statements of a like character had previously been made to 
 other persons. And where the prosecutrix on cross-examination had 
 stated that she had given a description of her assailant in the presence 
 of her father, and that in consequence of such description her father 
 had suspected a person other than the prisoner, the Crown was pro- 
 perly allowed to prove by the father what the description was that his 
 daughter had given in his presence. R. v. Clarke (1907), 12 Can. Cr. 
 Cas. 300 (N.B.). 
 
 Punishment for Attempt. — Code sec. 300. 
 
 Sec. 2. — Of Unlawful Carnal Knowledge of Idiots, Imbecile and 
 Lunatic Females. — Code sec. 219. 
 
 Corroborative Evidence Essential — Code sec. 1002. 
 
 Sec. 3. — Of Unlawfid Carnal Knowledge of Girls Under Four- 
 teen. — Code sec. 301. 
 
 Capacity. — The common law presumption of the physical incapa- 
 city of a boy under fourteen to have carnal knowledge would be a 
 defence to a charge of this offence. R. v. Hartlen, 2 Can. Cr. Cas. 12. 
 
 Unsworn Evidence by Girl Under Fourteen. — Code sec. 1002. 
 
 Canada Evidence Act.—R.^.G. (1906) ch. 145. 
 
 Consent. — Carnal knowledge alone constitutes an offence under 
 this section when the girl is under the age of fourteen and her con- 
 sent to the act is not a defence. R. v. Brice, 7 ]\Ian. R. 627 ; R. v. 
 Chisholm, 7 Man. R. 613. 
 
 When there has been no violence, and the girl is under fourteen 
 and has consented or complied, the offence falls under art. 301 ; but 
 when there has been violence, and when the girl has not consented, 
 then, notwithstanding the fact that the girl is under fourteen years 
 of age, the crime is rape, and falls under sec. 298. R. v. Riopel (1898), 
 2 Can. Cr. Cas. 225, 228. The word "man" and ''woman" in this 
 section are to be taken in a general or generic sense as indicating all
 
 958/ Rape, etc. [book ix. 
 
 males and females of the human race, and not in a restricted sense 
 as distinguished from boys and girls. R. v. Riopel (1898), 2 Can. 
 Cr. Cas. 225. 
 
 Indictment. — -The words "not being his wife" in sec. 301, pro- 
 viding for the offence of defiling children under fourteen, is an excep- 
 tion, the failure to negative which in the indictment will not invalid- 
 ate a conviction thereon where no objection was taken before pleading. 
 The King v. Wright, 11 Can. Cr. Cas. 221. 
 
 The offence of carnal knowledge of a girl under fourteen years in- 
 cludes the offence of indecent assault, and a trial for the greater 
 offence is a trial also for the lesser offence included therein, and 
 the accused may, although found not guilty of the greater offence, be 
 convicted for such lesser offence, if proved, under the same charge 
 or indictment. R. v. Cameron (1901), 4 Can. Cr. Cas. 385 (Ont.). A 
 police magistrate trying an accused with his consent summarily, upon 
 the charge of carnal knowledge, has the same power to convict of 
 the lesser offence as a Court of general sessions would have upon a 
 trial under an indictment. Ihid. And an acquittal by the police 
 magistrate on such summary trial is a bar to a charge upon a fresh 
 information for indecent assault in respect of the same occurrence. 
 Itid. An indictment for rape under sees. 298 and 299 lies against 
 one who has ravished a female under the age of fourteen years against 
 her will, notwithstanding this section. R. v. Riopel (1898), 2 Can. 
 Cr. Cas. 225; R. v. Ratcliffe (1882), 15 Cox C.C. 127; R. v. Dicker 
 (1877), 14 Cox C.C. 8. 
 
 Section 951 authorizes a verdict of indecent assault, the consent 
 of a girl under fourteen not being material to that offence; sec. 
 294; R. V. Cameron (1901), 4 Can. Cr. Cas. 385 (Ont.) ; or if the com- 
 plete commission of the offence under sec. 301 is not proved, but the 
 evidence establishes an .attempt to commit the offence, the accused 
 may be convicted of such attempt and punished accordingly. Sec. 
 949. 
 
 Attempt to Have Carnal Knowledge. — Code sec. 302. 
 
 The presumption of physical incapacity by a boy under fourteen 
 to have carnal knowledge would seem to be over-ridden in reference to 
 this and similar offences by Code sec, 72. 
 
 Corroboration. — Upon the trial of a charge of attempted carnal 
 knowledge of a girl under fourteen who is too young to understand 
 the nature of an oath, a conviction for that offence is not warranted 
 unless her evidence not under oath is corroborated by some other 
 material evidence implicating the accused (Code sec. 1003), but the 
 accused may be convicted of common assault upon the charge so laid 
 if there be corroboration merely by some other material evidence (Can. 
 Evidence Act, sec. 16) . The King v. De Wolfe, 9 Can. Cr. Cas. 38.
 
 CHAP, IX.] Indecent Assault. 95Sg 
 
 Alibi. — It is misdirection entitling the accused to a new trial for the 
 trial Judge to charge the jury that the onus is upon the accused to 
 prove an alibi set up in defence by .a preponderance of testimony. The 
 King V. Myshrall, 8 Can. Cr. Cas. 474, 35 X.B.R. 507. 
 
 Jurisdiction. — See note to sec. 300. 
 
 Proof of Age. — See sec. 984. 
 
 Excluding Public from Court Room. — See sec. 645. 
 
 Sec. 4. — Indecent Assault on Females. — Code sec. 292. 
 
 Punishment. — Under this section everyone found guilty of an 
 indecent assault on a female is liable to two years' imprisonment and 
 to be whipped; but the Court in many cases, acting under the discre- 
 tion conferred by the special proviso contained in sec. 1028 of the 
 Code, does not inflict the whipping, and imposes only an imprison- 
 ment. R. V. Robidoux (1898), 2 Can. Cr. Cas. 19. 
 
 Complaint. — In an Ontario case it has been held that in a civil 
 action for damages under circumstances constituting the criminal 
 offence of indecent assault, evidence is admissible of complaint made 
 by the woman shortly after the assault was committed, in like manner 
 as upon a criminal trial ; and that complaint made by the woman to 
 her husband, on her first meeting him some hours after the assault, 
 but on the same day, was admissible in evidence under the circum- 
 stances of the case. The proof of such complaint by the evidence of 
 both the woman and her husband is corroborative of the woman's 
 evidence that she did not consent to the acts complained of. Ilopkin- 
 son V. Perdue, 8 Can. Cr. Cas. 286. "Where evidence of complaint 
 is admissible on a charge of indecent assault, not only the fact of 
 complaint may be shewn, but the particulars of the complaint. Ibid. 
 
 It is essential in all cases of indecent assault that complaint should 
 have been made at the earliest opportunity after the offence, and evi- 
 dence of such complaint ma}', under special circumstances, be received 
 after the lapse of several days' delay. The fact of the girl being only 
 seven years of age, that the act was committed without violence and 
 that the girl did not realize the serious nature of the act, are cir- 
 cumstances which make a complaint made ten days afterwards admis- 
 sible in evidence. R. v. Barron (1905), 9 Can. Cr. Cas. 196 (X.S.). 
 
 Under exceptional circumstances evidence of a complaint made by 
 an adult female of an indecent assault may be admitted although five 
 days had intervened between the assault and the complaint. R. v. 
 Smith (1905), 9 Can. Cr. Cas. 21 (N.S.). 
 
 Corroboration. — Code sec. 1002. 
 
 Sec. 5. — Of Procuring the Defilement of Women. 
 
 Conspiring by False Pretenses to Induce Woman to Commit Adul- 
 tery. — Code sec. 218. 
 
 Householder Permitting Defilement. — Code sec. 217.
 
 958/j. Rape, etc. [book ix. 
 
 Corroboration. — Code sec. 1002. 
 
 On a charge of allowing a girl under 18 to be upon premises for 
 immoral purposes, the evidence of the girl proving that she shared 
 with the proprietor the money she obtained by prostitution there car- 
 ried on, is sufficiently corroborated under Code sec. 1002, by the evi- 
 dence of another witness tending to shew that the place was a bawdy 
 house. The King v. Brindley (1903), 6 Can. Cr. Cas. 196. 
 Limitation of Prosecution. — Code sec. 1140(c). 
 Parent or Guardian Procuring or Party to Defilement of Girl or 
 Woman. — Code sec. 215. 
 Punishment for — 
 
 (a) Procuring girl for defilement. Code sec. 216. 
 
 (&) Enticing girl to house of ill-fame. Code sec. 216. 
 
 (c) Procuring girl to become prostitute. Code sec. 216. 
 
 {d) Procuring girl to leave Canada to become prostitute. Code 
 
 sec. 216. 
 (e) Procuring girl to enter Canada to become prostitute. Code 
 
 see. 216. 
 (/) Procuring girl to leave her abode to become prostitute. 
 
 Code see. 216. 
 {g) Procuring carnal connection by threats. Code sec. 216. 
 
 Procuring carnal conection by false pretenses. Code sec. 216. 
 {h) Administering drugs to enable unlawful carnal connection. 
 Code sec. 216. 
 Void Conviction. — A conviction for ''unlawfully procuring or at- 
 tempting to procure" a girl to become a prostitute, is void for dupli- 
 city and for uncertainty. R. v. Gibson (1898), 2 Can. Cr. Cas. 302. 
 Limitation. — Code sec. 1140(c). 
 Corroboration. — Code sec. 1002. 
 
 In R. V. McNamara (1891), 20 O.R. 489, it was held that it is 
 admissible to prove in corroboration of the woman 's evidence, that the 
 house to which the prisoner had taken her had the general reputation 
 of being a bawdy house; (Gait, C.J., Rose and MacMahon, JJ.). 
 
 Inducing to Come from Abroad. — Upon a charge of procuring a 
 girl to come to Canada from abroad with intent that she may become 
 an inmate of a brothel in Canada, the acts of inducement must be 
 shewn to have been committed in Canada to give jurisdiction to a 
 Canadian Court, unless the accused is a British subject. Re Gertie 
 Johnson, 8 Can. Cr. Cas. 243. 
 
 Search Warrant for Girl in House of Ill-fame. — Code sec. 640. 
 Conspiracy to Defile. — Code sec. 218,
 
 ( 959 ) 
 
 CHAPTER THE TENTH. 
 
 OF ABDUCTION OF FEMALES. 
 
 Common Law. — It aj)pears not to be an indictable offence at common 
 law for a man to marry a woman under age, without the consent of her 
 father or guardian (a). But children might be taken from their parents 
 or guardians by violence, conspiracy, or other improper practices in such 
 a way as would render the act an offence at common law, though the 
 parties themselves might be consenting to the marriage (b). 
 
 Various forms of abduction of wards and women have been made the 
 subject of legislation from the time of Henry HI, (Statute of Merton) 
 down to 1885 (c). The enactments still effectively in force are as follows : 
 
 Abduction of Girls under Sixteen. — Bv the Offences against the 
 Person Act, 1861 (24 & 25 Vict. c. 100), s. 55, ' Whosoever shall unlaw- 
 fidly take or cause to be taken any unmarried girl, being under the age 
 of sixteen years, out of the possession and against the will of her father or 
 mother, or of any other person having the lawful care or charge of her, 
 shall be guilty of a misdemeanor, and being convicted thereof shall be 
 liable, at the discretion of the Court, to be imprisoned for any term not 
 exceeding two years, with or without hard labour ' (d). The provisions of 
 the Children Act, 1908, Part II. apply to offences under this section {dd). 
 
 It is no defence to an indictment under this section that the girl 
 looked over sixteen, or told the defendant that she was over sixteen, or 
 that he bona fide and reasonably believed her to be over sixteen (e), or 
 
 (a) 1 East, P. C. 458. constitute a crime, if the result were as he 
 
 lb) Id. ibid. p. 459. And see in 3 Chit. anticipated, but in which tlic result may 
 
 Cr. L. 713, a precedent of an information not improbably end by bringing tlic offence 
 
 for a misdemeanor, in procuring a marriage witliin a more serious class of crime. Aa 
 
 with a minor, by false allegations. Sec if a man strike with a dangerous wcajion 
 
 R. V. Lord Grey [1682], 9 St. Tr. 127. 1 Avith intent to do grievous bodily harm, and 
 
 East, P. C. 460. This case was in the nature kills. The result makes the crime murder, 
 
 of ravishment of ward, and Wright (on The prisoner has run the risk. So if a 
 
 Conspiracy, p. 106) considers it not to be prisoner do the prohibited acts witliout 
 
 a case of conspiracy at all, vide ante, p. 158. caring to consider what the truth is as to 
 
 (c) See Pollock and Maitland, Hist. Eng. facta. As if a prisoner were to abduct a 
 
 Law, ii. 363, 435. girl under sixteen, without caring to con- 
 
 (rf) Taken from 9 Geo. III. c. 31, s. 20 sider whether she was in truth under 
 
 (E), and 10 Geo. IV. c. 34, s. 24 (I). These sixteen. He runs the risk. So if he, 
 
 enactments reproduced an earlier statute, without abduction, defiles a girl who is in 
 
 4 & 5 Ph. & M. c. 8. fact under ten years old, with a belief that 
 
 (dd) Vide ante, pp. 918-924. she is between ten and twelve. If the facta 
 
 (e) R. V. Prince, L. R. 2 C. C. R. 154. were as he believed, he would be committing 
 
 This case was not argued for tlie prisoner. the lesser crime. Then he runs the risk ot 
 
 Brett, J., the only dissentient judge, said : his crime resulting in the greater crime. 
 
 ' Upon all the cases I think it is proved that It is clear that ignorance of tlie law does not 
 
 there can be no conviction for crime in excuse. It seems to me to follow that the 
 
 England in the absence of a criminal mind maxim as to inens rec applies whenever the 
 
 or mens rea. Then comes the question, facta which are present to the prisoner's 
 
 what is the true meaning of the phrase V mind, and which he has reaaonable grounds 
 
 I do not doubt that it exists wlicre the to believe, and does believe, to be the facts, 
 
 prisoner knowingly does acts whicli would would, if true, make his acts no criminal
 
 960 
 
 Of Abduction of Females. 
 
 [BOOK IX. 
 
 had no means of ascertaining her age (/). He is bound at his peril to 
 find out her age {<j). 
 
 The enactment seems to extend to the taking of a natural daughter 
 from the care and custody of her putative father {h), or from the mother, 
 though she has married again, and the second husband has assented to the 
 taking away {i). 
 
 Unlawfully. — The enactment does not require the presence of a 
 corrupt motive or particular intent, so that the absence of such motive 
 or intent is no answer to the criminal charge [j). But an honest belief 
 in the existence of a right in favour of the prisoner to the custody of the 
 girl may suffice to justify acquittal {h). 
 
 The enactment does not include the word ' detain.' 
 
 Take or Cause to be Taken. — The taking need not be by force, actual 
 or constructive, physical or moral, and it is immaterial whether or not 
 the girl consents {I), or whether the proposal that she should go away 
 emanates from the defendant or from the girl (m). 
 
 Questions have arisen whether decoying or enticing away as distinct 
 from actual taking falls within the enactment (n). It seems now to be 
 established that persuasion or blandishment by the defendant to the gir! 
 to leave her home, if effective, is within the statute ; but that where the 
 active part is by the girl and not by the man he is not liable to 
 conviction (o). 
 
 offence at all. It may be true to say that 
 the meaning of the word " unlawfully " is 
 that the prohibited acts be done " without 
 justification or excuse." I, of course, agree 
 that if there be a legal justification there 
 can be no crime. But I come to the con- 
 clusion that a mistake of facts on reasonable 
 grounds, to the extent that, if the facts 
 were as believed, the acts of the prisoner 
 would make him guilty of no criminal 
 offence at all, is an excuse, and that such 
 excuse is impHed in every criminal charge 
 and every criminal enactment in England.' 
 Bramwell, B. : ' What the statute con- 
 templates, and what I say is wrong, is the 
 taking of a female of such tender years that 
 she is properly called a girl, can be said to 
 be in another's possession and in that other's 
 care or charge. No argument is necessary 
 to prove this. It is enough to state the 
 case. The Legislature has enacted that if 
 any one does this wrong act, he does it at 
 the risk of her turning out to be under six- 
 teen. This opinion gives full scope to the 
 doctrine of the mens rea. If the taker 
 believed he had the father's consent, 
 though wrongly, he would have no mens rea ; 
 so if he did not know she was in any one's 
 possession, nor in the care or charge of any 
 one. In those cases he would not know 
 he was doing the act forbidden by the 
 statute, an act which if he knew she was in 
 possession and in care or charge of any one, 
 he would know was a crime or not, accord- 
 ing as she was under sixteen or not. He 
 would not know he was doing an act wrong 
 in itself, whatever was his intention if done 
 
 without lawful cause.' See the discussion 
 of the case in K. v. Tolson, 23 Q.B.D. 168 ; 
 and as to tnens rea, ante, p. 101. 
 
 (/) R. V. Booth, 12 Cox, 231, Quain, J. 
 
 (g) R. V. Mycock, 12 Cox, 28, Willes, J. 
 R. V. Olifier, 10 Cox, 402, Bramwell, B. 
 
 (h) R. V. Cornforth, 2 Str. 1162 (decided 
 on 4 & 5 Ph. & M. c. 8). 1 Hawk. c. 41, 
 s. 14. R. V. Sweeting, 1 East, P. C. 457. 
 
 (i) Ratcliffe's case, 3 Co. Rep. 39. 
 
 (/) 1 East, P. C. 459. See R. v. Booth, 
 12 Cox, 231, Quain, J., and R. v. Tinkler, 
 1 F. & F. 513, Cockburn, C.J., decided on 
 9 Geo. IV. c. 31, s. 20, of which 24 & 25 
 Vict. c. 100, s. 55, is a re-enactment. 
 
 (k) R. V. Tinkler, ubi sup. 
 
 (I) R. V. Mankletow, Dears. 159. R. v. 
 Kipps [1850], 4 Cox, 167, Maule, J. R. v. 
 Handley, 4 F. & F. 648, Wightman, J. ; all 
 decided on 9 Geo. IV. c. 31, s. 20. R. v. 
 Jarvis, 20 Cox, 249, Jelf, J. 
 
 (m) R. V. Robins [1844], 1 C. & K. 456. 
 Atcherley, Serjt., afterwards stated that 
 he had mentioned the case to Tindal, C.J., 
 and that he was of opinion that the direc- 
 tion of the jury was right, and that there 
 was a taking of the girl within s. 20. See 
 R. V. Piince, ante, p. 959, note (e). In R. 
 V. Frazer [1861], 8 Cox, 446, Pollock, C.B., 
 after consulting Williams, J., ruled that it 
 was unnecessary under 9 Geo. IV. c. 31, 
 s. 20, to prove such a taking as would 
 amount to a trespass or anything in the 
 nature of a trespass. 
 
 (n) R. V. Meadows, 1 C. & K. 399, Parke, 
 B. 
 
 (o) R. V. Jarvis, 20 Cox, 249, Jelf, J.
 
 CHAP. X.] Of Abduction of Girls under Sixteen. 961 
 
 The prisoner met in the street a girl under sixteen, and persuaded 
 her to go with him to a neighbouring city. He there seduced her, and 
 afterwards, on the same day, accompanied her back, and parted with 
 her in the street where he had met her. The girl hved with her parents 
 at home, and immediately returned there. The prisoner made no inquiries, 
 and had no knowledge of whether the girl's parents were even living or 
 not, but he did not believe she was a prostitute : — Held, that there was 
 no evidence to support a conviction under sect. 55 if). 
 
 If the girl, while living with her father, leaves his house for a mere 
 temporary purpose, intencling to return to it, she is still in his possession 
 within the meaning of the statute ; and if when so out of the house the 
 defendant induces her to run away with him, he is guilty of an offence 
 within sect. 55 [q). 
 
 Although it seems that a man is not bound to return a girl under 
 sixteen to her father's custody when she has left home without any 
 inducement, and come to him (r), yet if he has at any time held out an 
 inducement to her, and she, acting upon that, comes to him at a time 
 unexpected by him, and he then induces her to continue away from hei 
 father's custody, he is guilty (s). 
 
 On an indictment for taking a girl under sixteen, out of the possession 
 of her father, it appeared that the prisoner lived near the girl's home, 
 and had known her a considerable time. Six months previously, the 
 father, hearing that the girl went to the prisoner's house, remonstrated 
 with him for encouraging her to go there ; the prisoner replied that he 
 did not want girls for the purpose of intercourse, as he was old and under 
 medical treatment. One Sunday she left her father's house to go, as she 
 said, to the Sunday school, but did not return. In fact she went to the 
 prisoner's house, and was found there a month afterwards. A youth 
 proved that the prisoner had told him to bring that young girl if he could. 
 He had told a policeman that he had the girl to do his work, as he had 
 no servant. The girl stated that she had for two years been in the habit 
 of going to his house occasionally, and that he had tried to persuade her 
 to come and live with him, and had promised her a new dress if she came, 
 and that when she came he promised to provide for her in his will, and 
 persuaded her to sleep with him. Pollock, C.B., directed the jury that 
 if they believed that the prisoner by promises or persuasion enticed the 
 girl away from her father, and so got her out of his possession, and into 
 his own, they should find him guilty, otherwise if she came without any 
 previous inducement or enticement {t). 
 
 (/)) R. V. Hibbert, L. R. 1 C. C. R. 184, cause to know, that the girl was under such 
 Pigott, B., doubted. BoviU, C.J., said : care ; but no such facts arc found by tlio 
 ' In tlie case before us there is no statement case to have existed. In tlio absence of 
 or finding of the fact that the prisoner knew, any such finding, we tliink that the Con- 
 or liad reason to know, tliat the girl was viction should be quashed.' See R. f. 
 under the charge of her father or mother Green, 3 F. & F. 274, and sec per Brett, 
 or any other lawful guardian. Circura- in R. v. Prince, ante, p. 9o9, note (e). 
 stances might exist to negative the pre- (7) R. v. Mycock, 12 Cox, J. 28, Willes, 
 sumption that she was in any such care, as J. 
 
 if the girl were upon the town, though that (r) R. v. Miller, 13 Cox, 179. 
 
 does not appear to be the case here. So, (s) R. v. Olifier, 10 Cox, 402, Bramwell, 
 
 on the other hand, there might be circum- B. 
 
 stances from which it migjit be inferred (/) R. v. Robb, 4 F. & F. 59. See R. v. 
 
 that the prisoner knew, or had reasonable Meadows, 1 C. & K. 399. 
 
 VOL. I. 3 Q
 
 962 Of Abduction of Females. [book ix. 
 
 Where the suggestion to go away came from the girl herself and the 
 defendant merely yielded to her suggestion, it was held that he should be 
 acquitted («)• 
 
 Out of the Possession. — A father is at common law entitled to the 
 custody of his child until it attains the age of twenty-one or marries under 
 that age {v), or unless there be some sufficient reason to the contrary {w), 
 but sixteen is described as the age of emancipation for the purpose of poor 
 law settlement and maintenance. The word in the statute is ' possession,' 
 which involves more than the legal right to custody. 
 
 Against the Will. — Where the parent, &c., is induced to let the girl 
 be taken out of his possession by fraudulent representations it would 
 seem that the taking is against his will within the meaning of the 
 enactment. 
 
 On an indictment under 9 Geo. IV, c. 31, s. 20 {x), for the abduction 
 of a girl under sixteen years of age, it appeared that the prisoner pretended 
 that he had heard of a place for the girl ; the mother said that the child 
 was too young, being only between ten and eleven years of age ; but the 
 prisoner said she was quite old enough, for he only wanted her to go to 
 S. with a lady to nurse a baby, and to go on errands. The prisoner called 
 the same day and took the child away, saying the lady was too ill to 
 come herself. He did not, however, take her to any lady, but kept her 
 with him from Monday till Friday, and slept with her every night, and 
 then took her home. The father proved that he parted with the child on 
 the representation that she was to go to live with a lady, which he believed 
 to be true. For the Crown it was argued that the consent of the father 
 having been obtained by the fraudulent representations of the prisoner, 
 was no consent at all ; for the prisoner it was contended that the abduction 
 was not complete, for the child was brought back ; if this were an 
 abduction, any seducing away of a girl for an hour would be an abduction ; 
 there was no intention shewn to deprive the parents of the child. Gurney, 
 B., left it to the jury to say whether the father was induced to part with 
 the possession of the child by the fraudulent representations made by 
 the prisoner {y). 
 
 In Hicks v. Gore {z), where a widow, 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 attained the age of sixteen, and without the consent 
 of her mother, who was her guardian ; it was held that in order to bring 
 the offence within the statute (4 & 5 Ph. & M. c, 8, rep.) it must appear 
 some artifice was used, that the elopement was secret, and that the 
 
 (u) R. V. Jarvis, 20 Cox, 249, Jelf, J. would have been reserved had not the 
 
 This decision is contrary to R. v. Biswell prisoner been convicted and sentenced on 
 
 [1847], 2 Cox, 279. another indictment. The mother proved 
 
 (v) Re Agar Ellis, 24 Ch. D. 317. Cf. Ex that she would have let the child go with 
 
 'parte Barford, 8 Cox, 405. the prisoner if he had told her that she 
 
 (w) Re Newton [1896], 1 Ch. 740. was to go and hve with him as his servant ; 
 
 {x) Repealed in 1861, and re-enacted as but Gurney, B., held that this could not 
 
 24 & 25 Vict. c. 100, s. 55, ante, p. 959. affect the case. 
 
 (y) R. V. Hopkins [1842], C. & M. 254. (2) 3 Mod. 84. 1 Hawk, c. 41, s. 11. 
 The prisoner was convicted, and the point
 
 CHAP. X.] Of Abduction of Girls under Sixteen. 963 
 
 marriage was to the disparagement of the family. But in this case 
 no stress appears 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 offender, 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, was not within the 
 statute ; for that then every schoolmistress might dispose, in the same 
 manner, of the children committed to her care (a). It was said that 
 there must be a continued refusal of the parent or guardian ; and that 
 if they once agreed it was an assent within 4 & 5 Ph. & M. c. 8, notwith- 
 standing any subsequent dissent (6) ; but this was not the point in 
 judgment ; and it needs further confirmation (c). 
 
 It was no legal excuse for the offence under 4 & 5 Ph. & M. c. 8, that the 
 defendant made use of no other means than the common blandishments 
 of a lover, to induce the lady secretly to elope and marry him, if it appeared 
 that the father intended to marry her to another person, and so that the 
 taking was against his consent {d). 
 
 In R. V. Kipps (e), on an indictment under 9 Geo. IV. c. 31, s. 20. it 
 appeared that the girl was between fifteen and sixteen years of age, and 
 the prisoner had for several months corresponded with her, and paid 
 her the attentions of a lover, though he was a married man, and had 
 endeavoured to persuade her to leave her home, where she was living with 
 her parents, and ultimately prevailed upon her to meet him at a place in 
 the village where they were both living, which accordingly she did, when 
 they left the village together. There was no suggestion of any force or 
 fraud used by the prisoner in inducing the girl to consent to elope with 
 him. It was urged that there was no taking within the meaning of the 
 Act, as the girl went voluntarily with the prisoner, and R. v. Meadows (/") 
 was rehed upon ; for the Crown, R. v. Robins {g) and R. v. Bis well (7^ 
 were cited. Maule, J., said: ' If the construction apparentlv put upon 
 the statute in R. v. Meadows be the right construction, the Act can 
 hardly ever be violated, except in the case of children in arms. It rarely 
 or never happens that the abductor takes away a girl of fourteen or 
 fifteen in his arms, or upon his back ; so that such an interpretation would 
 make the statute inoperative. The law throws a protection about voung 
 persons of the sex and within the age specified by the statute. It has 
 been determined by the legislature, that at that age young females are 
 not able to jorotect themselves, or give any binding consent to a matter 
 
 (ff) 1 East, p. C. 457. By the fraud the a distinction between an offence under 
 
 temporary guardian loses all right to the sect. 20 of the 9 Geo. IV. c. 3J. and inider 
 
 possession of the child. See an Anonymous sect. 21 ; and I am inclined to think, tliat 
 
 case decided in ISTo and referred to in to bring a case witliin sect. 20 (which is 
 
 Roscoe Crim. Ev. (KUh ed.) 230. similar to 24 & 25 Vict. c. 100, s. .55], there 
 
 (/>) Calthrop v. Axtol, 3 Mod. 169. must be an actual taking or causing to bo 
 
 (r) 1 Ea.st, P. C. 457. taken away ; and a mere decojing or 
 
 {d) R. V. Twisleton, 1 I^ev. 257 ; 1 Sid. enticement away which would be an 
 
 387; 2 Keb. 32. 1 Hawk. c. 41, s. 10. offence within sect. 21, would not con- 
 
 (e) [1850] 4 Cox, 107. stitute one under sect. 20.' 
 
 (/) 1 C. & K. 399. Parke, B., said : ' It (g) [1844] 1 C. & K. 456. 
 
 is quite evident tliat the Legislature made (h) [1847] 2 Cox, 279. 
 
 3q2
 
 964 Of Abduction of Females. [book ix. 
 
 of this description. It is therefore quite immaterial whether the girl 
 abducted consent or not ; if her family, that is to say, those who under 
 the statute may lawfully have the possession and control over her, do 
 not consent to her departure, the offence is completed.' 
 
 In R. V. Mankletow {i), upon a similar indictment, it appeared that the 
 prisoner had stated to the father that he intended to emigrate to America, 
 and a short time before his departure he had privately persuaded the girl, 
 who was between twelve and thirteen, to go with him to America, and 
 on the morning of his departure he had secretly told her to put her things 
 in a bundle, and to walk to a place where he would meet her ; she did so, 
 and the prisoner, having parted with her father in a road, met her at the 
 place appointed, and they travelled together to London, where he was 
 apprehended, and then said he had paid the girl's passage to London, 
 and was going to take her to America. For the jorisoner it was urged 
 that as the girl went voluntarily there was no taking within the meaning 
 of the statute, and R. v. Meadows [ii) was cited. R. v. Robins {j) was 
 cited on the other side, and it was stated that Maule, J., at a previous 
 assize, had dechned to act on R. v. Meadows. Coleridge, J., overruled 
 the objection, and told the jury that the girl was in the father's possession 
 while in his house, although he was not actually in it ; that the taking 
 need not be by force, nor against the girl's will ; and that if the prisoner 
 by persuasion induced her to leave her father's roof against his will, in 
 order to her going with him to America, the case was within the statute ; 
 and, upon a case reserved, it was held that the conviction was right. In 
 a case like the present the taking need not be by force, actual or construc- 
 tive, and it is immaterial whether or not the girl consents. The Act was 
 passed to protect parents and others having the lawful charge or custody, 
 and it is therefore immaterial whether the taking be with or without the 
 consent of the girl. And as to the taking of the girl out of the possession 
 of the father, a manual possession is not necessary ; if the girl be a member 
 of the family, and under the father's control, there is a sufficient possession. 
 If a girl leaves her father's house for a particular purpose, with his sanction, 
 she cannot legally be said to be out of his possession. Here the father 
 had possession until the very act of taking {jj). 
 
 In R. V. Handley (k), on a similar indictment against a man and a 
 woman, it appeared that the girl had become acquainted with the female 
 prisoner, and at her house met the male prisoner, and she and the prisoners 
 met frequently, and at last she left her father's house, as she said, to go 
 
 (i) [1853] Dears. 152: 22 L. J. M. C. 151: On R. v. Meadows being cited, Jervis, 
 
 6 Cox, 143. C. J., observed that ' the girl, by voluntarily 
 
 [ii) Ante, p. 963. going from lier father's house, may have 
 
 (j) [1844] 1 C. & K. 456. severed the possession of the father, and so 
 
 ijj) Parke, B., said: 'Supposing the girl could not be said to be taken out of the 
 
 to have abandoned her father's possession, possession of her father. I do not find that 
 
 and the prisoner then to take her away, in R. v. Kipps that point was brought 
 
 it would not come witliin the statute. But before my brother Maule's mind ' ; and 
 
 supposing she conditionally abandoned the at the end of liis judgment he added, ' I do 
 
 possession of her father under the impres- not think the case of R. v. Kipps interferes 
 
 sion that the prisoner would be at a certain at all with the decision of R. v. Meadows.' 
 
 point to take her away, that would not be [k) [1859] 1 F. & F. 648. 
 a determination of the father's possession.'
 
 CHAP. X.] Of Abduction of Girls under Sixteen. 965 
 
 for a walk, at the same time saying that she should return in an hour, 
 but she did not return ; and the same evening her brother went to the 
 house of the female prisoner, who denied having seen her ; and it was 
 afterwards discovered that she had left the same night, and she was 
 afterwards found in a low lodging together with the male prisoner ; the 
 girl had taken some wearing apparel to the house of the female prisoner 
 the day before she left home, and she had advised her to go away with 
 the male prisoner ; it was contended that there was nothing to shew 
 that the girl's going away was not entirely voluntarily. Wightman, J., 
 told the jury, that ' this offence is complete under the statute which creates 
 it without any reference to the object for which the girl may be taken. 
 You must be satisfied that the girl was under sixteen years of age, and 
 that her father was unwilUng that she should go away, and it must be 
 assumed to be so, if it appears that, had he been asked, he would have 
 refused his consent. You must also be satisfied that the prisoners, or 
 one of them, took the girl out of the possession of her father. For this 
 purpose a taking by force was not necessary ; it is sufficient if such moral 
 force was used as to create a wilhngness on the girl's part to leave her 
 father's house. If, however, the going away was entirely voluntary on 
 the part of the girl, the prisoners would not be guilty of an offence under 
 this statute 
 
 In R. V. Baillie {I), on a similar indictment the prisoner was proved 
 to have lodged in the house of the girl's father, and he and the girl became 
 engaged, and he induced her to go with him to a Eoman Cathohc chapel, 
 where they were married ; but she immediately returned to her father's 
 house, and continued to live there as before ; and the marriage had 
 never been consummated ; the father did not know of the marriage till 
 two or three weeks afterwards ; it was urged that the girl had never been 
 taken out of her father's possession within the meaning of the Act ; it 
 was answered that the marriage without the father's consent was an 
 abduction within the meaning of the Act, and after the marriage the 
 father had no legal control over the girl. It was held that this case was 
 within the Act ; the girl could not be considered to be in her father's 
 possession, although she was in his house ; because she was in the lawful 
 possession of her husband, and the father could never have the custody 
 of her in the same sense as before her marriage. The distance she was 
 taken, and the time she was kept away, were immaterial, her husband 
 having power to take her away whenever he liked, and her whole 
 relationship to her father being altered by the marriage. 
 
 In R, V. Timmins (m), on a similar indictment it appeared that the 
 prisoner was well known to tlie girl, and she had on a former occasion slept 
 with him a whole night ; and that on a Sunday she met the prisoner, and 
 they went to London together, and spent three days in visiting places of 
 public entertainment, sleeping together at night, and on Wednesday 
 morning, on getting up, the prisoner said to her, ' I '11 go to work, and you 
 go home ' : they separated, and the girl went home ; the father swore 
 that his daughter was absent without his knowledge and against his will. 
 
 (/) [1859] 8 Cox, 238, Recorder and (w) [ 18(1UJ Bell L'TC. 
 
 Common Serjeant.
 
 966 Of Abduction of Females. [Book ix 
 
 The jury found that the father did not consent, and that the prisoner 
 knew he did not consent, and that the prisoner took the girl away with 
 him in order to gratify his passions, and then allowed her to return home, 
 and did not intend to keep her away permanently. Upon a case reserved 
 upon the question, whether, on the facts so found, any offence had been 
 committed under the statute, Erie, C.J., delivered judgment : ' We are 
 of opinion that the conviction must be affirmed. The statute was passed 
 for the protection of parents, and for preventing unmarried girls from 
 being taken out of the possession of their parents against their will ; 
 and it is clear that no deception or forwardness on the part of the girl in 
 such cases can prevent the person taking her away from being guilty of 
 the offence created by this section. The difficulty which we have is to 
 say what constitutes a taking out of the possession of the father. The 
 taking away might be consistent with the possession of the father, if the 
 girl went away with the party intending to return in a short time ; but 
 when a person takes a girl away from the possession of her father, and 
 keeps her away against his will for a length of time, as in this case, keeping 
 her away from her home for three nights, and cohabiting with her during 
 that time, we think the evidence justified the jury in finding the taking 
 to be a taking out of the possession of the father within the meaning of 
 the statute. The prisoner took the girl away from under her father's 
 roof, and placed her in a situation quite inconsistent with the father's 
 possession. In our judgment, therefore, the jury were justified in their 
 verdict by the evidence before them, which we consider to be the point 
 submitted to us, although the prisoner did not intend the taking to be 
 permanent, but when his lust was gratified intended to cast the girl from 
 him. We limit our judgment to the facts of this particular case. It 
 may be that a state of facts might arise upon which the offence would 
 be complete in law when the girl passed her father's threshold, as where 
 she is taken away with the intention of keeping her away permanently ; 
 but we mean it to be understood, that, although we affirm this conviction, 
 we do not intend to say that a person would be liable to conviction under 
 the section if it should appear that the taking was intended to be tempo- 
 rary only, or for a purpose not inconsistent with the relation of father 
 and child. It is sufficient for us to say that in this case the conviction 
 was justified by the evidence' (w).' 
 
 In R. V. Tinkler (o), on a similar indictment it ajopeared that the girl 
 was the younger sister of the prisoner's deceased wife, and had lived in 
 his house up to the time of his wife's death, but on that occasion another 
 married sister had caused her to be placed under the care of another 
 woman, and no improper motive was alleged against the j)risoner, he 
 having alleged as his reason for taking the child away that he had 
 promised her father on his death-bed to take care of her. Cockburn, 
 C.J., told the jury that it was clear that the prisoner had no right to 
 take the child out of the woman's custody. But as no improper motive 
 was suggested, it might be concluded that the prisoner wished the child 
 to live with him, and that he meant to discharge the promise he had 
 made to her father, and that he did not suppose he was breaking the 
 
 (n) Only argued for the Ci-own. (o) [1859] 1 F. & F. 513,
 
 CHAP. X.] Of Ahductioyi of Girls under Sixteen. 967 
 
 law when he took the child away. If the jury should take this view of 
 the case, and be of opinion that the prisoner honestly believed that he 
 had a right to the custody of the child, then, although the prisoner was 
 not legally justified, he would be entitled to be acquitted. 
 
 In R. V. Primelt {f), on a similar indictment it appeared that the girl 
 was more than fifteen, but in appearance three years older and very 
 prepossessing, and lived with her mother, a widow ; on the evening of 
 the alleged abduction she left her mother's house at nine o'clock to 
 spend the night at a married sister's, but, joining company with another 
 girl, they went to a public-house, where they met the two prisoners, and 
 from thence went to another public-house, where they met the prisoners 
 again by appointment, and thence to the farming premises of one of the 
 prisoners, where they remained till four o'clock in the morning ; it was 
 then proposed that they all should go to London, which they did, and 
 stayed the day there, and one of the prisoners slept with the girl, and the 
 other with her comjjanion, and returned the next day. The mother 
 swore that it was not by her consent that the girl had gone away, and 
 that she had inquired everywhere for her without success ; but the girl 
 stated that she occasionally went to dances at public-houses, and was 
 occasionally out late at night without anyone to look after her, and that 
 her mother on these occasions left the door on the latch, or came down 
 and let her in ; that the prisoner who slept with her was not the first 
 man who had had connection with her. Cockburn, C.J., directed the 
 jury that there was no case against the other prisoner ; and as to this 
 prisoner, if they thought that the mother had by her conduct counte- 
 nanced the daughter in a lax course of life, by permitting her to go out 
 alone at night and to dance at public-houses, this was not a case that 
 came within the intent of the statute ; but was one where what had 
 occurred, though unknown to her, could not be said to have happened 
 against her will (7). 
 
 Abduction of Girls under Eighteen. — By the Criminal Law Amendment 
 Act, 1885 (48 & 49 Vict. c. G9), s. 7, ' Any person who, with intent that 
 any unmarried girl under the age of eighteen years should be unlawfully 
 and carnally known by any man, whether such carnal knowledge is 
 intended to be with any particular man, or generally — takes or causes to 
 be taken such girl out of the possession and against tlie will of her father 
 or mother, or any other person having the lawful care or charge of her, 
 shall be guilty of a misdemeanor, and being convicted thereof shall be 
 liable at the discretion of the Court to be imprisoned for any term not 
 exceeding two years, with or without hard labour. 
 
 ' Provided that it shall be a sufficient defence to any charge under 
 this section if it shall be made to appear to the Court or jury that the 
 person so charged had reasonable cause (/•) to believe that the girl was 
 of or above the age of eighteen years' (s). 
 
 (p) tl8r)8] 1 F. & F. .50. 8 E(l\v. VI f. c. (SI, s. 18. n»tf, p. 0.->3. 
 
 (q) For a similar instance of failure to (r) At tiie time of taking. R. v. Packer, 
 
 take reasonable eare of a girl under sixteen, 16 Cox, 57. 
 
 whicli led to a doubt wiiether the girl was (.s) This clause excludes the application 
 
 taken against her will. See R. v. Frazer of R. v. Prince, antf, p. 959. 
 [18(il], 8 Cox, 440, Pollock, C.B. See
 
 968 Of Abduction of Females. [book ix. 
 
 It must be proved that the girl was taken out of the possession of 
 the person mentioned in the indictment. Whether the girl was in her 
 father's possession seems to be a question of fact for the jury {t). A girl 
 employed as a barmaid at some distance from her home was held not to 
 be in possession of her father {u). Under this enactment the intp.nt is 
 an essential element in the offence. As to proof of age lide ante, p. 954. 
 The father or mother should be called to prove that he or she did not 
 consent {v). 
 
 The word ' taking ' in this enactment has the same meaning as in 24 & 
 25 Vict, c, 100, s. 55 {w). The enactment does not apply when the girl 
 has left her home without any inducement from the defendant {x). 
 
 The willingness of the girl to go with the defendant is no answer to 
 an indictment under the section, which protects parental and public rights. 
 
 Abduction of Heiresses (?/). — By the Offences against the Person Act, 
 1861 (24 & 25 Vict. c. 100), s. 53, 'Where any woman of any age shall have 
 any interest, whether legal or equitable, present or future, absolute, 
 conditional, or contingent, in any real or personal estate, or shall be a 
 presumptive heiress or coheiress, or presumptive next of kin, or one of the 
 presumptive next of kin, to any one having such interest, 
 
 whosoever shall, from motives of lucre, take away or detain such woman 
 against her will, with intent to marry or carnally know her, or to 
 cause her to be married or carnally known by any other person ; and 
 
 whosoever shall fraudulently allure, take away, or detain such woman, 
 
 and being under the age of twenty-one years, out of the j)ossession 
 
 and against the will of her father or mother, or of any other person 
 
 having the lawful care or charge of her, with intent to marry or 
 
 carnally know her, or to cause her to he married or carnally known 
 
 by any other person, 
 
 shall be guilty of felony, and being convicted thereof shall be liable . . . 
 
 to be kept in penal servitude for any term not exceeding fourteen 
 
 years , . . {z); and whosoever shall be convicted of any offence against this 
 
 section shall be incapable of taking any estate or interest, legal or equitable 
 
 in any real or personal property of such woman, or in ivhich she shall 
 
 have any such interest, or which shall come to her as such heiress, coheiress, 
 
 or next of kin as aforesaid ; and if any such marriage as aforesaid shall 
 
 have taken jjlace, such property shall upon such conviction he settled in 
 
 such manner as the Court of Chancery in England or Ireland shall upon 
 
 any information at the suit of the Attorney-General appoint ' (a). 
 
 (t) R. V. Mace, 50 J. P. 776. 433. 
 
 (m) R. v. Henkers, 16 Cox, 257. (2) For other punishments see 54 & 55 
 
 (v) R. V. Nash, Wright, J., noted in the Vict. c. 69, s. 1, ante, pp. 211, 212. The 
 
 Times 2nd July, 1903. words omitted were repealed in 1892 
 
 {w) R. V. Henkers, 16 Cox, 257, following (S. L. R.). 
 R. V. Olifier, 10 Cox, 402, anfe, p. 961. (a) This section combines the provisions 
 
 (x) R. V. Kaufmann, 68 J.P. 189, Bosan- of 9 Geo. IV. c. 31, s. 19 (E) and 10 Geo. IV. 
 
 quet, Common Serjeant. c. 34, s. 23 (I). The words in italics in 
 
 iy) By 13 Edw. I. c. 35, it is an offence the first branch of the clause were intro- 
 
 punishable by two years' imprisonment to duced to avoid a doubt which might have 
 
 take or carry away any infant, male or been raised, whether the cases they 
 
 female, whose marriage belongs to another. expressly include were within the former 
 
 2 Co. Inst. 437. As to carrying away nuns enactments. In the second branch, the 
 
 or carrjfing away a wife with the goods of age of twenty-one is substituted for 
 
 herhusband,seel3Edw. I. c. 34, 2Co. Inst. eighteen in 10 Geo. IV. c. 34, s. 23(1).
 
 CHAP. X.] Of Abduction of Women of any Age. 969 
 
 By sect. 54 {h), ' Whosoever shall, by force, take away or detain 
 against her will any woman, of any age, with intent to marry or carnally 
 knotv her, or to cause her to be married or carnally hnoun by any other 
 person, shall be guilty of felony, and being convicted thereof shall be 
 liable ... to be kept in penal servitude for any term not exceeding 
 fourteen years . . . ' {hh). 
 
 Decisions on Former Statutes. — It was made a question of considerable 
 doubt, whether persons ' receiving wittingly the woman so taken against 
 her will, and knowingly the same,' were ousted of clergy by 18 Eliz. 
 c. 7 (c). But it was agreed that those who received the offender, knowingly, 
 were only accessories after the fact, according to the rule of the common 
 law (d). Those who were only privy to the marriage, but in no way 
 parties or consenting to the forcible taking away were not within the 
 statute (e). 
 
 It was no sort of excuse that the woman was at first taken away with 
 her own consent, if she afterwards refused to continue with the offender 
 and was forced against her will ; for till the time when the force was 
 put upon her, she was in her own power ; and she might from that time 
 as properly be said to be taken against her will, as if she had never given 
 any consent (/). Getting a woman inveigled out by confederates, and 
 then detaining and taking her away, was a taking within the statute {(f). 
 The taking alone did not constitute the offence under 3 Hen. VII. c. 2 (A), 
 and it was necessary that the woman taken away should have been 
 married or defiled by the misdoer, or by some other, with his consent (i). 
 The present enactment makes the taking away or detaining a woman, 
 tvith intent to marry or carnally know her, a complete offence. Under 
 3 Hen. VII. c. 2, it was decided, that if the woman were under force at 
 the time of taking, it was not at all material whether she were ultimately 
 married or defiled with her own consent or not ; on the ground that an 
 offender should not be considered as exempted from the provisions of the 
 statute by having prevailed over the weakness of a woman, whom he 
 got into his power by such base means (/). And it was also decided 
 
 Under 10 Cico. IV. c. 34, s. 23 (I), the girl Hall's case, 12 Co. Rep. 100. Burton v. 
 
 must have been mamed or defiled, and by Morris, Hob. 182 ; Cro. Car. 48.1. 
 
 the jierson taking lier away. The section (bb). For other punislinicnts see 54 & .')5 
 
 is so altered as to make it correspond with Vict. c. 69, s. 1, ante, pp. 211, 212. The 
 
 9 Geo. IV. c. 34, s. 19, in botii respects. words omitted were repealed in 1892 
 
 The last part of the clause is framed on 10 (S. L. R.). 
 
 Geo. IV. c. 34, s. 23 (I). It is enlarged so (r) 1 Hale, 661. 1 East, P. C. 452, 453. 
 
 as to embrace property that may come to The statute was repealed in 1828 (9 Geo. IV^. 
 
 the woman after the marriage ; and the c. 31). 
 
 High Court is em]iowcred to settle the (d) I Hale, 661. 1 Hawk, c, 41, s. 9. 
 
 property in such a manner as it deems fit, 3 Inst. 61. 1 East, P. C. 452, 453. 
 
 instead of its being invested in trustees for (r) Fulwood's case, Ci'o. Car. 488. 489. 
 
 the separate use of the wife alone, which 1 Hawk. c. 41, s. 10. 
 
 was all that 10 Geo. IV. c. 34, s. 23 (I), (/) 1 Hawk. c. 41, s. 7. Fulwood's case, 
 
 directed. The Court, therefore, may, in Cro. Car. 485. 
 
 its discretion, settle the property on the {g) R. v. Brown, 1 Ventr. 243: 3 Keb. 
 
 issue of the marriage, and in default of such 193. 
 
 issue, on any relatives of the wife. (/i) Repealed in 1828 (9 Geo. IV. c. 31). 
 
 {b) Taken from 10 Geo. IV. c. 34, s. 22 (T), (/) R. v. Wakefield, 2 Ixnv. 1. The parties 
 
 and 5 Vict. Sess. 2, c. 28, s. 15 (I). It were convicted of conspiracy to contravene 
 
 provides protection for women who happen 3 Hen. VII. e. 2, and 4 & 5 Ph. & M. c. 8. 
 to have neither any ])resent nor future (;) 1 Hale, 660. 1 Hawk. c. 41, s. 8. 
 
 interest in any property. See Baker and Fulwood's case, Cro. Car. 485, 493.
 
 970 Of Abduction of Females. lbook IX. 
 
 that a marriage would be sufficient to constitute the offence, though the 
 woman was in such fear at the time that she knew not what she 
 did (k). 
 
 Venue.— Under 3 Hen. VII. c. 2, where a woman was taken away 
 forcibly in one county, and afterwards went voluntarily into another 
 county, and was there married or defiled, with her own consent, the fact 
 was not indictable in either county ; on the ground that the offence was 
 not complete in either, but that if by her being carried into the second 
 county, or in any other manner, there was a continuing force in that 
 county, the offender might be indicted there, though the marriage or 
 defilement ultimately took place with the woman's own consent {I). The 
 place of trial in such a case is now regulated by 7 Geo. IV. c. 64, s. 12 
 {ante, p. 20). 
 
 The doctrine that there must have been a continuance of the force 
 into the county where the defilement took place, was recognised and acted 
 upon in the following case : The prisoners, a clergyman and his brother, 
 were indicted in the county of Oxford, under 3 Hen. VII. c. 2, for forcible 
 abduction. Certain evidence was given at the trial on the part of the 
 prosecution. Lawrence, J., told the jury that, in order to constitute 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 defile- 
 ment takes place, and where the 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 (which was in 
 Middlesex), yet, it appeared also, that in the course of the journey she 
 consented, as she did not ask for assistance at the inns, turnpike 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 (m). 
 
 Evidence. — ^Upon an indictment for abduction under 9 Geo, IV. c. 31, 
 s. 19 (rep.), ib was necessary to prove that the prisoner took away the 
 woman from motives of lucre, but his expressions relative to her property 
 were evidence that he was actuated by such motives (n). 
 
 An indictment under sect, 53 ought exj)ressly to set forth that the 
 woman taken away had lands or goods, or was presumptive heiress, &c., 
 and that the taking was against her will, and from motives of lucre (o), 
 and with intent to marry or defile, &c. (p). 
 
 In E, V. Burrell {q), the indictment charged that F, B, fraudulently 
 allured, took away, and detained J. B. out of the possession of her mother 
 
 Swendsen's case, 5 Harg. St. Tr. 450, 464, (o) For rulings on the Act of Hen. VII. 
 
 4()8 : 14 Howell St. Tr. 559. see 1 Hawk. c. 41, s. 4. 1 Hale, 660. 
 
 (k) Fulwood's case, Cro. Car. 482, 484, 4 Bl. Com. 209. 12 Co. Rep. 21, 100. 
 
 488, 493. [p) Under the former Acts it was not 
 
 {I) Fulwood's case, Ci-o. Car. 485, 488. necessary to state such intention. Ful- 
 
 1 Hale, 660. 1 Hawk. c. 41, s. 11. 1 East, wood's case, Ci'O. Car. 488, supra. It is 
 
 P- C, 453, said, however, in 1 Hale, 660, that the 
 
 (m) R. V. Lockhart and Loudon Gordon, words ed intentione ad ipsam maritandam 
 
 cor. Lawrence, J., Oxford Lent Ass. 1804. were usually added in indictments on this 
 
 This case is set out at length in the fourth statute, and that it was safest so to do. 
 edition of this work. 
 
 (w) R. V. Barratt, 9 C. & P. 387, (g) L. & C. 354: 33 L. J. M. C. 54.
 
 CHAP. X.] Evidence. 971 
 
 and W. S. H., he then havmg the lawful care and charge of her, she being 
 under the age of twenty-one years, and having a present legal interest in 
 real estates, with intent to marry, &c., and H. R. B. was charged 
 with feloniously aiding, &c., to commit the felony. The prisoners 
 were paternal uncles of J. B., who was sixteen years old, and 
 entitled to real estates of the value of £50 a year. Her mother had first 
 married the brother of the prisoners, and after his death she had married 
 W. S. H. J. B. lived with her mother and stepfather till she went to 
 school in January, 1862, where she remained till August, 1862, when 
 she returned to her mother's, and in October she went to another school, 
 whence she returned to her mother's on December 20, in the afternoon ; 
 she stayed half an hour, and then left the house alone. About nine 
 o'clock that evening she returned, and stayed till ten, when she again 
 left without her mother's knowledge or consent. She returned the next 
 morning, and stayed with her mother about two hours, and then went 
 away without her mother knowing whither. In fact, she went to the 
 house of her uncle, H. R. B., and she continued there till January 19, 
 1863. She continued to pay visits to her mother for an hour or two 
 nearly every day till January 19. In the interval between her coming 
 home from the first and her going to the second school, it had been 
 arranged, at her own desire, in consequence of her not living happily 
 with her stepfather and mother, that she should live with her mother's 
 mother and brother. When she came back for the Christmas holidays, 
 she wished to remain with her mother, but the latter insisted on her 
 abiding by her own choice to go to her grandmother's for the holidays, 
 and would not consent to her staying with her at her stepfather's house. 
 On this she went to the house of H. R. B. Her mother, as soon as she 
 discovered that her daughter was there, desired her to come to her house, 
 and refused to let her have her clothes unless she did so. On January 
 19, F. B. and J. B. left together by railway, and were married the next 
 day at Plumstead. These occurrences took place under such circumstances 
 as fully warranted the jury in finding that J, B. was allured and taken 
 away by F. B., with intent to marry her, and that H. R. B. aided in the 
 committing of this act. It was objected — 1, that there was no evidence 
 that F. B, had fraudulently allured away J. B. ; 2, that there was no 
 evidence that she w^as taken out of the possession of her mother ; 3, 
 that the indictment charged that she was taken out of the possession of 
 her mother and W. S. H., he having then the lawful charge of iier, and that 
 it was necessary to ])rove that she was in his possession as thus alleged, 
 as well as of her mother ; but the only proof was that the guardianship 
 of her person and copyhold estate had been granted to him when she was 
 admitted as tenant of her copyhold estate. Upon a case reserved it was 
 urged — 1, that there was no fraudulent alluring away, and that the mere 
 alluring away was not sufficient ; 2, there was no evidence that she was 
 taken out of the possession of her mother ; 3, that the ste[)father had not 
 the lawful care of the girl ; he had no general guardianship of her person. 
 In RatclifEe's case, 3 Co. Rep. 396, it was held that the consent of the 
 stepfather was wholly immaterial ; but here the indictment alleged the 
 stepfather to have the lawful custody. (Pollock, C.13. : ' We are all of 
 opinion that the indictment would be supported by shewing that the
 
 972 
 
 Of Abduction of Females. 
 
 [BOOK IX. 
 
 girl was taken out of the possession and against the will of the mother. 
 The rest might be struck out as surplusage/) For the crown it was 
 urged — 1, that in this case the statute did not require any evidence of 
 fraud, but if it did there was sufficient evidence of fraud ; 2, the girl 
 was in the possession of the mother ; she had never abandoned the 
 possession, and the mere right of possession was sufficient. Pollock, C.B. : 
 ' The Court is divided in opinion on the facts of the case. The opinion 
 of the majority is that the facts do not bear out the prosecution, or, in 
 other words, that the crime has not been established against the prisoners. 
 There is no difference of opinion as to the law of the case.' 
 
 As to the woman taken awav and married being a witness, see fost. 
 Book XIII. Chapter V. ' Evidence.'
 
 ( 972a ) 
 
 CANADIAN NOTES. 
 
 ABDUCTION OF FEMALES. 
 
 Abduction of Woman, with Intent. — Code sec. 313 (as amended by 
 8 & 9 Edw. VII. ch. 9). 
 
 Abduction of Heiresses. — Code see. 314(a) (amended by 8 & 9 
 Edw. VII. ch. 9). 
 
 Fraudulently Alluring Heiress Under Twenty-one Against Will 
 of Father or Mother.— Code sec. 314(&) (amended by 8 & 9 Edw. VII. 
 ch. 9). 
 
 Evidence must be given on a prosecution under Code sec. 314 as 
 amended by the Code Amendment Act of 1909, to prove that a girl 
 under twenty-one alleged to have been fraudulently detained against 
 her parent's will with intent to marry her, is an heiress or is entitled 
 to real or personal property within the terms of the statute ; and such 
 property interest must be alleged in an indictment or charge. R. v. 
 Fielding, 14 Can. Cr. Cas. 486. 
 
 Effect of Conviction on Property — Code sec. 314(2). 
 
 It need not be shewn that the accused knew that the woman was 
 an heiress or had such an interest in real or personal estate, etc., as is 
 specified in sub-sec. (6). R. v. Kaylor, 1 Dor. Q.B. (Que.) 364. 
 
 It may be doubted whether the Dominion Parliament have the 
 legislative authority to enact the sub-sec. 2, particularly as regards 
 the power purported to be conferred upon a Court of competent 
 jurisdiction to make a settlement of the property. The power to 
 legislate as to the "criminal law" is conferred by the British North 
 America Act upon tlie federal parliament, and the power to legislate 
 as to "property and civil rights" is vested by the same statute in the 
 Provincial Legislatures. Canada Criminal Law of Tremeear, p, 257. 
 
 Abduction of Girls Under Sixteen. — Code sec. 315. 
 
 Abduction of Girls Under Fourteen. — Code sec. 316. 
 
 In Ontario in the extradition case of R. v. Watts (1902), 5 Can. 
 Cr. Cas. 246, 3 O.L.K. 368, it was held that the child's own father 
 may be guilty of child-stealing within the Code, if after a divorce 
 and the award of the custody of the child to the mother, the father 
 wilfully removes the child from her custody. And that an objection 
 by the husband to the validity of the divorce on the groimd of collu- 
 sion cannot, where the collusion is denied on oath, be adjudicated upon 
 by the extradition commissioner, but extradition should be ordered
 
 m 
 
 9726 Abduction of Females. [book ix. 
 
 notwithstanding such objection, and the prisoner left to his right to 
 contest the divorce decree at his trial by the foreign Court. 
 
 And in a Montreal extradition case, it was afterwards held that 
 where a divorce decree of a Court of competent jurisdiction in the 
 United States has awarded the custody of a child to the father as 
 against the mother, and the mother thereafter removes and con- 
 ceals the child for the purpose of evading the decree, a prima facie 
 case for extradition is thereby made out against the mother upon a 
 charge of child-stealing. And, semble, the offence of child-stealing 
 under the Code, may be complete against the child's mother although 
 the father, to whom the child's custody has been awarded has never 
 had any actual separate possession of the child. Re Lorenz (1905), 
 9 Can. Cr. Cas. 158, 7 Que. P.R. 101 (Hall, J.). 
 
 Out of the Possession. — To constitute the crime of abducting a girl 
 out of the possession of and against the will of her father under this 
 section, there must be lan actual or constructive possession de facto, 
 in the father at the time of the taking. When the girl who was resi- 
 dent with her father in a foreign country, left without his consent 
 and with intent to renounce his protection, and came to Canada, the 
 father's possession ceased, and semble, a possession de jure after- 
 wards established by his following her to the place of flight is not the 
 possession contemplated by the section. R. v. Blythe (1895), 1 Can. 
 Cr. Cas. 263 (B.C.). 
 
 If the persuasion to leave and remain away operated wholly in 
 the foreign country, there is no jurisdiction to convict in Canada, 
 as persuasion is a necessary element in such cases of abduction. Ibid. 
 
 The girl is none the less in the "possession" of her guardian by 
 reason of having left her guardian's house for a particular purpose 
 with his sanction. R. v. Mondelet (1877), Ramsay's Cases (Que.) 
 179, 21 L.C. Jur. 154. 
 
 Attempt. — Code sec. 949. 
 
 Pimisliment for Attempt. — Code sec. 570. 
 
 Conviction for Assaidt. — Code sec. 951.
 
 ( 973 ) 
 
 CHAPTER THE ELEVENTH. 
 
 OF OFFENCES AGAINST NATURE. 
 
 Sect. I. — Of Incest. 
 
 The punishment of certain forms of this offence is regulated by the 
 Punishment of Incest Act, 1908 (8 Edw. VII. c. 45) (a). 
 
 Incest by Male Persons.— Sect. 1.— '(]) Any male person who has 
 carnal knowledge (b) of a female person, who is to his knowledge his 
 grand-daughter, daughter, sister, or mother (c), shall be guilty of a misde- 
 meanor, and upon conviction thereof shall be liable, at the discretion of 
 the Court, to be kept in penal servitude for any term not less than three 
 years, and not exceeding seven years, or to be imprisoned for any time 
 not exceeding two years with or without hard labour : Provided that if 
 on an indictment for any sucb offence it is proved that the female person 
 is under the age of thirteen years the same punishment may be imposed 
 as may be imposed under section four of the Criminal Law Amendment 
 Act, 1885 (which deals with the defilement of girls under thirteen years 
 of age).' {A7ite, p. 948.). 
 
 ' (2) It is immaterial that the carnal knowledge was had with the 
 consent of the female person. 
 
 ' (3) If any male person attempts to commit any such offence as afore- 
 said, he shall be guilty of a misdemeanor, and upon conviction thereof 
 shall be liable at the discretion of the Court to be imprisoned for any 
 time not exceeding two years with or without hard labour. 
 
 ' (3) On tbe conviction before any Court of any male person of an offence 
 under this section, or of any attempt to commit the same, against any 
 female under twenty-one }'ears of aga, it shall be in the power of the 
 Court to divest the offender of all authority over such female, and if the 
 offender is the guardian of such female to remove the offender from such 
 guardianship, and in any such case to appoint any person or persons to 
 be the guardian or guardians of such female during her minority or any 
 less period : Provided that the High Court may at any time vary or 
 
 (a) Before this Act incest {i.e. carnal (b) See a«/c, p. 933. 
 intercourse between persons within the (c) See sect. 3, jxjst, 973. It will be ob- 
 forbidden degrees of consanguinity or served that step-parents, &c., and stop- 
 affinity) was punishable in England and children are not included. Sec R. v. Gcdde- 
 Ireland only by proceedings in tiie Eccle- son [190<)], 2.") N. Z. L. R. 323, decided on 
 siastical Courts. See Canons of 1003, Nos. the corresponding section of the Penal Code 
 109, 113. 2 Stcph. Hist. Cr. L. 390-429. of New Zealand. In that colony ' adopt- 
 Blackmore v. Briders, Phillim, 359. As to ing ' jiarents and ' adopted ' children are 
 enforcing the order of the Ecclesiastical included, because of the special laws of the 
 Court, see 53 Geo. III. c. 127. In Scotland colony on adoption. R. r. Stanley [1903], 
 (Act of 1507, c. 14) and in most British 23 N. Z. L. R. 378, 1100. 
 colonies the offence is punishable by statute.
 
 974 
 
 Of Offences against Nature. 
 
 [BOOK IX. 
 
 rescind the order by the appointment of any other person as such guardian 
 or in any other respect' {d). 
 
 Incest by Females of or over Sixteen. — By sect. 2, ' Any female person 
 of or above the age of sixteen years who with consent permits her grand- 
 father, father, brother, or son to have carnal knowledge of her (knowing 
 him to be her grandfather, father, brother, or son as the case may be) 
 shall be guilty of a misdemeanor, and upon conviction thereof shall be 
 liable, at the discretion of the Court, to be kept in penal servitude for 
 any term not less than three years, and not exceeding seven years, or to 
 be imprisoned with or without hard labour for any term not exceeding 
 two years.' 
 
 Test of Relationship. — By sect, 3, 'In this Act the expressions 
 "brother" and "sister" respectively include? half-brother and half- 
 sister (e), and the provisions of this Act shall apply whether the relation- 
 ship between the person charged with an offence under this Act and the 
 person with whom the offence is alleged to have been committed, is or is 
 not traced through lawful wedlock/ 
 
 The relationship of the parties may be proved by oral evidence 
 supplemented by certified copies of certificates of birth or marriage 
 when available ( /'). In prosecutions under this Act if the other party 
 to the offence is called for the Crown, hi? or her evidence will need 
 corroboration in a material particular implicating the accused {ff). 
 
 Prosecution of Offences. — By sect. 4, ' (1) An offence under this Act 
 shall be deemed to be an offence within, and subject to, the provisions 
 of the Vexatious Indictments Act, 1859, and any Act amending the 
 same {g). 
 
 ' (2) A Court of Quarter Sessions shall not have jurisdiction to inquire 
 of, hear, or determine any indictment for an offence against this Act, or 
 for an attempt to commit any such offence. 
 
 ' (3) If on the trial of any person for rape, the jury are satisfied that 
 the defendant is guilty of an offence under this Act, but are not satisfied 
 that the defendant is guilty of rape {ante, p. 941), the jury may acquit 
 the defendant of rajDC and find him guilty of an offence under this Act, 
 and he shall be liable to be punished accordingly ' {h). 
 
 ' If, on the trial of any indictment for an offence under this Act the 
 jury are satisfied that the defendant is guilty of any offence under sections 
 four or five of the Criminal Law Amendment Act, 1885 {ante, pp. 
 947-951), but are not satisfied that the defendant is guilty of an offence 
 under this Act, the jury may acquit the defendant of an offence under 
 
 (d) Cf. Children Act, 1908 (8 Edw. VII. 
 c. 67), s. 21, ante, p. 915. 
 
 (e) See Horner v. Horner, 1 Hagg. Con- 
 sist. 352. Sherwood v. Ray, 1 Moore P. C. 
 353 ; 12 E. R. 848. R. v. Brighton, 1 B. 
 & S. 147. The Enghsh and Scottish 
 authorities on the meaning of incest and 
 consanguinity are fully discussed in R. v. 
 Minnis [1903], 22 N. Z. L. R. 856, where a 
 conviction was upheld for incest between 
 a man and his illegitimate half-sister. The 
 definition of incest in the Act of 1908 is 
 not that of the Table of Proliibited Degrees 
 which applies in divorce cases. See R. v. 
 
 Geddeson [1905], 25 N. Z. L. R. 323. 
 
 (/) See Morris v. Miller, 1 W. Bl. 632. 
 R. V. Allison, R. & R. 109. R. v. Man- 
 waring, D. & B. 132. Birt v. Barlow, 1 
 Doug. 171. In the province of Quebec 
 local legislation requires proof of relation- 
 ship by extracts from the registers 
 d'etat civil. R. v. Garneau [1899], 4 
 Canada Cr. Cas. 69. This rule is peculiar 
 to that province. 
 
 (ff) See R. V. Everest, 2 Cr. App. R. 130. 
 
 {g) Post, Vol. ii. p. 1927. 
 
 (A) Post, Vol. ii. pp. 1962 et seq.
 
 CHAP. XI.] Of Sodomy and Cognate Offences. 975 
 
 this Act and find him guilty of an offence under sections four or five of 
 the Criminal Law Amendment Act, 1885, and he shall be liable to be 
 punished accordingly/ 
 
 (4) ' Section 4 of the Criminal Evidence Act, 1898 {post, Book XI II. 
 Chapter V.), shall have effect as if this Act were included in the schedule 
 to that Act.' 
 
 By sect. 5, ' All proceedings under this Act are to be held in camera.' 
 
 By sect, 6, ' No prosecution for any offence under this Act shall be 
 
 commenced without the sanction of His Majesty's Attorney-General, but 
 
 this section shall not apply to any prosecution commenced by or on 
 
 behalf of the Director of Public Prosecutions.' 
 
 Extent. — By sect. 7, ' This Act shall not extend to Scotland.' 
 Commencement.— By sect. 8, ' This Act may be cited as the Punish- 
 ment of Incest Act, 1908, and shall come into operation on the first day 
 of January one thousand nine hundred and nine.' 
 
 Sect. II. — Of Sodomy and Cognate Offences. 
 
 In ancient times the punishment of sodomy, peccatum illud horribile. 
 inter Christianos non nominandum, was death {%) : but it had ceased to 
 be so highly penal, when 25 Hen. VIII. c. 6 (;') again made it capital. 
 
 By 24 & 25 Vict. c. 100, s. 61 {k), ' Whosoever shall be convicted of 
 the abominable crime of buggery, committed either with mankind or 
 with any animal, shall be liable to be kept in penal servitude for 
 life . . . ' {I). 
 
 On an indictment under this section the defendant may be convicted 
 (and punished under section 62) for an attempt to commit the offence {m). 
 
 By sect. 62 (w), ' Whosoever shall attempt to commit the said abominable 
 crime, or shall he guilty of any assault with intent to commit the same, or of 
 any indecent assault upon any male person, shall be guilty of a misde- 
 meanor, and being convicted thereof shall be liable. . . . to be kept in penal 
 servitude for any term not exceeding ten years . . . ' (o). 
 
 When the indecent assault is by an adult on a male under sixteen the 
 defendant may consent to be tried summarily and on a summary conviction 
 may be sentenced to imprisonment for not over six months (oo). 
 
 The crimes punishable under these sections and solicitation or incite- 
 ment to commit them are ' infamous crimes ' within 24 & 25 Vict. c. 
 100, ss. 46-48, post, p. 1156, tit. ' Threats.' 
 
 (/) 12 Co. Rep. 37. The books differ except the punishment, which under that 
 
 as to the mode of punishment. According Act was death. 
 
 to Britton, a sodomite was to be burnt, (/) The minimum term of penal servituile 
 
 Britt. lib. 6, c. 9. In Flcta it is said, was reduced from ten to tliree years and 
 
 'pecorantes et sodomilm in terra vivi confod- the alternative of impri.sonment allowed by 
 
 iantur. The Mirror, bk. 1, c. 5, joins it .54 & 55 Vict. c. 69, s. 1, antf, pp. 211, 
 
 with heresy and apostasy as a form of 212. The words omitted were repealed 
 
 treason against God (Seld. Society edition, in 1892 (S. L. R.). 
 
 pp. 15,32,53). See also Pollock &"Maitland (m) 14 & 15 Vict. c. 100, s. 9, poM, 
 
 Hist. Eng. Law, ii. 554. Steph. Hist. Cr. Vol. ii. p. 196(5 ' Procedure.' 
 
 Law, ii. 429. About the time of Richard (n) This section was new law in 1861 
 
 I., the practice was to hang a man, and except the part in common type, which was 
 
 drown a woman, guilty of this offence. taken from 14 & 15 Vict. c. 1(X», s. 29. 
 
 3 Co. Inst, 58. (f>) For other punishments see 54 & 55 
 
 {}) Repealed as to E. in 1828 (9 Geo. IV. Vict. c. 69, s. 1, anU, pp. 211, 212. The 
 
 c. 31, s. 1). omitted words are repealed. 
 
 (it) Taken from 9 Geo. IV. c. 31, s. 5, (oo) 8 Edw. 7, c. 67, s. 128(2) and ached, i-".
 
 976 
 
 Of Offences against Nature. 
 
 [BOOK IX. 
 
 The ofEence dealt with by ss. 61, 62 consists in a carnal knowledge 
 committed against the order of nature (/)) by man with man ; or in the 
 same unnatural manner with woman {q); or by man or woman in any 
 manner with beast (r). The carnal knowledge necessary to constitute 
 this offence is the same that is required in the case of rape [s). 
 
 In this offence, as in rape, the crime is complete on proof of penetration, 
 and even if emission be expressly negatived {t). 
 
 To constitute this offence the act must be in that part where sodomy 
 is usually committed. The act in a child's mouth does not constitute 
 the offence (t/-). An unnatural connection with an animal of the fowl kind 
 was considered not to be sodomy, when the fowl was so small that its 
 private parts would not admit those of a man, and were torn away in 
 the attempt {v). 
 
 Those who are present aiding and abetting in this offence are all liable 
 as principals [w). If the party on whom the offence is committed is under 
 fourteen (x), it is not felony in him but only in the agent [y). But where 
 one count charged the prisoner with committing an unnatural crime on 
 J. W., and another count charged the prisoner with permitting the said 
 J. W. to commit an unnatural crime with him, and the facts were that 
 the prisoner induced J. W., a boy of twelve years of age, to have carnal 
 knowledge of his person, the prisoner having been the pathic in the crime, 
 and the jury found the prisoner guilty, the judges, upon a case reserved, 
 were unanimously of opinion that the conviction was right (z). 
 
 Indictment. — The indictment must charge that the offender contra 
 naturcB ordinem rem habuit veneream, et carnaliter cognovit {a). But it is 
 said, that this alone would not be sufficient ; and that, as the statute 
 describes the offence by the term ' buggery,' the indictment should 
 also charge 'peccatumque illud sodomiticum Anglice dictum buggery 
 adtunc et ibidem nequitur, feJonie diaholice ac contra naturam commisit ac 
 ferfetravit (b). 
 
 Where an indictment alleged that the prisoner did attempt to commit 
 an unnatural crime with ' a certain animal called a bitch,' it was objected 
 that the description was too uncertain, as it might apply to a bitch fox, 
 a bitch otter, or the bitch of some other animal ; but Tindal, C. J., held 
 that the description was sufficient (c). 
 
 On trials for this offence at least as much strictness should be observed 
 
 I 
 
 (p) i.e. per anum. 
 
 (q) SeeR. v. Wiseman Fortescue (K.B.), 
 91. R. V. Jellyman, 8 C. & P. 604. Swin- 
 burne on Wills, 97. 3 Co. Inst. 59. 
 
 (r) 1 Hale, 669. Sum. 117. 3 Co Inst. 
 58, 59. 1 Hawk. c. 4. 6 Bac. Abr. tit. 
 ' Sodomy.' 3 Bl. Com. 215. 1 East, P. C. 
 480. 
 
 (s) Ante, p. 933. 
 
 (t) 24 & 25 Vict. c. 100, s. 63, ante, p. 
 933. R. V. Reekspear, 1 Mood. 342. R. v. 
 Cozins, 6 C. & P. 351, Park, J. See R. v. 
 Cox, 1 Mood. 337. 
 
 (u) R. V. Jacobs, R. & R. 331. See 48 & 
 49 Vict. c. 69, s. 11, post, p. 978. 
 
 (v) R. V. Mulreaty, Hil. T. 1812. MS. 
 Bayley, J. But a person may be convicted 
 of an attempt to commit an unnatural 
 
 offence with a fowl. R. v. Bro\vn, 24 
 Q.B.D. 357. 
 
 (m;) 1 Hale, 670. 3 Co. Inst. 59. Post. 
 422, 423. 
 
 (x) 1 Hale 670. Post. 422, 423. Vide 
 ante, p. 60. 
 
 (y) 1 Hale, 670. 3 Co. Inst. 59. 1 East, 
 P. C. It would seem that a male under 
 fourteen cannot be convicted as an agent : 
 3 Co. Inst. 59. 
 
 (z) R. V. Allen, 1 Den. 364. See 43 & 
 44 Vict. 45, ante, p. 955. 
 
 (a) 1 Hawk. c. 4, s. 2. 3 Co. Inst. 58, 
 59. 
 
 (b) Post. 424, referring to Co. Ent. 351 b, 
 as a precedent settled by great advice. 
 
 (c) R. V. Allen, 1 C. &jK. 495. Of. 
 R. V. Stride [1908], 1 K.B. 617.
 
 CHAP. XL] Of Sodomy and Cognate Offences. 977 
 
 with regard to the evidence and manner of proof as in cases of rape. 
 The evidence should be plain and satisfactory, in f>i'Oi)ortion as the crime 
 is detestable {d). 
 
 Corroboration of the evidence of an accomplice is particularly to be 
 required and a conviction has been quashed where such corroboration 
 was not forthcoming and the judge did not sufficiently warn the jury 
 against convicting on such evidence uncorroborated {e). 
 
 A party consenting to the commission of an offence of this kind, 
 whether man or woman, is an accomplice, and recpiires corroboration. 
 On the trial of an indictment for an unnatural offence by a man upon 
 his own wife, she swore that she resisted as much as she could. Patteson, 
 J., said : ' There was a case of this kind which I had the misfortune to try, 
 and it there appeared that the wife consented. If that had been so here 
 the prisoner must have been acquitted ; for although consent or non- 
 consent is not material to the offence, yet as the wife, if she consented, 
 would be an accomplice she would require confirmation ; and so it would 
 be with a party consenting to an offence of this kind, whether man or 
 woman ' ( / ). 
 
 Where on an indictment for bestiality the offence was alleged to have 
 been committed on December 17, 1842, but no complaint was made to 
 the justices until October, 1844, and the first witness being asked why he 
 did not mention the offence until so long a time had elapsed, said he did 
 so, but it was not to a magistrate, and there was no confession, and 
 nothing offered by the counsel for the prosecution to explain the delay ; 
 Alderson, B., told the jury, ' I ought not to allow this case to go further. 
 It is monstrous to put a man on his trial after such a lapse of time. 
 How can he account for his conduct so far back ? If you accuse a man 
 of a crime the next day, he may be enabled to bring forward his servants 
 and family to say where he was and what he was about at the time ; 
 but if the charge be not preferred for a year or more, how can he clear 
 himself? No man's life would be safe if such a prosecution were 
 permitted. It would be very unjust to put him on his trial ' {(j). 
 
 In the case of offences against ss. 61 & 62 against a child under thirteen 
 it is no defence to prove that the child was a consenting party {h). Mere 
 submission by children is not ecpiivalent to consent (/). 
 
 In a prosecution for an unnatural offence, an admission by the prisoner, 
 that he had committed such an offence at another time, and with another 
 person, and that his natural inclination was towards such practices, ought 
 not to be received in evidence (/). 
 
 In cases where it is not probable that all the circmnstances necessary 
 to constitute this offence will be proved it may be advisable only to prefer 
 
 [d) 4 Bl. Com. 215. inflicted upon hor against her consent.' 
 
 (e) R. r. Tato [1908], 2 K.B. 080: 77 C. S. (J. Si-e po.v/. Bk. xiii. c. v. 
 L. J. K.B. 104.3. (g) R. v. Robin.s, 1 Cox, 114. 
 
 (/) R. t'. Jcllyman, 8 C. & P. ()04. 'Per- (A) 43 & 44 Vict. c. 45 {ante, p. 9.55). 
 
 haps it may be doubtful whether a wife. This overrides R. v. Wolla-ston, 12 Cox, 
 
 who consented, would at common law l)e 180 (C. C. R. ). 
 
 a competent witness against her iiusband. (i) R. v. Lock, L. R. 2 C. C. R. 10. 
 
 The cases, in whicli she has been held (j) R. r. Cole, Buckingham Sum. \sis. 
 
 competent as a witness against him in 1810, and by all the judges, M. T. following, 
 
 criminal proceedings, are cases of injuries MS. C. C. R. 1. 1 Phill. Evid. 499. 
 
 VOL. I. 3 R
 
 978 
 
 Of Offences against Nature. 
 
 [BOOK IX. 
 
 an indictment for an assault with intent to commit an unnatural crime. 
 And it should be observed, that the mere soliciting another to the 
 commission of this crime has been treated as an indictable ofience {k). 
 
 By sect. 11 of the Criminal Law Amendment Act, 1885 (48 & 49 
 Vict. c. 69), ' Any male person who, in public or private, commits or is a 
 party to the commission of or procures or attempts to procure the com- 
 mission by any male person of, any act of gross indecency with another 
 male person, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be Uable at the discretion of the Court to be imprisoned for 
 any term not exceeding two years, with or without hard labour ' (I). 
 
 The consent of the other male person is no defence. On a charge 
 under s. 11, where the prisoner had procured the commission by 
 another male person of an act of gross indecency with the prisoner 
 himself, it was held that he had committed an offence against the 
 section (m). 
 
 Where an offence under the above section or under sect, 62 of the 
 Act of 1861 is committed with a person under sixteen, the rules of 
 evidence of Part II. of the Children Act, 1898 (8 Edw. VII. c. 67) (n). 
 
 The rule as to the admissibility of complaints applying to offences 
 against women (o) appears not to apply to a criminal prosecution for the 
 offences with male persons referred to in this chapter {p). 
 
 Offences against sect. 61 of the Act of 1861 and sect. 11 of the Act of 
 1885 are not triable at Quarter Sessions (g), but an offence against sect. 
 62 of the Act of 1861 is there triable. 
 
 [h) See R. v. Ransford, 13 Cox, 9, and 
 a precedent of an indictment for such a 
 solicitation, 2 Chit. Cr. L. 50. For 
 the principles and eases upon which such 
 an indictment may be supported, see ante, 
 pp. 203 et seq. For an instance of an indict- 
 ment for conspiracy to commit an offence 
 against s. 61, see R. v. Boulton, 12 
 Cox, 87. 
 
 (l) This enactment punishes practices 
 which in R. v. Jacobs, R. & R. 331, R. v. 
 WoUaston, 12 Cox, 180 (C. C. R.), and R. v. 
 Rowed, 3 Q.B. 180, were held not punish- 
 able at common law or the statutes then in 
 force. 
 
 (m) R. V. Jones and Bowerbank [1896], 
 1 Q.B. 4. 
 
 («) Vide ante, pp. 918-924. 
 
 (o) Stated, ante, p. 943. 
 
 ip) See R. V. Hoodless, 64 J. P. 282. In 
 Chesney v. Newsholme [1908], Prob. 301, 
 307, the rule in R. v. Lillyman and R. v. 
 Osborne was applied by Sir Lewis Dibdin, 
 to proceedings under the Clergy Dicipline 
 Act, 1892, in respect to misconduct by a 
 clergyman with choir boys. Acting on 
 the rule he admitted a statement made by 
 a boy to his mother iia answer to questions 
 on the day of and very soon after the 
 alleged offence and excluded a further 
 statement made on the next day when 
 pressed by his mother and after he had been 
 mixing all day with his schoolfellows. 
 
 (q) 5&6 Vict. c. 38, s. 1. 48 & 49 Vict. 
 c. 69, s. 17, post, Vol. ii. p. 1932.
 
 ( 978a ) 
 
 CANADIAN NOTES. 
 
 OF OFFENCES AGAINST NATURE. 
 
 Sec. 1. — Of Incest, Punishment for. — Code see. 204. 
 
 Prior to the statute, 53 Vict. (Can.) eh. 37, sec. 8, from which this 
 section is taken, it seems that incest, unless committed under circum- 
 stances amounting to rape, was not punishable in Ontario, as the eccles- 
 iastical law of England was not introduced into that province. Re 
 Lord Bishop of Natal, 3 Moo. P.C. (N.S.) 115. 
 
 There were, however, statutes dealing with the offence in the Pro- 
 vinces of Nova Scotia, New Brunswick and Prince Edward Island. 
 R.S.N.S. (3rd series), ch. 160, sec. 2; R.S.N.B. ch. 145, sec. 2; 24 Vict. 
 (P.E.I.) ch. 27, sec. 3. Quare, whether those statutes do not still 
 apply in those provinces as to eases of incest, for which no provision 
 is made by sec. 176. 
 
 Capacity. — On the principle of R. v. Hartlen, 2 Can. Cr. Cas. 12, a 
 boy under fourteen could not be convicted of this offence. 
 
 Attempt to Commit. — An attempt to commit incest is an indictable 
 offence punishable by seven years' imprisonment. Code sec. 570. 
 
 By Threats. — See Code sec. 216 (gr). See notes on "attempts," at 
 end of chapter 6, Book 1. 
 
 Evidence. — Oral evidence is not admissible to prove relationship on 
 a charge of incest in the Province of Quebec, and the relationship must 
 be established by the production of extracts from the registers of civil 
 status, as required by the provincial laws of evidence made applicable 
 to criminal proceedings by the Canada Evidence Act, sec. 35, unless 
 the absence of such registers is proved. R. v. Garneau (1899), 4 Can, 
 Cr. Cas. 69 (Que.). It is not too late for the accused to object that 
 oral evidence is insufficient proof, after the case for the prosecution 
 has been closed. 
 
 Sec. 1. — Of Sodomy and Cognate Offences. 
 
 Buggery, Definition of. — Code sec. 202. 
 Buggery, Penetration Sufficient. — Code sec. 7. 
 Buggery, Attempt to Commit. — Code sec. 203. 
 Indecent Assault on Males, Punishment for. — Code sec. 293. 
 Consent Procured by Fraud. — Code sec. 292(6). 
 Capacity. — Although a boy under fourteen cannot be convicted of 
 sodomy, he may if the act be committed against the will of the other
 
 9785 Of Offences Against Nature. [book ix. 
 
 party be punished for an assault under this section, R. v. Hartlen 
 (1898), 2 Can. Cr. Cas. 12; R. v. Allen, 1 Dennison's Cr. Cas. 364. 
 
 It is suggested that a boy under fourteen could, however, be con- 
 victed of an attempt to commit sodomy. (See the comments at the 
 end of Book 1, ch. 6.) 
 
 Evidence. — Upon the trial of the prisoner, a school teacher, for an 
 indecent assault upon one of his scholars, it appeared that he for- 
 bade the prosecutrix telling her parents what had happened, and they 
 did not hear of it for two months. After the prosecutrix had given 
 evidence of the assault, evidence was tendered of the conduct of the 
 prisoner towards her subsequent to the assault. Held, that the evi- 
 dence was admissible as tending to shew the indecent quality of the 
 assault, and as being in effect a part or continuation of the same 
 transaction as that with which the prisoner was charged. Per 
 Hagarty, C.J., and Armour, J. — The evidence was properly admis- 
 sible as evidence in chief. Reg. v. James Chute, 46 U.C.Q.B. 555. 
 
 Indictment. — An indictment under sec. 293 (for indecent assault 
 on males) is defective even after verdict if it does not aver that the 
 parties to the offence are males. R. v. Montminy, W.B. (Que.), May, 
 1893.
 
 ( 979 ) 
 
 CHAPTER THE TWELFTH. 
 
 OFFENCES WITH REFERENCE TO MARRIAGE. 
 
 Sect. I. — Of Bigamy. 
 
 Marriage as recognised by the law of England is a contract for the 
 voluntary union of one man and one woman to the exclusion of all others, 
 imtil that union is terminated by death (a), or is dissolved or annulled by 
 statute or by the decree of a competent tribunal (6). It is an offence 
 against English law to have a plurality of ' wives ' at the same time. 
 The offence is more correctly styled polygamy, but is usually described 
 as bigamy (c). It was originally of ecclesiastical cognisance only, and 
 though it is referred to as a capital crime in the Statute de Bigamis (4 
 Edw. I. [d]), the jurisdiction of the temporal courts was doubtful until 
 1603, when the offence was declared felony (1 Jae. I. o. 11). The Act of 
 James I. was in several respects defective. A person whose consort 
 though known to be living had been abroad seven years might have 
 married again, with impunity and so might a person who had been 
 divorced a mensa et ihoro. That Act was repealed and re-enacted with 
 amendments in 1828 (9 Geo. IV. c. 31, s. 22). 
 
 By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), 
 s. 57 {e), ' Whosoever, being married, shall marry any other person during 
 the life of the former husband or wife (ee), whether the second marriage 
 shall have taken place in England or Ireland or elsewhere, shall be guilty 
 of felony, and being convicted thereof shall be liable ... to be kept in 
 penal servitude for any term not exceeding seven years . . . (/"), and 
 any such offence may be dealt with, inquired of, tried, determined, and 
 punished in any county or place in England or Ireland where the offender 
 shall be apprehended or be in custody, in the same manner in all respects 
 as if the offence had been actually committed in that county or place. 
 
 ' Provided that nothing in this section contained shall extend ' (1) ' to 
 any second marriage contracted elsewhere than in England and Ireland by 
 any other than a subject of His Majesty,' or (2) ' to any person marrying 
 
 (a) See Hyde v. Hyde, L. R. 2 P. & D. one after the death of the otiier ; or in once 
 
 130. Cf. Brinklcy r. Att.-Gen., 15 P. D. 7(>. marrying a widow. 4 Bl. Com. 163, note 
 
 This definition excludes unions wliicli nrc {h). And sec Bac. Abr. tit. ' Bigamy," in the 
 
 subject to the power of the liusl)and or notes. 
 
 wife to take other wives or liusbands while (rf) Rep. in 18r)3 (2G & 27 Vict. c. 12")) 
 
 the first is alive, lie Betliell, 38 Ch. D. 220. as to England ; and in 1872 (35 & 3»J Vict. 
 
 V (6) Until 1857 a marriage could be c. 98) as to Ireland, 
 
 dissolved in England only by legislation. (e) This section re-enacts 9 Geo. IV. e. 31, 
 
 (c) Bigamy, in its proper signification, s. 22 (E), and 10 Geo. IV. c. 34, s. 26 (I), 
 
 is said to mean only being twice married, (cf) Vide ]msi, p. l()0(i. 
 
 and not having a plurality of wives at once. (/) For other punishments see 54 & 55 
 
 According to the canonists, bigamy con- Vict. c. 69, s. 1, ante, pp. 211, 212. The 
 
 sisted in marrying two virgins successively words omitted are repealed. 
 
 3r2
 
 980 
 
 Offences as to Marriage. 
 
 [BOOK IX. 
 
 a second time whose husband or wife shall have been continually absent 
 from such person for the space of seven years then last past, and shall 
 not have been known by such persons to be living within that time (g), 
 or shall extend ' (3) ' to any person who, at the time of such second 
 marriage, shall have been divorced from thebond of thefirst marriage ' (A), 
 or (4) ' to any person whose former marriage shall have been declared 
 void by the sentence of any Court of competent jurisdiction ' (i). 
 
 As to the punishment of principals in the second degree and acces- 
 sories before or after the fact, see 24 & 25 Vict, c. 94 and 24 & 25 Vict, 
 c. 100, s. 67, ante, pp. 130 et seq. 
 
 Accessories. — Where an indictment charged a woman with bigamy 
 and the man, with whom she contracted the second marriage, with inciting 
 and counselling the woman to commit the offence of bigamy, it w^as held 
 that if the man knew at the time of the marriage that she was a married 
 woman, and her husband alive, he might be convicted of counselling her 
 to commit the crime of bigamy {j). This indictment did not contain any 
 count charging the man as principal in the second degree ; but there is 
 no doubt, where a man marries a woman, knowing such woman to have 
 a husband alive at the time of such marriage, that he is a principal in the 
 second degree, as he is present and aids and assists the woman in commit- 
 ting the felony (A;). 
 
 Venue. — The effect of the first proviso is to make it an offence within 
 sect. 57, triable in England (or Ireland) for a British subject to contract a 
 bigamous marriage in Scotland {I) or in any other part of the world outside 
 England or Ireland, whether within or without the King's dominions {m). 
 
 The effect of the enactment taken with the proviso is that bigamy by 
 British subjects wherever committed is cognisable in England under the 
 section : though in the absence of Imperial legislation the Courts of British 
 possessions are as a general rule unable to try bigamy outside the 
 possession by British subjects domiciled or ordinarily resident in the 
 possession {n). 
 
 It is immaterial where the first marriage was celebrated if the second 
 was solemnized in England or Ireland : and where the defendant is a 
 British subject it is immaterial where either the first or the second 
 marriage was celebrated, if after the bigamous marriage the offender 
 is arrested in England (or Ireland). 
 
 Indictment. — An indictment for bigamy states the first marriage and 
 goes on to charge that ' whilst so married to A. B.' the prisoner feloniously 
 
 [g) Post, p. 1008. 
 
 (A) Post, p. 1010. 
 
 (j) Post, p. 1011. 
 
 {]) R. V. Brawn, 1 C. & K. 144, Denman, 
 C.J., vide post, p. 1009. 
 
 (k) ' I know such to have been the 
 opinion of Denman, C.J., and Alderson, B., 
 in R. V. Brawn.' C. S. G. 
 
 (I) R.v. Topping, Dears. 647, 25 L. J. M. C. 
 72, decided on the similar enacttnent 9 
 Geo. IV. c. 31, s. 22 (E). 1 Jac. I. c. II, 
 applied only to bigamous marriages con- 
 tracted in England and Wales. Kel. (J.) 
 79, 80; 1 Hale, 692 693; 1 East, P. C. 465. 
 
 (m) Earl Russell's case [1901], A. C. 446. 
 70 L. J., K.B. 998 ; 2 Cox, 51 : where the 
 second marriage was contracted in the 
 United States, after a divorce there granted 
 from the prior marriage, but regarded as 
 invalid by English law. See R. v. Griffin, 
 4 L. R. Ir. 497. 
 
 (n) Macleod v. Att.-Gen. of N. S. W. 
 [1891], A. C. 453. R. v. Hilaire [1903], 
 3 N. S. W. State Rep. 228. But see re 
 Bigamy Laws of Canada [1897], 27 Canada 
 Supr. Ct. 461. R. v. Brinkley [1907], 12 
 Canada Cr. Cas. 454, on s. 306 of the 
 Canadian Criminal Code, 1906.
 
 CHAP. XII.] 
 
 Of Bigamy. 
 
 981 
 
 did intermarry with C. D., ' the said A. B., his former wife, being then 
 alive ' (o). 
 
 It is not necessary to state more than the name of the second wife (p). 
 In a case decided before 1851, where the second wife was described as a 
 widow but proved to be a spinster, this was held a fatal variance {q). 
 But such a variance is now amendable (r). 
 
 On an indictment for bigamy which described the first wife as ' Ann 
 G.,' an examined copy of the certificate (s) of the marriage of the prisoner 
 and ' Sarah Ann G.' was put in, and there was no evidence to explain 
 the difference in the names : Maule, J., directed an acquittal {t). 
 
 It is not necessary to state that the prisoner was apprehended or is 
 in custody {u) in the county or place in which he is to be tried (y), nor to 
 negative the second exception {iv) nor in a case where the second marriage 
 was contracted elsewhere than in England and Ireland to aver that the 
 prisoner is a British subject {x). Indeed according to the reasoning of 
 K. V. Audle.y (supra), whatever be the burden of proof it is not necessary 
 to make any express mention on the indictment of any of the four 
 exceptions. 
 
 First Marriage. — To support an indictment for bigamy it is neces.sary 
 to prove that there has been a marriage in fad, that it is valid, i.e. not 
 void ab initio, and subsisting, i.e. not put an end to by the death of one 
 of the spouses, or by divorce a vinculo, nor declared null. 
 
 In Fact. — It is not sufficient to prove a first marriage by acknowledg- 
 ment (//), cohabitation, or habit and repute, or by production of marriage 
 
 (o) The words wliilst .so married to A. B. 
 are superfluous and it is for the defence to 
 set up that the marriage has been annulled 
 or dissolved. iSee Murray v. R., 7 Q.B. 
 700. In that case error was brought in 
 184.5 on a Judgment given in 181.5 on an 
 indictment for bigamy under 35 Geo. HI. 
 c. 57, s. 1 (rep.), probably in consequence 
 of a doubt thrown on the validity of the 
 first marriage in R. v. MiUis, 10 CI. & F. 
 534 ; 8 E. R. 844. See also R. v. Apley, 1 
 Cox, 71. 
 
 (p) R. V. Deeley, 1 Mood. 303 ; 4 C. & P. 
 579 
 
 (q) Id. ibid. 
 
 (r) 14 & 15 Vict. c. 100, s. 1, post, Vol. ii. 
 p. 1972. 
 
 («) Qucere, Register. 
 
 (0 R. I', (iooding, C. & M. 297. Maule, 
 J., thought that ' evidence might perhaps 
 be offered to explain the circumstance of 
 this difference in tlic name of the jjrisoner's 
 first wife, as she is tlescribed in the indict- 
 ment, and as described in tlie marriage 
 certificate ; and even in the absence of 
 such evidence, j^roof inigiit be supplied 
 that the woman wa.s known by both 
 names.' 
 
 (u) The words ' in custody ' were not in 
 IJac.I. c. 11. 
 
 (v) The offence is triable either where 
 the second marriage was contractefl (at 
 common law, 1 Hah\ 694 ; 3 Co. Inst. 87. 
 Starkie, Cr. PI. II, and ante, p. 19), or where 
 
 the accused was appreiiended or is in 
 custody (s. 57), and see R. i'. Gordon, 
 R. & R. 48. Lord Digby's ca-se, Hntt, 131. 
 The reason given to support the statement 
 in the trial is that it will appear by the 
 caption that the prisoner was in the custody 
 of the sheriff (or gaoler) in the county in 
 which the indictment is found. R. r. 
 Whiley, rightly reported 1 C. & K. 1.50. 
 erroneously reported 2 Mood. 18(). See 
 R. r. Smythies, 1 Den. 498 ; 2 C. & K. 878. 
 In R. V. Fra.ser, ] Mood. 407, the fii-st 
 marriage was laid in Kent, the second in 
 Surrey, the veiuie was Middlesex, and it 
 wa.s alleged that the prisoner was ajijire- 
 liendctl without -stating any jilace, and the 
 conviction held bad, but no suggestion was 
 matlc that the defect was cured by the 
 caption ; this case, therefore, may now be 
 considered no authority. See R. r. 
 O'Connor, 5 Q.B. Iti, 34. 'R r. Treharne, 
 1 M(jod. 298. \\'here an indictment for 
 bigamy alleged that the ]>risoner was 
 apprehended in Gloucestc-rshire, and this 
 wa.s not proved ; Ciiannell. B., allowed the 
 indictment to be amended by stating that 
 he was in custody in that county. R. v. 
 Smith, I F. & F. *3t). 
 
 (?/■) Ante,\x 979. 
 
 (x) R. f. Audley [1907], 1 K.B. 383 : 76 
 L. J. K.B. 270. 
 
 (y) The admission of the accused was 
 rejected in R. t\ Lindsay, 60 J. P 505, post. 
 p. 983.
 
 982 Offences as to Marriage. [book ix. 
 
 articles : and it is essential to give evidence that the marriage was actually- 
 solemnised in a manner recognised by the law of the parties, or of the 
 place of celebration (2), Though a lawful canonical marriage need not 
 be proved, yet a marriage in fact, regular or not, must be proved (a), 
 i.e. prima facie evidence must be given of a lawful marriage (6). But 
 a marriage in fact may be sufficiently established by proving that the 
 ceremony took place between the parties without proving the preliminary 
 notices (6), licences (c), banns (d), or consents (e), or residence for the 
 prescribed period (ee), or that the place of solemnisation was one where 
 the ceremony might lawfully be performed or the celebrant a person 
 competent to officiate (/'). 
 
 It is not quite clear upon the authorities whether, if the first marriage 
 is alleged to have been outside England and Ireland, evidence showing a 
 marriage by habit and repute if valid by the foreign law will suffice on a 
 prosecution in England for bigamy. 
 
 In R. V. Wilson (g), upon an indictment for bigamy it was proved 
 on the part of the prisoner that her first husband, before he married her, 
 had been in Canada, and that he was absent for about two years, and 
 when he returned he said he had brought his wife with him, and a lady 
 accompanied him, whom he treated as his wife, and everyone else 
 regarded her in that capacity ; she had been heard of as being alive after 
 the prisoner's first marriage ; and thereupon Crompton, J., interposed, 
 and said that there was evidence of a prior marriage, and, although there 
 might be some technical difficulty in proving the marriage in Canada, 
 still if there was reasonable doubt of the fact, the prisoner ought to 
 be acquitted, and the jury said that it was unnecessary to hear anymore 
 evidence (h). 
 
 In Truman's case {i) it was 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 irregularly (but nevertheless validly) was sufficient evidence 
 of the first marriage. The point being reserved, all the judges who were 
 present held the conviction proper. Two of them observed that this did 
 not rest upon cohabitation and bare acknowledgment, for the defendant 
 had backed his assertion by the production of the copy of the proceeding ; 
 but some of the judges thought that the acknowledgment alone would 
 have been sufficient, and that the paper produced in evidence was only 
 
 (2) Catherwood v. Caslon, 13 M. & W. (h) The defence set up a marriage by 
 
 261. See Morris v. Miller, 4 Burr. 2059. halsit and repute prior to the first marriage 
 
 Smith V. Huson, 1 Phillimore 287, 314. stated in the indictment. See Hamblin 
 
 1 Hawk. 0. 42, s. 9. Geary on Marriage, v. Shelton, 3 F. & F. 133 ; and Doe d. 
 
 25. Fleming v. Fleming, 4 Bing. 266, for 
 
 (a) By Denison, J., referred to by the evidence in civil cases. 
 
 Court in Morris r. Miller, 1 W. Bl. 1, 632. (z) Nottingham Spr. Assizes, 1795, 
 
 (b) R. V. Brampton, 10 East, 287, decided upon by the judges in East, T. 
 note (b). 1795, MS. Jud. 1 East, P. C. 470, 471 ; 
 
 (c) Post, p. 989. where see some remarks as to the admission 
 
 (d) R. V. Allison, R.& R. 109, po.s<,p. 992. of a bare acknowledgment in evidence in 
 
 (e) Post, pp. 994, 995. a case of this nature. An admission or 
 (ee) Vide post, pp. 993. 994. statement made by a prisoner is evidence 
 (/) R. V. Hind, R. & R. 253. against him, though it may under circuni- 
 (g) 3 F. & F. 119. stances be entitled to little or no weight. 
 
 I
 
 CHAP. XII.] Of Bigamy. 983 
 
 a confirmation of such acknowledgment. In Upton's case {/), where 
 it was proved that the prisoner being charged with bigamy made a 
 statement before a justice, in which he expressly declared that he had 
 married his first wife, who was then present ; Erskine, J., left the case 
 to the jury, observing that this was not an incautious statement made 
 without due attention, but that the prisoner's mind was directed to the 
 very point by the charge made against him. 
 
 In E. V. Newton {k), upon an indictment for bigamy it appeared that 
 the prisoner returned from America with a woman described in the 
 indictment as M. C, with whom he lived as his wife for some years after- 
 wards ; and that soon after his return he told her sister that he had been 
 married to M. C. at New York by a Presbyterian minister, and he subse- 
 quently caused the bellman at Oldham to give public notice, which he 
 did, that no one was to give credit to ' M., the wife of J. N.' ; and some 
 time afterwards M. N., describing herself as his wife, complained to a 
 magistrate of his having ill-treated her, and the prisoner attended before 
 the magistrate, and did not deny the alleged marriage, but said he could 
 no longer live with her on account of her jealousy, and consented to allow 
 her eight shillings a week ; Wightman, J,, after consulting Cresswell, J., 
 told the jury that the question was, whether they were satisfied by the 
 statements made by the prisoner on the various occasions referred to that 
 he had been married to M. C. in America, and that such marriage was a 
 valid one according to the law in force at New York. That declarations 
 lightly or hastily made were entitled to very little weight in such a case ; 
 but what the prisoner said deliberately, and when it was obviously his 
 interest to deny marriage, if he did not know it to be a valid one, was 
 undoubtedly evidence entitled to the very serious consideration of the 
 jury. 
 
 In K. V. Flaherty (/), the prisoner went to a police-station and said 
 that he wanted to give himself up for bigamy. He stated when and where 
 the first marriage took place, -and while in custody signed a statement 
 to that effect. Pollock, C.B., ruled that the statement, though some 
 evidence of a first marriage, was not enough to justify conviction for 
 bigamy. 
 
 In R. V. Savage (m). Lush, J., declined to follow R. v. Newton, and 
 held the prisoner's admission that he had married his first wife in Scotland, 
 insufficient to prove the validity of that marriage (n). 
 
 In R. V. Lindsay (o), on an indictment for bigamy, the evidence 
 tendered of the former marriage was a certificate of the priest-in-charge 
 of a Roman Catholic church, by whom it was said that the marriage had 
 been solemnised, coupled with identification of the prisoner as one of the 
 parties to the marriage, and proof of a statement made by him when 
 arrested, ' That 's all right, but I did not know my former wife was alive,' 
 Walton, J., following R. v. Savage, held this evidence insufficient to prove 
 the first marriage. 
 
 0) Gloucester Spr. Ass. 18.39. See (/) f 18471 2 C. & K. 782. 
 
 Dickinson v. Coward, 1 B. & Aid. 679, (m) 1.3 Cox, 178. 
 
 Ellen borough, C.J. (;i) He relied on the Sussex Pccraga 
 
 (A) 2 M. & Rob. 503. S. C. as R. v. Claim, 11 CI. & F. 85; 8 E. R. 1034. 
 Simmonsto, 1 C. & K. 164. (o) ( 1902] 66 J. V. 505.
 
 984 
 
 Offences as to Marriage, 
 
 [BOOK IX. 
 
 Neither party to the former marriage stated in the indictment is a 
 competent witness for the prosecution to prove the marriage or for any 
 purpose (p). 
 
 The prisoner was indicted for having married A. W., his first wife, 
 A. A., being alive ; the prisoner's first marriage with A. A. was proved. 
 The prisoner's defence was, that the first marriage was void, as A. A. 
 had a husband living at the time, and he proposed to call A. A. to prove 
 that fact ; it was objected to her competency that the fact of her marriage 
 with the prisoner having been proved, she must be taken to be his lawful 
 wife. Alderson, B., was at first inclined to think that she might be 
 examined simply to the fact of her being the wife or not of the prisoner ; 
 but after conferring with Williams, J., he determined not to receive her 
 evidence, but to reserve the point (q). But where a woman called as a 
 witness against a prisoner, proved on the voire dire (r) that she married 
 the prisoner in 1849, Erie, J., held that she might also prove on the voire 
 dire that she had a sister seven years older than herself, and that they 
 had been brought up together with their parents, and that she always 
 believed that they were sisters, and that her sister had married the 
 prisoner in 1846, and died in 1848 ; for if a person is questioned on the 
 voire dire with the view to raise an objection to her competency, 
 she may also be examined to remove that prima facie ground of 
 objection (s). 
 
 And in R. v. Ayley (t), the alleged first wife was called as a witness 
 
 (p) 1 Hale, 693. 1 East, P. C. 469. 
 1 Hawk. c. 42, s. 8. where a case at the 
 Old Bailey (Feb. 1786) is cited to shew that 
 an affidavit by the first wife to support an 
 application to adjourn the trial was 
 rejected. See R. v. Green, Nov. 18, 1899, 
 Wills, J. Archb. Cr. PI. (23rd ed.), 1169. 
 Under the Criminal Evidence Act, 1898, 
 ■post, Vol. ii. p. 2271, the defendant and the 
 husband or wife of the defendant are 
 competent witnesses for the defence. 
 
 iq) R. V. Peat, 2 Lew. 288. The 
 prisoner was acquitted. The first im- 
 pression of the learned baron seems to have 
 been correct. The only ground on which 
 the witness could be rejected was, that she 
 was the lawful wife of the prisoner ; for 
 ' the general rule does not extend to a wife 
 de facto, but not de jure.' 2 Stark. Evid. 
 132 (2nd ed.). In Wells v. Fletcher, 5 C. 
 &. P. 12, 1 M. & Rob. 99, a woman called 
 for the defendant on examination on the 
 voire, dire, said she had been married to the 
 plaintiff, and on re-examination that she 
 was married to another person previously ; 
 but not seeing him for thirty years, she 
 thought he was dead, and therefore 
 married the plaintiff, but afterwards found 
 that her first husband was living ; and 
 Patteson, J., held that the witness was 
 competent, as the second marriage was a 
 nullity. If R. v. Peat case had been an 
 indictment for larceny, and the witness 
 called for the jirisoner had proved her 
 marriage to him on the voire dire, Wells v. 
 
 Fletcher shews that .she might have been 
 rendered competent by proving her previ- 
 ous marriage, and it is difficult to see how 
 proof by other evidence that she had 
 married the prisoner, whether such evidence 
 was given before or after she was called, 
 could render her incompetent ; for her 
 evidence would not be inconsistent with 
 such_ evidence, as it would admit the 
 marriage with the j^risoner, but shew that 
 it was void. R. v. Bathwick, 2 B. & Ad. 
 639, shews that the competency of the wife 
 does not dej^end ujion the marshalling of 
 the evidence, or the particular stage of the 
 case in which she may be called ; if, there- 
 fore, in Peats case the witness had been 
 called before her marriage with the prisoner 
 had been proved and she would have been 
 competent to prove her previous marriage, 
 it is difficult to see how her marriage with 
 the prisoner having been proved before 
 she was called could render her incompe- 
 tent, and it certainly would oijerate hardly 
 on a prisoner, if such were the case, for 
 the prosecutor might in the course of 
 his case prove the marriage of the witness 
 with the prisoner, and the prisoner might 
 have no one except the witness to prove 
 the former marriage. It may be added 
 that Lord Hale says that a second wife is 
 not so much as a wife de facto. C. S. G. 
 
 (r) As to the meaning of voire dire, see 
 post, Bk. xiii. c. v. 
 
 (.s) R. V. Young, 5 Cox. 296. 
 
 (0 15 Cox, 328.
 
 CHAP. XII.] Of Bigamy, 985 
 
 after production of a certificate of her previous marriage to another man 
 and his death before her marriage to the prisoner. 
 
 The woman with whom the prisoner is alleged to have feloniously 
 intermarried is a competent witness so soon as the former marriage is 
 established. 
 
 It has not been thought necessarj' to set forth in detail, as in former 
 editions, the numerous statutes regulating the celebration of marriages (m) 
 or validating marriages not celebrated according to law {v). 
 
 The only grounds on which a marriage solemnised in England can be 
 treated as invalid are : — 
 
 (1) That it was solemnised in a place not licensed nor authorised nor 
 registered. 
 
 (2) That it was solemnised by or before a person not having 
 authority to officiate at the marriage in question, whether civil or 
 religious. 
 
 (3) That some necessary condition was deliberately not observed. 
 
 (4) That the parties were incapable of marriage, e.fj. by reason of 
 nonage or lunacy. 
 
 (5) That the parties could not lawfully intermarry because of consan- 
 guinity or affinity or because one or both of them was already in vinculo 
 matrimonii. 
 
 Where the marriage took place outside England the evidence must 
 go to shew that the marriage was solemnised in a form recognised as 
 constituting a valid marriage by the laws of the country under whose forms 
 the marriage was celebrated : i.e. a marriage in the sense of EngUsh law {w). 
 
 The common law requisite in point of form for a valid marriage in 
 England is celebration in facie eccleske,i.e. by an episcopally ordained mini- 
 ster (x). Owing to the provisions of the Marriage Acts, 1823-1898, proof 
 of a common- law marriage in England is not sufficient for the purposes of an 
 indictment for bigamy. But when the marriage is at sea {y) or within 
 the British lines by a chaplain or officer or other person officiating under 
 
 («t) See Geary on Marriage. Chit. Stat. marriage per verba de praesenti or per verba 
 
 tit. ' Marriage.' Haniniick on Marriage. de fiituro was aljolislied m 1754 (20 (Jeo. III. 
 
 (ii) Such of tlie numerous confirmation c. 33, s. 13, re-enacted in 1823 as 4 Cieo. 
 
 and validation Acts as are jiiinted as |iublic IV. c. 70, s. 27). In Lj-on's case. Old 
 
 general Acts are einimeratcd in Ai)|)('ndix Bailey (1738, 1 East, P. C 4(i!t, citing 
 
 VII. to the Official Index to tiic Statutes. Serjeant Foster's MS.), Willes, CI., seems 
 
 Tliose wliiili are local and personal are to have been of opinion that a marriage 
 
 enumerated in the Index to Local and in England by a jiriest of the Churcli 
 
 Personal Acts, 1801 - 1899. By the of Rome was gootl if the ceremony 
 
 Provisional Order Marriages Act, 1905 of that Churcii in the words of the eon- 
 
 (.'5 Edw. Vlt. c. 23), power is given to a tracting party could be proved. East 
 
 Secretary of State by provisicmal order, to seeks to limit tliis to persons of tlie Roman 
 
 be confirmed by Parliament, to remove tlie allegiance. See R. v. Millis, vbi unj.rd. 
 
 invahdity of or doubts as to marriages in Sussex Peerage Claim. (> St. Tr. (N. S.) 
 
 England wiiicii are invalid or doubtful by 79. Under the present Marriaue Acts sucli 
 
 reason of some informality. a marriage in England is not vahd iniless 
 
 {w) Ante, p. 979. celebrated under the statvitory conditions. 
 
 {x) R. V. Millis. 10 CI. & E. 534 : 8 E. R. (//) Culling v. Culling 1 1898|, Prob. 11(1. 
 
 844. Inthisres])ectEnglishlawdillersfrom Du Moulin v. Uruitt, 13 Jr. C. L. Rep. 212. 
 
 that of Scotland and from tlie canon law as See 55 & 5U Vict. c. 23. ss. 12, 23, Marriage 
 
 recognised in Europe before tiie council of Order in Council, 1892 (public vessels). 
 
 Trent. See (ieary on Marriage. 3. The 57 & 58 Vict. c. (50, ss. 240, 242 (merchant 
 
 jurisdiction of Ecclesiastical Courts to shiiis). 
 decree specific performance of contracts of
 
 986 Offences as to Marriage. [book ix. 
 
 the orders of the commanding officer of a British army serving abroad (z) 
 or where no local authority can celebrate a valid marriage a common- 
 law marriage between British subjects seems to be regarded as valid (a). 
 Under the existing law a marriage may be solemnised in England 
 without a religious ceremony, or with the rites and ceremonies of the 
 Church of England or of any other religious body, and every marriage 
 solemnized under the Marriage Acts, 1836, 1837, 1840, and 1856, is good 
 and cognizable in like manner as a marriage before the passing of the Act 
 of 1836 according to the rules of the Church of England (b). 
 
 Form. — All the statutes regulating the celebration of a marriage in 
 England require that the ceremony shall take place in the presence of 
 two or more credible witnesses besides the officiating clergyman (c) or 
 authorised person in whose presence the marriage is celebrated (d) or the 
 civil registrar (e) or marriage officer by or in whose presence it is cele- 
 brated {/). In the case of marriages before a civil registrar or in a 
 registered building (not of the Church of England) whether in the presence 
 of an authorised person or of the civil registrar, the marriage must be 
 celebrated with open doors (g). They also require that the marriage 
 shall be registered in duplicate in the register provided by the Kegistrar- 
 General for the purpose and authorise the clergyman, &c., to ask the 
 j)arties as to the particulars required to be registered (h). 
 
 Each entry shall be signed by the parties and the clergyman (h) or 
 authorised person (*') or registering officer (/) and attested by two witnesses. 
 The statutes do not say, but certainly mean, that the witnesses signing 
 should be witnesses of the marriage and not merely of the filling-in of 
 the register, and the scheduled form of registry makes this clear. 
 
 Presumption in Favour of Validity. — In Catterall v. Sweetman (k), 
 Dr. Lushington said : ' Viewing the successive Marriage Acts it appears 
 that prohibitive words without a declaration of nullity were not considered 
 by the legislature as creating a nullity : and this is a legislative interpre- 
 tation of Acts relating to marriage. And not only is all legal presumption 
 in favour of the validity and against the nullity of a marriage, but it is 
 so on this principle : a legislative enactment to annul a marriage de facto 
 
 (z) R. V. Brampton, 10 East, 282. (Church of England). 6 & 7 Will. IV. 
 
 Ruding V. Smith, 1 St. Tr. (N. S.) 1053. c. 85, s. 23 (marriages in presence of 
 
 2 Hagg. (Consist.) 371. Waldegrave Peerage registrar). 55 & 56 Vict. c. 23, s. 9 (British 
 
 Claim, 4 CI. & F. 649 ; 7 E. R. 247. Foreign marriages abroad). 61 & 62 Vict. c. 58, 
 
 Marriage Act, 1892 (55 & 56 Vict. 23), s. 22. s. 7 (marriages before authorised persons 
 
 (a) 19 & 20 Vict. c. 119, s. 23; 61 & 62 without attendance of registrar). As to 
 Vict. 0. 58, s. 4 ; and as to marriages under Quakers and Jews, see post, p. 998. 
 British law in foreign parts, 55 & 56 Vict. (i) 61 & 62 Vict. c. 58, ss. 6 (3), 7. 
 
 c. 23, ss. 1, 22, 23. (j) i.e. the civil registrar in cases where 
 
 (b) Post, pp. 987, 989. the marriage is civil or his attendance at a 
 
 (c) 4 Geo. IV. c. 76, s. 28 (Church of religious ceremony is essential or required ; 
 England). 6 & 7 Will. IV. c. 85, ss. 20, 21 ; 61 & 62 
 
 (d) 61 & 62 Vict. c. 58, s. 6 (3). Vict. c. 58, s. 10. In the case of Jews it 
 
 (e) 6 & 7 Will. IV. c. 85, ss. 20, 21. 61 & is the secretary of the synagogue to which 
 62 Vict. c. 58, s. 10. the husband belongs (6 & 7 Will. IV. c. 86, 
 
 (/) 55 & 56 Vict. c. 23, s. 8 (British ss. 30, 31 ; 19 & 20 Vict. c. 119, s. 22) : and 
 
 marriages in foreign parts). in the case of Quakers the registering officer 
 
 ig) 6 & 7 Will. IV. c. 85, s. 20, 21. 61 & certified for the district by the recording 
 
 62 Vict. c. 58, s. 6. As to the hours clerk of the Society of Friends (6 & 7 Will, 
 
 between which marriage is to be celebrated, IV. c. 86, ss. 30, 31). 
 see post, p. 1016. (k) [1845] 1 Rob. (Eccl.) 304, 317. 
 
 (A) 6 & 7 Will. IV. 0. 86, ss. 31, 40
 
 CHAP. XII.] Of Bigamy. 987 
 
 is a penal enactment, and not only penal to the parties but highly penal 
 to innocent offspring, and therefore to be construed according to the 
 acknowledged rule most strictly ' (0- 
 
 As a general rule production of the certificate of the marriage in the 
 proper form is sufficient prima facie evidence of the validity in point of 
 form of the marriage, without proof of the status of the officiating 
 minister, of the licensing (w?) or registration (w) or official character of 
 the building, and of compliance with other statutory requirements (o), 
 such as publication of banns {p), or celebration with open doors (7). 
 Place. — A marriage to be valid must be celebrated — 
 (i) in a church or chapel of the Church of England, licensed by the 
 proper ecclesiastical authority for the solemnisation of marriages (r) ; 
 
 (ii) at the office and in the presence of the superintendent registrar 
 of the district {s) ; or 
 
 (iii) in a building certified according to law as a place of religious 
 worship (not of the Established Church) and registered for solemnising 
 marriages and specified in the notice of the marriage in question {t). 
 
 These rules as to place do not apply to marriages by special 
 licence of the Archbishop of Canterbury or by the usages of the Society 
 of Friends or the practice of the Jewish religion. 
 
 In the following cases marriages are declared void for non-compliance 
 with the directions of the Marriage Acts : — 
 
 (i.) Church of England.— By the Marriage Act, 1823 (4 Geo. IV. c. 76), 
 sect. 22, ' If any persons shall knowingly and wilfully intermarry in any 
 other place than a church, or such public chapel wherein banns may be 
 lawfully published, unless by special licence as aforesaid {i.e. of the 
 Archbishop of Canterbury) or shall knowingly and wilfully intermarry 
 without due publication of banns, or licence from a person or persons 
 having authority to grant the same first had and obtained, or shall 
 knowingly and wilfully consent to or acquiesce in the solemnization of 
 such marriage by any person not being in holy orders, the marriages of 
 such persons shall be null and void to all intents and purposes 
 whatsoever ' {u). 
 
 (ii. & iii.) General.— By sect. 42 of the Marriage Act, 1836 (6 & 7 Will. 
 IV. c. 85), ' If any person shall knowingly and wilfully {v) intermarry ' 
 (after March 1, 1837) ' under the provisions of this Act in any place other 
 
 [l) Vide ante, p. 1. place. R. v. Clarke, 10 Cox, 474. IJut 
 
 (m) R. V. Crcsswcll, 1 Q.B.D. 44G. see Mayhcw v. Mayhew, 2 Phillim. 11. Re 
 
 ' (n) R. V. Cradock (18()3], 3 F. & F. 837 Rutter [1907], 2 Cli. rm, ."JOo. In a caso 
 
 (Nonconformist chapel). 8ichel v. Lambert wlierc (i\e parties were mi.si I escribed it was 
 
 [18G4], 15 C. B. (N. y.) 761 (Roman ruled on an indictment for bi^jjamy that the 
 
 Catholic chapel). prosecution to estabiisli tiic validity of the 
 
 (o) Campbell v. Corley [I85G], 28 L. T. marriage must siicw that one of the parties 
 
 (0. S.) 109. was unaware of tlie misdesciiption. R. v. 
 
 (fj) R. V. Bowen. 2 C. & K. 227. Kay, 10 Cox, 292, Huddl.ston, B. 
 
 iq) Campbell r. Corley, ubi sup. (v) Ajiparently bolii parties must act 
 
 (r) 4 Geo. IV. c. 76, s. 22 (infra) ; 6 & with knowledge and deliberate intention. 
 
 7 Will. IV. c. 85, 3. 42 (infra). R. v. Rea, L. R. 1 C. C. R. 365. See Greaves 
 
 (s) 6 & 7 Will. IV. c. 85, s. 42. v. Greaves, L. R. 2 Prob. 243. Lane v. 
 
 (t) 6 & 7 Will. IV. c. 85, s. 42. (Joodwin, 4 Q.B. 361 (licence). As to tho 
 
 (ii) Under tliis section to make a mar- Irish law, see Re Knox, 23 L. R. (Ir.) 542, 
 
 riage invalid, both parties must know that Warren, J. 
 
 no due publication of banns had taken
 
 988 Offences as to Marriage. [book ix. 
 
 than the church, chapel, registered building, or office or other place speci- 
 fied in the notice and certificate aforesaid, or without due notice {w) to the 
 superintendent registrar or without certificate of notice duly issued, or 
 without licence in case a licence is necessary under this Act, or in the 
 absence of a registrar or superintendent registrar where the presence of 
 a registrar or superintendent registrar is necessary under this Act (x), 
 the marriage of such persons except in any case hereinafter mentioned 
 shall be null and void : Provided always that nothing herein contained 
 shall extend to annul any marriage legally solemnized according to the 
 provisions of the Marriage Act, 1823 ' (4 Geo. IV, c. 76). 
 
 It has been held that where a marriage notice was given under the 
 Marriage Act, 1856 (19 & 20 Vict. c. 119), which was false to the knowledge 
 of both parties, as to the name of the woman and in other respects, the 
 marriage was nevertheless valid (y). 
 
 Person Celebrating. — A person competent to officiate at a marriage 
 cannot lawfully solemnise a marriage between himself and another 
 person without the presence of another person authorised to celebrate 
 marriages (z). 
 
 No one but a clergyman in holy orders of the Church of England can 
 validly celebrate a marriage in a church or chapel of the Church of 
 England or under the special licence of the Archbishop of Canterbury. 
 
 The presence of a superintendent registrar and of a registrar of the 
 district is essential for a purely civil marriage (6 & 7 Will. IV. c. 85, s. 20). 
 
 The presence of an authorised person is essential at a marriage in a 
 registered non-Anglican place of worship (a) unless the civil registrar is 
 present (61 & 62 Vict. c. 58, ss. 7, 15). 
 
 In the case of marriages under the Foreign Marriage Act, 1892, a 
 marriage officer must be present and may solemnise (55 & 56 Vict. c. 23, s. 8). 
 
 Banns — False Name. — It seems that the assuming a fictitious name 
 upon the second marriage will not prevent the offence from being 
 complete (6). And it was decided to be no ground of defence, that upon 
 the second marriage (which was by banns) the parties passed by false 
 Christian names when the banns were published, and when the marriage 
 took place ; and it was further held that the prisoner, having written 
 down the names for the publication of the banns, was precluded thereby 
 from saying that the woman was not known by the name he delivered in, 
 and that she was not rightly described by that name in the indictment. 
 The indictment was against the prisoner for marrying Anna T. whilst 
 he had a wife living : the second marriage was by banns ; and, it appeared 
 
 (w) Holmes v. Simmons [1868], L. R. 1 the absence of the registrar (61 & 62 Vict. 
 
 P. D. & A. 523. In Beavan v. McMahon c. 58, s. 15). 
 
 [1861], 2 Sw. & Tr. 230 (Ucence), the (y) i?e Rutter [1907], 2 Ch. 592, Eady, J. 
 
 man had deliberately sujipressed one (z) Beamish v. Beamish, 9 H. L. C. 274 ; 
 
 of the Christian names of the woman. It HE. R. 735, the case of a person in holy 
 
 was held that the name given, Margaret orders performing his own wedding cere- 
 
 Beavan, might represent the woman, and mony without the attendance of another 
 
 that as the licence was issued for competent clergyman, 
 
 authority the marriage was valid. (a) This does not apply to Jewish or 
 
 (x) Sect. 42 is repealed in respect of Quaker marriages, 
 
 maniages authorised by and solemnised in (6) R. v. Allison, jmsf, p. 992. And see 
 
 accordance with the Marriage Act, 1898, R. v. Allen, pos-t, p. 1009, and the question 
 
 by a person authorised under that Act, in as to the second marriage there discussed.
 
 CHAP. XII.] Of Bigamy. 989 
 
 that the prisoner wrote the note for the publication of the banns, in which 
 the woman was called Anna, and that she was married by that name, 
 but that her real name was Susannah. Upon a case reserved two questions 
 were made : one, whether this marriage was not void, because there was 
 no publication of banns by the woman's right name, and that, if the 
 second marriage were void, it created no offence : and the other question 
 was, whether the charge of the prisoner's marrying Anna was proved. 
 But the judges held, unanimously, that the second marriage was sufficient 
 to constitute the offence ; and that, after having called the woman 
 'Anna' in the note he gave in for the publication of banns, it did not lie 
 in the prisoner's mouth to say that she was not known as well by the 
 name of Anna as by that of Susannah, or that she was not rightly called 
 by the name of Anna in the indictment (c). 
 
 So where the prisoner contracted the second marriage in the maiden 
 name of his mother, and the woman he married had also made use of 
 her mother's maiden name, it was unanimously resolved by all the judges 
 that the prisoner was rightly convicted {d). 
 
 So where the second wife had never gone or been known by the name 
 of Thick, but had assumed it when the banns were published, that her 
 neighbours might not know she was the person intended, it was held 
 that the parties could not be allowed to evade the punishment for their 
 offence, by contracting a concertedly invalid marriage (e). 
 
 In Mayhew v. Mayhew (/), where S. White, spinster, was married by 
 banns as S. Kelso, \vidow, the marriage was held good though both 
 parties were aware of the misdescription. 
 
 Misdescription of the parties in a notice for marriage before a registrar, 
 though it renders the parties liable to penalties does not render the 
 marriage void (</). 
 
 Notices. — The prisoner was married a second time before the registrar, 
 describing himself as Benjamin Rea, his true name being Edward Rea. 
 There was no evidence to shew the wife knew of this, and the man was 
 held to be rightly convicted of bigamy, as the effect of the Marriage Act, 
 1836, ss. 4, 42, is to render invalid a marriage where both parties, and not 
 one only, knowingly intermarry without due notice {h). 
 
 Licences. — A marriage celebrated under a licence, in which one of 
 the parties is described by a name wholly different from his own. is not 
 therefore void. G. R. was taken into custody as the reputed father of 
 a child, of which a woman was pregnant, and married her by licence. 
 He gave his name as G. N. at the times of the apprehension and marriage, 
 and was named so in the licence, but had never gone by that name before ; 
 and the Court of Queen's l^-nch held this marriage valid (/). 
 
 (c) R. V. Edwardfi, R. & R. 283, and 46 L. J. Mat. 49. 
 
 MS. Baylcy, J. (/() R. v. Rea. L. R. 1 C. C. R. .3(5."): 41 L. J. 
 
 (d) Palmer's ca.se, 1 Deac. Dij?. Cr. L. M. C. 02. The Court did not .-Jay tliat tliore 
 147. Rose. Crim. Ev. (13th ed.) 27ti. would have been no offence if both parties 
 
 (e) R. V. Penson, .5 C. & P. 412, Gurney, had known of the false statement. See 
 B. See R. v. Orgill, 9 C. & P. 80. Holmes v. Simmons. L. R. 1 P. & M. 523. 
 
 (/) 2 Phillimore, 11. But see Wormald (<) Lane v. (Joodwin, 4 Q.B. 3()1. But 
 
 V. Neale [1868]. 19 L. T. (N. S.) 93. R. v. if a licence were obtained for one person 
 
 Drake, 1 Lew. 25, Parke, J. with the intention that it should be used for 
 
 (!/) Re Rutter [1907], 2 Ch. 592, and cases another, such a licence might not be valid, 
 
 there cited. Prowse v. Spurway [1877], Pattesnn, .J. Ibid.
 
 990 Offences as to Marriage. [book ix. 
 
 Where a marriage was solemnised by licence, in which the woman's 
 name was Margaret B. ; her baptismal name and that by which she 
 was commonly called being ' Margaret Lea B/ ; the licence was obtained 
 in the altered name by the man, who knowingly, and by direction of 
 the woman, suppressed the name of ' Lea,' and gave false places of residence 
 in order that the surrogate might not know who the woman was, and that 
 the intended marriage might be kept secret from her friends ; it was held 
 that the question was whether the woman was married without a * licence 
 from a person or persons having authority to grant the same/ There was 
 no doubt the person who granted the licence had authority to grant it, 
 and it came therefore to the question whether this was a licence for the 
 woman. It was clear that an altered name might represent a person ; 
 therefore the name ' Margaret B/ might represent her, and as the licence 
 was obtained for her and by her direction from a person who had authority 
 to grant it the marriage was not void (n). 
 
 Publication of Banns. — The Marriage Acts do not specify what must be 
 observed in the publication of banns, or that the banns shall be published 
 in the true names of the parties ; but it must be understood as the clear in- 
 tention of the legislature that the banns shall be published in the true names, 
 because it requires that notice in writing shall be delivered to the minister 
 of the true Christian names and surnames of the parties seven days before 
 the publication ; and, unless such notice 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 suJB&cient, 
 and would, indeed, be the proper pubhcation where the party is not 
 known by his real name. Thus, where a person, whose baptismal and 
 surname was A. L., was married by banns by the name of G. S., 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 marriage was held valid (j). And 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 also held valid. Ellenborough, C.J., said, ' If this 
 name had been assumed for the purpose of fraud in order to enable the 
 party to contract marriage, and to conceal himself from the party to 
 whom he was about to be married, that would have been a fraud on the 
 Marriage Act and the rights of marriage, and the Court would not have 
 given effect to any such corrupt purpose. But where a name has been 
 previously assumed, 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 ' (k). 
 
 In order to invalidate a marriage under sect. 22 of the Marriage Act, 
 1823 (4 Geo. IV. c, 76) (l), it must be contracted with a knowledge by 
 
 (ii) Beavan t\ M'Mabon, 30 L. J. names were completely misdesciibed. 
 
 Mat. 61 : 1 Sw. & Tr. 230. whether from accident or design : R. v. 
 
 (j) R. V. Billinghurst, 3 M. & S. 250. Tibshelf, 1 B. & Ad. 190, but if there were 
 
 (k) R. V. Burton-upon-Trent, 3 M. & S. only a partial variation of name, as the 
 
 637. alteration of a letter or letters, or the 
 
 {I) Under Lord Hardwicke's Act, 26 Geo. addition or suppression of one Clmstian 
 
 II. c. 33 (rep.), the marriage was void if the name, or the names had been such as the
 
 CHAP. XII.] Of Bigamy. . 991 
 
 hoth parties that no due publication of the banns has taken place. Where, 
 therefore, J. C. told S. S. that he would see the banns properly published, 
 and she took no steps in the matter, and he told her that they had been 
 published, but procured the banns to be published in the name of A. AV., 
 which name she had never borne ; and in performing the service the 
 clergyman applied to her the name of A. till which time she believed she 
 was about to be married by her own name, and she did not know, until 
 after the marriage, that the banns had been published in a wrong name ; 
 it was held that the marriage was valid {tn). But where both the man 
 and the woman were aware that the banns had been published in a manner 
 to conceal the identity of one of them, it was held that the marriage was 
 void {n). 
 
 E. C. T., a minor, of the age of seventeen years, and M. A. A., a widow, 
 of the age of thirty-five years, were married in 1833 by banns, which were 
 published in the names of E. T., bachelor, and M. A. A., spinster ; the 
 entry in the register was in the same names and descrij)tions, and was 
 signed E. T. The marriage was clandestine and without the knowledge 
 or consent of the parents of T., who was baptised by the names of E. C. T., 
 and though known to some persons by the name of C. T. or T. only, was 
 never known by the name of E. T. It was admitted that the woman 
 was cognizant of the fraud and intended it ; and it was held that as the 
 entry in' the register was, E. T. and M. A. A. were married by banns, it 
 was impossible for him not to have known of the publication of the banns ; 
 and the signature of only one of his Christian names showed that he must 
 have known that the banns had been published in that name only ; and, 
 therefore, he, with the woman, knowingly and wilfully intermarried 
 without due publication of banns (o). 
 
 One W. was baptised and had always been known by the name of 
 Bower W., and never by the name of John W. His banns were 
 published in the name of John W. ; after the first publication the wife 
 told W. that the name John W. was wrong. He said it was one of his 
 names, though he had never been called by it ; she asked him why he 
 used the name John ? He said it was for fear any of his relations should 
 know of his marrying her. She wished him to use the name of Bower ; 
 he said he should be disinherited if he did ; she asked him if the marriage 
 would be legal under the name of John ; he said it would. It was a long 
 time before she would consent to being married to him in the name of 
 John. She did so because he said if she loved him she would marry him 
 
 parties had used, and been known by, And see Gompertz i', Kensit, 41 L. J. Cli, 
 
 at one time, and not at another ; in 382. R. v. Kay, IG Cox, 292. 
 
 such oases the ])iiblication might or might (») WiUsliire v. Wiltshire, 3 Hagg. (Eccl. 
 
 not be void; the supposed misdescription Kcp.) 332. 
 
 might be explained, and it became a (o) Tongue v. Tongue, 1 Moore. P, C. 
 
 most important part of the inquiry, 90. There wtus also evidence tliat it wa.<j 
 
 whether it was consistent with lionosty the regular course to make the parties 
 
 of purpose, or arose from a fraudulent examine the entry in the banns book before 
 
 intention. R. v. Tibshelf, 1 B. & Ad. a marriage, and see that their names and 
 
 Tenterden, C.J. See Sullivan v. Sullivan, descriptions were right, and the witness 
 
 if Hagg. Consist. Rep. 238, 254. Frank- added that she should not have been 
 
 land ?'. Nicholson, 3 M. & S. "()!. Pougett present at the marriage as a witness, 
 
 V. Tomkins, 3 M. & S. 2G3. Mather v. unless the banns bad been regularly 
 
 Ney, 3 M. & S. 265. published, 
 (m) R. V. Wroxton, 4 B. & Ad. 640.
 
 992 
 
 Offences as to Marriage. 
 
 [BOOK IX. 
 
 in that name, and would trust to him afterwards. Ultimately, 
 they were married in the names of M. M. and John W. Cresswell, J., held 
 that there was not a due publication of banns, as W. was described in them 
 as John W., and both parties were aware of this misdescription when the 
 marriage was solemnised, and therefore the marriage was invaUd (p). 
 
 On the trial of an ejectment, a marriage was said to have taken place 
 in 1784, at a private house under a special licence from the Archbishop 
 of Canterbury. The plaintiff's counsel offered in evidence an affidavit 
 made for the purpose of obtaining a special licence to be married at a 
 private house, and a fiat signed by the Archbishop, directing a licence 
 to be made out, as prayed, for a marriage between the parties ; both 
 which documents were produced from the Office of Faculties, the proper 
 ecclesiastical office. No search had been made for the original licence, 
 and there was proof that such licences were not kept in any regular 
 custody, but were generally handed over to the officiating clergyman and 
 not taken back from him. A copy of the register of the parish of St. 
 Pancras, which stated the marriage to have been at a private house, by 
 special licence, and professed to be signed by the parties, was also offered 
 in evidence. Objection was taken to the fiat as being secondary evidence 
 of the contents of the licence, for which no search had been made ; but 
 the evidence was admitted ; but the Court held that it was properly 
 received, as the fiat was an act done in the course of official duty, shewing 
 that two persons bearing the names of the lessor of the plaintiff's parents 
 were at that time engaged in taking measures for contracting a marriage ; 
 and that it might properly be taken into consideration by the jury as 
 confirming the evidence of their union, which arose from cohabitation 
 and reception. The affidavit and register were proofs of the same 
 general fact {q). 
 
 Registration is not essential to the validity of a marriage in England (r). 
 It is usual but not essential to prove the first marriage by a certified 
 copy of the entry of the marriage in the register (s) : or the original 
 register may be produced from the proper custody {t). If the register 
 or a certified copy of the entry is not available viva voce evidence of 
 persons present at the ceremony will suffice if they can describe it 
 sufficiently to shew that it was in a lawful form. 
 
 Identity. — The identity of the parties to the first marriage must also be 
 proved (m). It is not necessary for this purpose to call any of the witnesses 
 
 [p) Mdgley v. Wood, 30 L. J. Mat. 57. 
 But see Re Rutter [1907], 2 Ch. 592. 
 
 (q) Doe d. Egremont v. Grazebrook, 
 4 Q.B. 406. In the argument it is said 
 that ' the performance of a ceremony was 
 proved ' ; ' but the ceremony was shewn 
 to have been performed in a private house.' 
 ' The same parties went through the cere- 
 mony,'which, at any rate, was professedly a 
 marriage.' See Doe d. France v. Andrews, 
 15 Q.B. 756, as to the entry in the register. 
 
 (r) R. V. AlUson, MS. Bayley, J., and 
 
 R. & R. 109. The prisoner was indicted 
 
 for marrying Ann Epton, while Jane, his 
 
 ormer wife was living. . . . Each marriage 
 
 was proved by a witness present at 
 
 the ceremony. It appeared that at the 
 first marriage the piisoner went by the 
 name of Allison, at the second by the name 
 of Wilkinson. Chambre, J., doubted whether 
 the evidence was sufficient without proof 
 of the banns, but the other judges held that 
 it was. Cf. R. V. Manwaring, 26 L. J. M. C. 
 10 : D. V. B. 132. 
 
 (s) Doe V. Fowler, 14 Q.B. 700. The 
 register itself is rarely produced. As to 
 
 Eroof of entries in foreign registers, see 
 yell V. Kennedy [1889], 14 App. Cas. 437,* 
 449. 
 
 (<) See R. V. Millis, 10 CI. & F. 534. 
 (m) See R. v. Simpson, 15 Cox, 423. 
 R. V. Manwaring, 26 L. J. M. C. 10.
 
 CHAP. XII.] Of Bigamy. 993 
 
 who are by law required to sign the register (y), but is sufficient to give any 
 evidence as to the identity of the parties, e.g. by having their handwriting 
 to the register or that bellringers were paid by them for the wedding or 
 the like. 
 
 In R. V. Tolson {w), on an indictment for bigamy a photograph 
 which had been taken from the prisoner, and which she had said was 
 that of her husband, was allowed to be shewn to a witness present at 
 the first marriage, and also to another witness who had known the man 
 of whom the photograph was a likeness, in order to prove his identity 
 with the person mentioned in the marriage certificate. But this form 
 of identification is unreliable unless amply corroborated (x). 
 
 Evidence. — Where the entry of a marriage in England is in a non- 
 parochial register or record it can be proved on an indictment for bigamy 
 or other criminal case only by production from Somerset House of the 
 original register or record (</). 
 
 The marriage registers are kept in duplicate and the entry of the 
 marriage is made therein immediately after its solemnisation, and is 
 signed by the parties and by two witnesses and by the officiating clergy- 
 man {z) or minister or authorised person (a) or registrar if he officiates or 
 attends (6), or in the case of mariiages abroad the marriage officer (c). 
 
 Where the entry is in a register kept under the provisions of the 
 Registration Acts : — 
 
 (a) a certified copy of the entry purporting to be sealed or stamped 
 with the seal of the general register office is to be received as evidence of 
 the marriage to which the entry relates without any further or other proof 
 of such entry {d) : or 
 
 (b) an examined copy or extract of the entry signed and certified as 
 a true copy or extract by the officer to whose custody the original is 
 entrusted is admissible in evidence (e) : but 
 
 (c) a certificate which is not a certified copy of the register is not 
 so admissible (/). 
 
 Although marriages niust be solemnised in the presence of two or more 
 credible witnesses {g) it is net essential to call all or any of them (gg). 
 
 By the Marriage Act, 1823 (4 Geo. IV. c. 76), s. 26, ' After the 
 solemnization of any marriage under a publication of banns, it shall not 
 be necessary in support of such marriage to give any proof of the 
 actual dwelling of the parties in the respective parishes or chapelries 
 wherein the banns of matrimony were published ; or, where the 
 marriage is by licence, it shall not be necessary to give any proof that 
 
 {v) 1 East P. C. 472. Bull (N. P.) 27. section extends to registers of marriages 
 
 See Morris v. Miller, 4 Burr. 2057. Birt v. solemnized under the Marriage Act, 183G 
 
 Barlow, 1 Douc;. 1()2. (."> & 6 Will. IV. c. 85), s. 44. 
 
 {w) 4 F. & F. 103. (e) 14 & 15 Vict. c. 99, s. .51. See R. v. 
 
 (x) See Frith v. Frith [1896], Prob. 74. Weaver, 1873, L. R. 2 C. C. R. 85. lie 
 
 {y) 3 & 4 Vict. c. 92, s. 17 ; 21 & 22 Vict. Goodrich [1904J. Rob. 138. 
 
 0. 25, s. 3. See tmsI, Vol. ii. p. 2143. (f) See Nokes v. Milward [1824], 2 Add. 
 
 (2) 6 & 7 Will. IV. c. 8G, s. 31. Eccl. 320. 
 
 (o) 6 & 7 Will. IV. 0. 85, s. 23 ; 61 & 02 (g) 4 Geo. IV. c. 70, s. 28 (Church of 
 
 Vict. c. 58, s. 7. England). 6 & 7 Will. IV. c. 85, ss. 20, 21 
 
 (b) 6 & 7 Will. IV. c. 85, s. 23. (civil or non-anglican). 
 
 (c) 55 & 5G Vict. c. 23, s. 9. (gg) Vide note (r), supra. 
 
 (d) 6 & 7 Will. IV. c. 86, s. 38. This 
 
 ' VOL. I. 3 S
 
 994 
 
 Offences as to Marriage. 
 
 [BOOK IX. 
 
 the usual place of abode of one of tlie parties, for the space of fifteen 
 days as aforesaid, was in the parish or chapelry where the marriage 
 was solemnized ; nor shall any evidence in either of the said cases be 
 received to prove the contrary, in any suit touching the validity of such 
 marriage ' (h). 
 
 By the Marriage and Registration Act, 1856 (19 & 20 Vict. c. 119), 
 sect. 17, ' After any marriage shall have been solemnized, under the 
 authority of any of the said recited Acts (i), or of this Act, it shall not 
 be necessary in support of such marriage to give any proof of the actual 
 dwelling or of the period of dwelhng of either of the parties previous 
 to the marriage within the district stated in any notice of marriage to be 
 that of his or her residence, or of the consent to any marriage having been 
 given bv any person whose consent thereto is required by law, or that 
 the registered building in which any marriage may have been solemnized 
 had been certified according to law as a jjlace of religious worship (j) or 
 that such building was the usual place of worship of either of the parties, 
 nor shall any evidence be given to prove the contrary in any suit or legal 
 proceedings touching the validity of such marriage ; and all marriages 
 which heretofore have been or which hereafter may be had or solemnized 
 under the authority of any of the said recited Acts or of this Act, in any 
 building or place of worship which has been registered pursuant to the 
 provisions of the Marriage Act, 1836 {k), but which may not have been 
 certified as required by law, shall be as valid in all respects as if such 
 place of worship had been so certified ' (l). 
 
 By sect. 23, ' Every marriage solemnized under any of the said 
 recited Acts or of this Act shall be good and cognizable in hke manner as 
 marriages before the passing of the first-recited Act (m) according to 
 the rites of the Church of England.' 
 
 Capacity.— The Marriage Acts, 1823 (4 Geo. IV. c. 76) and 1836 
 (6 & 7 Will. IV. c. 85), apply only to the mode of celebrating marriage 
 and do not deal with capacity to marry {n). 
 
 The capacity of the parties to marry depends in the main on the law 
 of their domicile at the date of the marriage (o). According to English law 
 the consents of parents and guardians (oo) are part of the form of marriage, 
 and are not regarded as limiting the capacity to marry (/>). Consequently 
 
 {h) Upon an enactment nearly similar, 
 it was determined, in a prosecution for 
 bigamy, where the first marriage was 
 proved to have been by banns, that it was 
 no objection that the parties did not reside 
 in the parish where the banns were pub- 
 lished and the marriage was celebrated. 
 The provision of the statute was considered 
 as an express answer to the objection ; 
 and it appears not to have been adverted to 
 when the point was received for the opinion 
 of the judges. R. v. Hind, R. & R. 253. 
 
 (r) i.e. the Marriage Acts of 1836 (6 & 7 
 Will. IV. c. 85) ; 1837 (7 Will. IV. and 1 
 Vict. c. 22) ; and 1840 (3 & 4 Vict. c. 72). 
 
 ij) In R. V. Cradock [1863], 3 F. & F. 
 837. Proof of marriage in a chapel in the 
 presence of the registrar of the district and 
 two ■fitnesses was held to raise a 2J''"«« 
 
 facie presumption that the chai^el was 
 registered for the celebration of marriages. 
 
 (k) 6 & 7 Will. IV. c. 85, s. 18. See also 
 7 Will. IV. and 1 Vict. c. 22. s. 35; 18 & 19 
 Vict. c. 81. 
 
 (/) By sect. 20, nothing in the Act is to 
 alter the provisions of the existing Acts, 
 except when they are at variance with this 
 Act. 
 
 (/») The Marriage Act, 1836 (6 & 7 
 Will. IV. c. 85), passed Aug. 17, 1836. 
 
 (?i) Be de Wilton [1900], 2 Ch. 481. 
 
 (o) Be Bozzelli [1902], 1 Ch. 751. Ogden 
 V. Ogden [1908], P. 46, 65. 
 
 (oo) Required bv 4 Geo. IV. c. 76, ss. 16, 
 17; 6 & 7 Will. IV. c. 85, s. 10; 55 & 56 
 Vict. c. 23, s. 4. 
 
 ip) False statements as to having ob- 
 tained such consents are punishable (post,
 
 CHAP, xii.j Of Bigamy. 995 
 
 a marriage of foreigners in England without the consents required by 
 their national law or the law of their domicile is regarded as valid (7). 
 
 Prohibitions under foreign laws as to the marriage of persons under 
 reUgious vows or of negroes appear not to affect the capacity of such 
 persons to marry in England (/•). But in the case of marriage under a 
 foreign law it would seem to be necessary to prove any consents required 
 by that law to establish the validity in point of form of the marriage. 
 
 Nonage. — By the law of England and Ireland males are capable of 
 marrying at fourteen and females at twelve (s). Between these ages and 
 twenty-one, persons of either sex may marry with the consent of parents 
 or guardians if they have any (t). 
 
 Insanity. — Insanity in either party at the date of the marriage renders 
 it absolutely void if the party was then a lunatic so found by com- 
 mission (w), but voidable only, if the party had not then been found a 
 lunatic, but was at the date of the marriage so unsound of mind as to 
 be incapable of understanding and consenting (v). In the case of 
 marriage the validity depends on the sanity of the party at the date of 
 the ceremony and not whether the same party knows of the insanity of 
 the other party («■). 
 
 Impotence. — Impotence of either party at the time of celebration 
 makes the marriage voidable, but not void ab initio (x). 
 
 Impediments. — The impediment to marriage between persons who are 
 capable of marrying which are recognised by English law are : — 
 
 (i.) the existence of a valid subsisting monogamous marriage of 
 either party. {Vide ante, p. 979). 
 
 (ii. ) consanguinity or affinity between the parties within certain degrees. 
 
 For persons domiciled in England at the date of the marriage, 
 wherever it is celebrated (y) these degrees are determined by the 
 Table of Consanguinity and Afl&nity (z) published in 1563 as an 
 
 p. 1012), but do not invalidate the marriage. (u) Under the great seal of (Jrcat Britain 
 
 R. V. Birmingham, 8 B. & C. 29. R. v. and Ireland, or wliose person or estate lisis 
 
 Clark, 2 Cox, 183. The decisions to the been committed to the care of trustees. 51 
 
 contrary under Lord Hardwicke's Act (20 Geo. III. c. 37. which re-enacts and extends 
 
 Geo. II. c. 33) have ceased to be of force to Ireland l.'i Geo. II. c. 20 (rep. 1873, 
 
 since 1823 (4 Geo. IV. c. 76, ss. 16, 22, 23 ; 36 & 37 Vict. c. 91). The incaiiacity 
 
 19 & 20 Vict. c. 119, s. 17). As to the continues till the party is declared of sound 
 
 effect of belief that want of consent renders mind by the judjje in lunacy (53 & 54 Vict, 
 
 such marriaije invalid, see R. i'. Bayley, 1 c. 5), or the majority of the trustees. 
 
 Cr. App. R. 86. (f) See Durham (Earl) r. Durham 
 
 iq) Ogden V. Ogdcn [1908], R 46. (Countess), 10 P. D. 80. This rule allows 
 
 (r) Ibid. p. 66. C/. Scott i». Att.-Gen., for lucid intervals. 
 
 11 P. D. 128. {w) See Wood-Renton on Lunacy, 17- 
 
 (s) Co. Litt. 79. It is said that where 29. 
 
 the child is over seven the marriage is {x) B. alias A. v. B [1891], 27 L. R. Ir. 
 
 voidable only and not absolutely void. 587. 
 
 The canonists seem to have been prepared (y) Brook r. Brook fl86I], 9 H. L. C. 
 
 in certain cases to hold that evidence of 193: 11 E. R. 703. a marriage under Danisli 
 
 sexual capacity might be given as to persons law of an Englishman to his decease<l wife's 
 
 under fourteen and that in such cases sister, both being domiciled in England. 
 
 ' mnliiia suppht aelatem.' See Eraser, (;) Affinity is constituted through 
 
 Husband and Wife (2nd ed.) 51. Geary marriage, not by sexual intercourse. Wing 
 
 on Marriage. r. Taylor, 2 Sw. & Tr. 278. Consanguinity 
 
 (/) ]'i(/c /;o'>^ p. 1012, andc/. R. r. Bayley. exists even between persons who are not 
 
 iibi supra. In Scotland persons of an age to akin through lawful wedlock, Horner r. 
 
 marry need no consent of parent or Homer, 1 Hagg. (Consist.), at p. 352. 
 
 guardian. Eraser, 55. 
 
 3 s 2
 
 996 
 
 Offences as to Marriage. 
 
 [BOOK IX. 
 
 authoritative exposition of the Acts 28 Hen. VIII. c. 7, s. 7 ; 28 Hen. 
 VIII. c. 16, s. 2 ; 32 Hen. VIII. c. 38 (a). For persons domiciled 
 elsewhere the prohibited degrees depend on the law of the nationality 
 or the domicile of the parties (6). 
 
 By the Marriage Act, 1835 (5 & 6 Will. IV. c. 54), sect. 2, 'all marriages 
 celebrated after August 31, 1835, between persons within the prohibited 
 degrees of consanguinity or affinity shall be absolutely null and void to all 
 intents and purposes whatsoever' (c). Where, consequently, a marriage 
 takes place within the prohibited degrees of consanguinity or affinity, as 
 such marriage is wholly void, a second marriage will not amount to the 
 crime of bigamy. Where, therefore, on an indictment for bigamy, it 
 appeared that the prisoner had married two sisters, one after the death 
 of the other, and the latter marriage was alleged in the indictment as the 
 legal marriage, it was held that he was entitled to be acquitted, as that 
 marriage was null and void to all intents and purposes (d). The Act of 
 1835 extends to the illegitimate as well as the legitimate child of a late 
 wife's parents. Therefore a marriage with the illegitimate sister of a 
 deceased wife was held void (e). So a marriage of a man with the 
 daughter of the illegitimate half-sister of his deceased wife is void (/). 
 
 The table of prohibited degrees was varied by 7 Edw. VII. c. 47, for 
 the purposes of marriage as a civil contract by legalising marriages 
 between a man and the sister of his deceased, but not of his divorced, 
 wife. The Act validates as civil contracts in the United Kingdom 
 marriages already contracted with a deceased wife's sister solemnised in 
 the United Kingdom, or in a foreign state or British possession where 
 such marriage could lawfully be contracted (g). 
 
 On an indictment for bigamy, it appeared that the first marriage 
 professed to be under the provisions of the Marriage Act, 1836, and the 
 superintendent registrar produced the register returned to him by the 
 registrar, who proved that he was present at the marriage, that it was 
 registered, that the parties signed their names, and he witnessed it ; and 
 the superintendent registrar produced the register of the place where the 
 marriage was celebrated, and the certificate he issued was produced and 
 proved by him. A witness stated that he was present at the marriage, 
 and that notice of it was duly given to the superintendent registrar, but 
 the latter did not produce it, and said, if he had received it, he had left 
 it at home ; it was contended, on behalf of the prisoner, that it was 
 
 (a) The table extends to planted to this relationship by 7 Edw. VII. c. 47. 
 
 Colonies, subject to changes effected by 
 local legislation. See Major v. Miller, 
 4 Australian C. L. R. 219, and c/. Watts v. 
 Watts [1908], App. Cas. 573. 
 
 (b) As to Scots law see Scots Act, 1567, 
 c. 14. Fraser (2nd ed.), 105, 134. As to 
 Italy see Re Bozzelli [1902], 1 Ch. 751. 
 
 (c) Before this Act such marriages were 
 voidable by sentence of an ecclesiastical 
 Court during the lifetime of the parties. 
 A marriage de faclo voidable for consan- 
 guinity, but not avoided by decree, would 
 support an indictment for bigamy imder 
 1 Jac. I. c. 11 (rep.). 
 
 {d) R V. Chadwick, 11 Q.B. 173: 17 L. 
 J. M. C. 33. The law has been altered as 
 
 (e) R. V. St. Giles in the Fields, 11 Q.B. 
 173. Where a woman proved that she had 
 a sister seven years older than herself, and 
 that they were brought up together with 
 their parents, and that she always believed 
 that they were sisters, Erie, J., held this 
 was sufficient evidence to prove that they 
 were sisters. The wdtness having also 
 proved that her sister married M. in 184G, 
 and died in 1848, and the witness married 
 M. in 1849, Erie, J., held that this shewed 
 the latter marriage to be void. R. v. 
 Young, 5 Cox, 296. 
 
 (/) R. V. Brighton, 1 B. & S. 447. This 
 case is not affected by 7 Edw. VII. c. 47. 
 
 [g) See ss. 1, 3 of the Act.
 
 |CHAP. XII.] Of Bigamy. 997 
 
 incumbent on the prosecution to shew that the first marriage was cele- 
 brated in the registered building specified in the notice and certificate, 
 to prove that due notice had been given to the superintendent registrar, 
 and that the certificate of the notice had been duly issued. But, on a 
 case reserved, all the judges present held the evidence sufficient (/«). 
 
 Upon an indictment for bigamy, which alleged that the prisoner 
 married E. G. in a Wesleyan chapel duly registered for solemnising 
 marriages {i), and afterwards in her lifetime married E. 0., a witness 
 proved that he was present at the first marriage at the Wesleyan chapel 
 in the presence of the registrar, and signed the register as a witness, and 
 that the parties lived together as man and wife for two or three years. 
 A witness proved that a certificate of this marriage was examined by him 
 with the register book, kept at the office of the superintendent registrar 
 of the district, and that it was correct, and that it was signed by the 
 superintendent registrar. This certificate contained a copy of the register 
 which the registrar certified to be correct. The witness also proved that 
 he examined another certificate with the register book at the office of 
 the superintendent registrar, and that it was correctly extracted, and 
 was signed by the superintendent registrar in his presence (;'). The 
 witness also proved that another document was signed in his presence by 
 the superintendent registrar, and that he examined it with the register 
 at his office, and found it was correctly extracted (A:). The reception of 
 these documents was objected to, on the ground that certificates were 
 not admissible to prove a marriage in a Wesleyan chapel, or that it was 
 a place in which a marriage could be legally solemnised, or that, if 
 admissible, they must be authenticated by the official seal of the registrar, 
 and not under hand only. But the documents were admitted, and the 
 prisoner convicted ; and it was held that the conviction was right, upon 
 the ground that, independently of the two last-mentioned documents, 
 there was frima facie evidence that the chapel was duly registered, and 
 was therefore a place in which marriages might be legally solemnised. 
 The presence of the registrar at the marriage, the fact of the ceremony 
 taking place, and the entry in the registrar's book, aided, as they were, 
 by the presumption omnia rite esse acta, afforded priina facie evidence 
 that the chapel was a duly registered place, in which marriages might be 
 legally celebrated {[). So where on an indictment for bigamy the prisoner 
 
 (h) R. V. Hawcs, 1 Den. 270. Where &c., Tho.«. Erskine Austin.' 
 the production of the original register of (k) This document wa.i, ' Henry Jinn- 
 
 marriages cannot be enforced, a witness, waring and EHza (Joodman were married 
 
 who has seen the regist'^r, may prove the after notice, read at the Board of Guardian.'? 
 
 handwriting of a party to a marriage therein of the Luton Union, without licence, 
 
 registered, although such register be not Tlios. Erskine Austin, .Sui)erintcndent 
 
 produced. Saver v. Glossop. 2 Ex. 400. Registrar.' 
 
 (/) Under 5 & G Will. IV. c. 85, s. 18. (/) R. v. Manwaring. D. & B. 132; 20 L. J. 
 
 {/) This certificate Wivs, 'I, the under- M. C. 10. Pollock, C.B., and Willes, .1.. 
 
 signed, T. E. Austin, Superintendent Reg- thought that the ccrtilicalc that the chajR-1 
 
 istrar of the district of Luton, &c., do here- had been duly registered was admissible and 
 
 by certify that the Wesleyan chapel, situate evidence of the fact. G <& 7 Will. IV. cc. S.'j, 
 
 at Dunstable, in the county of Bedford, 8G; 7 Will. IV. & 1 Vict. c. 22 ; 3 & 1 Vict. 
 
 was duly registered for the solemnization c. 92 ; 8 & 9 Vict. c. 113 ; 9 & 10 Vict. c. 
 
 of marriages, pinsuant to the Act G & 7 119 ; and 14 & 1.") Vict. c. 99, were referred 
 
 Will. IV. c. 85, on the twenty-eighth day to on tlie trial. Willes, J., said: ' It is a 
 
 of November, 1 845. Given under my hand, mistake to suppose that the provisions of
 
 998 Offences as to Marriage. [book ix. 
 
 was shewn to have been secondly married at a Wesleyan chapel 
 not registered under 15 & 16 Vict, c, 36, and this marriage was proved 
 by the registrar, who produced the certificate ; it was objected that 
 there was no proof of the second marriage, or that it was invalid, 
 having taken place in a chapel ; but Wightman, J., overruled the 
 objections (m). 
 
 In Sichel v. Lambert (n), in an action for goods sold there was a plea 
 of coverture, and the defendant stated that she was married to J. L. at 
 a Roman Catholic chapel ; that she and L. were both Roman Catholics, 
 and were married by a priest in the way in which Roman Catholic mar- 
 riages are ordinarily celebrated, and that they lived together for some 
 years, and she produced a certificate of the marriage from the priest who 
 performed the ceremony, and a certificate shewing that the civil contract 
 of marriage had been performed before the French Consul ; but there was 
 no proof that the person who performed the ceremony was a priest, or 
 that the chapel was a place licensed for marriages, or that the registrar 
 was present at the time. The Court of Common Pleas held that it might 
 be presumed that the chapel was licensed and the registrar present as 
 well because sect. 39 of the Marriage Act, 1836, declares any person who 
 wilfully solemnises a marriage in any other place than a registered building 
 or in the absence of the registrar, guilty of felony, as because the ordinary 
 rule omnia 'prcesumuntur rite esse acta ought to prevail in such a case. In 
 R. V. Cresswell (o), where a marriage was solemnised in a building in a 
 parish situate a few yards from the parish church, at a time when the 
 parish church was disused in consequence of its undergoing repairs, and 
 after divine service had been several times performed in such building, 
 it was presumed in favour of the marriage to have been duly licensed, 
 although no proof was given of a licence by the bishop. Coleridge, C.J., 
 said : ' We are of opinion that the marriage service having been performed 
 in the place where divine service was several times performed, the rule 
 " omnia 'prcesumunticr rite acta " applies, and that we must assume that 
 the place was properly licensed, and that the clergyman performing the 
 service was not guilty of the grave offence of marrying persons in an 
 unlicensed place. The facts of the marriage and other church services 
 being performed there by a clergyman are abundant evidence from which 
 the Court and a jury might assume that the place was properly licensed 
 for the celebration of marriages ' {])). 
 
 In R, V. Cradock (q), proof of marriage in a chapel in the presence 
 of the registrar of the district and two witnesses was held to raise a 
 prima facie presumption that the chapel was registered for the 
 celebration of marriages. 
 
 Quakers and Jews. — The marriages between Jews, and Quakers or 
 ex-Quakers may be celebrated according to the practice and usages of 
 
 U & 15 Vict. c. 99, s. 14, are anything more 13 Cox, 126. 
 
 than cumulative, or that they give a rule (p) As to the registration of Roman 
 
 and the only rule of evidence.' Sec R. v. Catliolic chapels, see 6 & 7 Will. IV. c. 85, 
 
 Cradock. 3 F. & F. 837. infra. s. 18 ; 7 Will. IV. & 1 Vict. c. 22, s. 35, and 
 
 (m) R. V. Tilson, 1 F. & F. 54. 18 & 19 Vict. c. 81. 
 
 {n) 15 C. B. (N. S.) 781. (q) [18G3] 3 F. & F. 837. 
 
 (o) 1 Q.B.D. 446 ; 45 L. J. M. C. 77 ;
 
 CHAP. XII.] Of Bigamij. 999 
 
 the Society of Friends (/) or the Jewish religion (s) on production of a 
 certificate or licence of the civil registrar and without his attendance {t). 
 The place where the marriage is celebrated need not be in a district in 
 which the j)arties or either of them dwell (m). The statutes do not specify 
 the number of witnesses necessary at these marriages but require registra- 
 tion of the marriage and signature of the register by two witnesses and the 
 secretary of the synagogue or registering officer of the Quakers (r). 
 
 Such marriages are ordinarily proved by the production of a certificate, 
 i.e. certified copy of the register, and by identification of the parties {w). 
 But in the case of a marriage by Jewish rules it is said to be necessary 
 also to prove (1) a contract of marriage {x) ; (2) that the witnesses to the 
 marriage were not blood relations of the parties (y). 
 
 Marriages may be validly celebrated by Quakers or Jews before the 
 civil registrar and in accordance with the statutory conditions required 
 in such case (z), and it would seem that marriages by Jewish rules of Jews 
 domiciled in England but within the English prohibited degrees are not 
 valid in England («). 
 
 Marriages by English Forms Outside the United Kingdom.— ^' All 
 marriages solemnized within the British lines by any chaplain or officer or 
 other person officiating under the orders of the commanding officer of a 
 British army serving abroad shall be as valid in law as if the same 
 had been solemnized within the United Kingdom with a due observance 
 of all forms required by law ' (6). 
 
 Where a soldier on service with the British army in St. Domingo, in 
 1796, went with a woman to a chapel in the town, and the ceremony was 
 there performed by a person appearing and officiating as a priest ; the 
 service being in French, but interpreted into English by a person who 
 officiated as clerk, and understood at the time by the woman to be the 
 marriage service of the Church of England. This was held sufficient 
 evidence, after eleven years' cohabitation, that the marriage was properly 
 celebrated, although the woman stated that she did not know that the 
 
 (;■) 6 & 7 Will. IV. c. 85, ss. 2, 16 ; 19 <fe marriage in the Society of Friends. 
 20 Vict. c. 119, ss. 20, 21 ; 23 & 24 Vict. (.r) R. v. Althauscn. 17 Cox, 6.30. R. 
 
 0. 18 ; 35 & 36 Vict. c. 10. v. Nasillski, 61 J. P. 520. Thc>e decisions 
 
 (s) See 4 Geo. IV. c. 76, s. 31 ; 6 & 7 arc of doubtful authority. In Horn r. 
 
 Will. IV. 0.85, ss. 2, 16; 19 & 20 Vict. c. 119, Noel, 1 Camp. 61, it was contended (hat 
 
 ss. 20, 21. And see Rudins; v. Smith, 1 St. the ceremony in tlie syna<;o2;uc was merely 
 
 Tr. (N. S.) 1053, 1064, 1065: 2 Hagg. a ratification of a previous written con- 
 
 (Consist.) 371. tract, and that as such contract was 
 
 (/) It is not required by tlic Marriage essential to the validity of the ni.arriage. 
 
 Acts, 1836, 1837, or 1840, and the Marriage it must be put in and proved, and this was 
 
 Act, 1898, does not a])])ly to Quaker or done. 
 Jewish marriages (61 &62 Vict. c. 58, s. 13). (v) Xatlian v. Woolf [1899], 15 Times 
 
 (n) 3 & 4 Vict. c. 72, s. 5. L. R. 250. 
 
 (v) (i & 7 Will. IV. c. 86, S3. 31, 40; (z) Vide supra. 
 
 19 & 20 Vict. c. 119, s. 22. (n) Re De Wilton [19001. 2 Ch. 481. 
 
 {w) InDeane?'. Thomas, M. & M. 361, (b) 55 & 56 Vict. c. 23, s. 22. The 
 
 a marriage between Quakers was proved section is declaratory of pre-existing law. 
 
 by producing tlie register of the meeting As to registration of marriages outside the 
 
 house, signed by the parties and .several U. K. of ofticers and soldiers of tlie King's 
 
 subscribing witnesses, and calling one of land forces and tlieir families, see 42 & 43 
 
 the witnesses who proved tiie form of Vict. c. 8. As to publisliing on the King's 
 
 marriage by declaration of the parties ships at sea, the banns of an officer, seaman, 
 
 at a monthly meeting of the sect to bo or marine on the books of the ship, see 8 
 
 that usually considered as necessary to Edw. VII. c. 26.
 
 1000 
 
 Offences as to Marriage. 
 
 [BOOK IX. 
 
 person officiating was a priest. Ellenborongli, C.J., in delivering his 
 opinion, considered the case, first, as a marriage celebrated in a place 
 where the law of England prevailed (supposing, in the absence of any 
 evidence to the contrary, that the law of England, ecclesiastical and civil, 
 was recognised 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 laws of 
 that country, whatever it might be ; and that upon such facts every 
 presumption was to be made in favour of the validity of the marriage (c). 
 
 On the authority of R. v. Millis {d) it was held that a marriage solem- 
 nised at the consulate office at Beyrout in Syria, according to the rites 
 of the Church of England, between two British subjects who were mem- 
 bers of that church, by an American missionary, who was not in holy 
 orders, was void (del). 
 
 E,. V. Millis (d) does not decide that marriages of British subjects in 
 the colonies, or on board ship or elsewhere, where a clergyman cannot be 
 obtained, are invalid (e). This was expressly declared in Beamish v. 
 Beamish (/), and in a case in India where no clergyman could be obtained, 
 it was held that R. v. Millis did not apply (g). 
 
 The Foreign Marriage Act, 1892 (55 & 56 Vict. c. 23) {h), which deals 
 with the marriage of British subjects outside the United Kingdom by 
 British marriage officers, provides by sect. 23 that ' nothing in this Act 
 shall confirm or impair or in anywise affect the validity in law of any 
 marriage solemnized beyond the seas otherwise than as herein provided, 
 and the Act shall not extend to the marriage of any of the Royal family.' 
 
 Sect. 26 of this Act, after repealing former Acts as to marriages 
 abroad (i), provides, subsect. 2, that, ' Every marriage in fact solemnized 
 and registered by or before a British consul or other marriage officer in 
 intended pursuance of any Act hereby repealed shall, notwithstanding 
 
 (c) R. V. Brampton, 10 East. 282. As to 
 Ceylon law see Aronegary v. Vaigalie, 6 
 App. Gas. 364. 
 
 id) [1843] 10 a. & F. 534, 8 E. R. 844. 
 
 idd) Catherwood v. Caslon [1844], 13 M. 
 & W. 261. See R. v. Man waring, 26 L. J. 
 M. C. 10; D. & B. 132. 
 
 (e) As to validation of certain marriages 
 celebrated before July 21, 1879, on public 
 ships on a foreign station, see 42 & 43 
 Vict. c. 29, s. 2. 
 
 (/) 9H. L. C. 274; 11 E. R. 735. 
 
 (g) Maclean v. Ciistall, Perry, Oriental 
 Cas. 75. The marriage of Christians in 
 India is regulated bv Indian Acts No. XV. 
 of 1872, and No. II. of 1891. The Acts 
 extend to Christian subjects of His Majesty 
 {i.e. professing the Christian religion), in 
 the territories of native princes, and 
 
 states in alliance with His Majesty. The 
 Acts contain special provisions as to 
 native Christians. 
 
 {h) This Act repealed, by sect. 26, the 
 following enactments : — 4 Geo. IV. c. 91 ; 
 12 & 13 Vict. c. 68 ; 31 & 32 Vict. c. 61 ; 
 33 & 34 Vict. c. 14, s. 11 ; 53 & 54 Vict, 
 c. 47 ; 54 & 55 Vict. c. 74. 
 
 (?) The following enactments legalise cer- 
 tain marriages outside the U.K. : — 58 Geo. 
 III. c. 84 (India). 5 Geo. IV. c. 68 (New- 
 foundland). 17 & 18 Vict. c. 88 (Mexico). 
 21 & 22 Vict. c. 46 (Moscow, Tahiti, and 
 Ningpo). 22 & 23 Vict. c. 64 (Lisbon). 
 23 & 24 Vict. c. 86, and 27 & 28 Vict. c. 77 
 (Ionian Islands). 30 & 31 Vict. c. 93 
 (Morro Velho, Brazil). 30 & 31 Vict. c. 2 
 (Odessa). 31 & 32 Vict. c. 61 (China). And 
 see note {v), ante, p. 985.
 
 CHAP, xii.i Of Bigamy. 1001 
 
 such repeal or any defect in the authority of the consul or the solemniza- 
 tion of the marriage elsewhere than at the consulate, be as valid as if 
 the said Act had not been repealed, and the marriage had been 
 solemnized at the consulate by or before a duly authorised consul ; 
 
 ' Provided that this enactment shall not render vaUd any marriage 
 declared invalid before the passing of this Act by any competent Court, 
 or render valid any marriage either of the parties to which has before 
 the passing of this Act, lawfully intermarried with any other person.' 
 
 Colonial Marriages.— By 28 & 29 Vict. c. 64, after reciting that laws 
 ' have from time to time been made by the legislature of divers of her 
 Majesty's possessions abroad for the purpose of establishing the validity 
 of certain marriages previously contracted therein, but doubts are 
 entertained whether such laws are in all respects effectual for the afore- 
 said purpose beyond the limits of such possessions,' it is enacted as 
 follows : — 
 
 Sect. 1. ' Every law made or to be made by the legislature of anv such 
 possession as aforesaid, for the purpose of establishing tlie validity of 
 any marriage or marriages contracted in such possession, shall have and 
 be deemed to have had from the date of the making of such law, the same 
 force and effect, for the purpose aforesaid, within all parts of her Majesty's 
 dominions, as such law may have had, or may hereafter have, within the 
 possession for which the same was made : Provided that nothing in this 
 law contained shall give any effect or validity to any marriage, unless at 
 the time of such marriage both of the parties thereto were, according to 
 the law of England {ii), competent to contract the same.' 
 
 Sect. 2. ' In this Act the word " legislature " shall include any 
 authority comj)etent to make laws for any of her Majesty's possessions 
 abroad, except the Parliament of the United Kingdom and her Majestv 
 in Council ' (see also 6 Edw. VII. c. 30 : 7 Edw. VII. c. 47). 
 
 Marriages under other Laws than English. — Where the first marriage 
 was contracted outside England and not under English law, evidence 
 must be given to prove that the marriage was in form and substance 
 valid by the law of the country where it was contracted, and where the 
 second marriage was contracted outside England it is necessary to shew 
 that it was in point of fact valid by the law under which it was celebrated. 
 The laws of other countries being matters of fact must be proved by 
 evidence of experts conversant with that law (/) feriti virtutc officii or 
 virtute jyrofessionis, such as a lawyer practising in the courts of the country 
 whose law is in question, or a person having from professional research or 
 experience a sufficient qualification (k). 
 
 This rule as to proof of non-Englisli law of marriage applies to Scots, 
 Irish, and colonial law as well as to the law of foreign states, and these 
 laws being matters of fact it is impossible here to deal with them in detail. 
 
 Scotland. — The law of Scotland recognises irregular marriages as valid 
 where satisfied that the parties meant to contract marriage (/). 
 
 {ii) See 6 Edw. VII. o. 30. and /.nsl. Vol. ii. p. 2i:i<). 
 
 0) Sussex Peerage Claim, 11 CI. & F. (k) Wilson r. Wilson [190.31. P. 157. 
 
 85 (which overrules R. v. Dent, 1 C. & K. (/) De Tlioren v. Att.-CJen., 1 App. Cas. 
 
 97). R. V. Povej', Deai-s. 32. See also R. 68(5. Dysart Peerage Claim, 6 App. C^s. 
 
 v. Griffin, 14 Cox, 308: 4 L. R. Ir. 497; 489.
 
 1002 Offences as to Marriage. [book ix. 
 
 By 19 & 20 Vict. c. 96, s. 1, ' After the 31st of December, 1856, no 
 irregular marriage contracted in Scotland by declaration, acknowledg- 
 ment, or ceremony, stall be valid, unless one of the parties had at the 
 date thereof his or her usual place of residence there, or had lived in 
 Scotland for twenty-one days next preceding such marriage ; any law, 
 custom, or usage to the contrary notwithstanding' (m). 
 
 Where it appeared that the second marriage took place at Gretna 
 Green, and upon the whole evidence the assent of the second wife was 
 not ' distinctly and clearly proved,' and, though the parties had lived 
 together afterwards, the evidence tended rather to shew that they were 
 living together in a state of concubinage, inasmuch as the prisoner still 
 continued to address her by her maiden name, Alderson, B., directed the 
 jury to find the prisoner not guilty (n). And where on an indictment for 
 bigamy, to prove the second marriage in Scotland, a witness stated that she 
 (being the sister of the second wife) was present at a ceremony performed 
 by a minister of a congregation, but whether of the Kirk she did not know, 
 in her private house in Edinburgh ; that she herself was married in the 
 same way, and that parties were always married in Scotland in private 
 houses ; that the prisoner and her sister lived together in her house as 
 man and wife for a few days after the ceremony ; and the jury found the 
 prisoner guilty ; upon the question being reserved whether the evidence 
 was sufficient to justify the verdict, it was held that, even supposing that 
 the witness had been a competent witness for such a matter, her evidence 
 did not prove a marriage in fact (o). 
 
 Ireland. — The rules as to prohibited degrees of consanguinity and 
 affinity are the same in Ireland as in England (p), and marriages within 
 these degrees are absolutely void {n) except in cases within 7 Edw. VII. 
 c. 47 (r). 
 
 It would seem that the celebration of marriages between two 
 Protestants by a Roman Catholic priest is still illegal and punishable (s). 
 
 In Ireland at common law a marriage was not valid unless a clergyman 
 in holy orders of the united churches of England and Ireland was present 
 at the marriage ceremony. Where, therefore. A., a member of the 
 Established Church in Ireland, went, in 1829, accompanied by B., a 
 Presbyterian, to the house of C, a regularly placed minister of the 
 Presbyterians of the parish where C. resided, and there entered into a 
 
 (m) Lawford v. Davis, 4 P. D. 61. This and continued after his death, continues to 
 
 Act put an end to Gretna Green marriages bear an iUicit character, unless there be 
 
 between persons, minors and others, a clear change in its character after the 
 
 domiciled in England. These marriages, death of the husband is known to the 
 
 after certain doubts, had been recognised parties. 
 
 as vahd in England. CVompton v. Bear- (p) By the Irish Statutes, 28 Hen. VIII. 
 
 croft, Bull. (N. P.) 113. Phillips v. Hunter, c. 2 ; 33 Hen. VIII. c. (3 ; 2 EHz. c. 1, s. 2. 
 2 H. Bl. 412, Eyre, C.J. Ilderton v. (q) By Lord Lyndhuist's Act, 5 & 6 Will. 
 
 Ilderton, 2 H. Bl. 145. And see Ogden IV. c. U, ante, p. 996. 
 V. Ogden [1908], P. 46. (»•) As to pre-contracts without consum- 
 
 {n) R. V. Graham, 2 Lew. 97. In the matron, see 12 Geo. I. c. 3, s. 3 (Ir.). 
 same case the same learned judge refused {s) See 12 Geo. I. c. 3, s. 1. R. v. 
 
 to admit the certificate as evidence of the Taggart, 2 Cox, 50. This Act is repealed 
 
 marriage. to an extent difficult to undei stand bv 
 
 (o) R. V. Povey, Dears. 32 : 22 L. J. M. 3 & 4 Will. IV. c. 102, s. I, and is modified 
 
 C. 19. In Lapsley v. Grierson, 1 H. L. C. as to mixed marriages by 33 & 34 Vict. 
 
 498, it was held that illicit cohabitation in c. 110, ss. 32, 33, 38-40. 
 Scotland begun in the lifetime of a husband. 
 
 I 
 
 I 
 
 I
 
 CHAP. XII.J Of Bigamy. 1003 
 
 present contract of marriage with the said B., the minister performing a 
 religious ceremony between them, according to the rites of the Presby- 
 terian church, and A. and B. Hved together as man and wife for some 
 time afterwards ; but A., afterwards during B/s Hfe, married another 
 person in a parish church in England ; it was held, on an indictment for 
 bigamy (under 10 Geo. IV. c. 34 (rep.) ), that the first contract thus 
 entered into was not sufficient to support the indictment (/). 
 
 A woman was married in 1799, at her father's house, in Ireland, in the 
 presence of the friends of both families, by a clergyman of the Church of 
 England, who had been curate of the parish for eighteen years. The 
 parish church was standing, but persons of respectability were usually 
 married at their own houses ; the parties lived together for several years 
 following as man and wife. Upon objection to the validity of this 
 marriage. Best, C.J., said : ' I know of no law which says that celebration 
 in a church is essential to the validity of a marriage in Ireland. The 
 English Marriage Act does not apply, and I am aware of no Irish law 
 which takes marriages performed in that country out of the rules which pre- 
 vailed in this before the passing of that Act.' Dalrymple v. Dalrymple {u) 
 has placed it beyond a doubt that a marriage so celebrated as this has been 
 would have been held valid in this country before the existence of that 
 statute (v). Where in support of a plea of coverture it was proved that 
 Mrs. Q., in 1842, married Mr. Q. at the house of the Rev. F. M., and 
 Mr. M.'s widow produced his letters of orders shewing that he had been 
 ordained deacon and priest by bishops of the Established Church, and 
 also proved that when persons were married at their house, her husband 
 always made an entry in a register book, which she produced, and also 
 gave a certificate of the marriage to the persons married ; and the register 
 contained an entry of the marriage of Mr. and Mrs. Q., and Mrs. Q. proved 
 that she married Mr. Q. as before mentioned, and produced the certificate 
 given to her by Mr. M. ; Parke, B., held that the certificate was admissible 
 as a part of the transaction ; but not the register ; and that the marriage 
 was valid ; for although it was not celebrated in a church, it was a valid 
 marriage at common law [iv). 
 
 Where a woman, being a Roman Catholic, and a man, being a Protest- 
 ant, went in 1826 before W., a clergyman residing in Dublin, who, in his 
 private house, read to them the marriage service, and in the course of it 
 asked her whether she would be the wife of the man. and asked him 
 whether he would be her husband, to which c^uestion both of them 
 answered, ' I will ' ; W. was reputed to be a clergyman of the Established 
 
 (/.) R. V. MUlw [184.3], 8 E. R. 844: 10 CI. (Lyiulluirst), Lord Cottviiliam. niul Lo)-d 
 
 & F. 534. The case was tried at assizes Abinger held it void ; \vhercnj)on, accord - 
 
 and a special verdict found wliich was ing to tlie ancient nile in the law. ncmprr 
 
 removed by certiorari into the Court of prcesitmitiir pro iifiimitr, judgment was 
 
 Queen's Bench. Renin and Crampton.JJ., given for tlie defendant. In Beamish r. 
 
 held the first marriage good; but Renne- Beamish. !) H. L. C. 271; 11 E. K. 73"). 
 
 father, C.J., and Burton, J., held it to it was held tiiat this judgment wa.s a.s much 
 
 be void. In order that 'error' might bo binding a-s if it had pronounced nctnittc 
 
 brought in the House of Lords, Perrin, difisentieute. 
 J., withdrew his opinion, and judg- («) 2 Hagg. (Consist.) .54. 
 
 mcnt was given for the prisoner. In (r) Smith v. Maxwell, Ry. & M. 80. 
 
 the House of Lords, Lords Brougham, liv) Stockbridge r. QuickC, 3 C. & K. 
 
 Denman, and Campbell held the first 30-5. See 7 & 8 Vict. c. 81, po^^ p. 1004. 
 marriage good ; but the Lord Cliancellor
 
 1004 
 
 Offences as to Marriage. 
 
 [BOOKJX. 
 
 Church, and a document purporting to be letters of orders signed and 
 sealed by the late Archbishop of Tuam, dated in 1799, whereby the 
 archbishop certified that he had ordained W. a priest, and which letters 
 were found among W/s papers at the time of his death in July, 1829, 
 was admitted without proof of the handwriting or seal of the archbishop 
 as being more than thirty years old. It was held that this document 
 was properly received in evidence, being above thirty years old : if it 
 had been only signed there could have been no c^uestion as to its admis- 
 sibility, but it was, in fact, also sealed ; but though an archbishop is a 
 corporation sole for many purposes, yet such a certificate has no relation 
 to his corporate character, and the seal must be considered as the seal of 
 the natural person, and not of the corporation ; and consequently that 
 there was sufficient evidence of the marriage (x). 
 
 In a case in 1815 at the Old Bailey, a question was made, whether a 
 marriage of a dissenter in Ireland performed in 1787 by a dissenting 
 minister 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 statutes were cited, from which it was argued that the marriage of 
 dissenters in Ireland ought at least to be in the face of the congregation, 
 and not in a private room. But the recorder is said to have been clearly 
 of opinion that this marriage was valid, on the ground that as, before 
 Lord Hardwicke's Act (26 Geo. II. c. 33), 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 marriage could be pronounced 
 to be illegal: whereas one of the Irish statutes, 21 & 22 Geo. III. c. 25 (y), 
 enacted that all marriages between Protestant dissenters, celebrated by 
 a Protestant dissenting teacher, should be good, without saying at what 
 place they should be celebrated (2). 
 
 Under the Marriages (Ireland) Act, 1844 (7 & 8 Vict. c. 81), passed to 
 remove the mischiefs created by the decision in R. v. Millis {ante, p. 
 1003). a marriage may be lawfully solemnised in certain registered places 
 of public worship or before a registrar. 
 
 By sect. 4, ' Marriages between parties, both or either of whom are 
 Presbyterians, may be solemnized between 8 a.m. and 2 p.m., with open 
 doors, according to the forms used by Presbyterians, in certified meeting- 
 houses, by licence of a Presbyterian minister or by publication of 
 banns ' (a). 
 
 Sect. 32. ' After any marriage shall have been solemnized it shall 
 not be necessary in support of such marriage to give any proof of the actual 
 
 (x) R. V. Bathwiek, 2 B. & Aid. 639. 
 
 (y) Repealed in 1879 (S. L. R. Ir.). All 
 the enactments of the Irish Parliament 
 relating to persons forbidden to solemnise 
 
 marriage are repealed except 12 Geo. I. 
 c. 3, s. 1, which is against clandestine 
 mariiages. Vide ante, p. 1002, note (s). 
 
 (z) R. i^, , Old Bailev, Jan. Sess. 
 
 1815, cor. Silvester, Recorder, MS. The 
 prisoner was an officer in the army ; and 
 
 his first marriage, upon which this question 
 was raised, took place in 1787, at London- 
 derry. The second marriage was cele- 
 brated in London according to the cere- 
 monies of the Church of England. 
 
 (a) A 'marriage before this Act by a 
 Presbyterian minister in Ireland was held 
 void. " R. V. I\Iilhs, ante, p. 1003. The mar- 
 riage laws in Ireland are not altered by 
 49 & 50 Vict. c. 14.
 
 CHAP, xii.j Of Bigamy. 1005 
 
 dwelling of either of the parties previous to the marriage, within the district 
 or presbytery (as the case may be), wherein such marriage was solemnized, 
 for the time required by this Act, or of the consent of any person whose 
 consent thereunto is required by law (6) ; and where a marriage shall 
 have been solemnized in a certified Presbyterian meeting-house, it shall 
 not be necessary to prove that either of the parties was a Presbyterian, 
 or, if the marriage was by licence, that the certificate required to be 
 delivered to the minister granting such licence had been so delivered, or, 
 where the marriage was by banns, that a certificate of the publication of 
 banns had been produced to the minister by whom the marriage was 
 solemnized, in cases where such production is required by this Act ; nor 
 shall any evidence be given to prove the contrary of any of these several 
 particulars in any suit touching the validity of such marriage, or in which 
 such marriage shall be questioned.' 
 
 By sect. 49, ' Except in the case of marriages by Roman Catholic priests, 
 which may now be lawfully celebrated, if any person shall knowingly and 
 wilfully intermarry after the said thirty-first day of March [18i5] in any 
 place other than the church or chapel or certified Presbyterian meeting- 
 house, in which banns of matrimony between the parties shall have been 
 duly and lawfully published, or specified in the licence, where the marriage 
 is by licence, or the church, chapel, registered building or office, specified 
 in the notice and registrar's certificate or licence as aforesaid, or without 
 due notice to the registrar, or without certificate of notice duly issued, or 
 without licence from the registrar, in case such notice or licence is necessary 
 under this Act, or in the absence of a registrar where the presence of a 
 registrar is necessary under this Act, or if any person shall knowingly or 
 wilfully, after the said thirty-first day of March, intermarry in any 
 certified Presbyterian meeting-house without publication of banns, or 
 any licence, the marriage of all such persons, except in any case 
 hereinbefore excepted, shall be null and void.' 
 
 By the Marriage Law (Ireland) Amendment Act, 1863 (26 & 27 Vict, 
 c. 90), s. 11, in the case of all marriages which may legally be solemnised 
 in Ireland and do not come within the Marriages (Ireland) Act, 184:4, 
 or any Act amending it, the parties about to contract the marriage must 
 produce to the clergyman celebrating the marriage a certificate in the 
 form prescribed by the Act (sched. A.) from the registrar of the district 
 in which the marriage is to be solemnised. The certificate is to be 
 signed by the parties, and the witnesses not less than two, and the 
 clergyman, and withm three days of the marriage to be posted to the 
 registrar, and by him entered upon the register (s. 13). 
 
 The Matrimonial Causes and Marriage Law (Ireland) Amendment 
 Act, 1870 (c), contains provisions as to the churches in which marriages 
 may be celebrated (s. 32), the solemnisation of marriages (s. 33), and as to 
 the grant of licences for marriages by certain specified officials (ss. 34-37), 
 including the secretary of the conference of the i\Iethodist or Wcsleyan 
 Church in Ireland {d). 
 
 (b) This (o some extent alters the law of voidable only if proceedings were taken 
 
 Ireland aa laid down in R. v. Jacobs. 1 within the year. 
 
 Mood. 140, that want of consent under (r) Amended in 1871 (34 & .3.") Vict. c. 4fl). 
 
 9 Geo. II. c. 11 (Ir. rep.) made the marriage [d) 34 & 35 Vict. c. 49, s. 21.
 
 1006 Ojfences as to Marriage. [book ix. 
 
 By sect. 38, ' a marriage may, notwithstanding anything to the 
 contrary hereinbefore in this Act contained, be lawfully solemnized by a 
 Protestant Episcopalian clergyman between a person who is a Protestant 
 Episcopalian and a person who is not a Protestant Episcopalian, and by a 
 Roman Catholic clergyman between a person who is a Roman Catholic 
 and a person who is not a Roman Catholic, provided the following 
 conditions are complied with : — 
 
 1st. That such notice is given to the registrar and such certificate 
 is issued as at the time of the passing of this Act is required by 
 the Marriages (Ireland) Act, 1844, as amended by the Marriage 
 Law (Ireland) Amendment Act, 1863, in every case of marriage 
 intended to be solemnized in Ireland according to the rites of 
 the united Church of England and Ireland, with the exception 
 of marriages by licence or special licence, or after the publication 
 of banns. 
 2nd. That the certificate of the registrar is delivered to the clergy- 
 man solemnizing such marriage at the time of the solemnization 
 of the marriage. 
 3rd. That such marriage is solemnized in a building set apart for 
 the celebration of divine service, according to the rites and 
 ceremonies of the religion of the clergyman solemnizing such 
 marriage, and situate in the district of the registrar by whom 
 the certificate is issued. 
 4th. With open doors. 
 
 5th. That such marriage is solemnized between the hours of eight 
 
 in the forenoon and two in the afternoon, in the presence of two 
 
 or more credible witnesses.' 
 
 Sect. 39, after repealing 19 Geo. II. c. 13 (Ir.), as to avoiding marriages 
 
 between Papists and certain Protestants, enacts that ' any marriage 
 
 solemnized by a Protestant Episcopalian clergyman between a person 
 
 who is a Protestant Episcopalian and a person who is not a Protestant 
 
 Episcopalian, or by a Roman Catholic clergyman between a person who 
 
 is a Roman Catholic and a person who is not a Roman Catholic, shall be 
 
 void to all intents in cases where the parties to such marriage knowingly 
 
 and wilfully intermarried without due notice to the registrar, or without 
 
 certificate of notice duly issued, or without the presence of two or more 
 
 credible witnesses, or in a building not set apart for the celebration of 
 
 divine service, according to the rites and ceremonies of the religion of 
 
 the clergyman solemnizing such marriage ' (e). 
 
 By 34 & 35 Vict. c. 49, s. 27, ' Whenever a licence for the marriage 
 of a Roman Catholic with a person not a Roman Catholic shall have been 
 issued, pursuant to ss. 25 or 26 of this Act, such marriage may lawfully 
 be solemnized by a Roman Catholic clergyman between such persons ' (/). 
 Subsisting. — The prosecution must prove that the first husband or 
 wife was alive at the date of the second marriage. This fact may be 
 
 (e) See s. 32. s. 1. R. v. Sunderland, 1 Lew. 109 ; R. 
 
 (f) Before these Acts a marriage cele- v. Orgill, 9 C. & P. 80 ; Swift v. Swift, 3 
 brated in Ireland between a Roman Knapp, 303. Yelverton v. Yelverton, 
 Catholic and a Protestant by a Roman House of Lords, per Lord Wensleydale. 
 Catholic priest was void. 19 Geo. II. c. 13,
 
 CHAP. XII.] Of Bigamy. 1007 
 
 established by the appearance in Court and identification of the party, 
 or by any person who knows the parties and can distinctly prove that the 
 first husband or wife was alive at the crucial date. 
 
 In Reed v. Norman {g), where a daughter wrote to her father in 
 America and the fact that she about two months afterwards received a 
 letter in reply in his handwriting dated 31st May, 1836, was held to be 
 evidence that he was then alive. 
 
 There is no presumption of death from the mere fact that it is long 
 since the first husband or wife was last seen or heard of (h). 
 
 In R. V. Lumley (i), the prisoner was convicted of bigamy. The first 
 marriage was with V., in the year 1836. The second marriage was with 
 L., on July 9, 1847. The prisoner lived with V. till the middle of 1843, 
 when they separated, and from that time no more had been heard of him. 
 There was no evidence as to his age. The judge at the trial directed the 
 jury that it was a presumption of law that V. was alive at the time of the 
 second marriage. Upon a case reserved it was held, that there was no 
 presumption of law that life continued for seven years, or for any other 
 period after the time of the latest proof of the life of the party, and that 
 it was a question of fact for the jury, under the circumstances of each case, 
 whether a person be alive or dead at any time within the interval of seven 
 years, at the termination of which the protection afforded by statute in 
 cases of bigamy comes into operation, and the conviction was quashed. 
 
 In R. V. Willshire (_/), the prisoner had married PI E. in 1864, and 
 while she was still alive he, in April, 1868, married A. L. He was convicted 
 of bigamy for this, and in 1879 he married C. L., and while C. L. was still 
 
 {g) 8 C. & P. 65. Denman, C.J., held probability find that he \va.s so. If, on the 
 
 in the same case, that the postmark was other hand, it were proved that he was then 
 
 evidence that the letter was put into the in a dying condition and nothing further 
 
 post, but that the letter might have been was proved, they would probably decline to 
 
 written at any time, and therefore proof draw that inference. Thus the question is 
 
 was given that it was in reply to the entirely for the jury. The law makes no 
 
 daughter's letter ; but this .seems to have presumption cither way. The cases cited 
 
 been urmecessary, for the date is prima of R. v. Twyning, 2 M. & W. 894 ; R. r. 
 
 facie evidence of the time when an instru- Harborne, 2 A. & E. 540 ; and Doc d. 
 
 nient is written. See R. v. Harborne, 2 Knight v. Ncpcan, 5 B. & Ad. 8(), ajipcar 
 
 A. & E. 540. Sinclair v. Baggaley, 4 M. & to establish this jiroposition. Where the 
 
 W. 313. Hunt V. Massey, 5 B. & Ad. 903. only evidence is that the jjarty was living 
 
 Potez V. Glossop, 2 E.x. 191. Anderson v. at a period which is more than seven years 
 
 Weston, G Bing. (N. C.) 290. Morgan v. prior to the second marriage, there is no 
 
 Whitmore, 6 Ex. 710. question for the jury. The proviso in tho 
 
 (h) 8ee R. v. Lumley, L. R. 1 C. C. R. Act then comes into operation, and exon- 
 
 196. R. V. Willshire, 6 Q.B.D. 366, infra. erates the prisoner from criminal culpa- 
 
 (i) L. R. 1 C. C. R. 190 ; 38 L. J. M. C. 86. bility, though the first husband or wife 
 
 In an indictment for bigamy it is incum- be proved to have been living at tiie time 
 
 bent on the prosecutor to prove to the satis- when the second marriage was contracted. 
 
 faction of the jury that the husband or wife. The Legislature l)y tiiis proviso sanctions a 
 
 as the case may be, was alive at the date presumption that a jierson wlio lia.s not 
 
 of the second marriage, and that is purely been heard of for seven yeai-s is dead ; 
 
 a question of fact. Tiic existence of the but tho proviso aflfords no groimd for tho 
 
 party at an antecedent period may or may convei-se proposition, viz., that when a 
 
 not afford a reasonable inference that he party has been seen or heard of witiiin 
 
 was living at the subsequent date. If, for seven years a presumjition arises that he 
 
 example, it were proved that he was in is still living. That in always a question of 
 
 goodhealthon the day preceding the second fact. .See Murray r. R., 7 Q.B. 700. R. r. 
 
 marriage, the inference would be strong, Apley, 1 Cox, 71. 
 
 almost irresistible, that he was living on (/) Q.B.D. 360; 50 L. J. M. C. 57. 
 the latter day, and the jury would in all
 
 1008 Offences as to Marriage. [book ix. 
 
 alive he, in September, 1880, married E. M. For this last marriage he 
 was again indicted for bigamy, the indictment charging that ' his wife 
 C/ was then alive. There was no evidence that E. E. was alive at the 
 date of the prisoner's marriage to C. L., — which would have made that 
 marriage invalid, — and the judge held that under the circumstances the 
 burden of proving that E. E. was alive at that date lay on the prisoner. 
 He was convicted, but the Court quashed the conviction on the ground 
 that it was a question for the jury whether upon the facts proved E. E. 
 was alive at the date of the prisoner's marriage to C. L. If E. E. was 
 alive at the date of the prisoner's marriage to C. L. that marriage was 
 void {jj) ; and that marriage being void, the subsequent marriage with 
 E. M. would not be bigamous, unless the prisoner could be shewn to have 
 known of E. E.'s having been alive within the seven years, and even in 
 that case he could not have been convicted on the indictment as it stood. 
 
 Continual Absence for Seven Years.— 24 & 25 Vict. c. 100, s. 57, does 
 not extend to ' any person marrying a second time, whose husband or 
 wife shall have been continually absent from such person for the space 
 of seven years then last past, and shall not have been known by such 
 person to be living within that time ' (k). 
 
 This exception is available only as a defence to an indictment for 
 bigamy, and even if proved does not vahdate the second marriage (/). 
 
 Where there has been such absence, the burden of proof is not upon 
 the prisoner to shew that it was not known to him or her that the wife 
 or husband was living within such time. On an indictment for bigamy, 
 it was proved that the prisoner and his wife had lived apart for seven 
 years, and that the prisoner then married again. There was no evidence 
 of the prisoner's knowledge of the existence of his first wife at the time 
 he married again. The prisoner was convicted. It was held, that the 
 burden of proof that the prisoner did not know that his wife was alive 
 at the time he contracted the second marriage was not on the prisoner, 
 and that the conviction could not be sustained (m). 
 
 But where there was no evidence of any separation or of the date when 
 the prisoner last saw his wife, it was held that the presumption was that 
 the first wife was living at the time of the second marriage, although it 
 took place seventeen years after the first marriage (w). 
 
 Even where the first husband or wife has not been continually absent 
 for seven years it is a good defence to prove a bona fide belief upon reason- 
 able grounds that at the time of the second marriage the first husband 
 or wife was dead (o). Such bona fide belief is not sufficient unless proper 
 and reasonable inquiries have in fact been made by the prisoner (p). 
 
 [jj) There being evidence that E. E. was (m) R. v. Cui'gerwen, L. R. 1 C. C. R. 1. 
 
 alive in 1868, in the absence of evidence to See R. v. Heaton, 3 F. & F. 819. 
 the contrary she must be presumed to have (w) R. v. Jones, 11 Q.B.D. 118. 
 
 been alive in 1879, though her disappear- (o) R. v. Tolson, 23 Q.B.D. 168, 
 
 ance for over seven years would be a bar Coleridge, L.C.J., Hawkins, Stephen, Cave, 
 
 to conviction for bigamy with E. M. Vide Day, A. L. Smith, Wills, Grantham, and 
 
 infra. Charles, JJ. : diss. Denman, Field, Manisty, 
 
 [k) See 1 Hale, 693 ; 3 Co. Inst. 88 ; 4 JJ., and Pollock and Huddleston, BB., vide 
 
 Bl. Com. 164 ; 1 East P. C. 466 ; R. v. ante, p. 101. 
 
 Cullen, 9 C. & P. 681 ; R. v. Jones, C. & (p) R. v. Thomson [1905], 70 J. P. 6, 
 
 M. 614 ; R. V. Briggs, D. & B. 98. Bosanquet, Common Serjeant. Cf. R. v. 
 
 {I) 4 Bl. Com. 164, note. Sellars [1905], 9 Canada Crim. Cas. 153. 
 
 f 
 
 i
 
 CHAP. XII.] Of Bigmmj. 1009 
 
 But the fact that the prisoner deserted his first wife does not 
 deprive him of the defence created by the exception or that of bona fide 
 belief (r/). 
 
 Second Marriage. — It is necessary to prove that the prisoner went 
 through a form of marriage with the second consort which, but for the 
 existence of the impediment of the former marriage, would have been 
 recognised as a marriage valid in form by the law under whose forms it 
 was celebrated. The words of the statute, ' whosoever being married shall 
 marry any other person,' are to be read as though they were, ' whosoever 
 being married shall go through the form and ceremony of marriage,' and 
 the form and ceremony gone through must be such as is known to 
 and recognised by the law as capable of producing a valid marriage, and 
 such a circumstance as that the parties are within the forbidden degree 
 of consanguinity will not prevent the marriage from being bigamous. 
 Where a married woman went through the ceremony of marriage with 
 her deceased sister's husband, it was held that although such second 
 marriage was void under the Marriage Act, 1835 (5 & 6 Will. IV. c. 54, s. 
 2, ante, p. 996), yet she had committed the crime of bigamv (r). 
 
 Where the prisoner's first wife being dead, he married again, and 
 subsequently went through the form of marriage with his first wife's 
 niece, that marriage was held to be void, but it was also held that the 
 prisoner was rightly convicted of bigamy (s). 
 
 Where in order to establish a charge of bigamy in a divorce suit it 
 was proved that the husband married a woman in Australia according 
 to the forms of the Church of Scotland, but there was no proof that such 
 forms were recognised as legal by the laws of the colony, it was held that 
 the bigamy was not established (t). 
 
 iq) R. V. Faulkes, 19 T. L. R. 2.50, unauthorised person, or in an unauthorised 
 
 Kennedy, J. Cf. R. v. Siffers [1904J, place, would be a " marrying " within the 
 
 N. S. W. State Rep. 320. meaning of tlie r)7tli section of the 24 & 2.5 
 
 ()■) R. V. Brawn, 1 C. & K. 144, Denman, Vict. It will be time enough to deal with 
 
 C.J. Such marriages contracted in the a case of this description when it arises. 
 
 U.K. are no longer void or voidable as It is sufficient for the present purpose to 
 
 civil contracts, and such marriages con- hold, as we do, that whcie a person already 
 
 tracted before Aug. 28, 1907, are witli bound by an existing marriage goes through 
 
 certain savings declared valid (7 Edw. VIT. a form of marriage known to and recognised 
 
 c. 47, s. 1). Marriage with the sister of a by tlie law as capable of producing a valid 
 
 divorced wife is during the lifetime of the marriage, for the purpose of a pretended 
 
 latter still unlawful, s. 3 (2). and fictitious marriage, the case is not the 
 
 (s) R. V. Allen, L. R. 1 C. C. R. 307,41 L. less within the statute by reason of any 
 
 J. M. C. 97, which overrules (he decision in special circumstances which, indei)endentiy 
 
 R. V. Fanning, 10 Cox, 41 1 (Ir.), that bigamy of the bigamous character of the marriage, 
 
 was not committed in respect of a marriage may constitute a legal disability in the 
 
 by a Roman Catholic priest, of a Protestant particular parties, or make the form of 
 
 to a Catholic, declared void by the Irish maniage resorted to sjiecially inapplicable 
 
 Act, 19 Geo. II. c. 13. Cf. R! v. Wriuht, to their individual casp.' 
 28 Ir. L. T. R. 131. InR. v. Allen the {t) Burt v. Burt, 29 L. J. P. & M. 133, 
 
 Court said: ' In thus holding, it is not at approved in R. c. Allen, .•(«/;ra. It has been 
 
 all necessary to say that forms of marriage held by a majority of the Court in Ireland 
 
 unknown to the law. as was the case in tiiat where tlie tirst marriage is shewn to 
 
 Burt V. Burt, uifra, would suffice to bring have been contracted in a foreign state 
 
 a case within the operation of the statute. according to the laws of the Roman 
 
 We must not be understood to mean that Catholic church it will be presumed to be 
 
 every fantastic form of marriage to wliicii valid without proof of the law of that state 
 
 parties might think proper to resort, or relating to marriage. R. v. Griffin, 14 Cox, 
 
 that a marriage ceremony performed by an 308. 
 
 VOL. I. 3 T
 
 1010 Offences as to Marriage. [book ix. 
 
 Dissolution or Nullification. — If the first husband or wife is proved to 
 have been alive at the date of the second marriage, it is for the defence 
 to prove the dissolution or nullification of the marriage and not for the 
 prosecution to negative it. 
 
 The third exception to sect. 57 {ante, p. 980) provides that the 
 section shall not extend to any person who at the time of such second 
 marriage shall have been divorced from the bond of the first marriage by 
 a Court of competent jurisdiction (u). A judicial separation which has 
 the effect of a divorce a mensd et thoro is not within the exception {v). 
 Under the Act of James, if a divorce a vinculo had been decreed, though 
 an appeal by one of the parties suspended the sentence, a marriage 
 pending the appeal was aided by the exception in that statute {w). 
 
 Under the present law a divorced person may marry again immediately 
 after the decree of divorce has been made absolute, if the time limited 
 for appealing has expired and no appeal has been presented, or if the 
 appeal presented has been dismissed or on the appeal the marriage has 
 been dissolved {x). 
 
 To avail as a defence the divorce must be by statute [y) or by the 
 judgment of a Court having jurisdiction to dissolve the first marriage. 
 It would seem that the words, ' by a Court of competent jurisdiction,' in 
 sect. 57 apply to divorce a vinculo as well as to nullity. 
 
 It is immaterial where the divorce was granted if the Court granting 
 it had jurisdiction to pronounce a decree of divorce between the 
 parties. This jurisdiction, according to the English view of inter- 
 national law, depends on the domicil of the husband at the date of the 
 proceedings. 
 
 In Lolley's case {z) the prisoner was indicted under 1 Jac. I. c. 11, for 
 bigamy. Both his marriages were in England ; but before his second 
 marriage his wife had obtained a divorce a vinculo from him in the 
 Commissary or Consistorial Court of Scotland (a). It appeared that he 
 took his wife into Scotland, that she might be induced to institute a suit 
 against him there ; and that he cohabited with a prostitute there, for the 
 very purpose of irritating his wife, and furnishing ground for the divorce. 
 The question then arose whether the Scotch divorce came within the 
 exception in the statute of James. The point was reserved. The judges 
 were unanimous that no sentence or act of any foreign country or state 
 
 {u) The Act of James did not apply {x) The appeals are now usually from 
 
 where the first marriage was between the decree nisi, 20 & 21 Vict. c. 85, s. 57 ; 
 
 persons below the age of consent, 3 Co. 44 & 45 Vict. c. 68, ss. 9, 10. See Chich- 
 
 Inst. 59, nor where a divorce a mensd et ester v. Mure, 32 L. J. Mat. 146. 
 
 thoro has been granted. 1 Hale, 694. 3 Co. {y) As in the case of marriages of persons 
 
 Inst. 89. 1 Hawk. c. 42, s. 5. 4 Bl. Com. domiciled in Ireland. 
 
 164. Middleton's case. Old Bailey, 14 Car. (z) R. & R. 297 & MS. Bayley, J. : 
 
 II. Kel.( J.)27. And see 1 East, P. C. 467. 2 CI. & F. 567n. The case is referred 
 
 (v) Matrimonial Causes Acts, 1857 (20 to by the Lord Chancellor in Tovey v. 
 
 & 21 Vict. c. 85), ss. 16, 27, and 1884 (47 Lindsay, 1 Dow. (H.L.) 117,and see5Evans, 
 
 & 48 Vict. c. 68), s. 5. Coll. St. 348, note (4). 
 
 (iv) 3 Co. Inst. 89. 1 Hale, 694, citing (a) Upon the subject of the dissolution 
 
 Co. P. C. c. 27, p. 89, and stating further of marriages, celebrated under the English 
 
 that if the sentence of divorce be reversed law, by the Consistorial Court of Scotland, 
 
 or recalled, a marriage afterwards is not see a publication of Reports of some 
 
 aided by the exception, though there was Decisions of that Court, by James Fergus - 
 
 once a divorce. son, Esq., Advocate, one of the judges.
 
 CHAP, xii.] Of Bigamy. 1011 
 
 could dissolve an English marriage a vinculo for grounds on which it was 
 not liable to be dissolved a vinculo in England ; and that no divorce of 
 an Ecclesiastical Court was within the exception in the third section of 
 the statute, unless it was the divorce of a Court within the limits to which 
 that statute extended (6). The judges gave no opinion upon the husband's 
 conduct in drawing on his wife to sue for the divorce, because the jury 
 had not found fraud. 
 
 It is clear that in Lolley's case the domicil of the husband was 
 English and not Scotch (c), and the case has been much commented upon, 
 and must be treated as either wrong in itself or as inapplicable to the 
 words of the present statute, which contains the words ' any Court of 
 competent jurisdiction,' and is not limited like the Act of James to 
 Ecclesiastical Courts. According to the ruling decisions, both in the 
 House of Lords {d) and in the Privy Council (e), the test of competency 
 of a Court to grant a divorce a vinculo depends not on the placs where 
 the marriage was celebrated nor on the nationality of the parties, but on 
 the hona fide existing domicil of the husband at the date when the Court 
 is asked to exercise its jurisdiction (/). The English Courts will, however, 
 recognise a decree of divorce by a Court not of the domicil if the Court 
 of the domicil would recognise the decree (g). 
 
 The English Courts will recognise as valid the decision of a 
 competent Christian tribunal, dissolving the marriage between a person 
 domiciled in the country where such tribunal has jurisdiction, and 
 an English woman, when the decree of divorce is not impeached 
 by any species of collusion or fraud, and this although the marriage 
 may have been solemnised in England, and may have been dissolved 
 for a cause which would not have been sufficient to obtain a divorce in 
 England (h). 
 
 The fourth exception to sect. 57 {atite, p. 980) is that the Act shall not 
 extend ' to any person whose former marriage shall have been declared 
 void by the sentence of any Court of competent jurisdiction,' It was 
 resolved upon the Act of James, by all the judges, that a sentence of the 
 spiritual Court against a marriage, in a suit of jactitation of marriage, was 
 not conclusive evidence so as to stop the counsel for the Crown from proving 
 the marriage; the sentence having decided on the invalidity of the marriage 
 only collaterally, and not directly ; and further, admitting such sentence to 
 be conclusive, yet that counsel for the Crown might avoid the effect of such 
 sentence, by proving it to have been obtained by fraud or collusion (t). 
 
 (b) The words of 1 Jac. I. c. 11, were (c) See Harvey v. Farnie, 5 P. D. 15.3: 
 
 ' divorced by any sentence in the Eccle- G P. D. 35, I^e Mesurier r. Ia} Mesurier 
 
 siastical Court: The words of s. 57 are, [1895], A. C. 517. Bater v. Batcr [1906], 
 
 ' divorced from the bond of the first P. 209, 229, 2.35. 
 
 marriage.' 'These words are so much more (d) Harvey v. Famic, 8 App. Cas. 43. 
 
 general, that it may be contended tlmt (e) Le Mesurier v. Le Mesurier, ubi sup. 
 
 they except every case where, according (/ ) As to circumstances under whicli a 
 
 to the laws of the country where the wife may be entitled to seek dissolution 
 
 divorce takes place, there is a legal divorce in the country where slie resides. See 
 
 a vinculo matrimonii, and the words " any Ogden v. Ogden [1908], P. 46, 82. 
 
 Court of competent jurisdiction " in the (;/) Armitage r. Att.-Gen. [190(5], P. 135. 
 
 next clause, instead of the words " the (h) Harvey v, Farnie, uhi sup. Cf. 
 
 Ecclesiastical Court," in 1 Jac. I. c. 11, Bater r. Bater, ubi sup. 
 
 seem to favour this view of the exception.' (i) Duchess of Kingston's case [1776], 20 
 
 C. S. G. St. Tr. 355 ; 2 Smith, L. C. (11th ed.) 731. 
 
 3t2
 
 1012 Offences as to Marriage. [book ix. 
 
 There is no exception in the Act where marriages are within the age 
 of consent (j). 
 
 The dissolution or nullification of the marriage must be proved by 
 producing the private Act (k) or the judgment, decree, or sentence of the 
 Court which purported to dissolve or annul the marriage, and by estab- 
 lishing the competence of the tribunal to grant a decree which is valid 
 according to English views of international private law. 
 
 It has been held that a Jewish divorce can only be proved by producing 
 the document of divorce delivered by the husband to the wife (l). But 
 this ruling, if good for any purpose (m), does not apply to dissolution or 
 nullification in England of a Jewish marriage, and if still applicable to such 
 divorces granted abroad must be supplemented by evidence that such 
 divorce was valid in the country in which it took place, e.g. in Turkey, 
 where marriage and divorce are regulated by the law of the religious 
 community to which the parties belong (n). 
 
 Sect. II. — False Statements Made to Obtain or Prevent Marriage. 
 
 By the Marriage Act, 1823 (4 Geo. IV. c. 76), ' For avoiding all fraud 
 and collusion in obtaining licences for marriage ' (o), it is enacted (s.l4), 
 ' that before any such licence be granted, one of the parties shall personally 
 swear before the surrogate (p), or other person having authority to grant 
 the same, that he or she believeth that there is no impediment of kindred 
 or alliance or of any other lawful cause nor any suit commenced in any 
 Ecclesiastical Court to bar or hinder the proceeding of the said matrimony 
 according to the tenor of the said licence, and that one of the parties hath 
 for the space of fifteen days immediately preceding such licence had his 
 or her usual place of abode within the parish or chapelry within which 
 such marriage is to be solemnized : and where either of the parties, not 
 being a widow or widower, shall be under the age of twenty-one years, 
 that the consent of the person or persons whose consent is required under 
 the provisions of this Act (q) have been obtained thereto : Provided 
 always, that if there be no such person or persons having authority to 
 give consent, then upon oath made to that effect by the party requiring 
 such licence it shall be lawful to grant such licence notwithstanding the 
 want of any such consent.' 
 
 ij) See R. V. Birmingham, 8 B. & C. 29. Act of 1823. In R. t'. Fairlie, 9 Cox, 209, the 
 
 As to former law see a7ite, p. 995, note (p). defendant was indicted for falsely swearing 
 
 (k) In the case of Irish marriages. before a surrogate that the father had given 
 
 (Z) Lacon v. Higgins, 3 Stark. (N. P.) 178. his consent to the marriage of bis daughter. 
 
 (m) See the learned note by the reporter, The evidence was that the girl was the 
 
 ibid. illegitimate daughter of G. E., who had not 
 
 (n) See Parapano v. Happaz [1894], given his consent to her marriage. The 
 
 A. C. 195. Recorder held that, as the indictment had 
 
 (o) By the rites of the Church of England. described G. E. as the natural and lawful 
 
 (p) By the canon law and the practice fathei', and the evidence shewed that 
 
 of the Ecclesiastical Courts the surrogate has E. A. E. had no natural and lawful father, 
 
 power to administer the oath (see canon the prisoner must be acquitted, on the 
 
 103 of 1603 and R. v. Chapman, 1 Den. ground of variance between the indictment 
 
 432, Parke, B.). And see 7 Will. IV, & 1 Vict. and the evidence. The question whether 
 
 c. 22, s. 30, post, p. 1013. By 3 Geo. IV. the putative father came within 4 Geo. IV. 
 
 c. 75, s. 10 (rep.), a false oath before a c. 26, s. 16, was not decided, 
 
 surrogate was made perjury. No specific (q) ss. 16, 17. 
 provision to that effect is contained in the
 
 GHAP. XII.] False Statements made to Obtain, dc, Marriage. 1013 
 
 An offence within the section may be committed by a person falsely 
 swearing that he is one of the parties for whose marriage the licence is 
 required (r). The offence is committed even when the marriage has not 
 been and will not be solemnised (s). In R. v. Chapman (s) the prisoner 
 had personated the man for whom the licence was required and had falsely 
 stated the residence of the woman. 
 
 An oath taken under the section which is false to the knowledge of the 
 taker in any one of the essential particulars required by the section, 
 seems not to be punishable as perjury but is indictable as a misdemeanor 
 at common law, because it is an attempt to deceive a public officer with 
 reference to a matter of public concern {t). 
 
 By sect. 30 of the Registration Act, 1837 (7 Will. IV. & 1 Vict. c. 22), 
 ' Every person before whom by the said Acts ' {i.e. Marriage Act, 1836 
 (6 & 7 Will. IV. c. 85), or the Marriage Registration Act, 1836 (6 & 7 
 Will. IV. c. 86) ) ' or either of them, an oath is directed to be taken, is 
 hereby authorised to administer the same.' 
 
 By the Births and Deaths Registration Act, 1836 (6 & 7 Will. IV. 
 c. 86), s. 41, ' Every person who shall wilfully make or cause to be 
 made for the purpose of being inserted in any register {u) of . . . marriage 
 any false statement touching any of the particulars herein required to be 
 known and registered (v) shall be subject to the same penalties as if he 
 were guilty of perjury ' (w). 
 
 To support an indictment under this section it is essential that the false 
 statement should have been made wilfully and intentionally and not 
 by mistake only (x). 
 
 The -Marriage Act, 1840 (3 & 4 Vict. c. 72), which provides for the 
 solemnisation of marriages in buildings out of the district wherein one 
 or both parties have dwelt for the time required by the Marriage 
 Act, 1823 (ss. 1-3), enacts (s. 4) that ' every person who shall knowingly 
 and wilfully make any false declaration under the provisions of this Act 
 for the purpose of procuring any marriage out of the district in which 
 the parties or one of them shall dwell shall suffer the penalties of 
 perjury {y). Provided always that no such prosecution shall take place 
 after the expiration of eighteen calendar months from the solemnization 
 of such marriage.' 
 
 By the Marriage and Registration Act, 1856 (19 & 20 Vict. c. 119), s. 2, 
 * Every person who shall knowingly or wilfully make and sign or subscribe 
 any false declaration, or who shall sign any false notice (2) for the purpose 
 
 (r) R. V. Chapman, 1 Den. 432 ; decided under this section it i.s not necessary to 
 
 on 4 Geo. IV. c. 17. prove that the register in question was 
 
 (s) Id. ibid. provided by the Registrar-General. R. »•. 
 
 (t) R. V. Chapman, 1 Den. 432, dcci.led lirown [ 1848], 17 L. J. M. C. 145 ; 2 €. & K. 
 
 on a similar provision in 4 Geo. IV. c. 17 604. 
 
 (rep.). Vide ante, p. 628, and cf. R. v. Iv) See 8. 40 and sched. C. of the Act. 
 
 Foster, R. & R. 459. R. r. Vcrelst, 3 Camp. (ir) The portions omitted (relating to 
 
 422. Such an oath, if taken by a layman. births and deaths) were repealed in 1874 
 
 seems not to be cognisable in an Ecclcsi- (37 & 38 Vict. c. 88, s. 54). 
 astical Court. PliiHimore r.Machon, 1 P. D. (ar) R. r. Lord Dunboyne, 3 C. & K. 1, 3, 
 
 4811. Campbell, C.J. 
 
 (u) The Registrar-General is required to (y) Ante, p. 455. 
 
 provide these registers (5 & 6 Will. IV. c. 8(5, (z) i.e. a notice to the registrar of 
 
 s. 30), but on a prosecution for an offence marriages.
 
 1014 
 
 Offences as to Marriage. 
 
 [BOOK IX. 
 
 of procuring any marriage under the provisions of any of the said recited 
 Acts (a) or this Act shall suffer the penalties of perjury ' (6). 
 
 By sect. 18, ' Any person who shall knowingly or wilfully make any 
 false declaration or sign any false notice required by this Act for the 
 purpose of procuring any marriage, and every person who shall forbid 
 the granting by any superintendent registrar of a certificate for marriage 
 by falsely representing himself or herself to be a person whose consent 
 to such marriage is required by law, knowing such representation to be 
 false, shall sufi^er the penalties of perjury' (c). 
 
 This penal provision extends to banns published or certificates issued 
 on King's ships at sea (cc). 
 
 By the Foreign Marriage Act, 1892 (55 & 56 Vict. c. 23), s. 15, ' If 
 a person— 
 
 (a) knowingly and wilfully makes a false oath (d) or signs a false 
 notice (e) under this Act, for the purpose of procuring a 
 marriage ; or 
 (6) forbids a marriage under this Act by falsely representing himself 
 to be a person whose consent to the marriage is required by law, 
 knowing such representation to be false, 
 such person shall suffer the penalties of perjury (c) and may be tried 
 in any county in England and dealt with in the same manner in all respects 
 as if the offence had been committed in that county/ 
 
 By sect. 17, ' All the provisions and penalties of the Marriage Eegis- 
 tration Acts, relating to any registrar or register of marriages or certified 
 copies thereof , shall extend to every marriage officer, and to the registers 
 of marriages under this Act, and to the certified copies thereof (so far as 
 the same are applicable thereto), as if herein re-enacted and in terms 
 made applicable to this Act, and as if every marriage officer were a 
 registrar under the said Acts.' 
 
 By the Marriage Act, 1898 (61 & 62 Vict. c. 58), which relates to 
 marriages in buildings in England registered for solemnising marriage 
 therein under the Marriage Act, 1836, solemnisation of marriages may 
 take place without the presence of the registrar (unless the parties give 
 him notice requiring his attendance) but in the presence of a person duly 
 authorised under the Act and according to such form and ceremony as 
 the parties may see fit to adopt (ss. 4—10). The Act came into operation 
 on April 1, 1899 (s. 3), and it does not extend to Scotland or 
 Ireland (s. 2). 
 
 By sect. 12, ' If any authorised person refuses or fails to comply with 
 this Act or the enactments or regulations for the time being in force with 
 respect to the solemnization and registration of marriages he shall be 
 
 law having been given. 
 
 (c) Ante, p. 455. 
 
 {cc) Naval Marriages Act, 1908 (8 Edw. 
 VII. c. 26), s. 3. 
 
 {d) As to residence, necessary consents, 
 and absence of impediments by kindred, 
 alliance or otherwise (s. 7). 
 
 (e) See s. 4, forbidding marriage, with- 
 out the consents required for a marriage 
 in England. 
 
 (a) The Marriage Act, 1836 (6 & 7 Will. 
 IV. c. 85) : the Marriage Act, 1837 (7 Will. 
 IV. & 1 Vict. c. 22) : and the Marriage 
 Act, 1840 (3 & 4 Vict. c. 72). 
 
 (b) i.e. solemn declaration in writing at 
 the foot of a notice of marriage, signed or 
 subscribed by a party intending maniage, 
 that he or she believes there is no impedi- 
 ment of kindred or alhance or other lawful 
 hindrance to the marriage, as to residence, 
 and as to the consents, if any, required by
 
 CHAP. XII.] Offences as to Solemnisation, Registration, &c. 1015 
 
 guilty of an offence against this Act, and shall be liable on summary 
 conviction to a penalty not exceeding £10, or on conviction on indictment 
 to imprisonment with or without hard labour for a term not exceeding 
 two years or to a fine not exceeding £50, and shall on conviction cease 
 to be an authorised person.' 
 
 By sect. 15, ' So much of sects. 39 and 42 of the Marriage Act, 1836( /'), 
 as punishes the solemnisation of or renders void any marriage by reasoii of 
 the absence of the registrar is hereby repealed as regards any marriage 
 authorised by and solemnized in accordance with this Act.' 
 
 By sect. 6 (3), " authorised person " is defined as " a person certified as 
 having been duly authorised for the purpose by the trustees or other 
 governing body of the building or of some registered building in the same 
 registration district " including by sect. 1 in the case of Roman Catholic 
 registered buildings " the bishop or vicar-general of the diocese." ' 
 
 By the Naval Marriages Act, 1908 (8 Edw. VII. c. 26), s. 3, ' All 
 enactments (including penal provisions) relating — 
 
 (1) to the publication of banns and certificates thereof, and 
 
 (2) to notices and declarations for obtaining certificates from super- 
 intendent registrars and to such certificates and to all rules required 
 under such enactments to be observed shall apply in the case of marriages 
 to which this Act applies, subject to such adaptations therein as may be 
 made by his Majesty by Order in Council ' {(j). 
 
 Sect. III. — Offences With Resvect to Solemnisation, 
 Registration, &c. 
 
 Royal Marriages. — Marriages of members of the Royal family are 
 specially excej)ted from the Marriage and Registration Acts {h), and are 
 governed by the Royal Marriages Act, 1772 (12 Geo. III. c. 11), which 
 confirms the prerogative of the Crown to superintend and approve of the 
 marriages of the Royal family (t). The first section enacts, ' That no 
 descendant of the body of his late Majesty King George the Second, male 
 or female (other than the issue of princesses who may have married, or may 
 hereafter marry, into foreign families) {j), shall be capable of contracting 
 matrimony without the previous consent of his Majesty, his heirs, or 
 successors, signified under the great seal, and declared in council (which 
 consent, to preserve the memory thereof, is hereby directed to be sot out 
 in the licence and register of marriage, and to be entered in the books 
 of the privy council) ; and that every marriage or matrimonial contract 
 of any such descendant, without such consent first had and obtained, 
 shall be null and void to all intents and purposes whatsoever.' 
 
 The only words in the section essential to make the marriage valid 
 are those requiring the previous consent of His Majesty. The words 
 requiring the recording of the consent on the licence and register of 
 
 (/) 6 & 7 Will. IV. c. 85, ante, p. 987. JV. c. 85, 9. 40 ; 55 & 56 Vict. c. 2.3, s. 23. 
 
 (<j) The Act relates to the publication on (i) 1 East V. C. 478. 
 
 King's ships at .«ca of the banns of oflicers, (;) On tiie niarnano of Princess Eupcnic 
 
 seamen, or marines who arc on the ship's Victoria of Battenbcrg to the King of Spain 
 
 books. in 1906, an Order in Council was made. 
 
 {h) 4 Geo. IV. c. 70, s. 30 ; G & 7 Will.
 
 1016 
 
 Offences as to Marriage. 
 
 [BOOK IX. 
 
 marriage are directory only, and apply only to cases where the marriage 
 is celebrated in England by licence {k). 
 
 By sect. 2 provision is made for a marriage, without the Royal 
 consent, of any such descendant, being above twenty-five years of age, 
 after notice to the privy comicil and the expiration of twelve months 
 after such notice ; in case the two Houses of Parliament do not before 
 that time expressly declare their disapprobation of the marriage. 
 
 By sect. 3, . . . ' Every person who shall knowingly or wilfully 
 presume to solemnize, or to assist or to be present at the celebration of 
 any marriage, with any such descendant, or at his or her making any 
 matrimonial contract, without such consent as aforesaid first had and 
 obtained, except in the case above mentioned, shall, being duly convicted 
 thereof, incur and suffer the pains and penalties, ordained and provided 
 by the Statute of Provision and Prcemimire made in the sixteenth year of 
 the reign of Richard the Second ' (c, 5, Rev. Stat. (2nd ed.), vol. i. p. 173). 
 
 This Act applies to all Royal persons falling within its terms, 
 irrespective of the place v/here the marriage takes place [1) ; but the 
 penal clause is defective in not providing for the trial of British subjects 
 who violate the Act outside the realm {m). 
 
 Church of England. — It has not been decided whether refusal by a 
 clergyman of the Church of England to solemnise marriage between a 
 couple who are his parishioners is indictable (n). A man and woman who 
 had obtained a certificate of marriage from a registrar under 6 & 7 Will. 
 IV. c. 85, requested a clergyman to appoint a day and hour for marrying 
 them at his church. He refused to marry them unless the man consented 
 to be confirmed. For this refusal the clergyman was indicted as for a 
 statutory offence. The indictment failed for want of proof of a proper 
 demand, but the Court did not decide that the refusal would be indict- 
 able even by reference to the statute, and Patteson, J., said that refusal 
 to marry after banns would not be indictable (n). 
 
 The clergy of the Church of England and of the Protestant Episcopal 
 Church of Ireland are not subject to any obligation to solemnise the 
 marriage of a person whose former marriage has been dissolved on the 
 ground of his or her adultery (o) ; and a clergyman of the Church of 
 England is not bound to solemnise a marriage between a man and his 
 deceased wife's sister (p). 
 
 The Marriage Act, 1823 (4 Geo. IV. c. 76), which relates only to 
 marriages by licence or banns in churches or chapels of the Established 
 Church of England, enacts (s. 21) that ' if any person shall, from and after 
 the said first day of November [1823], solemnize matrimony in any 
 other place than a church or such pubUc chapel wherein banns may be 
 lawfully published, or at any other time than betwsen the hours of eight 
 in the forenoon and three in the afternoon (7) unless by special licence 
 from the Archbishop of Canterbury ; or shall solemnize matrimony 
 
 (jfc) Per Tindal, C.J., in advising the H.L. 
 on the Sussex Peerage Claim, 11 CI. & F. 
 85, 148 ; 6 St. Tr. (N. S.) 79. 
 
 (/!) Sussex Peerage Qaim, iibi sup. The 
 marriage took place in Rome by the rites 
 of the Church of Rome. 
 
 (m) Id. ibid. 
 
 (??) R. V. James, 2 Den. 1 ; 3 C. & K. 
 
 167 ; 19 L. J. M. C. 179. 
 
 (o) 20 & 21 Vict. 0. 85, s. 57. See s. 58, 
 as to right to use his church. 
 
 (p) 7 Edw. VII. c. 47, s. 1. The Act is 
 silent as to ministers of non-established 
 Churches. 
 
 (q) The hours were extended from 12 
 noon to 3 p.m. by 49 & 50 Vict. c. 14.
 
 CHAP, xii.] Offences as to Solemnisation, Registration, dec. 1017 
 
 without due publication, of banns, unless licence of marriage be first had 
 and obtained from some person or persons having authority to grant the 
 same (r) : or if any person falsely pretending to be in holy orders, shall 
 solemnize matrimony according to the rites of the Church of England, 
 every person knowingly and wilfully so offending, and being lawfully 
 convicted thereof, shall be deemed and adjudged to be guilty of felony, 
 and shall be transported for the space of fourteen (s) years, according to 
 the laws in force for transportation of felons, provided that all prosecutions 
 for such felony shall be commenced within the space of three years after 
 the offence committed ' (t). 
 
 The mere fact of institution to a living is no evidence that the person 
 instituted is in orders, nor does it put him in the position of a person who 
 has received holy orders, nor make him compellable to celebrate marriages. 
 The c|uestion for the jury is, first, whether the prisoner has ever acquired 
 the position and status which made him an ordained minister (u), and 
 if not, whether he knew at the time he performed the ceremony that he 
 had never been ordained (v). 
 
 The Marriage Act, 1836 (6 & 7 Will. IV. c. 85), provides for civil 
 marriages, at the office of a registrar of marriages, and for marriages in 
 his presence at a registered place of worship not belonging to the Church 
 of England, or by the rules of the Church of England on a certificate 
 from the registrar. By sect. 39, ' Every person who after the said first 
 day of March [1837], shall knowingly and wilfully solemnize any marriage 
 in England, except by special licence, in any other place than a church 
 or chapel in which marriages may be solemnized according to the rites 
 of the Church of England, or than the registered building or office speci- 
 fied in the notice and certificate as aforesaid, shall be guilty of felony 
 (except in the case of a marriage between two of the Society of Friends, 
 commonly called Quakers, according to the usages of the said society, 
 or between two persons professing the Jewish religion, according to the 
 usage of the Jews), and every person who in any such registered building 
 or office shall knowingly and wilfully solemnize any marriage in the 
 absence of a registrar (ro) of the district in which such registered building 
 or office is situated, shall be guilty of felony (x) : and every person who 
 shall knowingly and wilfully solemnize any marriage in England after the 
 said first day of March (except by licence) within twenty-one days after 
 the entry of the notice to the superintendent registrar as aforesaid . . . (y) 
 shall be guilty of felony ' (?). 
 
 (r) As to marriages out of church see be Quakers or .Tews (s. 32). C. S. (J. 
 
 6 & 7 Will. IV. c. 85, s. 39. infra. (u) The proper mo<lo of proving this is 
 
 («) Now penal servitude from three to by production of his letters of ordination, 
 
 fourteen years or imprisonment with or Forgery thereof is a misdemeanor at 
 
 without hard labour for not over two years common law. R. v. Etheridu'c. 10 Cox, 076. 
 
 (20 & 21 Vict. c. 3, s. 2 : .54 & 55 Vict. c. 69, (v) R. r. Ellis, 16 Cox. 469. Pollock, B. 
 
 8. 1 ; ante, pp. 211, 212). (c) Repealed by 61 & (52 Vict. c. .*.8. s. 15 
 
 (t) See Lonsd. Cr. L. 140. The Act of (a»i^e, p. lUl 5). as to marriages authorised by 
 
 1823 contains no provisions for the punish- and solemnized in accordance with that Act. 
 
 ment of principals in the second degree and (x) See 19 & 20 Vict. c. 119. s. 9, &c. 
 
 accessories. But the principals in the (;/) The words here omitte<l were rejx-aled 
 
 second degree are punishable like the in i874 (37 & 38 Vict. c. .35). See 7 Will, 
 
 principals in the Krst degree. The Act does IV. and 1 Vict. c. 22, s. 3, post, p. 1018. 
 
 not extend to the marriages of any of (:) Tliis being a felony for which no 
 
 the Royal family (s. 30), nor to any punishment is pro\-idetl. Is punishable 
 
 marriages amongst Quakers or .Jews, where under 7 & 8 Geo. IV. c. 28, s. 8, as amended 
 
 both the parties to any such marriage shall by 51 iV 55 Vict. c. 69, s. 1, ante, p. 246.
 
 1018 Offences as to Marriage. [book ix. 
 
 It is presumed that the building in which a marriage was solemnised 
 was duly registered or licensed for marriage and that the registrar was 
 present (a). 
 
 Sect. 40. ' Every superintendent registrar who shall knowingly and 
 wilfully issue any certificate for marriage after the expiration of three 
 calendar months after the notice shall have been entered by him as 
 aforesaid, or any certificate for marriage by licence before the expiration 
 of seven days after the entry of the notice, or any certificate for marriage 
 without licence before the expiration of twenty-one days after the entry 
 of the notice (6), or any certificate, the issue of which shall have been 
 forbidden as aforesaid by any person authorised to forbid the issue of 
 the registrar's certificate, or who shall knowingly and wilfully register 
 any marriage herein declared to be null and void, and every registrar who 
 shall knowingly and wilfully issue any licence for marriage after the 
 expiration of three calendar months after the notice shall have been 
 entered by the registrar as aforesaid, or who shall knowingly and wilfully 
 solemnize in his office any marriage herein declared to be null and void, 
 shall be guilty of felony.' 
 
 Sect. 41. ' Every prosecution under this Act shall be commenced 
 within the space of three years after the offence committed." 
 
 By the Births and Deaths Registration Act, 1837 (7 Will. IV. & 1 
 Vict. c. 22), s. 3, ' Every superintendent registrar who shall knowingly 
 and wilfully issue any licence for marriage after the expiration of three 
 calendar months after the notice shall have been entered by the superin- 
 tendent registrar, as provided by the Marriage Act, 1836 (c), or who shall 
 knowingly and wilfully solemnize, or permit to be solemnized in his office 
 any marriage in the last recited Act declared to be null and void [d), shall 
 be guiltv of felony ' (e). 
 
 By the Births and Deaths Registration Act, 1836 (5 & 6 Will. IV. c, 
 86), s. 42, ' Every person who shall refuse or without reasonable cause 
 omit to register any marriage solemnized by him which he ought to 
 register . . . and every person having the custody of the register book 
 or certified copy thereof or of any part thereof who shall carelessly lose or 
 injure the same or carelessly allow the same to be injured whilst in his 
 keeping shall forfeit a sum not exceeding £50 for every such offence.' 
 
 By the Forgery Act, 1861 (24 & 25 Vict. c. 98), s. 36 (/), it is made 
 felony punishable by penal servitude for life (g) : — 
 
 (a) ' unlawfully ' to ' destroy, deface, or injure or cause or permit to 
 be destroyed, defaced, or injured any register of . , . marriages 
 . . . which now is or hereafter shall be by law authorised or 
 required to be kept in England or Ireland or any part of any such 
 
 (a) Sichel v. Lambert [1864], 33 L. J. C. Grim. Ct. Scss. Pap., 29 Nov., 1854. 
 
 P. 137, a marriage by the rites of the (e) Punishable under 7 & 8 Geo. IV. c. 
 
 Church of Rome. R. v. Cresswell [1876], 28, s. 8, a)ite, p. 246. 
 
 1 Q.B.D. 446; 45 L. J. M. C. 77, a marriage (/) The section also deals with registers 
 
 by the rites of the Church of England. of births, baptisms, deaths, and burials. 
 
 (6) See 19 & 20 Vict. c. 119, s. 9, &c. (g) Or not less than three years, or im- 
 
 (c) (7/. 6 & 7 Will. IV. c. 85, s. 40, prisonmcnt with or without hard labour 
 supra. for not more than two years (54 & 55 Vict. 
 
 (d) 6&7 Will. IV. c. 85, s. 42, ante, p. 987. c. 69, s. 1, ante, pp. 211, 212). 
 For instance of a prosecution see C^ent.
 
 CHAP. XII.] Offences ivith Respect to Begistration. 1019 
 
 register or any certified copy (h) of any such register or of any 
 part thereof.' 
 
 (b) to ' forge or fraudulently alter in any such register any entry 
 relating to any . . . marriage or any part of any such register or 
 any certified copy of such register or of any part thereof ' {i). 
 
 (c) ' knowingly and unlawfully ' to ' insert or cause or permit to be 
 inserted in any such register or in any certified copy thereof any 
 false entry of any matter relating to any . . . marriage ' (j). 
 
 (d) * knowingly and unlawfully ' to ' give any false certificate relating 
 to any . . . marriage.' 
 
 (e) to ' certify any writing to be a copy or extract from any such 
 register knowing such writing or the part of such register whereof 
 such copy or extract shall be so given to be false in any material 
 particular.' 
 
 (1) to ' forge or counterfeit the seal of or belonging to any registry 
 
 office.' 
 (g) to ' offer, utter, dispose of, or put off, any such register, entry, 
 
 certified copy, certificate, or seal knowing the same to be false, 
 
 forged or altered.' 
 (h) to ' offer, utter, dispose of, or put off, any copy of any entry in 
 
 any such register knowing such entry to be false, forged or altered.' 
 Sect. 36 does not apply to the correction of accidental errors by the 
 officiating minister (k) or registrar (l). 
 
 By sect. 37 it is also felony punishable by penal servitude for life (m) : — 
 
 (a) ' knowingly and wilfully ' to ' insert or cause or permit to be 
 inserted in any copy of any register directed or required by law 
 to be transmitted to any registrar or other officer any false entry 
 of any matter relating to any . . . marriage.' 
 
 (b) to ' forge or alter ' or to ' offer, utter, dispose of, or put off, knowing 
 the same to be forged or altered, any copy of any register so 
 directed or required to be transmitted as aforesaid.' 
 
 (c) ' knowingly and wilfully ' to ' sign or verify any copy of any 
 register so directed or required to be transmitted as aforesaid 
 which copy shall be false in any part thereof, knowing the same 
 to be false.' 
 
 (d) ' unlawfully ' to ' destroy, deface, or injure, or for any fraudulent 
 purpose ' to ' take from its place of deposit or conceal any such 
 copy of any register.' 
 
 {h) Certified copies of registers of his name in tlio register as broth(>r of the 
 
 marriages are made up four times a year bridegroom. To give false information 
 
 by the clergy, &c., who keep them, and sent for the purpose of insertion in tiio register 
 
 to the superintendent registrar or registrar or false information as to a death is within 
 
 of the district (0 & 7 Will. IV. c. 80, s. 33 ; the section. Anon. Anglesey Assizes, July 
 
 7 Will. IV. and 1 Vict. c. 22, s. 3U); and the 24. 1875, Coleridge, L.C.J. 
 latter has also quarterly to send to the (A-) See 11 Geo. IV. and 1 Will. IV. c. 
 
 Registrar- General the certified copies so CO, s. 21. 
 received (6 & 7 Will. IV. c. 86, s. 34). (/) 6 & 7 Will. IV. c. 8(5. s. 44. 
 
 (t) See post, p. 1732, tit. 'Forgery.' (m) Or not less than tlireo yearf, or 
 
 (j) Fraudulent intention is not an imprisonment with or without hard labour 
 
 essential element in the ofTence. R. v. for not more than two }-ears (54 & 55 Vict. 
 
 Asplin [1873], 12 Cox, 3!)1, where the c. 69, s. 1, an/e, pp. 211, 212). 
 defendant was convicted of falsely signing
 
 ( 1020a ) 
 
 CANADIAN NOTES. 
 
 OFFENCES WITH REFERENCE TO MARRIAGE. 
 
 Bigamy, Definition of. — Code sec. 307. 
 
 Incompetency no Defence. — Code sec. 307(2). 
 
 Excuses. — Code see. 307(3). 
 
 Bigamous Marriages Outside Canada. — Code sec. 307(4). 
 
 Form Valid Despite Default of Accused. — Code sec. 307(5). 
 
 Jurisdiction of Parliament. — A British subject, domiciled in Can- 
 ada, and only temporarily absent, continues to owe to Her Majesty, 
 in relation to her government of Canada, an obligation to refrain from 
 the completion, whilst absent without any aniynus manendi, of a pro- 
 hibited act, a material part of which is committed by him in Canada. 
 Re Bigamy Sections ; R. v. Brinkley, 12 Can. Cr. Cas. 454. 
 
 The onus is on the Crown to prove the facts that the defendant was, 
 at the time of the second marriage, a British subject, resident in Can- 
 ada, and had left Canada with intent to commit the offence. R. v. 
 Pierce (1887), 13 Ont. R. 226. 
 
 "Where the indictment is laid under sub-section 4 of sec. 307. for 
 leaving Canada with intent, it should aver that the accused then was a 
 British subject resident in Canada (stating the place in Canada), 
 and that he then being married, left Canada with intent to go through 
 the form of marriage with another person, and did go through such 
 form of marriage in the foreign country (giving name, time and 
 place). R. V. McQuiggan, 2 Lower Canada R. 340. 
 
 It is suggested in Canada Criminal Law (Tremeear) p. 251, that a 
 British subject, resident in Canada, and punishable there for an offence 
 under sec. 307(4), might be tried and punished in England or Ireland 
 for a bigamous marriage in a foreign country, under Imp. Act. 24 & 25 
 Vict. ch. 100, sec. 57. Earl Russell's Case (1901), A.C. 446, supra 080. 
 
 Mens Rea. — The provisoes (a) and (b) of. sub-sec. 3, are supplemen- 
 tary to the common law doctrine of mens rea. A guilty mind is an 
 essential ingredient of the offence of bigamy, and if a woman, after 
 obtaining information that the man, with whom she has gone through a 
 form of marriage, is already married, leaves him and marries another 
 man, her honest and reasonable belief, that tlie man slie left had a wife 
 living, is a good defence to a charge of bigamy. Semble, the fact of 
 such honest and reasonable belief may be found from the circum-
 
 10206 
 
 Offences as to Marriage. 
 
 [book IX. 
 
 stances of the ease without strict proof of the man's former marriage. 
 The King v. Sellars (1905), 9 Can. Cr. Cas. 153 (N.S.). 
 
 An absence of mens rea is not to be inferred from the knowledge 
 of the husband that a divorce had been decreed by the foreign Court 
 on his wife's application, and from his having first obtained legal 
 advice that he could legally marry again, R. v. Brinkley (1907), 12 
 Can. Cr. Cas. 454, 13 O.L.R. 434. (Compare R. v. Thomson (1905), 
 70 J.P. 6.) 
 
 Lengthened Absence.— In R. v. Smith (1857), 14 U.C.Q.B. 565, the 
 first was living at the time of the second ceremony, and it was held that 
 the accused must shew enquiries made, and hond fide and reasonable 
 belief in the wife's death, to excuse his conduct. This decision would 
 not now be followed in the light of R. v. Curgerwen (1865), L.R. 1 
 C.C.R. 1, and of the particular form of words used in sec. 407(&). 
 
 Evidence of a confession by a prisoner of his first marriage is not 
 evidence upon which he can be convicted (following R, v. Savage, 13 
 Cox 178 ; R. V. Ray, 20 Q.R. 212. But in R. v. Creamer, 10 L.C.R. 404, 
 the Court of the Queen's Bench (Quebec), decided to the opposite 
 effect. See also R. v. McQuiggan, 2 L.C.R. 346. 
 
 Validity. — On an indictment for bigamy, the witness called to prove 
 the first marriage, swore that it was solemnized by a justice of the 
 peace in the State of New York, who had power to marry; but this 
 witness was not a lawyer or an inhabitant of the United States, and did 
 not shew how the authority of the justice was derived. This evidence 
 was held to be insufficient. R. v. Smith (1857), 14 U.C.Q.B. 565; R. 
 V. Ray (1890), 20 O.R. 212. 
 
 Upon trials for bigamy proof is required of a first marriage in fact, 
 such as the Court can judicially hold to be valid ; mere evidence of 
 cohabitation, and reputation of being married, will not do. R. v. 
 Smith (1857), 14 U.C.Q.B. 656, per Robinson, C.J. 
 
 In another case to prove the second marriage, which took place in 
 Michigan, the evidence of the officiating minister, a clergyman of the 
 Methodist Church for twenty-five years, during which time he had 
 solemnized many marriages, that this marriage was solemnized accord- 
 ing to the law of the State of IMichigan, was held admissible and 
 sufficient. R. v. Brierly (1887), 14 O.R. 535. 
 
 In Fact. — On a trial for bigamy, in proof of the prior marriage, 
 a deed was produced executed by the prisoner, containing a recital 
 of the prisoner having a wife and child in England, and conveying 
 real property to two trustees to receive and pay over the rents to his 
 wife, but with a power of revocation 'to the prisoner. B,, one of the 
 trustees, proved the execution of the deed, and that at the time of its 
 execution the prisoner informed him that he had a wife and child living 
 in England, but that he had never paid over any of the rents to her, 
 nor had he ever written to or heard from such alleged wife. It was
 
 CHAP, xii.] Bigamy — Foreign Divorce. 1020c 
 
 held that this was not sufficient evidence to prove the alleged prior 
 marriage. R. v. Duff (1878), 29 U.C.C.P. 255. 
 
 Foreign Divorce. — Where both parties to a marriage in Canada 
 are of Canadian domicil, but afterwards become bond fide domiciled 
 in a foreign country, a decree of divorce, obtained in the foreign 
 country, while they are domiciled there, will be valid in Canada as a 
 defence to a prosecution of either for bigamy in having re-married. A 
 decree of divorce, granted by a Court foreign to the domicil of both 
 parties, pronounced by consent or collusion of the parties both tem- 
 porarily resident within its jurisdiction, and which recites due proof 
 of grounds sufficient under the foreign law for dissolving a marriage, 
 is invalid in Canada if it be proved that such recital is incorrect, and 
 that, in fact, no evidence was given. R. v. Woods (1903), 7 Can. Cr. 
 Cas. 226, 6 O.L.R. 41. 
 
 A foreign divorce will be valid when granted by the Courts of a 
 state in which the husband and wife had a bond fide domicil, although 
 the wife was living in this province, provided that she was personally 
 served with notice of the divorce proceedings, which were not collusive 
 or contrary to natural justice. Guest v. Guest, 3 O.R. 344. 
 
 If the parties have their domicil in a foreign country, and are 
 divorced there without collusion or fraud, by a Court of competent 
 jurisdiction, such a divorce is valid in Canada, and that quite irres- 
 pective of the place of marriage, or of the residence or allegiance of 
 the parties, or of their domicil at the time of the marriage, or of the 
 place in which the offence, in respect of which the divorce was granted, 
 was committed. Stevens v. Fiske, Cassels S.C. Dig. 235, 8 Montreal 
 Legal News 42; and see an article by W. E. Raney, K.C., in 34 C.L.J., 
 pp. 546-553. And see Swaizie v. Swaizie, 31 O.R. 330. 
 
 Residence abroad is not sufficient to effect a change of domicil, even 
 where such domicil is not the domicil of origin, but one acquired by 
 choice, unless it is accompanied by an intention to remain abroad, and 
 not to return to the former domicil. Bonbright v. Honl)right (1901), 
 2 O.L.R. 249; McNamara v. Constantineau, 3 Rev. de Jur. (Que.) 482. 
 
 A foreign divorce, obtained by the wife of a British subject, domi- 
 ciled in Canada without service of process on tlie husband, or sul)mis- 
 sion on his part, to the jurisdiction of the foreign Court, is ineffective 
 to dissolve a marriage performed in Canada, althougli tlic wife had. 
 some years before applying for the divorce, left her husband, and taken 
 up residence in the foreign country. A British subject, married and 
 domiciled in Canada, who goes to the TTnited States, accompanied 
 by another woman, for the purpose of marrying her there, and who 
 goes through the form of marriage with her there, and forthwitli 
 returns with her to Canada, is guilty of bigamy, and is properly con- 
 victed thereof in Canada under sec. 307, notwithstanding such foreign
 
 1020c? Offences as to Marriage. [book ix. 
 
 divorce obtained by his first wife. R. v. Brinkley (1907), 12 Can. Cr. 
 Cas. 454, 14 O.L.R. 434. 
 
 Punishment for Bigamy. — Bigamy is an indictable offence, punish- 
 able by seven years' imprisonment ; and, after a previous conviction, by 
 fourteen years' imprisonment. Code sec. 308. 
 
 Feigned Marriages. — Everyone is guilty of an indictable offence, 
 and liable to seven years' imprisonment, who procures a feigned 
 or pretended marriage between himself and any woman, or who know- 
 ingly aids or assists in procuring such feigned or pretended marriage. 
 Code sec. 309. 
 
 A person accused of an offence under this section shall not be con- 
 victed upon the evidence of one witness, unless such witness is cor- 
 roborated in some material particular by evidence implicating the 
 accused. Sec. 1002. 
 
 Polygamy. 
 
 (a) Practising or Contracting — 
 
 (1) Polygamy. Code see. 310. 
 
 (2) Conjugal union. Code sec. 310. 
 
 (3) Spiritual marriages. Code sec. 310. 
 
 (&) Cohabitation in conjugal union. Code sec. 310 
 
 (c) Celebrating rite or ceremony. Code sec. 310. 
 
 (d) Assisting in compliance with form. Code sec. 310. 
 
 (e) Procuring form of contract. Code sec. 310. 
 
 An Indian who, according to the customs of his tribe, takes two 
 women at the same time as his wives, and cohabits with them, is 
 guilty of an offence under this section. R. v. "Bear's Shin Bone" 
 (1899), 3 Can. Cr. Cas. 329 (N.W.T.). 
 
 The mere fact of cohabitation between a man and a woman, each 
 of whom is married to another, will not sustain a conviction under this 
 section (formerly 53 Vict. (Can.) ch. 37, sec. 11), to come within the 
 terms of which there must be "some form of contract between the 
 parties which they might suppose to be binding on them, but which 
 the law was intended to prohibit," and the term "conjugal union" 
 in the statute has reference to a form of ceremony joining the parties, 
 a marriage of some sort before cohabiting with one another. The 
 Queen v. Labrie (1891), Montreal Law Reports, 7 Q.B. 211. 
 
 In R. V. Liston, 34 C.L.J. 546, Armour, C.J., held that adultery 
 is not indictable under sec. 310(&). But in R. v. Harris (1906), 11 
 Can. Cr. Cas. 254, it was held by Mulvena, D.M. (Que.), that a man is 
 guilty of an offence under this sub-section who lives "in open, con- 
 tinuous adultery to the scandal of the public." It was not shewn in 
 this case that the accused had gone through any form of marriage with 
 the married woman he was cohabiting with, nor was it found as a fact 
 that he lived with hSr "in anyq kind of conjugal union," though there 
 was evidence from which this might perhaps have been found.
 
 CHAP, xil] Unlawful Solemnization. 1020e 
 
 Unlawful Solemnization of Marriage. — Code sec. 311. 
 
 In Ontario. — The Mormon organization known as "the Recognized 
 Church of Jesus Christ of Latter Day Saints," was held in Ontario to 
 be a church and religious denomination within the meaning of the 
 Ontario Marriage Act, although not incorporated in Ontario; and its 
 ordained ministers resident in Ontario are therefore competent to 
 solemnize marriages. R. v. Dickout, 24 O.R. 250. 
 
 Marriage Contrary to Law. — Code sec. 312. 
 
 Certain persons met and professed to form themselves into an inde- 
 pendent church or congregation known as "The First Chinese Chris- 
 tian Church, Toronto," and appointed the defendant, one of their 
 numbers, the minister of the church. At a subsequent meeting he was 
 ordained by two congregationalist ministers, not as a Congregationalist 
 minster, but as a minister of the new independent church. Held, that 
 he was not a minister, ordained or appointed according to the rites 
 and ceremonies of the church or denomination to which he belonged, 
 within the meaning of R.S.O. (1897) ch. 162, sec. 2, sub-sec. 1 ; and the 
 above facts appearing upon his indictment and trial for solemnizing 
 or pretending to solemnize a marriage without lawful authority, con- 
 trary to sec. 311 of the Criminal Code, there was evidence upon which 
 he could be convicted; and his conviction was affirmed. R. v. Brown 
 (1909), 17 0.L.R. 698.
 
 ( 1021 ) 
 
 CHAPTER THE THIRTEENTH. 
 
 OF CRIMINAL LIBELS. 
 
 Sect. I. — Preliminary. 
 
 Apart from the subject of treason (not dealt with in this work) it is 
 criminal to utter words or publish writings or exhibit matters which are 
 (a) blasphemous, (b) seditious, (c) obscene, or (d) defamatory of indivi- 
 duals. The gist of the offence in the case of classes (a), (b) and (c) is 
 the mischief to religion or government, including the administration of 
 justice, or to public morals, which the publication or exhibition is calculated 
 to cause, and in case (d) the risk of causing a breach of the public peace. 
 
 These offences were in the sixth edition of this work treated together 
 under the head of libel and indictable slander. It has been found better 
 to relegate them to more appropriate titles, as all the offences except 
 defamatory libel may be by speech or act as well as by writing, print, &c. 
 
 As to blasphemous publications, see ante, p. 393. 
 
 As to sedition, see ante, p. 301. 
 
 As to indecent publications and exhibitions, see, pos/. Vol. ii. 
 pp. 1875 et seq. 
 
 As to interference by invective, &c., with the administration of justice, 
 see ante, Book VII. Chapter II. p. 537. 
 
 Sect. II. — Defamatory Libel. 
 
 The publication of matter defamatory of any living private person (a) 
 or definite class of living persons (h), is an indictable misdemeanor at 
 common law, if effected by writing or print or by signs (c), effigies (d), 
 or pictures (e). Such matter is usually referred to as ' libel '{ l). Words 
 spoken, however defamatory, are not the subject of indictment unless they 
 directly tend to a breach of the peace : e.g. by conveying a challenge to 
 fight {(/), or are seditious (h), or blasphemous (t), or perhaps obscene (/), 
 or constitute an incitement to the commission of an indictable offence (k). 
 
 (a) As to libels on (lie King or public 04. Bract, lib. 3. c. 30. 3 Co. Inst. 174. 
 persons,i;j(ieflH/(', pp. 311, 313. As to libels 5 Co. Rep. 1 2.1. 11^1. Ray ni. 410. 2 Salk. 
 on the desid, vide post, ]i. 1025. 417, 418. Libel may be said to be a 
 
 (b) R. V. Williams, 5 B. & Aid. 595, and technical word, derivini; it,s meaning ratlier 
 see post, p. 1024. from its use than it.s etymology. ' There 
 
 (c) See 5 Co. Rep. 125; 1 Hawk. c. 28, is no other name but tiiat of /(7><7 applicable 
 s. 6, e.g. putting a gallows o))posite a mans to the offence of liijelling ; and we know 
 door, or burning him in efligy. Eyre c. the offence specifically by that name, as 
 Garlick, 42 J. P. 68. we know the offences of horsestealing. 
 
 ((/) Monson v. Tussauds, Ltd. [1894 J, forgery, &c.. by the names which tlic law 
 
 I Q.B. 71. has annexed to them.' R. r. Wilkes, 2 
 
 (c) DuBostr. Beresford, 2Camp. 511. Wils. (K.B.) 121, Camden. C..I . 
 
 (/ ) A defamatory libel is termed Libdlus (g) R. t-. Lant;ley, M(xl. 1 25, 2 Ld. Ray m. 
 
 famosus seu infamaioria scriptura, and has 1029. R. r. Bear, 2 Salk. AM, ante, p. 439. 
 
 been usually treated of as scandal, written (k) Ante, p. 301. (i) Ante, p. 393. 
 
 or expressed by symbols. Lamb. Sax. Law (;) Po»/, Vol. ii. p. 1875. (i) /!«<<:, p. 203.
 
 1022 Of Criminal Libels. [book ix. 
 
 One spouse cannot take criminal proceedings against the other for 
 defamatory libel (Z), and communication by one spouse to another of 
 defamatory matter is not publication (m). 
 
 A defamatory libel which is actionable is also indictable, subject to the 
 power and inclination of juries to acquit where the nature of the libel 
 renders civil proceedings the appropriate remedy [n], and the disposition 
 of the Courts to discourage criminal prosecutions launched merely to 
 extract apologies or vindicate private character (o). But in certain cases, 
 e.g. in the case of libels on the dead, defamation may be indictable, 
 although it is not actionable {f). 
 
 Matter is defamatory if it tends to blacken the character of another 
 and thereby to expose him to public hatred, contempt, and 
 ridicule {q). 
 
 In Thorley v. Lord Kerry (r), Sir J. Mansfield, C. J., said : ' There is 
 no doubt that this is a libel for which the plaintiff in error might have been 
 indicted and punished, because, though the words impute no punishable 
 crimes, they contain that sort of imputation which is calculated to vilify 
 a man, and bring him, as the books say, into hatred, contempt, and 
 ridicule ; for all words of that description an indictment lies/ 
 
 As every person desires to appear agreeable in life, and must be highly 
 provoked by such ridicvdous representations of him as tend to lessen him 
 in the esteem of the world, 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, reflecting a moral (s) turpitude on the party, are 
 defamatory, but also such as set him in a discreditable [t], scurrilous, 
 ignominious, or ludicrous {u) 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 {v). 
 In E, V. Cobbett {w), Ellenborough, C.J., said : ' No man has a right to 
 render the person or abilities of another ridiculous, not only in publications 
 but if the peace and welfare of individuals, or of society, be interrupted, 
 or even exposed by types and figures, the act, by the law of England, is 
 a libel/ 
 
 From the point of view of criminal law the gist of an indictment for 
 libel is its tendency to lead to a breach of the public peace {x). 
 
 (I) R. V. Mayor of London, 1 Q.B.D. (i) Bac. Abr. tit. 'Libel' (A. 2). Fray z). 
 
 772. Fray, 34 L. J. C. P. 45. Villars v. Monsley, 
 
 (to) Wennhak v. Morgan, 20 Q.B.D. 635. 2 Wils. (K.B.) 403. 
 
 (n) Starkie on Libel, 150, 165, 550 (1st (u) Cooke ?;. Ward, 6 Bing. 409. 
 
 ed.) Holt on Libel, 215, 216. Bradley {v} Thus the sending to a young woman 
 
 V. Methuen, 2 Ford's MS. 78. This must of a letter containing a proposal that she 
 
 be understood, however, of cases where should surrender her chastity to the writer 
 
 the hbel, from its nature and subject, was held to be publication of a defamatory 
 
 inflicts a private injury, and not of those libel, which might reasonably tend to 
 
 cases in which the public only can be said provoke a breach of the peace. The letter 
 
 to be affected by the libel. was opened by the parents of the young 
 
 (o) R. V. The World, 13 Cox, 206, woman and was not seen by the young 
 
 Cockburn, C.J. woman herself. R. v. Adams, 22 Q.B.D. 
 
 (p) Vide post, p. 1025. 66. See also R. v. Holbrook, 4 Q.B.D. 42, 
 
 iq) 1 Hawk. c. 73, ss. 1, 2, 3, 7. Bac. 46, Lush, J. 
 
 Abr. tit. 'Libel' (A. 2). (w) Holt on Libel, 114, 115. 
 
 (r) 4 Taunt. 364. (x) 1 Hawk. o. 28, 3. 3. R. v. Labouchere, 
 
 («) e.r/. a charge of ingratitude. Cox v. 12 Q.B.D. 320. 
 Lee, 38 L. J. Ex. 219.
 
 CHAP.xiiL] Defamatory Libel. 1023 
 
 Defamatory libel is ranked among criminal offences because of its 
 supposed tendency to raise angry passion, provoke revenge, and thus 
 endanger the public peace {y). 
 
 A libel against an individual may consist in the exposure of some 
 personal deformity, the actual existence of which would only shew the 
 greater malice in the defendant ; and even if it contain charges of mis- 
 conduct founded on fact, the publication will not be the less likely to 
 produce a violation of the public tranquillity, and it has been observed 
 that persons having a grievance ought to complain for the injury done to 
 them in the ordinary course of law, and not to avenge themselves by the 
 odious proceeding of a libel {z). 
 
 Upon these principles it has been held to be defamatory to write of a 
 man that he had the itch, and stunk of brimstone (a). And an information 
 was granted against the mayor of a town for sending to a nobleman a licence 
 to keep a public-house (6). An information was also granted for a jjubli- 
 cation reflecting upon a person who had been unsuccessful in a lawsuit (c) ; 
 and against the printer of a newspaper for publishing a ludicrous paragraph 
 giving an account of the marriage of a nobleman with an actress, and of 
 his appearing with her in the boxes with jewels, &c. [d). A defendant 
 was convicted for publishing in a review, matter tending to traduce, vilify, 
 and ridicule an officer of high rank in the Navy ; and to insinuate that he 
 wanted courage and veracity ; and to cause it to be believed that he was 
 of a conceited, obstinate, and incendiary disposition (e). And an infor- 
 mation was granted against a printer of a newspaper, for publishing a 
 paragraph representing the Bishop of Derry as a bankrupt ( /'). Where a 
 count alleged that the defendant published of the Duke of Brunswick the 
 following libel : ' Why should T. be surprised at anything ]\Irs. W. does ? 
 If she chooses to entertain the Duke of Brunswick, she does what very 
 few will do ; and she is of course at liberty to follow the bent of her own 
 inclining, by inviting all the exfatriated foreigners who crowd our streets 
 to her table, if she thinks fit ' ; the Court of Exchequer Chamber held 
 that the matter stated was defamatory, as it might be understood in such 
 a sense as to be injurious to the prosecutor's character {g). But it was 
 held not to be criminal to circulate a handbill : ' B. 0., game and rabbit 
 destroyer, and his wife, the seller of the same in country or in town,' in 
 
 (y) R. V. Holbrook, 4 Q.B.D. 42, 46, a body of persons discharging^ public duties. 
 
 Lush, J. : and see Short and Mcllor, Crown R. v. Williams, 5 B. & Aid. 595. 
 
 Practice (2nd cd.), 153. [n] Villars v. Monsley, 2 Wil3.(K.B.) 403. 
 
 (2) 1 Hawk. c. 73, s. 6. Bac. Abr. {b) Mayor of Northampton's case, 1 .Sir. 
 
 tit. ' Libel' (A. 5). 4 Bl. Com. 150, 151. 2 422. 
 
 Starkie on Libel, 251, et seq. Holt (c) 2 Barnard. (K.B.) 84. 
 
 on Libel, 275, et seq. The King's Bench (d) R. v. Kinnersley, 1 W. Bl. 294. It 
 
 Division will not give leave to tile a was sworn that the nobleman was a married 
 
 criminal information for libel unless the man ; and the Court said, that under such 
 
 ])rosecutor specifically denies the truth of circumstances the publication would have 
 
 the matters alleged against him. R. v. been a high oflFence even against a 
 
 Aunger, 12 Cox, 407. It is said, however, commoner, and that it was hiuh time to 
 
 that this rule may be dispensed with, if stop such intermeddling in private families, 
 
 the imputations of tlie libel are general and (e) R. v. SmoUet [1759], Holt on Libel, 
 
 indefinite, or if it is a charge against tiie 224. 
 
 prosecutor for language which he has held (/) Anonymous, Hil. T. 1812. 
 
 in Parliament. R. v. Haswell, 1 Doug. (g) Gregory v. R., 15 Q.B. 957. 
 387 : 4 Bl. Com. 151, note (fi) : or against
 
 1024 Of Criminal Libels. [book ix. 
 
 the absence of any allegation or proof that the words implied illegal or 
 improper destruction of game or rabbits (A). 
 
 Imputations on a man in respect of his trade or business, e.g. by 
 denying his honesty or solvency, are actionable and might in a strong 
 case be made the subject of indictment {i). But there does not seem to 
 be any instance of an indictment for disparaging the goods of a trader (/). 
 
 Defamation may be effected as well by description, circumlocution, 
 or insinuation as in express terms, and 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 flay the Jew, nor the hypocrite,' and then proceeded, in 
 a strain of ridicule, to insinuate that what the person did was owing to 
 his vainglory. Or where a publication, pretending to recommend 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 by proposing such a one to be imitated for his courage who was known 
 to be a great statesman, but no soldier ; and another to be imitated for 
 his learning who was known to be a great general, but no scholar) ; such 
 a publication being as well understood to mean reproach to the parties 
 with the want of these qualities as if it had done so directly and expressly (k). 
 And upon the same ground, not only an allegory, but a publication in 
 hieroglyphics, or a rebus or anagram, which are still more difficult to be 
 understood, may be defamatory (^). So a man may be defamed by 
 asking questions ; for if a man insinuates a fact by asking a question, 
 meaning thereby to assert it, it is the same thing as if he asserted it in 
 terms (m). 
 
 A defamatory writing, expressing only one or two letters of a name, 
 in such a manner that from what goes before, and follows after, it must 
 needs be understood to signify a particular person, in the plain, obvious, 
 and natural construction of the whole, and would be nonsense if strained 
 to any other meaning, is as much a libel as if it had expressed the whole 
 name at large [n). 
 
 Imputations on a Class. — An indictment lies for general imputations 
 
 (/i) R. I'. Yates, 12 Cox, 233. Elleiiborougli, C.J. And in R. v. Watson, 
 
 («•) See Odgers on Libel (4th ed.), 32. 2 T. R. 206, Buller, J., said : ' Upon occa- 
 
 (j) Harman w. Delany, Barnard. (K.B.) sions of this sort I have never adopted any 
 
 289 : Fitzgib. 121 : 2 Str. 898. Western other rule than that which has been 
 
 Counties Manure Co. v. Lawes Chemical frequently repeated by Lord Mansfield to 
 
 Manure Co., L. R. 9 Ex. 218. White v. juries, desiring them to read the papers 
 
 Mellin [1895], A. C. 154. stated to be a libel as men of common 
 
 [k) 1 Hawk. 0, 73, s. 4. Bac. Abr. tit. understanding, and say whether in their 
 
 ' Libel ' (A. 3). minds it conveys the idea imputed.' See 
 
 (Z) Holt on Libel, 235, 236. Woolnoth v. Meadows, 5 East, 463. 1 
 
 \m) R. V. Gathercole, 2 Lew. 237, 255, Hawk. c. 73, s. 5. Re Raed v. Huggonson, 
 
 Alderson, B. 2 Atk. 470, Lord Hardwicke. In Bac. 
 
 (w) Formerly it was the practice to say Abr. tit. 'Libel' (A. 3), it is said (in the 
 
 that words were to be taken in the more marginal note) that if an application is 
 
 lenient sense ; but that doctrine is now made for an information in a case of this 
 
 exploded ; they are not to be taken in the kind, some friend to the party complaining 
 
 more lenient or more severe sense, but in should, by affidavit, state the having read 
 
 the sense which fairly belongs to them, and the libel, and understanding and believing 
 
 which they were intended to convey, it to mean the party. See Du Bost v. 
 
 R. V. Lambert and PeiTy, 2 Camp. 403, Beresford, 2 Camp. 512.
 
 CHAP. XIII.] Defamatory Libel 1025 
 
 on a body of men, though no individuals be pointed out, because such 
 writings have a tendency to inflame and disorder society, and are there- 
 fore within the cognisance of the law (o). And scandal published of 
 three or four persons is punishable on the complaint of one or more, or 
 all of them {p). 
 
 In R. V. Osborn {q), an information was prayed against the defendant 
 for publishing a paper containing an account of a murder committed 
 upon a Jewish woman and her child, by certain Jews lately arrived from 
 Portugal, and living near Broad Street, because the child' was begotten 
 by a Christian (r). 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 (s). But the Court said, that admitting that an infor- 
 mation for a libel might be improper, yet the publication of this paper 
 was deservedly punishable on an information for a misdemeanor of the 
 highest kind ; such sort of advertisements necessarily tending to raise 
 tumults and disorders amongst the people, and inflame them with a univer- 
 sal spirit of barbarity against a whole body of men, as if guilty of crimes 
 scarcely practicable, and wholly incredible. It is enough to specify some 
 of the individuals affected by the libel ; and where it was objected that 
 the names of certain trustees, who w^ere part of the body prosecuting, 
 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 held necessary that some particular person should be named, 
 this was never carried so far as to make it necessary that every person 
 injured by such libel should be specified {t). 
 
 Where a publication stated that, upon the death of Queen Caroline, 
 none of the bells of the several churches of Durham were tolled ; and 
 ascribed this omission to the clergy, and then proceeded to make some 
 severe observations on that body, a criminal information was 
 granted {u). 
 
 Imputations on the Dead. — There has been some controversy on the 
 question whether and how far an indictment will lie on a libel defamatory 
 of a dead person. Such a libel is not actionable {v). Coke, after speaking 
 of libels against private men and magistrates or public j^ersons, says, 
 ' although the private man or magistrate be dead at the time of the 
 making of the libel, yet it is punishable : for in the one case it stirs up 
 others of the same family blood or society to revenge or to break the 
 peace, and in the other the libeller traduces and slanders the state and 
 
 (o) R. V. Gathercole, 2 Lew. 237. See (r) The affidavit set forth that several 
 
 Le Fanu v. Malcolmson, I H. L. C. 637. persons tlicrcin mentioned, who were 
 
 Odgcrs on Libel (4tli ed.), 427. Holt on recently arrived from rortunal. and lived 
 
 Libel, 237. in IJroad Street, were attacked by nnilti- 
 
 (/;) Holt on Libel, 237. In R. r. Ben field, tudes in several parts of the city, barbar- 
 
 2 Burr. 980, it was held that an information ously treated, and threatened with death, 
 
 lay against two for singing a libellous song in case they were found abroail any more, 
 
 on A. and B., which lirst abused A. and (s) R. i'. Orme (3 Salk. 224 ; 1 \A. 
 
 then B. And it was said that if the Rayni. 48(i) was cited, 
 
 defendants had sung separate stanzas, the (OR- ''• <!riffin,ul Sess. Ca.s. 257. Holt 
 
 one reflecting on A. and the other on B., on l.,ibel, 23U. 
 
 the offence would still have been entire. («) R. v. Williams, 5 B. & Aid. 5'J5. 
 
 See R. V. Jenour, 7 Motl. 400. No judgment was ever given in this case. 
 
 (q) 2 Barnard. (K.B.) 138, ItitJ. Kil. {»>) R. r. Topham, 4 T. R. 12(i. 
 
 (J.) 230, PI. 183. 
 VOL. I. 
 
 3u
 
 1026 Of Criminal Libels. [book ix. 
 
 government, whicli dies not ' (w). This dictum is extra-judicial and did 
 not go to the point in judgment in the case in which it is made [x), and 
 according to the latest decisions ' it must be some very unusual publication 
 to justify an indictment or information for aspersing the memory of the 
 dead ' (y). The decided cases on this subject are not numerous. In R. 
 V. Paine (2), the libel was on William III. who was living, and Queen 
 Mary II. who was dead. In R. v. Critchley (a), the case arose on a 
 statement made of Sir Charles NicoU, deceased, who was father-in-law of 
 a Secretary of State that ' he changed his principles for a red ribbon and 
 voted for that pernicious project the Excise.' In R. v. Topham (6), the 
 libel imputed to a deceased peer ' unmanly vices and debaucheries.' In 
 that case it was held that an indictment for 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. 
 
 In R. V. Hunt (c), the indictment was for publishing Byron's ' Vision 
 of Judgment,' which was alleged to contain imputations on King George 
 III., then deceased. 
 
 In R. V. Labouchere {d), the Court refused to grant a criminal 
 information for statements defamatory of a deceased foreign nobleman. 
 
 In R. V. Ensor (e), on an indictment for newspaper libel on a political 
 opponent who had been dead for three years, which led to an assault on 
 the defendant by the sons of the deceased, Stephen, J., directed an 
 acquittal on the ground that the libel had no reference to any living 
 person. This ruling in his view was inadequate and he later expressed 
 an opinion that in such a case the libel must be intended and not 
 merely calculated to provoke sorrowing relations (/). 
 
 Sect. III. — Trial, 
 
 By the Quarter Sessions Act, 1842 (5 & 6 Vict. c. 38), sect. 1, Courts 
 of Quarter Sessions for a county or borough have no jurisdiction to 
 try any person for composing, printing, or publishing a defamatory 
 .libel. 
 
 By sect. 6 of the Newspaper Libel and Registration Act, 1881 (44 & 
 45 Vict. c. 60), ' Every libel {g) or alleged libel and every offence under 
 this Act shall be deemed to be an offence within the Vexatious Indictments 
 Act, 1859 (22 & 23 Vict. c. 17) ' {h). 
 
 [w) De libellis famosis, 5 Co. Rep. 125 a, Italy the flesh of soldiers who had died in 
 
 a case in the Star Chamber, 3 Jac. 1. hospital or been killed in battle. The 
 
 (ar) R. V. Topham, 4 T. R. 126, 128, application for the information was made 
 
 Kenyon, C.J. by a foreign nobleman resident abroad who 
 
 {y) R. V. Labouchere, 12 Q.B.D. 320, was a son of the deceased. 
 
 324, Coleridcje, C.J. In this case the (e) 3 T. L. R. 366, Stephen, J. 
 
 earlier authorities are discussed. (/) [1887], Steph. Dig. Cr. Law {6th ed.), 
 
 (2) Carthew, 405. 227 n. 
 
 (a) 4 T. R. 129, cit. (g) It is immaterial whether the libel is 
 
 (6) 4 T. R. 126. published in a newspaper or not ; and the 
 
 (c) 2 St. Tr. (N. S.) 69. Vide ante, p. 312. word ' libel ' is wide enough to cover blas- 
 
 [d) 12 Q.B.D. 320. The libel imputed was phemous and seditious, as well as defama- 
 that the deceased was nearly hanged on a tory and obscene libels. 
 
 charge of supplying to the French army of {h) Post, Vol. ii. p. 1926.
 
 CHAP. XIII.] Trial. 1027 
 
 The respective functions of judge and jury with respect to the trial 
 of libel are as follows : — 
 
 In criminal cases the judge is to define the crime, and the jury are to 
 find whether the party has committed that offence. 
 
 The Libel Act, 1792 (32 Geo. III. c. 60) (i), after reciting that ' doubts 
 have arisen whether on the trial of an indictment or information for the 
 making or publishing any libel where an issue or issues are joined between 
 the King and the defendant or defendants on the plea of not guilty 
 pleaded, it be competent to the jury empanelled to try the same to give 
 their verdict on the whole matter in issue,' enacts (s. 1) that ' on every 
 such trial, the jury sworn to try the issue may give a general verdict of 
 guilty or not guilty, upon the whole matter put in issue on such indictment 
 or information ; and shall not be required or directed, by the Court or 
 judge before whom such indictment or information shall be tried, to find 
 the defendant or defendants guilty, merely on the proof of the publication 
 by such defendant or defendants of the paper charged to be a libel, and 
 of the sense ascribed to the same in such indictment or information.' 
 Provided always (s. 2) that on every such trial ' the Court or judge before 
 whom such indictment or information shall be tried, shall, according to 
 their or his discretion, give their or his opinion and directions to the jury, 
 on the matter in issue between the King and the defendant or defendants, 
 in like manner as in other criminal cases ' (/). 
 
 In cases of libel, as in other cases of a criminal nature, it has been the 
 course for a judge first to give a legal definition of the offence, and then 
 to leave it to the jury to say, whether the facts necessary to constitute 
 that offence are proved to their satisfaction. AVhether the particular 
 publication, the subject of inquiry, is calculated to injure the reputation 
 of another, by exposing him to hatred, contempt or ridicule, is a question 
 of fact for the jury to determine. The judge as a matter of advice to 
 them in deciding that question, may give his own opinion as to the 
 nature of the publication, but is not bound to do so (k). 
 
 Sect. IV. — Punishment. 
 Common Law. — The judgment in cases of defamatory libel at common 
 law was in the discretion of the Court ; and usually consisted of fine, 
 imprisonment without hard labour, and finding sureties to keep the 
 peace [l). Judgment was given on each of four counts of an information 
 that the defendant be imprisoned on the first count ' for the space of two 
 months now next ensuing ' ; on the second count, ' for the further space of 
 
 (;) Generally known as Fox's Act. The find a special verdict, in their discretion, 
 
 Act in terms extends to all forms of libel as in other criminal ca-ses. By 8. 4, 
 
 and is not limited to defamation. The Act defendants found guilty may move in 
 
 is said to declare the common law. But arrest of judgment as before the passing 
 
 prior to its passing; it had been in certain of the Act. 
 
 cases ruled that the only matters for the (k) Parmiter r. Coupland, xthi sup. Baylis 
 
 jury were publication and the truth of the v. Lawrence, 11 A. & E. 020. Paris r. 
 
 innuendoes. Parmiter r. Coupland. M. & Ivcvv. 9 C. B. (N. S.) 342. R. v. Burdett. 
 
 W. 105, Parke, B. Jenner v. A'Beckett, B. & Aid. 9.5 : I St. Tr. (N. S.) 1. Fray r. 
 
 L. R. 7 Q.B. 11 : 41 L. J. QB. 14. See Fray, 17 C. B. (N.S.) 603 : 34 L. J. C. P. 45. 
 Erskine's speeches in the case of the Dean (I) 1 Hawk. c. 73. s. 21. Bac. Abr. tit, 
 
 of St. Asaph, Ridgway's Col. vol. i. pp. ' Libel,' C. R. v. Middleton, Fort. 201 : 1 
 
 234,264. i^tr. 177: R. v. Dunn. 12 Q.B. 1026. As 
 
 [j) S. 3 provides that the jury may to the pillory, vide ante, p. 249. 
 
 3 u 2
 
 1028 Of Criminal Libels. Lbook ix. 
 
 two months, to be computed from and after tlie end and expiration of his 
 imprisonment ' for the offence mentioned in the first count ; on the third 
 count, for the further space of two months, to be computed in like manner 
 from the end of the imprisonment on the second count ; and on the 
 fourth count, for the further space of two months, to be computed in 
 like manner from the end of the imprisonment on the third count. The 
 third count was adjudged on error to be insufficient : but it was held, 
 that the sentence on the fourth count was not thereby invalidated, and 
 that the imprisonment on it was to be computed from the end of the 
 imprisonment on the second count {m). 
 
 Statutory Punishments. — ^The Libel Act, 1843 (6 & 7 Vict. c. 96), now 
 regulates the punishment of persons publishing or threatening to publish 
 defamatory libels. 
 
 Sect. 3 (Threats to Publish) is dealt with under ' Robbery and 
 Threats,' post, Vol. ii. p. 1158. 
 
 Sect. 4. ' If any person shall maliciously publish any defamatory 
 libel knowing the same to be false, every such person, being convicted 
 thereof, shall be liable to be imprisoned in the common gaol or house of 
 correction for any term not exceeding two years, and to pay such fine as 
 the Court shall award.' 
 
 Sect. 5. ' If any person shall maliciously publish any defamatory 
 libel, every such person, being convicted thereof, shall be liable to fine or 
 imprisonment or both, as the Court may award, such imprisonment not 
 to exceed the term of one year.' 
 
 The Court may also or alternatively put the offender under recogni- 
 sances to keep the peace and be of good behaviour, or deal with the case 
 under the Probation of Offenders Act, 1907 (n). 
 
 Sects. 4 and 5 do not create any new offence nor alter the nature of the 
 offence of defamatory libel as defined by the common law, but merely 
 limit the punishment for the common law offence in the two cases with 
 which they deal (o). 
 
 On an indictment for publishing a defamatory libel knowing it to be 
 false (s. 4), the defendant may be convicted of publishing a defamatory 
 libel without the scienter, sect. 5 {f). 
 
 Costs. — As to costs, see post, Vol. ii. pp. 2039, 2042. 
 
 Sect. V. — Indictment. 
 
 The only matter now essential to be stated in an indictment (q) for 
 
 defamatory libel are that the defendant unlawfully published of and 
 
 concerning (r) a named person (s) or a specified body of persons (t) certain 
 
 defamatory matter which must be set out according to its tenor (u), with 
 
 (m) Gregory ?;. R., 15 Q.B. 974. {s) Ante, Tp. 1021. If it sufficiently appears 
 
 (n) Ante, v. 219. from the terms of the libel to whom it refers 
 
 [o) R. f. "Munslow [1895], 1 Q.B. 768. the omission of the words of and ' coneern- 
 
 Cf. R. V. Mabin [1901], 20 N. Z. L. R. 451. ing ' is not fatal. Gregory v. R., 15 Q.B. 
 
 (p) Boalerv. R.,21Q.B.D. 284. 957. 
 
 (q) For an example of a thoroughly (t) Ante, p. 1024. An indictment seems 
 
 defective indictment, see R. v. Barraclough not to lie for continued defaming a person 
 
 ri906], 1 K.B. 201. to the jurors unknown. R. i\ Orme, 1 Ld. 
 
 (r) R. V. Marsden, 4 M. & S. 164. R. v. Raym. 486, 3 Salk. 224. 
 
 Sully, 12 .J. P. 536. Clement v. Fisher, (m) Bradlaugli v. R., 3 Q.B.D. 607, and 
 
 7 B. & C. 459. see fost, Vol. ii. p 1881.
 
 CHAP. XIII.] Indictment. 1029 
 
 such averments of extrinsic facts (v) and innuendoes as may be necessary 
 to indicate its defamatory meaning and its reference to the person or class 
 defamed (w). In some of the older cases the words ' composed ' and 
 'printed ' are added to 'pubUshed' (x) ; neither of these words is necessary, 
 the gist of the offence being publication and not the composition {y) or 
 printing. 
 
 It is usual to insert the words ' falsely and maliciously.' But ' falsely ' 
 is certainly superfluous (z) and omission of the word ' maliciously,' if a 
 defect, is not covered by verdict (a). To justify punishment under 
 sect. 4 of the Libel Act, 1843 (6), it must be averred and proved that 
 the defendant knew the defamatory words to be false. 
 
 It is not essential even when the only publication intended to be 
 proved is to the person defamed to state that the words were intended 
 or calculated to cause a breach of the peace (c). 
 
 The proper conclusion is ' against the peace, &c.,' the provisions of 
 sects. 4-5 of the Libel Act, 1843 (d) not having affected the common law 
 definition of the offence and merely prescribing the punishment according 
 as the scienter is or is not proved (e). 
 
 The words alleged to be defamatory should, as already stated, be set out 
 according to their tenor (/), and with accuracy, and with care not to charge 
 as continuous statements, statements which were in fact separated by in- 
 tervening matter (g). This care is necessary to avoid variance between 
 indictment and proof as to the words or sense and the risk that the Court 
 might be unable or unwilling to amend under 14 & 15 Vict. c. 100, s. 1 (h). 
 
 Libel in Foreign Languages. — If the libel is in a, foreign hmjiMge it is 
 necessary that it should be set forth in the indictment in the original 
 language, and also in an English translation, to prove the translation to 
 be correct (i). 
 
 Innuendoes. — Innuendoes are inserted to fix and point the defamatory 
 meaning of the words and their reference to the person said to be defamed, 
 and they may not add new matter (/). 
 
 It is the duty of a judge to say whether a publication is capable of the 
 meaning ascribed to it by an innuendo ; but when the judge is satisfied 
 of that, it must be left to the jury to say whether the publication has the 
 meaning so ascribed to it (k). 
 
 (v) R. V. Yates, 12 Cox, 233. {g) See Tabart v. Tipper, 2 Camp. 352. 
 
 (tv) Vide infra. The whole writiiif? need not be set forth, 
 
 (x) See R. v. Hunt, 2 Camp. 583. R. v. but parts not set forth wliich qualify the 
 
 Williams, 2 Camp. (540. Lawrence, J. R. v. matter set forth may be given aa evidence. 
 
 Knell, 1 Barnard. (K.B.) 305. 2 8alk. 417. 
 
 (y) Post, p. 1033. (A) As to the former strictness see R. t'. 
 
 (z) R. V. Burke, 7 T. R. 4. R. v. Brooke, Beech, 1 Leach, 133. R. v. Hart, 1 Leach, 
 
 7 Cox, 25 L And see Wyatt v. Gore, 145. 
 
 Holt (N. r.), 311 n. (/) Zenobio v. Axtell. (5 T. R. ir>2. R. v. 
 
 (a) R. V. Harvey, 2 B. & C. 257. R. r. Peltier. 28 St. Tr. t)17. R. r. tJoldstein. 3 
 Mun.slow [1895], 1 Q.B. 758. B. & B. 201. 
 
 (b) Vide ante, p. 1028. (;) R. r. Home. 20 St. Tr. r.51. 2 Cowp. 
 
 (c) R. V. Adams, 22 Q.B.D. fiO. Older 052, De (Jrey, C.J. R. r. Burdetl. 4 B. 
 authorities to the contrary arc cited there & Aid. 95: 1 St. Tr. (N. S.) 1. Abbott, C.J. 
 and in Odgers on Libel (4th ed.), 070. And see Odc;ers on Libel (4t!i ed.). 1 10. 009. 
 
 (e) .4«;e, p. 1028. (/•) BlaKU r. Sturt. 10 Q.B. 899: 10 
 
 (d) R.v.Muns\ow,ubisup. L. J. Q.B. 39. Hunt r. Goodlake, 43 
 ( / ) See R. V. Barraclough f 1900]. 1 K.B. L. J. C. P. 54. Mulligan i-. Cole, L. R. 10 
 
 201. Q.B. 549 : 44 L. J. Q.B. 153.
 
 1030 Of Criminal Libels. [book ix. 
 
 Where written or printed matter is clearly defamatory of a particular 
 person no statement of intrinsic circumstances, by way of inducement, is 
 necessary {I). It is no objection, therefore, that words are not explained 
 by an innuendo where they are commonly enough understood in a 
 defamatory sense to warrant a jury in so applying them (m) ; and in 
 such a case, innuendoes improperly enlarging the sense may be rejected 
 as surplusage after verdict (w) ; for on motion in arrest of judgment, an 
 innuendo which is not warranted by the words themselves nor properly con- 
 nected with them by prefatory matter, may be rejected (o). But the case 
 would be different if the words were capable of two senses, and the 
 innuendo ascribed one meaning to them, and was good on the face of it (p). 
 If there be contained in the alleged libel matter which is capable of 
 receiving the interpretation put upon it by an innuendo, there is no fault 
 in the count for not having explanatory averments to fix and point the 
 libel. But generally if the words written or spoken cannot apply to the 
 individual, no previous averments or subsequent innuendoes can help to 
 give the words an application which they have not. ' Suppose the words 
 to be, " a murder was committed in A.'s house last night," no introduction 
 can warrant the innuendo " meaning that B. committed the said murder," 
 nor would it be helped by the finding of the jury for the plaintiff. For 
 the Court must see that the words do not and cannot mean it, and would 
 arrest the judgment accordingly ' (q). But if an innuendo ascribes to 
 certain words a particular meaning which cannot be supported in evidence, 
 the innuendo, if well pleaded in form, cannot be repudiated on the trial, 
 so as to let in proof that the words have another meaning (r). If words 
 are laid to be uttered with intent to convey a particular meaning to 
 persons present, it must be proved that the party uttering them had that 
 meaning, and that they were so understood by the hearers (s). 
 
 Where a count alleged that the defendant, intending to defame the 
 Duke of Brunswick, published a libel containing divers false and malicious 
 matters and things of and concerning the said duke, that is to say : We 
 should think that no lady would admit to her society such a crack-brained 
 scamp as the Duke of Brunswick (meaning the said duke), the Court of 
 Exchequer Chamber held that these averments shewed sufficiently with- 
 out more formal introduction, that the libel was of and concerning the 
 duke (t). 
 
 An information stated, that defendant, intending to excite hatred 
 
 (I) R. V. Tutchin, 14 St. Tr. ]095 : 2 Ld. (*■) Per Bay ley, B., ibid., citing Woolnoth 
 
 Raym. 1061. v. Meadows, 5 East, 470. See as to the 
 
 (to) Hoare v. Silverlock, 12 Q.B. 024. office and nature of an innuendo, 1 Stark. 
 
 See Homer v. Taunton, 5 H. & N. 661, on Libel, 418 et seq. Clegg v. Laffer, 10 
 
 where there was no innuendo to explain Bing. 250; 3 M. & S. 727. Day r. Robin- 
 
 ' truck-master,' and it was held that it was son, 1 A. & E. .554, 4 N. & M. 884 : West 
 
 properly left to the jury to say whether it v. Smith, 1 Tyr. & Gr. 825. Kelly v. 
 
 was used in a defamatory sense, though no Partington, 5 B. & Ad. 645. 
 evidence was given to explain its meaning. (t) Gregory v. R., 15 Q.B. 957. In the 
 
 («) Harvey v. French, 2 Tyr. 585: 1 Cr. same case 15 Q.B. 974, a count was held 
 
 & M. 11. bad which suggested that certain words 
 
 (o) Williams v. Stott, 3 Tyr. 688 ; 1 €r. meant that the Duke was suspected of a 
 
 & M. 675, Bayley, B. crime which would bring him into danger 
 
 (/)) Barrett ?;."Long, 3 H. L. C. 395. of his life by the Court of England on the 
 
 (q) Solomon v. Lawson, 8 Q.B. 823. ground it did not shew in what manner the 
 
 (r) WilHams v. Stott, siipni. life of the duke would be endangered.
 
 CHAP, xni.] Ve7iue, 1031 
 
 against the government of the reahn, and to cause it to be believed that 
 divers subjects had been inhumanly killed by certain troops of the King, 
 published a libel of and concerning the government of this realm, and of 
 and concerning the said troops, which libel stated, that the defendant 
 saw with abhorrence, in the newspapers, the accounts of a transaction 
 at Manchester, and alleged that unarmed and unresisting men had been 
 inhumanly cut down by the dragoons (meaning the said troops), and then 
 commented strongly upon this being the use of a standing army, and 
 called upon the people to demand justice, &c. ; but it did not, in terms, 
 say, that the dragoons acted under the authority or orders of the govern- 
 ment. After conviction, a motion was made in arrest of judgment, on 
 the ground that it did not sufficiently appear that the libel was written 
 of and concerning the government, nor of or concerning what troops it 
 was written : but the Court held, that it was obvious, from its whole 
 tenor and import, that it meant to cast imputations upon the government ; 
 that it was a libel to impute crime to any of the King's troops, though 
 it did not define what troops in particular were referred to ; and that the 
 innuendo of 'the said troops ' meant the undefined part of those troops {u). 
 Venue. — The libel must also be proved to have been published by the 
 accused, in the county laid in the indictment (v). By 7 Geo. IV. c. 64, 
 s. 12 (w), an offence begun in one county and completed in another is 
 triable in either, and at common law, if a man writes a libel in one county 
 and procures its publication in another, he is triable in the latter county (z). 
 So if a man writes a libel in London, and sends it by post addressed to a 
 person in Exeter, he is guilty of a publication in Exeter (/y). And where 
 the defendant wrote a libel in Leicestershire, with intent to publish it in 
 Middlesex, and published it in Middlesex accordingly, and the information 
 against him was in Leicestershire, Abbott, C.J., and Holroyd and Best, 
 JJ., held the information right (z). From the same case it appears to 
 have been considered that delivering a libel sealed, in order that it may 
 be opened and published by a third person in a distant county, is a 
 publication in the county in which it is so delivered : and further, that 
 if delivering it open were essential, proof that the defendant wrote it in 
 county A., and that C. delivered it unsealed to D. in county B., would be 
 prima facie evidence that the defendant delivered it open to C, in the 
 county A., though there be no evidence of C.'s having been in county A. 
 about the time ; or that application had been made to D. to know of 
 whom he received it. The information was for writing and publishing a 
 libel in the county of Leicester, and it was proved by the date of the letter 
 that the defendant wrote it in that county, and that A. delivered it to B., 
 for publication in the county of Middlesex, it being then unsealed. A. 
 was not called as a witness ; and there was no evidence of his having been 
 in the county of Leicester, or how the libel came to him. The jury were 
 told that as A. had it open, they might presume that he received it open ; 
 
 (?() R. r. Burdett. 1 St. Tr. (N. S.) 1 ; 4 (y) Id. ihid. .*^32. 
 
 B. & Aid. 31 1. (:) R. '•. Burdett. 4 B. & AM. O;'). Bayley. 
 
 (v) Case of the Seven Bishops, 12 St. J., doubted. The dreision of the majority 
 
 Tr 354. has been aeeepted a>< good law. R. v. 
 
 {w) Ante, -p. 20. Ellis [1899], 1 Q.B. 230. 230. Vide ante, 
 
 (.t) 12 St. Tr. 331. p. 54.
 
 1032 Of Criminal Libels. [book ix. 
 
 and that, as the defendant wrote it in the county of Leicester it might 
 be presumed that A. received it in that county ; and three judges held 
 against the opinion of Bayley, J., that this direction was proper ; and 
 they also held that if the delivering open could not be presumed, a 
 delivery sealed with a view to and for the purpose of publication was a 
 publication ; and they thought there was sufficient ground for presuming 
 some delivery, either open or sealed, in the county of Leicester {a). It 
 apj)ears from this case that the dating a libel at a particular place is 
 evidence of its having been written at that place (6). The postmarks 
 upon a letter are prima facie but not conclusive evidence that the letter 
 was in the office to which the postmarks belong at the date thereby 
 specified (c). If the envelopes have been destroyed fresh evidence of the 
 postmark is admissible {d). If a libellous letter is sent by the post, 
 addressed to a party at a place out of the county in which the venue is 
 laid in an indictment for the libel, yet, if it were first received by him 
 within that county, it is a sufficient publication to support the indict- 
 ment (e). Owning the signature to a libel is no evidence in what county 
 it was signed. This was held in the case of the Seven Bishops (/) ; but 
 additional evidence being afterwards given that the bishops applied to 
 the Lord President of the Council about delivering a petition to the King 
 and that they were admitted to the King for that purpose in Middlesex, 
 the case was left to the jury {g). 
 
 Sect. VI. — Evidence. 
 
 Evidence for the Prosecution. — Where no plea of justification has 
 been filed it is usually sufficient for the prosecution to prove publication 
 of the defamatory libel by or at the instance of the defendant and within 
 the jurisdiction of the Court of trial and to produce and read the libel, 
 and to prove if need be any innuendoes or averments of intrinsic facts 
 necessary to shew the defamatory character of the publication and its 
 reference to the persons charged to be defamed, and also, if the libel is 
 framed on 6 & 7 Vict. c. 96, s. 4 (/?), that the defendant knew the 
 defamatory matter to be false. If the libel has merely been exhibited 
 
 (a) Ibid., and MS. Bayley, J. to know to whom letters should be directed, 
 
 (ft) R. V. Burdett, 4 B. & Aid. 95. to which an answer was returned in the 
 
 (c) R. V. Canning, 19 St. Tr. 283, 370. register. After this the publisher received 
 R. V. Plumer [1814], R. & R. 264 & MS. two letters in the same handwriting 
 Bayley, J. R. v. Johnson, 7 East, 65 ; directed as mentioned, and having the 
 29 St. Tr. 103, 438. Fletcher v. Braddyl, Irish postmarks on the envelopes, which 
 2 Stark. N. P. 64 ; 2 Stark. Ev. 456 (g). two letters were proved to be in the hand- 
 The contrary was held by Ellenborough, writing of the defendant, the previous 
 C.J., in R. V. Watson, 1 Camp. 215, where letter having been destroyed. It was held 
 he said that the postmark might have been that this was a sufficient ground for the 
 forged. But the decision is inconsistent Court to have the letters read ; and the 
 with the cases above cited. Stocken v. letters themselves containing expressions 
 Collin, 7 M. & W. 529. Odgers on Libel of the writer, indicative of his having sent 
 (4th ed.), 625. them to the publisher of the redster in 
 
 (d) R. V. Johnson, nhi snp. Middlesex for the purpose of pubhcation, 
 
 (e) R. V. Watson, 1 Camp. 215 ; and see the whole was evidence sufficient for the 
 R. V. Middleton, 1 Str. 77. In the case of jury to find a pubhcation in Middlesex 
 R. V. Johnson, 7 East, 65 ((mte, p. 52), the by the procurement of the defendant, 
 publisher of a pubHc register received an (/) 12 St. Tr. 183. 
 
 anonymous letter, tendering certain political (g) Ibid, 
 
 information on Irish affairs, and requiring (h) Ante, p. 1028.
 
 CHAP. XIII.] 
 
 Evidence. 
 
 1033 
 
 by the defendant, and he refuses on the trial to produce it, after 
 receiving ' notice to produce,' parol evidence may be given of its 
 contents (i). 
 
 Publication. — To constitute the offence it is essential to prove publi- 
 cation (/). The mere writing or composing of a defamatory libel by anyone 
 which is neither circulated or read to others, will not render him civilly, 
 nor, it would seem, criminally responsible ; nor will he be held to have 
 published the paper, if it be delivered out of his study by his own or his 
 servants' mistake (k), or pass out of his possession or control by accident, 
 or some cause independent of his volition. 
 
 It is not publication of a libel to take a copy which is not publi.shed (/). 
 But it is no defence to shew that the libel published was copied from 
 another publication even if published as a copy and the name of the 
 original author stated (w), but a person who has written a libel which is 
 afterwards published will be considered as the maker of it, unless he can 
 rebut the presumption of law by shewing another to be the author, or 
 prove the act to be innocent in himself (n). For as said by Holt, C.J., 
 if a libel appears under a man's handwriting, and no other author is 
 known, he is taken in the mainour (o) and it turns the ])roof upon him ; 
 and if he cannot jjroduce the composer, it is hard to find that he is not 
 
 (i) R. V. Watson, 2 T. R. 201, Buller, J. 
 Att.-Gen. v. Lemarchant, ib. 201 n. R. v. 
 Boucher, 1 F. & F. 486. R. v. Barker. 1 
 F. & F. 296. And see Odgers on Libel 
 (4th ed.), 676, 677. 
 
 (/) It is insufficient to i)rove publication 
 by a husband to his wife or by a '.^ ife to 
 her husband (cnite, p. 1022). 
 
 (k) R. V. Paine, 5 Mod. 167. 'As regards 
 criminal libels there are weighty dicta to 
 the effect that composing i.s an offence 
 without publication.' In R. ?;. Burdett, 
 4 B. & Aid. 9r>, Lord Tenterden saitl: 'Tlie 
 composition of a treasonable paper intended 
 for pvbUcatio7i, has, on more than one 
 occasion, been held an overt act of higli 
 treason, although the actual pvdilication 
 had been interccjitcd or prevented, and 1 
 have heard nothing on the present occasion 
 to convince my mind that one who com- 
 poses or writes a libel with intent to 
 defame, may not, inider any circumstances, 
 be pimished, if the libel be not published.' 
 Holroyd, J., said : ' Where a misdemeanor 
 has been committed by writing and ])ub- 
 lishing a libel, tiie writing of sucli a hbel 
 so publislied is in my o])inion ciiminal, and 
 liable to be punislied by the law of Enghmd 
 as a misdemeanor, as well as the })ublisliiiig 
 of it.' And again, ' The composing and 
 writing, with intent and for the j)urpose 
 above stated, of a libel proved to have 
 been published by the defendant, is in my 
 opinion of itself a misdemeanor, in what- 
 ever county the publishing of it took 
 place,' Upon the ])rinciplc that an act 
 done, and a criminal intention joined to 
 that act, are sufhcient to constitute a crime 
 it should seem that writing a lil)el witli 
 intent to defame is a crime. C. S. G. It 
 
 is submitted that the dicta .should be 
 limited to ' composing ' treasonable, 
 seditious or blasphemous writinss, ante, 
 pp. 3U1, 393. 
 
 (/) Com. Dig. tit. ' Libel ' (B. 2). Lamb's 
 case, 9 Co. Rep. .59. But see R. r. Bear, 
 2 Salk. 417 ; 1 Lord Raym. 414. 
 
 (w) De Crespigny r. Welleslev, ^> Bing. 
 392. See R. )'. Newman. 1 E. & B. 268, r>58. 
 po.st, p. lOoO. M'Pherson v. Daniels, 10 B. & 
 C. 263. Watkin v. Hall, L. H. 3 Q.B. 396 ; 
 .37 L. J. Q.B. 12;-). R. >: Sullivan. 11 Cox. 
 44 (Ir.) (copy from a forei<:n nows;)a])er). 
 
 (n) Bac. Abr. tit. ' Libel " (B. 1). Lamb".s 
 case, 9 Co. Rep. .59. The writing a libel 
 may be an innocent act, ej/.. in the clerk 
 who draws an indictment, or in the student 
 who takes notes of i^. But in .Maloney r. 
 Bartley. 3 Camp. 210, Wood, B., held, on 
 the trial of an action for libel, in the sha]>e 
 of an extra) lid ici(d attida\ it sworn before a 
 magistrate, that a pei-son who acted as a 
 magistrate's clerk was not bound to answer 
 whether by the defendant's onlers he wrote 
 the affidavit, and delivered it to the 
 maL'istrate, as he might thereby criminate 
 himself, 
 
 (o) A man was taken with the mainour, 
 when he was taken with the thing stolen in 
 his ])ossession. or. as it was termed in the 
 ancient indictments, raptus cum tnanit 
 opere, and when so taken he might be 
 brought into Court, arraigned, and tried 
 without a grand jury. 2 Hale. 148. 
 Some lords of manors had jurisdiction to 
 try such cases ; for I have the record of 
 such an indictment for horse stealine, 
 tried in the Court of I>eek. StafTordshiro 
 CMt Kdw. I.) See Pollock & Maitland. Hist. 
 Eng. Law, ii. 494. 577. C. S. (J.
 
 1034 Of Criminal Libels. [Book ix. 
 
 the very man (p). Where the manuscript of a seditious libel was in the 
 handwriting of the defendant, and a printer had printed five hundred 
 copies from it, three hundred of which had been posted about Birmingham, 
 but there was no evidence to connect the defendant with the printing or 
 the posting, except the handwriting, it was held, that there was evidence 
 to go to the jury that it was published by the defendant {q). 
 
 Where, in an action for libel contained in a pamphlet, a witness proved 
 that the defendant gave her a pamphlet, and that she read parts of it, 
 and that she had lent it to several persons, and it was returned to her, 
 but she could not swear the copy produced was the same pamphlet the 
 defendant gave her, but it was an exact copy, if it was not the same, and 
 she believed it to be the same, it was held that this was sufficient evidence 
 to be left to the jury {r). 
 
 The reading of a libel in the presence of another, without previous 
 knowledge of its being a libel, or the laughing at a libel read by another, 
 or the saying that such a libel is made by J. S., whether spoken with or 
 without malice, does not amount to a publication of the libel. And he 
 who rejieats part of a libcil in merriment, without any malice or purpose 
 of defamation, is not punishable (s). In an action for a libel contained in 
 a caricature print, where the witness stated, that having heard that the 
 defendant had a copy of this print, he went to his house and requested 
 liberty to see it, and that the defendant thereupon produced it, and pointed 
 out the figure of the plaintiff and the other persons it ridiculed, Lord 
 Ellenborough, C.J., ruled that this was not sufficient evidence of publi- 
 cation to support the action {t). 
 
 In criminal cases it is not essential as in civil cases of defama- 
 tory libel to prove publication to a person other than the person 
 defamed (w). 
 
 Proof that the libel was contained in a letter directed to the party, 
 and delivered into the party's hands, is sufficient proof of publication {v). 
 And delivering a libel sealed, in order that it maybe opened and published 
 by a third person in a distant county, is a publication [w). The production 
 of a letter containing a libel with the seal broken, and the postmark on 
 it, is frima facie evidence of publication {x). 
 
 All persons concerned in any capacity in the publication or circulation 
 of a defamatory libel or in causing or procuring its publication are liable 
 
 (p) R. V. Bear, 1 Ld. Raym. 414 ; 2 is made in the margin, whether a person 
 
 Salk. 417. who has a libellous writing in his possession, 
 
 {q) R. V. Lovett, 9 C. & P. 462, Littledale, and reads it to a private friend in liis own 
 
 J. house, is thereby guilty of publisJmig it. 
 
 (r) Fryer v. Gathercole, 4 Ex. 262. («) R. v. Adams, 22 Q.B.D. 66 : 58 L. J. 
 
 (.s) Bac. Abr. tit. ' Libel' (B. 2). This is M.C.I, 
 
 doubted in 1 Hawkins, P. C. c. 73, s. 14, (v) 1 Hawk. c. 73, s. 11. Bac. Abr. tit. 
 
 on the ground that jests of such a kind 'Libel' (B. 2), n. (a), Selw. (N. P.) 1050, n. 
 
 are not to be endured, and that the injury (9). Odgers on Libel (4th ed.), 438, 670. 
 
 to the reputation of the party grieved is R.f. Brooke, 7 Cox, 251. Addressing a letter 
 
 no way lessened by the merriment of lum to a wife containing reflections on her 
 
 who makes so light of it. As to reading a husband has been held publication and 
 
 libel in the hearing of others, knowing it to sufficient to siipport an action. Wenman 
 
 be such, being a publication of it, see Bac. v. Ash, 13 C.B. 836 : 22 L. J. C. P. 190. 
 
 Abr. tit. ' Libel ' (B. 2). {iv) R. v. Burdett, 4 B. & Aid. 95. 
 
 (t) Smith V. Wood, 3 Camp. 323. And (x) Warren v. Warren, 1 Cr. M. & R. 
 
 see R. V. Paine, 5 Mod. 165, where a qu. 360. Shipley v. Todhunter, 7 C. & P. 680. 1 
 
 f
 
 CHAP. xiiL] Evidence. 1035 
 
 as principals (i/) unless the part taken by them was lawful (z), or innocent, 
 or purely accidental (a). 
 
 It is usual in the indictment to charge the defendant with having 
 ' published and caused or procured to be published ' the libel in 
 question (6). 
 
 According to the older books it is not material whether he who dis- 
 perses a libel knew anything of the contents or effects of it or not, for 
 that nothing would be more easy than to publish the most virulent paj)ers 
 with the greatest security, if the concealing the purport of them from an 
 illiterate publisher would make him safe in dispersing them (c). 
 
 This opinion must be read subject to qualification, for a messenger 
 who cannot read, or the carrier of a sealed or closed parcel who has no 
 knowledge of the defamatory nature of its contents, cannot be held 
 criminally responsible for publication (d). The disseminator is not 
 liable unless conscious of the contents (e) or unless he has notice of their 
 nature putting him on inquiry (/). But printers can rarely rely on this 
 defence (g). Evidence is of course admissible to prove innocence of the 
 nature of the libel. Thus, where an action was brought against a porter 
 for a libel contained in a handbill, which he had delivered tied up in a 
 paper parcel, evidence was admitted that he delivered the parcel in the 
 course of his business without any knowledge of its contents {h). 
 
 In such cases the criminal responsibility rests on the person who 
 employs the innocent agent (t). 
 
 The defendant was indicted for causing to be published in a newspaper 
 a libel which told a story of the prosecutor, and added comments on 
 the story, giving it a ludicrous character. The editor of the newspaper 
 stated that the defendant had expressed a wish to him that he would 
 ' shew up ' the prosecutor, and had told him the story. The witness 
 communicated it to a reporter for the paper, and the libel was substantially 
 what was so communicated. Before the publication the defendant 
 remarked to the witness that the article had not yet appeared. After it 
 had appeared, the defendant told the witness that he had seen it, and 
 that he liked it very much. The witness had heard the story before the 
 defendant told it him. It was held, that on this evidence the jury might 
 find that the defendant authorised the publication of this particular 
 
 (y) 24&25 Vict. c. 94, s. 8, a«<e, p. 138. the publishci-s and negligently kept in 
 
 (z) e.g., by reason of absolute privilege, circulation by a library after receipt of the 
 
 post, p. 1041. publisher's notice. 
 
 (a) R. V. Munslow [1895], I Q.B. 758, (y) Lord Hardwicke said in /?< Road and 
 765 : 64 L. J. M. C. 138. Wills, J., follow- Huggonson, 2 Atk. 472 : ' Tliougli i)rinting 
 ing Emmcns v. Pottle, 16 Q.B.D. 354. Cf. papers and pamphlets is a tratle by wliich 
 R. V. Lord Abingdon, 1 Esp. 22(). persons get their livelihood, yet tiiey must 
 
 (b) See Arch. Cr. PI. (23rd cd.) 1122. takeearetouseit\vitlii)rudenceandcaution; 
 For other precedents see 2 Cox, App. foriftheyprintanythingthatislibellous.it 
 XXIX., and Odgers on Libel {4th ed.). 752. is no excuse to say that the printer had 
 
 (c) Bac. Abr. tit. ' Libel ' (B. 2). 1 Hawk. no knowledge of the eont<>nts. and^ was 
 c. 73, s. 10. entirely ignorant of its being libelloiw.' 
 
 (d) Emmens v. Pottle, 16 Q.B.D. 354. (/i) Day v. Bream, 2 M. & Rob. 54. 
 R. V. Topham, 4 T. R. 127, 128, Kenyon, Patteson, J., said ' prima facie he was 
 C.J. R. V. Nutt, Fitz. 47. answerable, he had in fact delivered and 
 
 (e) Maloney v. Bartlcy, 3 Camp. 213. put into pul)lica(ion the lil)el complained 
 Mcleod V. St. Aubyn [1899], A. C. 549. of, and was therefore called upon to shew 
 
 ( f ) Vizetelly v. Mudies, Ltd. [1900]. 2 Q.B. his ignorance of the contents." 
 170, a ca-se of a book called in as libellous by (t) Vide ante, p. 104.
 
 1036 Of Criminal Libels. [BOOK IX. 
 
 libel, notwithstanding the comments added, as there were both a general 
 authority to publish, and an approval of the particular publication (j). 
 
 Where a reporter to a newspaper proved that he had given a written 
 statement to the editor of the paper, the contents of which had been 
 communicated to him by the defendant for the purpose of such pubhca- 
 tion, and that the newspaper then produced was exactly the same, with 
 the exception of some slight alterations, not affecting the sense ; it was 
 held, that what the reporter published, in consequence of what passed 
 with the defendant, might be considered as published by the defendant ; 
 but that the newspaper could not be read without producing the written 
 account delivered by the reporter to the editor (k). 
 
 In an action for libel the plaintiff complained of the publication in 
 certain newspapers of reports of the proceedings of a board of guardians, 
 containing defamatory statements concerning himself. At the meeting 
 at which the proceedings in question took place, reporters were present 
 in the discharge of their duty as representatives of newspapers. One of 
 the defendants was chairman of the meeting, and the other was present 
 and took part in the proceedings. The latter said that he hoped the 
 local press would take notice of ' this scandalous case,' and requested 
 the chairman to give an account of it. This he accordingly did, and in 
 the course of his statement said, ' I am glad gentlemen of the press are 
 in the room, and I hope they will take notice of it.' The other defendant 
 thereupon said, ' And so do I.' The reports complained of were after- 
 wards inserted in the newspapers, being somewhat condensed, but sub- 
 stantially correct, accounts of what had been said at the meeting. These 
 reports were set out in the declaration, and constituted the libels com- 
 plained of. The judge at the trial directed a verdict for the defendants, on 
 the ground that there was no evidence of a publication by the defendants 
 of these libels, to which direction the plaintii? excepted. Held (by 
 Keating, Montague Smith, and Hannen, JJ., diss. Byles and Mellor, JJ.), 
 that the direction was wrong, and that there was evidence for the jury (/). 
 
 Where an information for libel stated that the prosecutor had received 
 certain anonymous letters, and that the defendant j)ub]ished a libellous 
 placard of and concerning those letters, and the placard asked, ' Were 
 you not warned that your character was at stake ? ' and the prosecutor 
 stated that he should not have understood the meaning of the placard 
 
 (j) R. V. Cooper, 8 Q.B. 533. Denman, to another to publish defamatory matter, of 
 
 C.J., said : ' If a man request another which, for the purpose, he gives him a 
 
 generally to write a libel, he must be statement, whether in full or in outline, 
 
 answerable for any libel written in jDursuance and the agent jiublishes the matter, 
 
 of his request : he contributes to a mis- adhering to the sense and substance of it, 
 
 demeanor, and is therefore responsible as a although the language be to some extent 
 
 principal.' ' I have no doubt that a man his own, the man making the request is 
 
 who employs another generally to write a liable to an action as the publisher. If the 
 
 libel must take his chance of what appears, law were otherwise, it would, in many cases, 
 
 though something may be added which he throw a shield over those who are the real 
 
 did not state.' authors of libels, and who seek to defame 
 
 (k) Adams ik Kelly, Ry. & M. 157. others under what would then be the safe 
 
 (Z) Parkes v. Prescott, L. R. 4 Ex. 169, shelter of intermediate agents. I make 
 
 179: 38 L. J. Ex. 105. Montague Smith, J., this observation only with reference to 
 
 in delivering the judgment of the majority of the general consequences which would 
 
 the Court, said : ' In the result, I come to result from the arguments relied on to 
 
 the conclusion that, on principle it is correct sustain the defendant's contention.' 
 to hold that, where a man makes a request 
 
 I' 
 
 I
 
 CHAP. XIII.] Evidence, 1037 
 
 if he had not also seen the letters, and that he understood the passage in 
 the placard to allude to the letters, it was held that the letters were 
 admissible without proving who wrote or sent them, as the placard 
 referred to them, and would not be intelUgible without them, and that 
 a defendant, who refers to other papers in his publication, must submit 
 to have them read as explanatory of such publication (m). 
 
 If the handwriting of the defamatory matter is in dispute it may be 
 compared with genuine writing of the defendant. See 28 & 29 Vict. c. 
 18, ss. 1, 8 (post, Vol. ii. p. 2150). 
 
 As to the admissibility of depositions taken under the Indictable 
 Offences Act, 1848 (11 & 12 Vict. c. 42), and the use of gazettes, procla- 
 mations, &c., in evidence, see post, Bk. xiii. c. iv. and p. 2120. 
 
 Malice and Intent.— It is not necessary to prove malice unless the 
 occasion is privileged or the defence of fair comment is raised (;(). In 
 such cases the evidence must go to shew express malice (o). 
 
 The criminal intention of the defendant will be matter of inference 
 from the nature of the publication. Where a libellous publication appears 
 unexplained by any evidence, the jury should judge from the overt act ; 
 and, where the publication contains a charge defamatory in its nature,, 
 should from thence infer that the intention was malicious (p). It is a 
 general rule that an act unlawful in itself, and injurious to another, is 
 considered in law to be done malo animo towards the person injured ; 
 and this is all that is meant by a charge of malice in an indictment or 
 statement of claim for defamatory libel, which is introduced rather to 
 exclude the supposition that the publication may have been made on 
 some innocent occasion than for any other purpose (q), and is not essential 
 in an indictment (r). The intention may be collected from the libel, 
 imless the mode of publication, or other circumstances ex])lain it ; and 
 the publisher must be presumed to intend what the publication is likely 
 to produce ; so that if it is likely to excite sedition, he must be presumed 
 to have intended that it should have that effect (s). Publishing what is 
 a libel without excuse is indictable, though the publisher be free from 
 what in common parlance is called malice ; for defaming wilfully withcjut 
 excuse is in law malicious. And even if it could be an excuse, that the 
 publisher believed what he published to be true, it is not so if he jjrofesses 
 to publish it from authority. A newspaper contained this paragraph : 
 ' the malady under which his Majesty labours is of an alarming nature 
 [meaning insanity] ; it is from authority we speak.' At the trial of the 
 indictment for this publication, the jury asked if a malicious intention 
 were necessary to constitute a libel ; to which Abbott, C'.J., answered, 
 that a man must have intended to do what his act was calculated to effect ; 
 and the jury found the defendant guilty. Upon a motion for a new trial 
 it was admitted that the paragraph was libellous, but it was urged that 
 malice was essential to make the defendant criminal ; that he believed 
 
 (m) R. V. Slancy, 5 C. & P. 213. Tenter- Stuart v. Lovel. 2 Stark. (N. P.) 93. 
 
 den, C.J. (?) Duncan v. Tliwaites, 3 B. & C. 584, 
 
 (n) See Odgei-s on Libel (4th ed), (577. 58.'). Tentcnlcn, C.J. 
 
 (o) Vide post, pp. 1030. 1047. (r) R. r. Munslow, avt-. p. 1029. 
 
 (/;) R. V. Lord Abin-idon. 1 Esp. 228, (.s) R. v. Burdett. 4 B. & AI<1. 9.5. R. v. 
 
 Kenyon, C.J. And .seejR.Ti'. Topliani, 4 Lovett, 9 C. & P. 402, Littlcdale. J. 
 T. R. 127. R. r. Woodfall, 5 Burr. 2(;07.
 
 1038 Of Criminal Libels. [book ix. 
 
 the King to have been so afflicted, and that the answer to the question 
 by the jury was incorrect. But the Court thought otherwise, as the 
 defendant must know whether he spoke from authority, and could have 
 proved it ; and if malice were a question of fact, a man must be presumed 
 to have intended to produce the effect which his act will naturally produce ; 
 and libelling without excuse is legal malice {t). A person who publishes 
 matter injurious to the character of another must be considered, in point 
 of law, to have intended the consequences resulting from that act [u), 
 for every man must be presumed to intend the natural and ordinary 
 consequences of his own act {v). The judge, therefore, ought not to 
 leave it as a question to the jury, whether the defendant intended to 
 injure the person libelled, but whether the tendency of the publication 
 was injurious to such person {w). In some cases, however, the paper or 
 other matter may be libellous only with reference to circimistances 
 which should be laid before the jury by evidence. 
 
 In order to shew the existence of actual malice in the mind of the 
 writer of a libel, other libels by him, whether written previously or 
 subsequently, are admissible in evidence {x). Where the House of Ijords 
 asked the judges ' in an action for defamatory libel, when the plea of the 
 general issue is pleaded, and also a plea under 6 & 7 Vict. c. 96, s. 1, denying 
 actual mahce, and stating the publication of an apology set forth in the 
 plea, is it admissible upon a trial for the plaintiff to give evidence of other 
 publications by the defendant (some of them more than six years before 
 the publication complained of) of and concerning the plaintiff, in order to 
 prove malice against the defendant ? ' the judges answered, ' We are all 
 of opinion that, under such a plea, the pubKcation of the previous libels 
 on the plaintiff by the defendant is admissible evidence to shew that the 
 defendant wrote the libel in question with actual malice against the 
 plaintiff. A long practice of libelling the plaintiff may shew in the most 
 satisfactory manner that the defendant was actuated by malice in the 
 particular publication, and that it did not take place through carelessness 
 or inadvertence ; and the more the evidence approaches to the proof of 
 a systematic practice, the more convincing it is. The circumstance that 
 the other libels are more or less frequent, or more or less remote from 
 the time of the publication of that in question, merely affects the weight, 
 not the admissibility of the evidence.' And the House of Lords held 
 accordingly (?/). 
 
 Where an information for libel alleged that a person unknown 
 murdered E. G., and that one H. had been arrested on the charge of 
 committing the murder and discharged, and the libel set out spoke of 
 ' the acquittal of H. for the murder of E. G. ; ' it was held that the 
 inducement was proved by evidence that a person had been murdered, 
 and that H. had been charged with the murder and afterwards discharged, 
 and that at the inquest held on the body witnesses called the deceased 
 
 {i) R. V. Harvej', 2 B. & C. 257, 2 St. Tr. {w) Haire v. Wilson, s^ipra. 
 
 (N. S.) 1. [x) Pearson v. Lemaitre, 5 M. & G. 700. 
 
 \u) Fisher v. Qement, 10 B. & C. 472, Darby v. Ouseley, 1 H. & N. 1. Stuart v. 
 
 Tenterden, C.J. Love!, 2 Stark. (N. P.) 93. 
 
 (v) Haire v. Wilson, 9 B. & C. 643, (y) Barrett v. Long, 3 H. L. C. 395. See 
 
 Tenterden, C.J, Hemmings v. Gasson, E. B. & E. 346
 
 CHAP. XIII.] Matters of Defence. 1039 
 
 by the name of E. G., and that this la.st fact might be proved by the 
 coroner, and that he might for this purpose use an inquisition drawn up 
 on paper (2). 
 
 Wliere a declaration for libel set out the following passage : ' We 
 would suggest to the ex-Duke of Brunswick the propriety of withdrawing 
 into his own natural and sinister obscurity ' (meaning thereby to insinuate 
 that the plaintiff was guilty of unnatural practices), Lord Campbell, C.J., 
 refused to permit a witness to be asked if he had read the libel, and what 
 he understood by the word ' natural ' printed in italics, as it was for the 
 jury to form their own opinion as to what was meant by the word so 
 printed (a). 
 
 In an action for libel it appeared that the plaintiff, an attorney, was 
 employed by one N. to bring an action against an executor ; ajid that 
 the defendant who was employed to adjust the executor's accounts, 
 finding that an action was about to be commenced against the executor, 
 wrote a letter to N. blaming him for allowing the plaintiff to sue, and 
 containing this passage, ' If you will be misled by an attorney, who only 
 considers his own interest, you will have to repent it ; you may think 
 when you have once ordered your attorney to write to Mr. G., he would 
 not do any more without your further orders ; but if you once set him 
 about it, he will go any length without further orders/ It was held that 
 the question whether this letter applied to the plaintiff individually, or 
 to the profession at large, was properly left to the jury (h). 
 
 Sect. VIL — Matters of Defence. 
 
 The defences to an indictment for defamatory libel are : (1) that the 
 words were not published by the defendant ; (2) that they do not refer 
 to the person of whom they are alleged to be published ; (3) that they 
 are not defamatory ; (4) that if published they are (a) absolutely 
 privileged {c), or (b) conditionally privileged and published without 
 express malice (d) ; (5) that if published they are in the nature of fair 
 comment or criticism (e) ; (6) that they are true in substance and in fact 
 and published for the public benefit (/). All these defences except the 
 last may be set up under a plea of not guilty. The last must be set up 
 by special plea. Under the plea of not guilty the defendant is entitled 
 to prove that there was no publication or that he was not responsible for 
 it, and to shew that the alleged libel does not relate to or does not defame 
 the person to whom it is alleged to refer, and to prove privilege absolute 
 or qualified, or fair comment. 
 
 Publication. — ' The publication of a libel when prosecuted as a criminal 
 offence was at common law treated upon an exceptional princijile and 
 with exceptional severity (g). The maxim " respondeat sujierior," which, 
 with rare exceptions founded on reasons not applicable to libel, and which 
 
 {z) R. V. Gregory, 8 Q.B. 508. if) Post, p. lOf)?. 
 
 (a) Duke of Brunswick v. Harraor, 3 C. & (7) Libel was thua an exception from (lie 
 K. 10. 'distinction between the authority which 
 
 (b) Godson v. Home, 1 B. & B. 7. will make a man liable criminally and that 
 
 (c) Post, p. 1041. which will make him Habic civilly for the 
 
 (d) Poft, p 1047 acts of another.' Parkes t>. Prcscott, L. R. 
 
 (e) Post, p. 1055. 4 Ex. 1C.9 : 38 L. J. Ex. 105, Byles, J.
 
 1040 Of Criminal Libels. [book ix. 
 
 1 will presently notice {h), pertains to civil liability only, was applied to 
 an indictment for libel, and the proprietor of a newspaper in which a 
 libellous article had been inserted was held to be criminally as well as 
 civilly responsible for it, though he had never authorised it nor had 
 anything to do with its insertion and whether the editor had inserted it 
 by negligence or wilfully ' {i). 
 
 In accordance with this rule, proof of the purchase of a book or paper 
 containing defamatory matter, in a bookseller's shop, was h.e\di prima facie 
 evidence of publication by the master, although it did not appear that 
 he knew of any such book being there, or what the contents thereof were, 
 and though he was not upon the premises, and had been kept away for a 
 long time by illness ; the Court would not presume that it was obtained 
 and sold there by a stranger, and held that the master must, if he sug- 
 gested anything of this kind in his excuse, prove it (/). So the proprietor of 
 a newspaper was held answerable, criminally as well as civilly, for the acts 
 of his servants in the publication of a libel, although it could be shewn that 
 such publication was without the privity of the proprietor {k) ; for a 
 person who derives profit from, and who furnishes means for, carrying 
 on the concern, and entrusts the conduct of the publication to one whom 
 he selects, and in whom he confides, was presumed to cause to be published 
 what actually appeared, and ought to be answerable, althovigh it could 
 not be shewn that he was individually concerned in the particular publi- 
 cation (?) ; and these were acts done in the course of the trade or business 
 carried on by the proprietor. 
 
 But there were cases in which the presumption arising from the pro- 
 prietorship of a paper might be rebutted by evidence in exculpation or 
 contradictory (m). Thus in an action for a libel, where it appeared upon 
 the evidence that the defendant, a tradesman, was accustomed to employ 
 his daughter to write his bills and letters ; that a customer, to whom a bill 
 written by the daughter had been sent by the daughter, sent it back on the 
 ground of the charge being too high, and that the bill was afterwards 
 returned to the customer, inclosed in a letter also written by the defend- 
 ant's daughter, and being a libel upon the plaintiff, who had inspected 
 and reduced the bill for the customer ; it was held that this was 
 not sufficient evidence to go to a jury, either of comniand, authority, 
 adoption, or recognition by the defendant {n). 
 
 The rigour of the common law was mitigated by sect. 7 of the Libel 
 Act, 1843 (6 & 7 Vict. c. 96), which enacts that ' Whensoever, upon the 
 
 {h) See R. v. Stephens, L. R. 1 Q. B. 702 {k) R. v. Walter, 3 Esp. 21. R. v. Dod, 
 
 (public nuisance). 2 Sess. Cas. 33, pi. 38. 1 Hawk. c. 73, s. 10. 
 
 [i) R. V. Holbrook, 4 Q.B.D. 42, 46, Woodf all's case. Essay on Libels, p. 18. 
 
 Lush, J. See R. v. Walter [1808], 3 Esp. Salmon's case, K.B. Hil. 1777. 
 
 21. Colbourn v. Patmore [1834], 1 Cr. {I) R. v. Gutch, M. & M. 433, Tenterden, 
 
 M. & R. 73, where Alderson, B., said, C.J. 
 
 ' A master is presumed to authorise the (m) R. v. Gutch, M. & M. 433, Tenterden, 
 
 insertion of a libel.' C.J., and see R. v. Almon, 5 Burr. 2686. 
 
 ij) Bac. Abr. tit. 'Libel '{B. 2). R. v. (n) Harding v. Greening, 8 Taunt. 42. 
 
 Nutt, Fitzgib. 47 : 1 Barnard. (K.B.) 306 ; It was also held in this case that the 
 
 2 Sess. Cas. 33, pi. 38. And see R. v. daughter could not be compelled to prove 
 Almon, 5 Burr. 2686, relating to Junius' by whose direction the letter was written, 
 letters which were published in a magazine The answer would tend to fix herself with 
 bought at the defendant's shop and pur- the crime of writing it. 
 
 porting to bp 'printed for him.' 
 
 i
 
 CHAP. XIII.] Matters of Defence. 1041 
 
 trial of .iny indictment or information for the publication of a libel, 
 under the plea of not guilty, evidence shall have been given which shall 
 establish a presumptive case of publication against the defendant by the 
 act of any other person by his authority, it shall be competent to such 
 defendant to prove that such publication was made without his authority, 
 consent, or knowledge, and that the said publication did not arise from 
 want of due care or caution on his part ' (o). 
 
 This section is not limited to newspapers. ' It applies to any printed 
 or written slander, whether contained in a newspaper, book, bill or 
 letter. What it deals with is the libel, nothing more ' (p). Nor does 
 it say what is the effect of proving the negative : ' but there can be as 
 little doubt that it means it to be an entire defence entitling the defendant 
 to a verdict and not merely to a mitigation of punishment ' (q). The 
 effect of the section as regards newspapers is to make the existence of an 
 authority by the proprietor to the editor to publish libels no longer a 
 presumption of law, but a question of fact. Under the former law the only 
 question of fact was whether the proprietor authorised the publication of 
 the newspaper ; under the section it is whether he authorised the publica- 
 tion of the particular libel. Though production of the newspaper con- 
 taining the libel with proof that he is owner raises a prinm facie case of 
 responsibility, he may under sect. 7 displace this case by appropriate 
 evidence, and the jury are to be directed that criminal intention is not to 
 be presumed, and that the general authority to an editor to conduct a 
 newspaper is not per se evidence that the owner authorised or consented to 
 the publication by the editor of a libel in the paper (r). 
 
 It is not open to the defendant to prove that a paper similar to that, for 
 the publication of which he is prosecuted, was published on a former 
 occasion by other persons, who have never been prosecuted for it {s). 
 Where the alleged libel was contained in a newspaper, it was held that 
 the defendant had a right to have read in evidence any extract from tho 
 same paper, connected with the subject of the passage charged as 
 libellous, although disjointed from it by extraneous matter, and printed 
 in a different character {t). This rule is of general application so 
 far as the context or other matter in the same publication qualifies or 
 explains the matter charged as defamatory. 
 
 1. Absolute Privilege. 
 Petitions to the King.— A petition to the King to be rclievcd^from 
 doing what the King has directed the party to do, if made bona fide and in 
 respectful terms, is not punishable, though it call in questioi\ tho legality 
 of the King's direction. James II. published a declaration of liberty of 
 conscience and worship to all his subjects, dispensing with the oaths and 
 tests prescribed by statutes of Charles II. (25 Car. II. c. 2, and 30 Car. II, 
 St. 2) {u), and directed that it should be read two days in every church 
 
 (o) The section is not limited to defam- (r) Id. il'id. 
 
 atory libels. R. v. Bradlaugli, 15 Cox, 217. (■'<) R. '■• Hoi4. 5 T. R. 430. 
 
 R. t'. Ramsay, 15 Cox, 231. Vide ante, p. (/) R. v. Lambert, 2 Camp. 398; 31 St. 
 
 310. Tr. 33.->. 
 
 (p) R. V. Holbrook, 4 Q.B.D. 42. 48: (») The first of these Act.s was repealed 
 
 47 L. J. Q.B. 3.5, Lush, J. in 1863, the second in 1866 (29 & 3U \ ict. 
 
 (q) Id. ibid. ' ' c. 19, s. 6). 
 
 VOL. I. 
 
 3
 
 1042 
 
 Of Criminal Libels. 
 
 [BOOK IX. 
 
 and chapel in tlie realm, and that the bishops should distribute it in their 
 dioceses that it might be so read. The Archbishop of Canterbury and 
 six bishops presented a petition to the King praying that he would not 
 insist upon their distributing and reading it, principally because it was 
 founded on such a dispensing power as had often been declared illegal 
 in Parliament, and that they could not in prudence, honour, or conscience, 
 so far make themselves parties to it as to distribute and publish it. This 
 petition was treated as a libel : they were taken up and tried for it. The 
 publication was proved ; and Wright, C.J., and Allibone, J., thought it 
 a libel : but Holloway and Powell, JJ., thought otherwise, there not 
 being an ill intention of sedition in the bishops, and the object of their 
 petition being to free themselves from blame in not complying with the 
 King's command {v). 
 
 Statements made in a petition to Parliament or to a committee {w) 
 of either House are absolutely privileged {x). 
 
 Proceedings in Parliament. — The members of the two Houses of 
 Parliament, by reason of their privilege {y), are not answerable in law 
 for any personal reflections on individuals contained in speeches in their 
 respective Houses ; for policy requires that those who are by the consti- 
 tution appointed to provide for the safety and welfare of the public, 
 should, in the execution of their high functions, be wholly uninfluenced 
 by private considerations [z). 
 
 The same privilege attaches to evidence given before com- 
 mittees (a). This form of privilege is limited to what is published in 
 Parliament, and does not apply to republication outside (2), except 
 perhaps to bona fide publication by a member for the information of 
 his constituents (6). 
 
 Reports of Proceedings in Parliament. — The publication of a report 
 of a debate in either House of Parliament is not absolutely privileged : 
 but if it be accurate the publisher is not responsible for defamatory 
 statements made in the course of the debate so reported and published (c), 
 or for the publication of articles fairly commenting upon the debate 
 so reported and published (d). 
 
 {v) Case of the Seven Bishops, 12 St. Tr. 
 183. Hare v. Mellers, 3 Leon. 138, 163. 
 
 (iv) In Lake v. King f 1 668], 1 Wms. Saund. 
 131 a, it was held that the printing of a false 
 and scandalous petition to a committee of 
 the House of Commons and a delivery of 
 copies to the members of the committee was 
 justifiable (qu. absolutely privileged), 
 because it was in the order and course of 
 proceedings in Parliament. Cf. Kane v. 
 Mulvany, Ir. Rep. 2 C. L. 402. In R. v. 
 Salisbury, 1 Ld. Raym. 341, it was said 
 to be indictable to publish a scandalous 
 petition to the House of Lords. 
 
 (x) R. V. Creevey, 1 M. & S. 273, 278, 
 EUenborough, C.J. See Wason v. Walter, 
 L. R. 4 Q.B. 73. 
 
 (y) By 4 Hen. VIIL c. 3 {jm-o Ricardo 
 Strode), members of Parliament are pro- 
 tected from all charges against them for 
 anything said in either HoiLse ; and tliis is 
 
 further declared in the Bill of Rights, 
 1 Will. & M. St. 2, c. 2. See Dillon v. 
 Balfour, 20 L. R. Ir. 600. Fielding v. 
 Thomas [1896], A. C. 600, 612. 
 
 (z) See Holt on Libel, 190. 1 Starkie on 
 Libel, 239. Odgers on Libel (4th ed.), 219. 
 R. V. Lord Abingdon, 1 Esp. 226. R. v. 
 Creevv, 1 M. & S. 273. 
 
 (a) 'Coffin V. Donnelly, 6 Q.B.D. 307. 
 
 (b) Wason v. Walter, L. R. 4 Q.B. 95. 
 
 (c) Davison v. Duncan, 7 E. & B. 233. 
 id) Wason v. Walter, L. R. 4 Q.B. 
 
 95 ; 38 L. J. Q.B. 34, et per cur., ' Our 
 judgment will in no way interfere with 
 the decisions that the pubhcation of 
 a single speech for the purpose or 
 with the effect of injuring an individual 
 will be vmlawful, as was held in the 
 cases of R. v. Lord Abingdon, 1 Esp. 225, 
 and R. v. Creevey, 1 M. & S. 273. At the 
 same time it may be as well to observe 
 
 i
 
 CHAP. XIII.] Matters of Defence. 1043 
 
 This privilege is extended to the publication in newspapers in the 
 case of fair and accurate reports of the proceedings of a select committee 
 of either House unless published maliciously (e). 
 
 This privilege will be destroyed by proof of express malice ( f). 
 
 Parliamentary Publications.— The Parliamentary Papers Act, 1840 
 (3 & 4 Vict. c. 9) (g), after reciting, ' whereas it is essential to the due and 
 effectual exercise and discharge of the functions and duties of Parliament, 
 and to the promotion of wise legislation, that no obstructions or impedi- 
 ments should exist to the publication of such of the reports, papers, votes, 
 or proceedings of either House of Parliament as such House of Parliament 
 may deem fit or necessary to be published : And whereas obstructions 
 or impediments to such publication have arisen, and hereafter may arise, 
 by means of civil or criminal proceedings being taken against persons 
 employed by or acting under the authority of the Houses of Parliament, 
 or one of them, in the publication of such reports, papers, votes, or pro- 
 ceedings ; by reason and for remedy whereof it is expedient that more 
 speedy protection should be afforded to all persons acting under the 
 authority aforesaid, and that all such civil or criminal proceedings should 
 be summarily put an end to and determined in manner hereinafter 
 mentioned : ' enacts (sect. 1 ) that * it shall and may be lawful for any 
 person or persons who now is or are, or hereafter shall be, a defendant or 
 defendants in any civil or criminal proceeding commenced or prosecuted 
 in any manner soever, for or on account or in respect of the publication of 
 any such report, paper, votes, or proceedings by such person or persons, 
 or by his, her, or their servant or servants, by or under the authority of 
 
 that we are disposed to agree with what was with an honest belief in their justice; 
 
 said in Davison v. Duncan, 7 E. & B. 232, but that this was not enough, inasmuch as 
 
 as to such a speech being privileged if such belief might originate in the blindness 
 
 bona fide published by a member for the of party zeal, or in personal or political 
 
 information of his constituents. But aversion, that a person taking upon himself 
 
 whatever would deprive a report of the jniblicly to criticise and to condemn the 
 
 proceedings in a Court of justice of immu- conduct or motives of another must bring 
 
 nity will equally apply to a report of pro- to the task not only an honest sense of 
 
 ceedings in Parliament. We pass on to justice, but also a reasonable degree of 
 
 the second branch of this rule, which has judgment and moderation, so that the 
 
 reference to alleged misdirection in respect result may be what a jury shall deem under 
 
 of the second count of the declaration, the circumstances of the case a fair and 
 
 which is founded on the article in the legitimate criticism on the conduct and 
 
 Times, commenting on the debate in tiie motives of the party who is the object of 
 
 House of Lords ; and the conduct of the censure. See Henwood v. Harrison, L. R. 
 
 plaintiff in preferring the petition which 7 C.P. 600; 41 L. J. C.P. 20(>. 
 gave rise to it. We are of opinion that the (e) 51 & 52 Vict. c. 64, s. 4, iwsl, p. 1049. 
 
 direction given to the jury was perfectly See R. v. Wright, 2 T. R. 29.3. Kane v. 
 
 correct. The publication of the debate Mulvany, Ir. Rep. 2 C. L. 402. 
 having been justifiable, the jury were ( /) Wason v. Walter, L. R. 4. Q.B. 73. 
 
 properly told that the subject was, for the (;/) This Act was pa.sse<l in consequence 
 
 reasons we have already adverted to, pre- of the decision in Stockdale r. Hansard, 9 
 
 eminently one of public interest, and there- A. & E. 1. See Wason v. Waltor, tthi sup., 
 
 fore one on which public comment and Cockburn, C.J. ; Henwood r. Harrison, 
 
 observation might properly be made ; and L. R. 7 C.P. 606, Willes. J. By s. 28 of 
 
 that consequently the occasion was privi- the Unlawful Societies Act, 1799 (39 Ceo. 
 
 leged in the absence of malice. As to the III. c. 79, /w.s/. p. 1062). nothing in that 
 
 latter, the jury were told that they must be Act contained shall extend or be construed 
 
 satisfied that the article was an honest and to extend to any papers printed by the 
 
 fair comment on the facts ; in other words, authority and for the use of either House 
 
 that, in the first place, they must be satis- of Pariiament. Sec Burr t'. Smith [1909], 
 
 fied that the comments had been made 2 K. B. 306. 
 
 3x2
 
 1044 Of Criminal Libels. [book ix. 
 
 either House of Parliament, to bring before the Court in which such 
 proceeding shall have been or shall be so commenced or prosecuted, or 
 before any judge of the same (if one of the superior Courts of Westminster), 
 first giving twenty-four hours' notice of his intention so to do to the 
 prosecutor or plaintiff in such proceeding, a certificate under the hand of 
 the Lord High Chancellor of Great Britain, or the Lord Keeper of the 
 Great Seal, or of the Speaker of the House of Lords, for the time being, 
 or of the Clerk of the Parliaments, or of the Speaker of the House of 
 Commons, or of the Clerk of the same House, stating that the report, 
 paper, votes, or proceedings, as the case may be, in respect whereof such 
 civil or criminal proceeding shall have been commenced or prosecuted, 
 was published by such person or persons, or by his, her, or their servant 
 or servants, by order or under the authority of the House of Lords or of 
 the House of Commons, as the case may be, together with an affidavit 
 verifying such certificate ; and such court or judge shall thereupon 
 immediately stay such civil or criminal proceeding, and the same, and 
 every writ or process issued therein, shall be and shall be deemed and 
 taken to be finally put an end to, determined and superseded by virtue 
 of this Act ' (/i). 
 
 By sect. 2, ' In case of any civil or criminal proceeding hereafter to be 
 commenced or prosecuted for or on account or in respect of the publication 
 of any copy of such report, paper, votes, or proceedings, it shall be lawful 
 for the defendant or defendants at any stage of the proceedings to lay 
 before the Court or judge such report, paper, votes, or proceedings, and 
 such copy, with an affidavit verifying such report, paper, votes or pro- 
 ceedings, and the correctness {hh), of such copy, and the court or judge 
 shall immediately stay such civil or criminal proceeding, and the same, and 
 every writ or process issued therein, shall be and shall be deemed and 
 taken to be finally put an end to, determined, and superseded by virtue 
 of this Act/ 
 
 By sect. 3, ' It shall be lawful in any civil or criminal proceeding to be 
 commenced or prosecuted for printing any extract from or an abstract of 
 such report, paper, votes, or proceedings, to give in evidence under the 
 general issue such report, paper, votes, or proceedings, and to shew that 
 such extract or abstract was pubKshed bona fide and without malice ; 
 and if such shall be the opinion of the jury a verdict of not guilty shall 
 be entered for the defendant or defendants ' (i). 
 
 By sect. 4, ' Nothing herein contained shall be deemed or taken, or 
 held or construed, directly or indirectly, by implication or otherwise, to 
 affect the privileges of Parliament in any manner whatsoever.' 
 
 Judicial Proceedings. — A defamatory statement made on oath or 
 otherwise in the course of a, judicial proceeding before a Court of competent 
 jurisdiction cannot be made the subject of criminal proceedings for libel (j). 
 
 {h) This section makes it imperative upon extracts from a Parliamentary paper 
 
 the Court to stay proceedings. Stockdale pubHshed as a blue book, see Mangena v. 
 
 V. Hansard, 11 A. & E. 297. Mangena v. Edward Lloyd, Ltd. [1908], 24 T. L. R. 
 
 Wright [1909], 25 T. L. R. 534. 610 : [1909], 25 T. L. R. 10. Same v. 
 
 (hh) As to incorrect extracts, see Reis v. Wright [1909], 25 T. L. R. 
 
 Perry, 64 L. J. Q.B. 566. (j) McCabe v. Joynt [1901], 2 Ir. Rep. 
 
 (i) As to the extent to which this 115, 117. 
 section protects bo7in fide publication of
 
 CHAP. xiiL] Matters of Defence. 1045 
 
 It is immaterial whether the statement is made by a person sitting 
 in a judicial capacity (k), or by jurors [l), advocate (m), party {71), or 
 witness (o), and the privilege extends to proceedings to swear articles of 
 the peace or ex 'parte applications to a court of justice (p). 
 
 The privilege extends to the pleadings and documents created or used 
 for the purpose of the proceedings. Thus where the defendant, in an 
 affidavit filed in Court, 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 dispute in a court of justice, where one by affidavit charges 
 a thing and the other denies it, the charges must be contradictory, and 
 there must be affirmation of falsehood (q). 
 
 And the calendars of prisoners for trial at assizes or quarter sessions, 
 and the cause lists are within the privilege (r). 
 
 The privilege has been held to extend to reports by an official receiver, 
 in execution of his duties under the Companies Winding-up Act, 1890 (s). 
 
 The privilege is not a privilege to be malicious but a privilege that 
 statements in judicial inquiries should be exempt from any inquiry 
 whether they were prompted by malice or not, it being for the public 
 interest that such statements should be made without any apprehension 
 of subsequent legal proceedings (t). 
 
 Reports and Acts of State Officials. — Absolute privilege also attaches 
 to certain classes of communications made by a state official in advising 
 the Crown, or by one official to another, whether superior or equal in rank, 
 in pursuance of official duty (u), and to official notifications of matters 
 of state concern {v). As regards publication of such notices in newspapers 
 see 51 & 52 Vict. c. 64, s. 4, post, p. 1049. 
 
 Statements made in the courts of proceedings of military and naval 
 tribunals, whether strictly judicial or not, seem to be in the same position, 
 as statements in ordinary judicial proceedings, on grounds of public 
 policy and convenience : the object being to secure the free and fearless 
 discharge of high public duty, the administration of justice and the 
 maintenance of military discipline on which the welfare and safety of the 
 State depends (w). In the cases relating to this subject care must be 
 
 (k) Anderson v. Gorrie [1895], 1 Q.B. the party, but to his counsel ; seel Hawk. 
 
 668 (colonial judge). Hodgson v. Pare c. 73, s. 8; 1 Starkie on IJbel. 254 (2nd ed.). 
 
 [1899], 1 Q.B. 455. Barrett v. Kearns (7) Astley r. Vountre. 2 Burr. 817. 
 
 [19051, 1 K.B. 544. Law v. Llewellyn Kcvis r. Smith, 18 C. B. 126. Henderson 
 
 [1906], 1 K.B. 487 (justice of tlie peace), v. Brooniiiead. 4 H. & N. 569, ca.ses of 
 
 and see Odgers on Libel (4th ed.), 220-2.31. malicious and false athdavits. See Fitz- 
 
 (0 R. V. Skinner, Loftt, 55. Little v. John r. iMackinder, 9 V. B. (N. S.) 505; 
 
 Pomeroy, Ir. Kep. 7 C. L. 50. 1 Hawk. c. Doyle i: ODohertv. C. & M. 418. 
 
 73, s. 8. Bac. Abr. tit. 'Libei;(A). (r) Andrews r. Nott Bower [1895], 1 
 
 (m) Munster v. Lamb, 11 Q.B.D. 588 Q.B. .588, 896. Rigby. L.J. 
 
 (solicitor). Hodgson v. Scarlett, 1 B. & (s) Rottomley v. Brougham [19081, 1 
 
 Aid. 232 (barrister). And see Odgers on K.B. 584, Channell, .1. B»irr v. Smith 
 
 Libel (4th ed.), 221. [1909]. 2 K. B. .360. Cf. Hart r. (Uimpach, 
 
 (n) Odgers on Liljcl (4th ed.), 226. L. R. 4 P.C. 439. 
 
 (o) Seaman v. Netherclift, 2 C. P.D. 53. (0 Bottondey v. Brougham. ul>i supra. 
 
 ip) 1 Hawk. c. 73. s. 8. Bac. Abr. tit. («) Chatterton v. Secretary of Slate for 
 
 ' Libel ; (A) 4. Hodgson v. Scarlett, 1 B. & India [1895], 2 Q.B. 189, and see Burr v. 
 
 Aid. 232, per Holroyd, J. It is held by Smith. ((/>i' supra, as to reports by officials 
 
 some that no want of jurisdiction in the to a Dejiartment of Ciovemnient. 
 
 Court to which the complaint shall l)e (r) Grant v. Secretary of State for 
 
 exhibited will make it a lil)el ; l)ecause the India. 2 C. P.D. 445. 
 
 mistake of the Court is not imputable to (ir) Hart r. Gumpach.L. R.4P.r. 439. 46.5.
 
 1046 Of Cmnmal Libels. [book ix. 
 
 taken to distinguish between the privilege which protects such reports 
 and communications from being put in evidence and the immunity from 
 legal proceedings in respect of the statements contained in the reports. 
 It is not satisfactorily settled how far the ordinary Courts can enter into 
 inquiries as to the acts of officials in military and naval matters {x). 
 
 Where an action was brought against the president of a military 
 court of inquiry for a libel contained in the minutes of the court, delivered 
 by the defendant to the commander-in-chief and deposited in his office, 
 it was held that these minutes were a privileged communication, and 
 that neither the origmal nor a copy could be put in evidence in proof of 
 the alleged libel (?/). 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 groundless, and that the conduct of the prosecutor in 
 falsely calumniating 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 such sentence and declaration to the judge- 
 advocate ; and Sir James Mansfield, C.J., said : ' If it appear that the 
 charges are absolutely without foundation, is the president of the court- 
 martial to remain perfectly silent on the conduct of the prosecutor, or 
 can it be any ofience for him to state that the charge is groundless and 
 malicious ? ' (z). 
 
 Where it was reported that the plaintiff, an officer in the army, had 
 made charges against his brother officers, the commander-in-chief directed 
 that a Court of inquiry should be assembled to inquire into the matter 
 and report thereon to the commander-in-chief. A Court was held, at 
 which the defendant, an officer in the army, was required to attend as a 
 witness. He gave his evidence viva voce, and also handed in a paper 
 containing in substance a repetition of his evidence, with some additions 
 upon the subject, and this paper was received by the Court. A report 
 was made by the Court to the commander-in-chief. The plaintiff unsuc- 
 cessfully applied for a court-martial upon the defendant for this conduct, 
 and then brought an action against the defendant, in respect of the 
 written pajDcr as a libel, and in respect of the viva voce evidence as slander. 
 It was at the trial ruled that the action would not lie if the verbal and 
 written statements complained of were made by the defendant, being a 
 military officer, in the course of a military inquiry in relation to the conduct 
 of the plaintiff, he being also a military officer, and with reference to the 
 subject of the inquiry, although the defendant had acted mala fide, and 
 with actual malice, and without any reasonable and probable cause, and 
 even if with knowledge that the statement made and handed in by him 
 as aforesaid was false. On appeal it was held that this ruling was correct, 
 and that the evidence of the defendant was mostly part of the minutes 
 of the proceedings of the Court, which, when reported and delivered to 
 the commander-in-chief, was received and held by him on behalf of the 
 sovereign, and as such was inadmissible in evidence (a). 
 
 (a;) See Dawkins r. Paulet, L. R. 8 Q.B. (y) Home r.Bentinck,4Moore(C.P.)563. 
 
 255 (discussed in Odgers on Libel (4th ed.), (2) Jekyll v. Moore, 2 B. & P. (N. R.) 341. 
 
 232), and Encycl. Laws of England (2nd («) Dawkins v. Lord Rokeby, 42 L. J. 
 
 ed.), tit. ' Act of State.' Q.B. 63, Ex. Ch. et per Kelly, C.B., no action 
 
 1
 
 CHAP. xiiL] Matters of Defeme. 1047 
 
 The production of documents of this tenor at a trial could in most 
 cases be resisted on the ground that their disclosure would be against 
 the public interest. 
 
 2. QvxiUfied Privilege. 
 
 A qualified privilege attaches to protect publication of certain kinds 
 of defamatory statements. The matters thus protected sub modo fall 
 into two classes : (a) reports of certain kinds of proceedings ; (b) what 
 are described as statements made on a privilege! occasion. 
 
 The underlying principle on which the qualified privilege is recognised 
 is the common convenience and welfare of society, not the convenience 
 of individuals as a class (6), 
 
 Proceedings in Parliament.— The reports of the proceedings of either 
 House of Parliament or of their committees, are privileged, vide ante, p. 1042 
 and fost, p. 1049, if fair and accurate, and published without malice. 
 
 Reports of Judicial Proceedings.— By sect. 3 (c) of the Law of Libel 
 Amendment Act, 1888 (51 & 52 Vict. c. 64), ' a fair and accurate report {d) 
 in any newspaper (e) of proceedings publicly heard before any court 
 exercising judicial authority shall, if published contemporaneously with 
 such proceedings, be privileged : Provided that nothing in this section 
 shall authorise the publication of any blasphemous or indecent matter ' (/). 
 
 This enactment, being limited to newspapers, leaves the common law 
 untouched as to the publication of reports of judicial proceedings other- 
 wise than in the pages of a newspaper as defined in the Act of 1888. 
 
 Li Wason v. Walter {g), Cockburn, C. J., in delivering the judgment of 
 the Court said, that faithful and fair reports of the proceedings of courts of 
 justice, though the characters of individuals may incidentally suffer, are 
 privileged, and that for the publication of such reports the publishers 
 are neither criminally nor civilly responsible. But a publication of the 
 proceedings in a court of justice will not be protected unless it be a 
 true and honest statement of those proceedings {li). 
 
 In Stiles v. Nokes (^), 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 inquiry are very distressing to the feelings of indi- 
 viduals 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 ' (/). 
 
 lies against parties or witnesses for any- (e) Defined pos/, p. 1049. note («,•). 
 
 thing said or done, although falsely and (f) As to blaspliemuus matter see anle, 
 
 maliciously, and without any reasonable p. 393. As to indecent matter, sec jiost, 
 
 or probable cause, in the ordinary course \'ol. ii. p. 1875. 
 
 of any proceedings in a Court of justice. (7) L. R. 4 Q.B. 73, 38 L. J. Q.B. 34, 
 
 AfTirmed in H. L., R. 7 H. L. 744. See and sec Curry »'. WsxMvv, 1 B. & P. .-jiS. 
 
 Williams v. Star Newspaper Co. [1907], 24 (/() Waterfield v. Bishop of Chichester, 
 
 T. L. R. 297, Darling, J. Marks v. Bcyfus, 2 Mod. 1 18. R. v. Wright. 8 T. R. 297, 298. 
 
 25 Q.B.D. 494. Lawrence, J. Stiles v. Nokes, 7 East, 493 ; 
 
 {h) Stuart v. Bell [1891], 2 Q.B. 341, 346 : Wason v. Walter, nbi sup. 
 
 approved, in Macintosh v. Dun [1908], A. C. (1) 7 East, .503. 
 
 380. (;) And see R. v. Salisbury, 1 Ixl. Raym. 
 
 (c) As to the history of this section see 341, that it is indictable to publish » 
 
 Odgers on Libel (41 h cd.), 30G. scandalous affidavit made in a Court of 
 
 {d) Post, p. 1048. justice.
 
 1048 Of Cmnmal Libels. [book ix. 
 
 Where it is allowable to publish what passes in a court of justice it is 
 not essential that every word of the evidence, of the speeches, and of 
 what was said by the judge, should be inserted ; if the report is substan- 
 tially a fair and correct report of what took place in a court of justice, it 
 is privileged {h). It may sometimes not be justifiable to publish every- 
 thing a counsel says in the course of his speech {I). 
 
 The party making the publication will not be justified, unless he 
 confines himself to what actually passed in court (m). Before the case 
 of Wason v. Walter was decided, it was an established principle, upon 
 which the privilege of publishing a report of any judicial proceedings was 
 admitted to rest, that such report must be strictly confined to the actual 
 proceedings in court, and must contain no defamatory observations or 
 comments from any quarter whatever, in addition to what formed 
 strictly and properly the legal proceedings. But fair comment upon any 
 matter of public interest is privileged {n). 
 
 The privilege applies to the proceedings of every court of justice, from 
 the lowest to the highest (o). 
 
 Proceedings before magistrates, under the Summary Jurisdiction 
 Act, 1848 (11 & 12 Vict. c. 43), in which, after both parties are heard, 
 a final judgment is given, are judicial, and the trial and the judgment 
 may lawfully be made the subject of a printed report, if that rej)ort be 
 impartial and correct (p) ; and the like privilege extends to the publi- 
 cation of proceedings taking place publicly on a preliminary inquiry 
 held under the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42). 
 The privilege now extends to reports of each separate stage of the 
 proceeding, even to an ex 'parte application for process for an 
 indictable offence (q). 
 
 It was at one time said that such publications had a tendency to 
 cause great mischief by perverting the public mind, and disturbing the 
 course of justice (r) : and the Court of King's Bench granted a criminal 
 information for publishing in a newspaper a statement of the evidence 
 given before a coroner's jury, accompanied with comments ; although 
 the statement was correct, and the party had no malicious motive in 
 the publication (s). In Wason v. Walter (t), Cockburn, C.J., is reported 
 to have said, ' Even in quite recent days, judges, in holding the publication 
 
 (k) Andrews v. Chapman, .3 C. & K. 286, (q) Kimber v. Press Association [1893], 
 
 Campbell, C.J. See Smith v. Scott, 2 C. & 1 Q.B. 65. R. v. Gray, 10 Cox, 181 (Jr.). 
 
 K. 580. Hoare v. Silverlock (No. 2), 9 C.B. Lewis v. Levy, itbi sup. 
 
 20. See Lewis v. Walter, 4 B. & Aid. 645. (r) R. v. Lee, 5 Esp. 123. R. v. Fisher, 
 
 As to publishing a judgment alone see 2 Camp. 563. Duncan v. Thwaites, 3 B. & 
 
 Macdougall v. Knight, 14 App. Cas. 194. C. 556 ; 5 D. & R. 447. Delegal v. High- 
 
 Milissich v. Lloyds, 46 L. J. C.R 404, 13 ley, 3 Bing. (N. C.) 950; but see the remarks 
 
 Cox, 75. in Lewis v. Levy, supra. The publication 
 
 (?) Flint V. Pike, 4 B. <fe C. 473 ; 6 D. & of a matter which was not brought before 
 
 R. 528, Bayley, J., Holroyd, J. Roberts the magistrate in his judicial character, 
 
 V. Brown, 10 Bing. 51 9, Tindal, C.J. or in the regular discharge of liis magisterial 
 
 Saunders v. Mills, 6 Bing. 213 ; 3 M. & P. functions, cannot be justified. M'Gregor v. 
 
 520. R. V. Creevev, 1 M. & Sel. 281. Thwaites and another, 3 B. & C. 24 ; 4 D. 
 
 (m) Delegal r. Highley, 3 Bing. (N. C.) & R. 695. 
 
 950. ^ {s) R. V. Fleet, 1 B. & Aid. 379. See 
 
 («) Delegal v. Highlev, 3 Bing. (N. C.) East v. Chapman, M. & M. 46 ; 2 C. & P. 
 
 950 ; Lewis v. Clement, 3 B. & Aid. 702. 570 ; Charlton v. Watton, 6 C. & P. 835. 
 
 (o) Lewis V. Levy, E. B. & E. 537. R. v. Gray, 10 Cox, 184 (Jr.). 
 
 (/j) Id. ibid. {t) 38 L. J. Q.B. 34, 44: L. R. 4 Q.B. 73
 
 CHAP. xiiL] Matters of Defence. 1049 
 
 of the proceedings of courts of justice lawful, have thought it necessary 
 to distinguish what are called ex parte proceedings as a probable exception 
 from the operation of the rule. Yet ex parte proceedings before magistrates, 
 and even before this Court, as, for instance, applications for criminal 
 informations, are published every day ; but such a thing as an action or 
 indictment, founded on a report of such an ex parte proceeding, is 
 unheard of, and if any such action or indictment should be brought, it 
 would probably be held that the true criterion of the privilege is not 
 whether the report was, or was not, ex parte, but whether it was a fair 
 and honest report of what had taken place, published simply with a view 
 to the information of the public, and innocent of all intention to do injury 
 to the reputation of the party affected.' If the report of judicial 
 proceedings is fair and impartial, the privilege is not taken away by the 
 fact that the magistrate decided that he had no jurisdiction, or that the 
 application was made ex parte (w). 
 
 Public Meetings. — By the Law of Libel Amendment Act, 1888 (51 & 
 52 Vict. c. 64) (v), sect. 4, ' A fair and accurate report published in anv 
 newspaper (w) of the proceedings of a pubhc meeting, or (except where 
 neither the public nor any newspaper reporter is admitted) (iviv), of any 
 meeting of a vestry, town council, school board, board of guardians, board 
 or local authority formed or constituted under the provisions of any Act of 
 Parliament, or of any committee appointed by any of the above-mentioned 
 bodies, or of any meeting of any commissioners authorised to act by 
 letters patent. Act of Parliament, warrant under the Royal Sign Manual, 
 or other lawful warrant or authority, select committees of either House 
 of Parliament, justices of the peace in quarter sessions assembled for 
 administrative or deliberative purposes, and the publication at the request 
 of any Government office or department, officer of State, commissioner 
 of police or chief constable of any notice or report issued by thorn for the 
 information of the public, shall be privileged, unless it shall be proved 
 that such report or publication was published or made maliciously : 
 Provided, that nothing in this section shall authorise the publication of 
 any blasphemous or indecent matter. Provided also that the protection 
 intended to be afforded by this section shall not be available as a defence 
 in any proceedings if it shall be proved that the defendant has been 
 requested to insert in the newspaper in which the report or other publica- 
 tion complained of appeared a reasonable letter or statement by way of 
 contradiction or explanation of such report or other publication, and has 
 refused or neglected to insert the same ; Provided further, that nothing 
 in this section contained shall be deemed or construed to limit or abridge 
 
 (?/) Usill V. Hales, 3 C. P. D. 319. Kim- observations therein printed, for sale and 
 
 bert;. Press Association [1893], 1 Q.B. G5. published in England or Ireland i>eriodi- 
 
 (v) At common law newspapers were cally, or in parts or nninbers, at intervals 
 
 liable for rejJublishinK slanders uttered at not'exceeding twenty-six days »H>tween the 
 
 a public meetincr. Purcell v. Sowter, 1 publication of any two such papers, parts, 
 
 C. P.D. 781; 2 C. P.D. 21.5. The law or numbers. Also any paper printed in 
 
 was amended in 1881 (44 & 45 Vict. c. GO), order to be dispersed and made public 
 
 and in 1888 further amended by the weekly or of toner, or at intervals not 
 
 enactment above set forth. exceedintr twenty-six days, containing only 
 
 (h) The word ' newspai)er ' shall mean or princii)ally advertisements.' 44 & 45 
 
 'any paper containing public news, intelli- Viet. c. (iO, s. 1. 
 
 gencc, or occurrences, or any remarks or (m;m') See 8 Edw. \ II. c. 43.
 
 1050 Of Cmninal Libels. [book ix. 
 
 any privilege now by law existing, or to protect the publication of any 
 matter not of public concern, and the publication of which is not for the 
 public benefit. 
 
 ' For the purposes of this section " public meeting " shall mean any 
 meeting bona -fide and lawfully held for a lawful purpose (x) and for the 
 furtherance or discussion of any matter of public concern, whether the 
 admission thereto be general or restricted/ 
 
 Statements made on a Privileged Occasion. — The pubHcation of 
 defamatory matter which is false is excused if made in good faith on a 
 privileged occasion and without malice in fact. ' The defence of privileged 
 occasion is in a criminal case raised under a plea of not guilty. Whether 
 the occasion was or was not privileged is a matter of law for the judge 
 and not of fact for the jury {y). When the judge has ruled the occasion 
 privileged the ordinary presumption of law that a defamatory publication 
 is malicious is excluded {z), and in order to defeat the claim of privilege 
 it becomes necessary for the prosecution to prove that the defendant in 
 publishing the defamatory matter was actuated by express or actual 
 malice in fact, i.e. by some wrong indirect or improper motive such as 
 personal spite or ill-will against the person or class of persons defamed (a). 
 The evidence necessary to defeat the claim of privilege may be intrinsic, 
 i.e. may lie in the language used or in the circumstances (6), or extrinsic, 
 i.e. by direct proof of other conduct or language of the defendant 
 indicating personal ill-will (c). It is not enough for this purpose to 
 prove that the words published are untrue or published by inadvert- 
 ence or forgetfulness or negligently or with want of sound judgment or 
 in honest indignation {d). But express malice can be proved by shewing 
 that the defendant knew the words published to be untrue or did not 
 believe them to be true (e), or that the words used are much too 
 violent for the occasion and circumstances ' (/). 
 
 If at the close of the case for the prosecution there is no intrinsic or 
 extrinsic evidence of express malice, it is the duty of the judge to 
 direct a verdict for the defendant [jf)', but wherever there is evidence 
 of express malice, either intrinsic or extrinsic, it is the duty of the 
 judge to leave the question of express malice to the jury (</). Where 
 defamatory matter was published on a privileged occasion it is not 
 enough for the prosecution to prove that the facts proved are con- 
 sistent with the presence of malice as well as with its absence ; for the 
 absence of such malice is presumed until proof of its presence is given (/?). 
 
 {x) As to unlawful assemblies and Pilfold, 1 M. & Rob. 190, Taunton, J, 
 
 meetings, see ante, p. 422. (rf) Odgers on Libel {4th ed.), 323. 
 
 iy) Hebditch ?;.McIlwainc[1894], 2Q.B. (e) Clark v. Molyneux, 3 Q.B.D. 246. 
 
 54. Stuart v. Bell [1891], 2 Q.B. 341. Hayward & Co. v. Hayward, 34 Ch. D. 198, 
 
 (z) Allen V. Flood [1898], A. C. 1, 93, 206. 
 
 Lord Watson, 172, Lord Davoy. Bromage (/) Gilpin v. Fowler, 9 Ex. 615. 
 
 V. Prosser, 4 B. & C. 247, 255. ~ [ff) As to whether he is bound to act if 
 
 (rt) Clark V. Molyneux, 3 Q.B.D. 246. no submission is made on tlie part of the 
 
 Royal Aquarium v. Parkinson [1892], 1 defence, see R. v. George 73 J. P. 11. 
 
 Q.B. 431. (ci\ Cooke v. Wildes, 5 E. & B. 328. 
 
 (6) Rogers v. Clifton, 3 B. & P. 587. (/() Somervillc r. Hawkins, 10 C. B. 588. 
 
 Patteson v. Jones, 8 B. & C. 578 ; 3 Man. Taylor v. Hawkins, 16 Q.B. 308. Harris 
 
 and Ry. 101. Kelly v. Partinston, 4 B. v. Thompson, 13 C. B. 333. Wenman v. 
 
 & Ad. 700; 2 Nev. & M. 460. " Ash, 13 C. B. 836. Wason v. Walter, L. R. 
 
 (c) Wright V. Woodgate, 2 Cr. M. & R. 4 Q.B. 73. Hart v. Gumpach, L. R. 4 
 
 573 ; 1 Tyr. & G- 12. See Blake v P.C. 439 ; 43 L. .J. P.C. 25.
 
 CHAP. xiiL] Matters of Defence. 1051 
 
 Where a letter containing defamatory words is written upon a privileged 
 occasion, surrounding circumstances are to be considerecl in determining 
 whether the words used are so much too violent for the occasion as to 
 rebut the presumption of the absence of malice arising from the privilege 
 of the occasion ; and if from surrounding circumstances it appears that 
 the words are capable of two constructions, one of which is compatible 
 with the absence of malice, then the presumption of the absence of malice 
 which existed in the first instance from the privilege of the occasion 
 should be allowed to prevail throughout (i). But juries are directed not 
 to scrutinise too closely the expressions used on a privileged occasion, 
 but to satisfy themselves that there is clear evidence of malicious intent 
 before finding that the privilege has been lost (/). 
 
 What constitutes a Privileged Occasion.— Belief in the truth of defa- 
 matory statements published creates no privilege, although disbelief in 
 their truth will defeat a claim of privilege. The statements excused by 
 proof that they were published on a privileged occasioii include communi- 
 cations made in good faith in respect to a matter as to which the defendant 
 has a legal, moral, social, or religious duty whether pubHc or private {k), 
 or in the general interests of society [l), or in respect whereof he has 
 an interest, to another, who has a corresponding interest or duty with 
 respect to the subject matter {m), and communications made in self- 
 defence. An occasion is not privileged if a defamatory communication 
 is made from motives of self-interest by persons who for the convenience 
 of a class trade for profit in the character of other persons, e.g. trade- 
 protection societies and inquiry agencies (n). The duty or interest 
 must exist in law by reason of the facts of the case at the date of 
 publication, and is not created by the belief of the defendant in its 
 existence (o). 
 
 Where the occasion is privileged it is immaterial whether the state- 
 ments were volunteered or made in answer to inquiries : but in cases near 
 the line the fact that the information was volunteered is an element in 
 determining whether the occasion is privileged (79). 
 
 If the communication is made in the regular and proper course 
 of a proceeding, it is privileged. Thus where a writing, containing tlie 
 defendant's case, and stating that some money, due to him from the 
 Government for furnishing the guard at Whitehall with fii-e and candle, 
 had been improperly obtained by a Captain C, was directed to a general 
 officer and the four principal officers of the Guards, to be presented to 
 His Majesty for redress a criminal information was refused, on the ground 
 that the writing was merely a representation of an injury drawn up in a 
 proper way for redress, without any intention to asperse tlie prosecutor 
 
 (/) Spill r. Maulc, L. R. 4 Ex. 232. 392, 418. Macintosh v. Dun 11908]. A. C. 
 
 ij) Woodward v. Lander, G C. & P. 548, 390, 399. 
 Aldcrson, B. Cf. Odgors on Libel (4th (wi) See Harrison r. Bush, 5 E. & B. 314. 
 
 ed.). 333. 348. 
 
 (A)Henvvoodi'. Harrison, L.R. 7 C.P. COG. (») Macintosh v. Dun. j(5i mp. In 
 
 Toogood V. Spyring, 1 CV. M. & R. 181, 193. this case the Knizlish and American authori- 
 
 See Spencer v. Anierton, 1 IVF. <& Rob. 470. ties are colloctetl and discussed. 
 Warren r. Wirrcn, 4 'Yyvw. 850. 1 Cr. M. (o) See Stuart v. Bell 1 189 11. 2 Q.B. 341. 
 
 & R. 150. Wright v. Woodgate, 2 Cr. M. Hebditeh v. Jlcllwaine 11894]. 2 Q.H. 54. 
 
 & R. 573, 1 Tyr. & Gr. 12.' Coxhcad v. And sec Jcnour v. Delmcgc [1891J, A. C. 
 
 Richards, 2 C. B. 509. 73. 
 
 (i) Whitcley v. Adams, 15 C. B. (N. S.) (/>) Macintosh v. Dun [1908], A. C. 390
 
 1052 
 
 Of Criminal Libels. 
 
 [BOOK IX. 
 
 althougli there was a suggestion of fraud (9). So a petition addressed 
 by a creditor of an officer in the army to the Secretary-at-War, bona fide, 
 and with the view of obtaining, through his interference, the payment of 
 a debt due, and containing a statement of facts which, though derogatory 
 to the officer's character, the creditor believed to be true, is not action- 
 able (r). A letter written to the Postmaster-General, or to the Secretary 
 to the General Post-Office, complaining of misconduct in a postmaster, 
 or guard of a mail, is privileged, if written as a bona fide complaint to 
 obtain redress for a grievance that the party really believes he has 
 suffered (s). And where the defendant being deputy-governor of 
 Greenwich Hospital, wrote a large volume, containing an account 
 of the abuses of the hospital, and treating with much asperity the 
 characters of many of the officers of the hospital (who were public 
 officers), and of Lord Sandwich in particular, who was First Lord 
 of the Admiralty, and printed several copies of it, which he dis- 
 tributed to the governors of the hospital only, and not to any other 
 person, the Court refused to allow a criminal information to be filed. 
 Lord Mansfield said, that distribution of copies to the persons who 
 were from their situations called on to redress these grievances, and 
 had, from their situations, competent power to do it, was not a publi- 
 cation sufficient to make the publication criminal (t). A letter written 
 to a Secretary of State, imputing to the town clerk and clerk to the 
 justices of a borough, corruption in the latter office, was held not to be 
 privileged, because the Secretary of State had no direct authority in 
 respect of the matter complained of, and was not a competent tribunal to 
 receive the application (u). But a memorial presented to the Secretary of 
 State for the Home Department by the elector of a borough complaining 
 of the conduct of a justice of the peace during a recent election of a 
 Member of Parliament for the borough, and imputing that he had made 
 speeches inciting to a breach of the peace, and praying that the secretary 
 would cause an inquiry to be made into the conduct of the plaintiff, and 
 that, on the allegations being substantiated, the secretary would recom- 
 mend to the Queen that the justice should be removed from the commission 
 of the peace, is a privileged communication ; for though the Lord 
 Chancellor generally is consulted as to the removal of justices of the 
 peace, the memorial might be considered as addressed to the Crown, 
 through the secretary of state who might have caused the inquiry to be 
 made, have communicated with the Lord Chancellor, and have, in effect, 
 recommended the removal of the justice (v). And where the publication 
 
 no difference. 
 
 (2) R. V. Bayley, Andr. 229. Bac. Abr. 
 tit. 'Libel' (A) 2. As to proceedings in 
 Courts of justice, see ante, p. 1044. 
 
 (r) Fairman v. Ives. 5 B. & Aid. 642. 
 See Wenman v. Ash, 13 C. B. 836, Maule, J. 
 
 (.s) Woodward v. Lander, 6 C. & P. 548, 
 Alderson, B. Blake v. Pilford, 1 M. & Rob. 
 198, Taunton, J. 
 
 (0 R. V. Bailie, 30 Geo. IIL Holt on 
 Libel, 173, Holt (N. P.) 312 n. 1 Ridgway's 
 Collection of Erskine's Speeches, p. 1. 
 Lord Mansfield seemed to think that 
 whether the paper were in manuscript oi- 
 printed, under these circumstances, made 
 
 («) Blagg V. Sturt, 10 Q.B. 899. This 
 case may, perhaps, be shaken by Har- 
 rison V. Bush, infra. The cases, however, 
 are distinguishable, as the clerk to justices 
 of the peace is apjDointed by them, and a 
 Secretary of State has no authority as to 
 him, either directly or indirect!}'. 
 
 {v) Harrison v. Bush, 5 E. & B. 344. In 
 Dickeson v. HilHard, L. R. 9 Ex. 79: 43 
 L. J. Ex. 37, it was ruled that the agents of 
 candidates at an election had no com- 
 mon interest after the election was over.
 
 CHAP. xiiL] Matters of Defence. 1053 
 
 is an admonition, or in the course of the discipline of a religious sect, as 
 the sentence of expulsion from a society of Quakers, it is privileged {iv). 
 So a letter written by a son-in-law to his mother-in-law, containing 
 imputations on the character of a person whom she was about to marry, 
 and desiring a diligent and intelligent inquiry into his character, if written 
 bona fide is privileged (x). Where an advertisement 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 held that although the advertisement might impute 
 bigamy to the plaintiff, yet having beeii published under such authority, 
 and with such a view, it was not actionable (/y). But it is very doubtful 
 whether the wife would now be considered to have sufficient interest in such 
 an inquiry to justify the offering of such a reward in a newspaper (2). 
 
 A communication made by a solicitor on behalf of his client to a third 
 party, if reasonably necessary and usual in the discharge of his duty to 
 his client and in the interest of his client it is privileged (a). 
 
 If a report made by a medical officer of health to a local authority in 
 pursuance of the Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), 
 contains defamatory matter, a newspaper proprietor is not jirivilej^ed to 
 publish it, although the local authority is bound to publish it (6). 
 
 When business communications are made on a privileged occasion, 
 i.e. on matters relevant to business between the parties and necessary 
 in due regard to the interests of the parties (c) the privilege is not lost 
 by publishing the communication in the ordinary course of dictation or 
 transmission to clerks of the defendant {d). In other words the privilege 
 covers all incidents of the transmission and treatment of the communica- 
 tion which are in accordance with the reasonable and usual course of 
 business (e). 
 
 A letter written confidentially to persons who employed A. as their 
 solicitor, conveying charges injurious to his professional character in the 
 management of certain concerns which they had entrusted to him. and 
 in which B., the writer of the letter, was likewise interested, was held to 
 be privileged (/). And if a person, in a private letter to the party, should 
 expostulate with him about some vices, of which he apprehends him to 
 be guilty, and desire him to refrain from them ; or if a person should 
 send such a letter to a father, in relation to some faults of his children ; 
 these, it seems, would not be actionable but acts of friondshij), not 
 designed for defamation but reformation {g). But this doctrine must be 
 applied with some caution ; for to send an abusive letter filled with 
 
 (w) R. V. Hart, 2 Rum's Eccl. L. 779. (c) See Tuson v. Evans. 12 A. & E. T.iX 
 
 The charge of a bishop to his clergy in Whiteloy r. Adams, 1.') C. B. (N. S.) :i!)2. 
 convocation is a privileged communication. (d) Edmondson r. Bircii ll(»(t7]. 1 K.l?. 
 
 Laughton v. Bishop of Sodor and Man, 371. Sharp r. Skucs [llKti)]. 2.1 T. L. R. 
 
 L. R. 4 P.C. 495. 336. As to what is not tlie ordmary course 
 
 (a:) Todd V. Hawkins, 8 C. & P. 88, of business see Pullman v. Hill [18911. 1 
 
 Alderson, B. Q.B. 524. 
 
 (y) Uelany v. Jones, 4 Esp. 19, Ellen- (c) Edmondson r. Birch at p. 382, per 
 
 boroush, C. J. Moulton, L.J. 
 
 (2) Lay V. Lawson, 4 A. & E. 795, 798, (f) M"Dougall f. Claridge. 1 Camp. 267. 
 
 Denman, C.J. Wright v. Woodgate, 1 Tyr. & (Jr. 12. 
 
 (a) Boxsius v. Goblet Freres [1894], 1 (f/) Peacock v. Rcynell, 2 Brownl. 151, 
 Q.B. 842. 152. Bac. Abr. tit. 'Libel' (A) 2, in the 
 
 (b) Pophani V. Pickhurn, 7 H. & N. 891. notes.
 
 1054 Of Criminal Libels. [book ix. 
 
 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 {h). A letter written by a master, in 
 giving a character of a servant, is privileged, unless its contents be not 
 only false but malicious {i). 
 
 Where a tradesman's wife being informed that one of the female 
 assistants was dishonest wrote her a letter accusing her of theft and 
 reproaching her, Huddleston, B., held the occasion privileged, and said 
 that if the prisoner honestly believed what she wrote, the manner in 
 which she expressed herself ought not to be too nicely criticised {j). 
 
 If a tenant is asked by his landlord to make communications to him 
 in respect of any neglect of duty in his gamekeepers, any communication 
 made by him in respect of any such neglect of duty is privileged, if written 
 bona -fide, and on the supposition that he was doing his duty to his land- 
 lord {h). The plaintiff was the agent of the defendants, a trading company, 
 and it was part of his duty to furnish them with an account of his trans- 
 actions, to enable them to prepare the balance sheet for the inspection 
 of the shareholders. This balance sheet was prepared and duly referred 
 to the auditors, who reported that there was a deficiency, for which the 
 plaintiff was responsible, and that his accounts had been badly kept. 
 There was evidence that an explanation had been offered to the auditors, 
 which they had disregarded, but no evidence that the directors had any 
 knowledge of this explanation. The directors, after laying the accounts 
 before a general meeting of the shareholders, caused a letter containing the 
 part of the report which affected the character of the plaintiff to be printed 
 and forwarded to the absent shareholders. It was held, first, that this 
 letter was published on a privileged occasion, as it was the duty of the 
 defendants to communicate to all the shareholders any part of the report 
 of the auditors which materially affected the accounts of the company ; 
 secondly, that there was no intrinsic or extrinsic evidence of malice to be 
 left to the jury, as the report of the auditors was published without 
 comment, and the explanations offered to the auditors did not come before 
 the defendants ; and that causing the letter to be printed was a reasonable 
 and necessary mode of publishing it to the absent shareholders {]). 
 
 If a man bona fide writes a letter in his own defence, and for the defence 
 of his rights and interests, and is not actuated by any malice, that letter 
 is privileged, although it may impute dishonesty to another (w). 
 
 A letter published by an attorney honestly in vindication of the 
 character of a client against charges published and circulated against the 
 client by the prosecutor, is privileged (w). 
 
 (/i) R. V. Cator, 2 East, 361. Thorley v. v. Slade, 13 Q.B. 796. Croft v. Stevens, 
 
 Lord Kerry, 4 Taunt. 355. In the last 6 H. & N. 570. 
 
 case the letter was unsealed, and opened [j) R. v. Perry, 15 Cox, 169. 
 
 and read by the bearer. See Bac. Abr. tit. {k) Cockayne v. Hodgkinson, 5 C. & P. 
 
 'Libel' (B), 2. Popham, 189, cited in 543, Parke, B. 
 
 Holt on Libel, 222, as to the sending of such (/) Lawless v. Anglo- Egyptian Cotton 
 
 a letter being calculated to make the and Oil Co., L. R. 4 Q.B. 262. See 
 
 recipient pubhsh it among his friends. Edmondson v. Birch [1907], 1 K.B. 371. 
 
 (i) Weatherstone v. Hawkins, 1 T. R. Nevill v. . Fine Art and General Ins. Co. 
 
 110. Edmondson t;. Stephenson, Bull. N. [1897], A. C. 68. 
 
 P. 8. Child t'. Affleck, 9 B. & C. 403. 4M. (m) Coward i;. Wellington, 7 C. & P. 531, 
 
 & R. 338. Manby v. Witt, 18 C. B. 544. Littledale, J. See Whiteley v. I'Adams, 
 
 Taylor v. Hawkins, 16 Q.B. 308. Somer- 15^0. B. (N. S.) 392 : 33 L. J. C. P. 89. 
 
 ville V. Hawkins, 10 C. B. 583. Gardener («) R. v. Veley, 4 F. & F. 1117. Cf. 
 
 A
 
 CHAP, xiii.i Matters of Defence. 1055 
 
 It has been held that the publication of defamatory matter by a trade 
 inquiry or trade protection agency is not privileged when the society 
 holds itself out as being ready for reward to communicate to subscribeis 
 and others confidential information as to the commercial standing of 
 others for the exclusive use and benefit in business of the persons receiving 
 the communication (o). 
 
 Defamatory telegrams or post cards are not privileged though sent 
 bona fide, and under circumstances which otherwise would have made it 
 privileged, because the mode of publication selected involves communi- 
 cation of the defamatory matter to persons who have no interest to 
 receive it (p). 
 
 It has already been pointed out that the privilege must not exceed the 
 occasion. Statements to be privileged must fall within the scope of the 
 duty or interest which privileges the occasion ; and must be published to 
 persons entitled to hear them and not to strangers. Where, therefore, 
 remarks were made reflecting on a Roman Catholic priest at a public 
 meeting called for the purpose of petitioning Parliament against the grant 
 to the Roman Catholic College at Maynooth it was held that the speaker 
 was not privileged by the circumstance that the libel was published in 
 the course of a bona fide discussion respecting the propriety of supporting 
 that college {(]). 
 
 3. Fair Comment. 
 
 It is also an answer to an indictment for defamatory libel (under 
 the plea of not guilty) to prove that the matter complained of is 
 ' fair comment ' ' honestly ' made without actual malice upon facts 
 truly stated and with reference to a matter of public interest and 
 concern (r). This defence is not in strictness identical with qualified 
 privilege, because it is equally open to all the public, and there is no 
 special right of comment in the case of newspapers. The plea — unlike 
 qualified privilege — does not protect any false statement of fact (s) even 
 if made in good faith (t), and what is claimed to be the comment must not 
 be so mixed up with the facts as to make it difficult for the reader to 
 distinguish what is fact and what is comment (u). Nor may the facts 
 on which the comment is based be mis-stated : and if the facts on which 
 the comment is made do not exist the defence of comment fails (v). 
 
 Comment cannot be fair which is built upon facts which are not truly 
 
 Quartz Hill Gold Mining Co. v. Beall, 20 (r) See Wasoii v. Walter. L. R. 4 Q.B. 73. 
 
 Ch. D. 501, a circular sent by a solicitor for Odgers on Libel (4th ed.), 184 ct seq.^^ 
 
 some shareholders in a company on their (s) Sec R. v. Flowers, 44 J. P. 377. Field. 
 
 behalf to all the shareholders. J. Campbell v. Spottiswoode, 3 K & S. 
 
 (o) Macintosh v. Dun [1908], A. C. 390, 709. Merivale v. Carson, 20 Q.H.D. 275. 
 
 reversing; the decision of the Hi<i;h Court (t) Thomas v. Pradbury A«ne\v & Co. 
 
 of Australia, 3 Australia C. L. R. 1134, and [1900], 2 K.P. (527, 038, Collins, M.R. 
 
 declining to follow American rulings on the Hunt v. Star Newspaper Co. [1908]. 2 K.B. 
 
 subject. 309. 
 
 (p) Williamson v. Freer, L. R. 9 C.P. («) Andrews v. Cliapman. 3 C. & K. 
 
 393 ; 43 L. J. C.P. 181. Whitfield v. S.E.R. 288, adopted by Moulton, L.J. in Hunt v. 
 
 [1858], E. B. & E. 115. Sadgrove v. Hole Star Newspaper Co. [1908], 2 K.B. at p. 
 
 [1891], 2 K.B. 1 (post card). 319. 
 
 iq) Hearne v. Stowell, 12 A. & E. 719. (v) Joynt v. Cycle Trade Publishing Co. 
 
 See Quartz Hill Gold Mining Co. v. Beall, [1904], 2 K.B. 294; [1905], 2 K.B. 292: 
 
 20 Ch. D. 511. Hoare v. Silverloek, 12 approved in Hunt r. SUr Newspaper Co., 
 
 Q.B. 024. nbi .^uprd.
 
 1056 Of Criminal Libels. [book ix. 
 
 stated, and further, it must not convey imputations of an evil sort except 
 so far as tlie facts truly stated warrant the imputation {w). 
 
 ' A personal attack may form part of a fair comment upon given facts 
 truly stated if it be warranted by those facts — in other words, in my view, 
 if it be a reasonable inference from these facts. Whether the personal 
 attack in any given case can reasonably be inferred from the truly stated 
 facts upon which it purports to be a comment is a matter of law for the 
 determination of the judge before whom the case is tried, but if he should 
 rule that this inference is capable of being reasonably drawn, it is for the 
 jury to determine whether in that particular case it ought to be drawn ' [x). 
 
 The imputation of corrupt motives cannot be relied on as fair comment 
 unless warranted by the facts stated (?/) or arising fairly and legitimately 
 out of the conduct of the person criticised {ij). 
 
 The term ' of public interest ' covers public affairs, and the public acts 
 of public men, the administration of justice, the doings of local authorities 
 civil and ecclesiastical, and the working of public institutions such as 
 hospitals and charities, literature and dramatic or pictorial art, and public 
 entertainments or articles or letters in a newspaper (z), or any case where 
 anv person brings himself before the public (a), e.g. by offering himself 
 as a Parliamentary candidate (6). 
 
 The Board of Admiralty having ordered the defendant, the Queen's 
 printer, to print a board minute relating to their proceedings in naval 
 ship-building, which contained a letter of the Comptroller of the Navy in 
 reference to plans of the plaintiff submitted to the board, the defendant 
 sold copies to the public ; the plaintiff sued the defendant for defamation, 
 averring that a statement in such letter that the plans derived no weight 
 from his antecedents, meant that his plans were worthless, and were 
 calculated to injure him in his profession; but no actual malice was imputed. 
 It was held, by the majority of the Court (Willes, Byles, and Brett, J J. : 
 dissentiente, Grove, J.), that the plaintiff was rightly non-suited on the 
 ground that every man has a right to discuss freely, if honestly and 
 without malice, any subject in which the public are generally interested, 
 and that what the defendant had done merely amounted to this (c). 
 
 Comments by a churchwarden upon the conduct of the clergyman, in 
 taking meals in the vestry, and in causing books to be sold in the church 
 during service, are matters of public interest, and may lawfully be 
 published if they do not exceed the boundaries of fair criticism {d). 
 
 ' In the case of literary or dramatic works (e) the occasion for fair 
 comment is created by the publication and a right then arises to criticise 
 honestly, however adversely ' (/), 
 
 A publication commenting upon a literary work, exposing its follies 
 
 (w) Id. ibid. {b) Davies v. Duncan, L. R. 9 C. P. 
 
 ix) Dakhyl v. Labouchere [1908], 2 396 : 43 L. J. C.P. 185. 
 R.B. 325 «., 329w., 77 L. J. K.B. 728; 23 (c) Kenwood v. Harrison, L. R. 7 C.P. 
 
 T. L. R. 364, Lord Atkinson. 606 •: 41 L. J. C.P. 206. 
 
 iy) Joynt v. Cycle Trade Publishing Co. (d) Kelly v. Tinling, L. R. 4 Q.B. 699 ; 
 
 [1904], 2 K.B. Hunt v. Star Newspaper Co. 35 L. J. Q.B. 231. 
 
 [1908], 2 Q.B. 309. Campbell v. Spottis- (e) Merivale v. Carson, 20 Q.B.D. 275. 
 
 woode, 3 B. & S. 776: 32 L. J. Q.B. 185. McQuire v. Western Morning News [1903], 
 
 (2) Heriott v. Stuart, 1 Esp. 437. 2 K.B. 100. 
 Stuart V. Lovell, 2 Stark. (N. P.) 93. ( f) Thomas v. Bradbury Agnew & Co. 
 
 (a) See Odgers on Libel {4th ed.), 195. [1906], 2 K.B. 617, 627, Collins, M.R. 
 
 I
 
 CHAP. xiiL] Matters of Defence. 1057 
 
 and errors, and holding up the author to ridicule, is not regarded as 
 defamatory if the comment does not exceed the limits of fair and candid 
 criticism, e.r/. by attacking the character of the writer, unconnected with 
 his publication (r/). But if a person under the 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 
 hbeller (A). So if a reviewer imputes base, sordid, dishonest, and wicked 
 motives, it is no answer that the revie^ver published only what he believed 
 was correct and true {i). 
 
 There is no distinction between a handbill, circular, or advertisement 
 of a tradesman and a book ; both are addressed to the public, and both 
 are subject to such comments as do not exceed the bounds of fair and 
 reasonable criticism (/). 
 
 It has been doubted whether the preaching a sermon, in the 
 ordinary mode of a clergyman's duty, makes it public property, so as to 
 allow observations upon it in the same way that a publication of a 
 literary work does {k). 
 
 It is lawful to make a fair comment on a place of public enter- 
 tainment (Z). 
 
 Where the defence of fair comment is raised the state of mind of the 
 defendant when he published becomes material, to ascertain whether he 
 published in a spirit of unfairness or actuated by any malice, and ex- 
 trinsic evidence is admissible to establish the defendant's motives in 
 publication whether to shew his guilt or innocence (//?). 
 
 4. Truth. 
 
 At common law the truth of a defamatory libel was no defence to 
 criminal proceedings taken in respect of its publication («). 
 
 If a libel imputes to a man that he has committed a crime, proof of 
 the truth of such imputation is not admissible under a plea of not guilty. 
 Where a libel imputed murder to certain soldiers, evidence was offered 
 of the truth of such imputation, and rejected : and the Court of King's 
 Bench were unanimous that such evidence was rightly rejected (o). 
 
 {g) Can- v. Hood, 1 Camp. 355. In an tendency. Tahart r. TipixT, 1 Camp. 354. 
 
 action for a libel upon the plaintiff in liis (;) Campbell c. SpoUiswoode. 3 H. & S. 
 
 business of a bookseller, accusing him of 769; 31 L. J. Q. B. 18."). 
 
 being in the habit of publishinK immoral (?) Pains ?•. I>evy. !K". H. (N. S. ) .342. 
 
 and foolish books, the defendant may {k) Gathercolc c. .Misll. 15 M. & \V. 319. 
 
 adduce evidence to .shew that tiie supposed (/) Dil)den v. Swan 11793]. 1 E.-<p. 28. 
 
 libel is a fair stricture upon the jreneral See Odgei-s on Lil>el (4tii ed.), 204. 
 
 run of the plaintiff"s ])ub]ication.s. Tabart (w) Thomas /•. Hra<ll.ury .\irnew & C«.. 
 
 V. Tipper, 1 Camp. 350 ; Strauss v. Francis. [190»)1. 2 K.H. <)17. <)27. tl42. Coliin.s, M.R. 
 
 4 F. & F. 1107. If the plaintiff contends Plymoutli Mutual Co-oiH-rativo Siviety v. 
 
 that the alleged libel exceeds the Hmits of Trades Pnblisliintr A.ss(H-iation 119<K?]. 1 
 
 fair criticism, he should, unless the con- K.H. 403. 413. Vauclian William.s. L.J. 
 
 trary appears on the face thereof, put in (») See Wyatt r. (iore. Holt. N. P. 299. 
 
 his work as part of his case (S. C. and see 30t). Thisrulewase.\pressi>dbysnyinii'tho 
 
 4 F. & F. 939). greater the truth tlie pn-ater the lil)el.' 
 
 (/() Nightingale v. StockdaleriStW]. Ellen- (o) R. v. Huniett. 4 B. A: Aid. 95. Bayley. 
 
 borough,C.J. Selw. (N. P.) 1044. Merivale .L.said (p. 147).'In some ca-ses. wuKhxI. it w 
 
 V. Carson {ubi sup.). Thomas v. Bradbury possil>le that tlie falsehood may be of the 
 
 Agnew & Co. (iibi sup.). It is lawful to very e^ence of the lil>el. As for instance, 
 
 animadvert upon the conduct of a book- suppose a pai>er were to state that A. was 
 
 seller in publisliing books of an improper on a given day tried at a given place, and 
 
 VOL. I. 
 
 3 Y
 
 1058 Of Criminal Libels. [book ix. 
 
 Where an information for a iibel stated that certain transactions took 
 place, and that the Hbel was published of and concerning them, and then 
 set out the libel as referring to them, and general evidence was given in 
 proof of such transactions on the part of the prosecution, the defendant 
 was not allowed to give evidence of the particular nature of those trans- 
 actions so as to bring into issue the truth or falsehood of the libel. But 
 if such evidence were adduced, bona fide, to shew that the transactions 
 referred to in the alleged libel are not the same with those which the 
 information supposes it to have had in view, it is admissible {j)). 
 
 By sect. 6 {q) of the Libel Act, 1843 (6 & 7 Vict. c. 96), ' On the trial of 
 any indictment or information for a defamatory libel, the defendant 
 having pleaded such plea as hereinafter mentioned, the truth of the 
 matters charged may be inquired into, but shall not amount to a defence, 
 unless it was for the public benefit that the said matters charged should 
 be published ; and to entitle the defendant to give evidence of the truth 
 of such matters charged as a defence to such indictment or information 
 it shall be necessary for the defendant, in pleading to the said indictment 
 or information, to allege the truth of the said matters charged in the manner 
 now (;•) recpiired in pleading a justification to an action for defamation, 
 and further to allege that it was for the public benefit that the said matters 
 charged should be 'published, and the particular fact or facts by reason 
 whereof it icas for the public benefit that the said matters charged should be 
 published, to which plea the prosecutor shall be at liberty to reply generally, 
 denying the whole thereof ; and if after such plea the defendant shall be 
 convicted on such indictment or information it shall be competent to the 
 court, in pronouncing sentence, to consider whether the guilt of the 
 defendant is aggravated or mitigated by the said j)lea, and by the evidence 
 given to prove or to disprove the same : provided always, that the truth 
 of the matters charged in the alleged libel complained of by such indict- 
 ment or information shall in no case be inquired into without such plea 
 of justification : provided also, that in addition to such plea it shall be 
 competent to the defendant to plead a plea of not guilty : provided also, 
 that nothing in this Act coiitained shall take away or prejudice any 
 defence under the plea of not guilty which it is now competent to the 
 defendant to make under such plea to any action or indictment or 
 information for defamatory words or libel.' 
 
 It has been held in Ireland that to an indictment for publishing in a 
 newspaper a certain false, defamatory, malicious, and seditious libel 
 concerning her Majesty's Government and the Parliament of the United 
 Kingdom, with intent to create disaffection and hatred to her Majesty's 
 
 convicted of perjury ; if that be true it justices (R. v. Garden, 5 Q.B.D. 1. R. v. 
 
 may be no libel, but if false, it is from Townsend, 10 Cox, 356; 4 F. & F. 1089), 
 
 beginning to end calumnious, and may no unless the prosecution is of a person 
 
 doubt be the subject of a ciiminal prosecu- responsible for the publication of a news- 
 
 tion. Possibly, therefore, in such a case, paper for a libel published therein ; 44 & 45 
 
 evidence of the truth of such a statement Vict. c. (30, s. 4, poft, p. 1060. 
 by the production of the record, might (r) Aug. 24th, 1843, the date of the 
 
 afford an answer to a prosecution for passing of the Act. The subsequent 
 
 libel.' R. V. Brigstock, 6 C. & P. 184. alterations in civil pleading are not in 
 
 (p) R. V. Grant, 5 B. & Ad. 681. strictness applicable to a justification under 
 
 [q) This section does not apply to pro- sect. 6. For a jsrecedent sec Crown Office 
 
 ceedings at a preliminary inquiry before Rules, 1906, form No. 81.
 
 CHAP. XIII.] Matters of Defence. 1059 
 
 Government and the Parliament, a special plea of justification cannot be 
 pleaded under sect. 6 of the Libel Act. 1843 (*•). 
 
 Where to a criminal information for a libel the defendant pleaded a 
 justification, alleging that the imputations contained in the libel were 
 true, it was held that it was not competent to the defendant to prove 
 that imputations identical with those in the libel had been previously 
 published in a book (t). 
 
 AVhere a justification is pleaded under 6 & 7 Vict. c. 96. s. 6, to an 
 information for a defamatory libel, and the libel contains sev^eral distinct 
 imputations, and the plea alleges the truth of all. and is traversed generally, 
 if the evidence fail as to any one of them, the verdict will be entered 
 generally against the defendant. Where, therefore, upon the trial of such 
 an issue upon such a plea, evidence was offered in support of some only 
 of the imputations, and the jury found that only one of the imputations 
 upon which evidence was offered was proved, the verdict was entered for 
 the Crown generally ; as there can be no partial finding for a defendant 
 on the ground that a justification is partially established {u). But where 
 the libel was general, to the effect that the prosecutor was one of a gang 
 of cardsharpers, and the plea of justification alleged specific instances of 
 cardsharping, and also that the prosecutor confederated with others for 
 the 23urpose of cheating, and did so cheat, at various places, it was held 
 that it was sufficient to prove the plea in substance, and that it was so 
 proved by the jury finding that in two instances the prosecutor did cheat 
 at cards, and that he did confederate with other persons for that 
 purpose (y). 
 
 Evidence in Aggravation or Mitigation. — By the express enactment 
 that, wherever there is a conviction after such a plea of justification 
 ' the Court, in pronovmcing sentence,' shall ' consider whether the guilt 
 of the defendant is aggravated or mitigated by the said plea, and by 
 the evidence given to prove and disprove the same,' the Court is to 
 consider the evidence on the one side and the other, and to form their 
 own conclusion whether it aggravates or mitigates the guilt of the defen- 
 dant, and they are to apportion the punishment accordingly. The 
 evidence, as it appears on ihe notes of the judge who presided at the trial, 
 comes in place of affidavits in aggravation and mitigation of punishment 
 when sentence is to be pronounced, and by that the sentence is to be 
 regulated, and not by any declaration of the jury as to the credit which 
 they think ought to be given to the witnesses {ic). In such a case the 
 defendant may, in mitigation of punishment, shew by affidavit that 
 after the publication, but before pleading, information was given to him 
 which, if true, would have supported an allegation in the plea, evidence 
 having been given at the trial to account for tlie non-j)ro(hution of 
 proof, but no evidence in support of the allegation itself (./•). 
 
 A libel purported to be founded on certam newspaper reports, and uj)(>n 
 the foundation of those reports charged certain troops with acts of murder. 
 After conviction the defendant tendered aftidavits to prove that the 
 
 (s) R. V. Duffv, () St. Tr. (N. S.) 303. («) R. r. Newman. 1 E. & B. iV>8. 
 
 See R. V. McHuch [1901]. 2 Jr. Rep. 569 : (r) R. r. Uhouchere. 14 Cox. 419. 
 
 Ex parte OBiien. 1.3 Cox. 180 ; 2 Cox. 4o. (tr) R. r. Newman. 1 E. & R. oAS. 
 
 (/) R. V. Newman. 1 E. & B. 2(i8. U) Ibid.
 
 1060 Of Criminal Libels. [book ix. 
 
 newspapers did contain those reports, and also other affidavits that the 
 facts were true. The former affidavits were received, because thev 
 explained the situation in w^hich the defendant stood at the time he wrote 
 the libel, and shewed the impression under which he wrote ; but the latter 
 were rejected, because the receiving them might deprive of a fair trial 
 persons who might afterwards be tried for the murders ; and if murders 
 were committed, the proper course was to prosecute and bring to a fair 
 trial, not to libel and create an unfair prejudice {y). 
 
 As to the admissibility of the defendant and the wife or husband of 
 the defendant as witnesses for the defence, see 51 & 52 Vict. c. 64, s. 8, 
 and fost, Book XIIT. tit. ' Evidence,' Chapter V. 
 
 As to costs see post, Vol. II. p. 2039 ei seq. 
 
 Sect. VIII. — Special Provisions as to Libels in Newspapers. 
 
 Reports. — The special provisions as to reports in newspapers of the 
 proceedings of courts of justice and public meetings have already been 
 stated, ante, pp. 1047, 1049. 
 
 Prosecution. — By sect. 8 (z) of the Law of Libel Amendment Act, 
 1888 (51 & 52 Vict. c. 64), ' No criminal prosecution shall be commenced 
 against any proprietor (a), publisher, editor, or any person responsible for 
 the publication of a newspaper (a) for any libel (h) published therein with- 
 out the order of a judge at chambers being first had and obtained (c). 
 Such application shall be made on notice to the person accused who shall 
 have an opportunity of being heard against such application ' (d). 
 
 By sect. 4 of the Newspaper Libel and Registration Act, 1881 (44 & 45 
 Vict. c. 60), ' A court of summary jurisdiction, upon the hearing of a 
 charge against a proprietor, publisher, or editor, or any person responsible 
 for the publication of a newspaper, for a libel published therein, may 
 receive evidence as to the publication being for the public benefit, and 
 as to the matters charged in the libel being true, and as to the report 
 being fair and accurate, and published without malice, and as to any 
 matter which under this or any other Act, or otherwise, might be given 
 in evidence by way of defence by the person charged on his trial on 
 indictment, and the Court, if of opinion after hearing such evidence that 
 there is a strong or probable presumption that the jury on the trial would 
 acquit the person charged, may dismiss the case ' (e). 
 
 Definitions. — By the Newspaper Libel and Registration Act, 1881 
 (44 & 45 Vict. c. 60), s. 1, ' neivs'paj)er ' is defined for the purposes of the 
 
 (y) R. V. Burdett, 4 B. & Aid. 314. infra. 
 
 (z) This section superseded and repealed (fo) It is to be noted that the general 
 
 44 & 45 Vict. c. 60, s. 3. Under that term 'libel' is used and not the limited 
 
 se tion the words ' ciiminal prosecution ' term ' defamatory libel.' 
 were held not to apply to a criminal (c) There is no appeal against the refusal 
 
 information whether ex officio or filed by of a judge to order such prosecution, 
 
 leave of the Court. R. v. Yates, 11 Q.B.D. Ex parte, Pulbrook [1892], 1 Q.B. 86. 
 750; 14 Q.B.D. 648. As to such infor- {d) The procedure is by summons issued 
 
 mations see R. v. The World, 13 Cox, 305 : from the Crown Office. Crown Office 
 
 R. V. Labouchere, 12 Q.B.D. 320 ; R. v. Rules, 1906, r. 265. 
 
 Allison, 16 Cox, 559. Short and Mellor, (e) This section overrides, as to news- 
 
 Ci-o%vn Practice (2nd ed.), 153, 169. paper libels, the case of R. v. Carden, 5 
 
 a) Defined in 44 & 45 Vict. c. 60, s. 1, Q.B.D. 1, ante, p. 1058. 
 
 i
 
 CHAP. XIII.] Special Provisions as to Libels in Newspapers. 1061 
 
 Act as meaning ' any paper containing public news, intelligence, or 
 occurrences, or any remarks or observations therein (sic) printed for 
 sale, and published in England or Ireland periodically or in parts or 
 numbers at intervals not exceeding twenty-six days between the publi- 
 cation of any two such papers, parts, or numbers ' : and ' also any paper 
 printed in order to be dispersed and made public weekly or oftener or at 
 intervals not exceeding twenty-six days, containing only or principally 
 advertisements.' 
 
 By the same section ' The word '" proprietor " shall mean and include 
 as well the sole proprietor of any newspaper, as also in the case of a divided 
 proprietorship the persons who, as partners or otherwise, represent and 
 are responsible for any share or interest in the newspaper as between 
 themselves and the persons in like manner representing or responsible 
 for the other shares or interests therein, and no other person.' 
 
 Ascertainment of the Names of Proprietors, &c. — Bv sect. 8 a 
 register of newspapers as above defined is established under the super- 
 intendence of the registrar of joint stock companies, to which the 
 printers and publishers of every such newspaper must make an annual 
 return in a prescribed form, of the title of the newspaper and the names 
 and addresses of all the proprietors (s. 9). These provisions do not apply 
 where the newspaper is owned by a joint stock company incorporated 
 under the Companies Acts, 1862 to 1901, in which case the company is 
 registered in the ordinary course under those Acts (s. 18). Penalties are 
 imposed for failing to make returns under the Act of 1881, or for wilful 
 misrepresentation or omissions therein (ss. 10, 12). The returns when 
 made are entered on the register (s. 13). And by sect. 15, ' Every copy 
 of an entry in or extract from the register of newspaper proprietors, 
 purporting to be certified by the registrar or his deputy for the time being 
 or under the official seal of the registrar, shall be received as conclusive 
 evidence of the contents of the said register of newspaper proprietors, so 
 far as the same appears in such copy or extract without proof of the 
 signature thereto or of the seal of office affixed thereto, and every such 
 certified copy or extract shall in all proceedings, civil and criminal, be 
 accej)ted as sufficient prima facie evidence of all the matters and things 
 thereby appearing unless and until the contrary thereof be shewn.' 
 
 By a series of enactments of earlier date incorporated in the .schedule 
 to the Newspapers, Printers, and Reading Rooms Repeal Act. 1869 ( /') 
 (32 & 33 Vict. c. 24), obligations are placed on the printers and publi.shers 
 
 (f) The first Act dealing with1[this newspaper, a certified copy of the decla- 
 
 subject, 38 Geo. III. c. 78, was repealed ration made at the stamp office under «} & 
 
 and replaced by 6 & 7 Will. IV. c. 70, s. 32, 7 Will. IV. c. 76, s. (5 (reji.). was put in, 
 
 itself repealed by the Act of 1860, except and it was a joint declaration, and stated 
 
 sect. 19, re-enacted in the schedule, but that. ' We are the sole proprietors ; that 
 
 relating only to civil proceedings, viz. is to say, the said J. H.. as legal owner a.-» 
 
 bills for the' discovery of the names of mortgagee, and M. Y.. as owner of the 
 
 printers, publishers and newspapers, for equity of redempiinn." it was objected 
 
 the purposes of actions of damages for that this declaration shewe<l that the 
 
 defamation. There were numerous de- defendant was a mortgagee only, and not 
 
 cisions on 38 Geo. III. c. 78. as to proof a proprietor against whom an action for 
 
 of pubHcation, included in the 6th edition libel could be maintaine<l ; but CampWll, 
 
 of this work, i. 638-640. which are here CT.. held that the defendant was liable, 
 
 omitted as of no present value. Where Duke of Brunswick c. Harmer. 3 C. & K. 
 
 in an action for libel to prove that the 10. 
 defendant, H., was the proprietor of a
 
 1062 Of Criminal Libels. [book ix. 
 
 of JDapers and books as to printing therein the name of the printer and 
 preserving copies of papers. The substance of the scheduled enactments 
 is as follows : — 
 
 By the Unlawful Societies Act, 1799 (39 Geo. III. c. 79), s. 29 (^), 
 ' Every person who shall print any paper for hire, reward, gain or profit, 
 shall carefully preserve and keep one copy (at least) of every paper so 
 printed by him or her, on which he or she shall write, or cause to be 
 written or printed, in fair and legible characters, the name and place of 
 abode of the person or persons by whom he or she shall be employed to 
 print the same ; and every person printing any paper for hire, reward, 
 gain, or profit, who shall omit or neglect to write, or cause to be written 
 or printed as aforesaid, the name and place of his or her employer on 
 one of such printed papers, or to keep or preserve the same for the space 
 of six calendar months next after the printing thereof, or to produce and 
 shew the same to any justice of the peace who within the said space of 
 six calendar months shall require to see the same, shall for every such 
 omission, neglect, or refusal, forfeit and lose the sum of twenty pounds,' 
 By sect. 31 {g), ' nothing herein contained shall extend to the impres- 
 sion of any engraving, or to the printing by letterpress of the name or 
 the name and address, or business or profession, of any person, and the 
 articles in which he deals, or to any papers for the sale of estates or goods 
 by auction or otherwise.' Sects. 34, 35 & 36 relate to the recovery of the 
 penalties. The Act of 1799 does not apply to ' papers printed by the 
 authority and for the use of either House of Parliament' {h) nor to bank 
 notes or bank post bills of the Bank of England or to valuable securities, 
 or to prints of proceedings in courts of justice or to papers printed by the 
 authority of any public board or public officer in the execution of the 
 duties of their respective offices (?"). 
 
 By an Act of 1839 (2 & 3 Vict. c. 12), s. 2 (/), ' Every person who 
 shall print any paper or book whatsoever which shall be meant 
 to be published or dispersed, and who shall not print upon the front of 
 every such paper, if the same shall be printed on one side only, or upon 
 the first or last leaf of every paper or book which shall consist of more 
 than one leaf, in legible characters, his or her name and usual place of 
 abode or business ; and every person who shall publish or disperse, or 
 assist in publishing or dispersing, any printed paper or book on which 
 the name and place of abode of the person printing the same shall not be 
 printed as aforesaid, shall for every copy of such paper so printed by him 
 or her forfeit a sum not more than five pounds. Provided always, that 
 nothing herein contained shall be construed to impose any penalty upon 
 any person for printing any paper excepted out of the operation of the 
 Unlawful Societies Act, 1799, either in the said Act or by any Act made 
 for the amendment thereof.' (Vide supra.) 
 
 By sect. 3, in the case of books or papers printed at the University 
 Press of Oxford, or the Pitt Press of Cambridge, the printer, instead of 
 printing his name thereon, shall print the following words : ' Printed at 
 
 (g) Ss. 29, 31, 34, 35, 36, are re-enacted (/) 51 Geo. III. c. 65, s. 3, as re-enacted 
 
 by 32 & 33 Vict. c. 24, s. 1, sched. ii. in 32 & 33 Vict. c. 24, s. 1, sched. ii. 
 
 (h) S. 28 as re-enacted in 32 & 33 Vict. (j) Ss. 2, 3, as re-enacted in 32 & 33 
 
 c. 24, sched. ii., vide ante, p. 1043. Vict. c. 24, s. 1, sched. ii.
 
 CHAP. XIII.] ^S^^eci'a^ Provisions as to Libels in Newspapers. 1063 
 
 the University Press, Oxford,' or ' The Pitt Press, Cambridge,' as the 
 case may be. 
 
 Proceedings under the Acts of 1799 and 1839 for penalties are not to 
 be commenced except in the name of the Attorney or Solicitor-General 
 in England or the Lord Advocate in ^Scotland (k). 
 
 The provisions of the Acts of 1869 and 1881 do not exclude the proof 
 of publication by modes other than those permitted by the statutes. 
 
 Where the affidavit of a proprietor under 38 Geo. III. c. 78 (rep.), 
 described the proprietor's residence to be in ' Red Lion Street, St. Ann's 
 Square,' and on the paper it was described as in ' St. Ann's Scjuare ' ; 
 Tenterden, C.J., held that as the party was not excluded from other 
 proof of publication, if he relied on the statutory proof he must bring 
 himself within the statute, and that the discrepancy was fatal (/). In 
 moving for a criminal information a prosecutor was not bound to adopt 
 the statutory proof, but if he adopted any other, the publication 
 must have been shewn by some direct proof (m). 
 
 (k) 2 & 3 Vict. c. 12, s. 4, and 9 & 10 (m) R. v. Baldwin, 8 A. & E. I(i8; and 
 
 Vict. c. 33, s. 1, re-enacted ii} 32 & 33 Vict. see Watts v. Fraser, 7 A. & E. 223 ; R. v. 
 
 c. 24, s. 1, sched. ii. Stanger, L. R. 6 Q.B. 3521 ; R. v. Pearce, 
 
 (?) Murray v. Souter, 6 Bing. 414, cit. Peake, 75. 
 
 END OF VOL. I 
 
 PRINTED BY 
 
 SPOTTISWOODE AND CO. LTD., COLCHr.STEB 
 
 LONDON' AND ETON
 
 ( 1064a ) 
 
 CANADIAN NOTES. 
 
 OF CRIMINAL LIBELS. 
 
 Sec. 1 — Preliminary. 
 
 As to Blasphemous Publications. — See p. 400a. 
 
 As to Sedition. — See p. 316a. 
 
 As to Indecent Publications and Exhibitions. — See p. 1883a. 
 
 As to Interference with the Administration of Justice. — See p. 554a. 
 
 Sec. 2. — Defamatory Libel. 
 
 Defamatory Libel, Definition of. — Code see. 317. 
 
 Publishing Defined. — Code see. 318. 
 
 Newspaper Defined. — Code see. 222. 
 
 Newspaper Proprietor's Responsibility Presumed. — Code sec. 329. 
 
 Evidence. — It must be proved that the defendant was proprietor 
 or publisher of the journal at the time of the publication of the libel. 
 R. V. Sellars, 6 Montreal Legal News 197. 
 
 When the accused in a case of defamatory libel in a newspaper 
 resorts to the defence allowed by Code sec. 329 that the publication 
 of the libel was made without his knowledge, the Crown may prove the 
 publication of former libels of a similar character by the same editor, 
 in order to establish the liability of the accused resulting by the terms 
 of article 329 from his continuing to retain this editor in the conduct 
 of the newspaper. R. v. MoUeur (No. 1) (1905), 12 Can. Cr. Cas. 8. 
 
 Sec. S.— Trial. 
 
 Place of Trial. — Code sec. 888. 
 
 In order to obtain a change of venue in a prosecution for defamatory 
 libel such facts must be shewn as will satisfy the Court that a fair 
 trial cannot be had at the present venue, and it is not sufficient that the 
 applicant's solicitor swears to a belief that a fair trial is impossible 
 there because of the prosecutor's interest in political affairs. The fact 
 that two abortive trials of the cause have already taken place at both 
 of which the jury disagreed, is not of itself a ground for ordering 
 a change of venue. R. v. Nicol (1900). 4 Can. Cr. Cas. 1 (B.C.). 
 
 General Verdict of Not Guilty. — Code sec. 956. 
 
 This section originated in the English Act of 1792, 32 Geo. III. ch.
 
 1064& Criminal Libels. [book ix, 
 
 60, which became part of the law of the Province of Canada. Under it, 
 it is for the jury to say w^hether, under the facts proved, there is libel 
 and whether the defendant published it. R. v. Dougall (1874), 18 
 L.C. Jur. 85. 
 
 Sec. 4. — Punishment. 
 
 For Puhlishing or Threatening to Publish with Intent to Extort, 
 etc. — Code sec. 332. 
 
 For Libel Known to be False. — Code sec. 333. 
 For Defamatory Libel. — Code sec. 334. 
 
 Sec. 5. — Indictment. 
 
 Innuendo. — An indictment charging the publication of a defamatory 
 libel, which does not state that the same was likely to injure the reputa- 
 tion of the libelled person by exposing him to hatred, contempt or 
 ridicule, or was designed to insult him, is bad by reason of the omis- 
 sion of an essential ingredient of the offence. R. v. Cameron (1898), 
 2 Can. Cr. Cas. 173. 
 
 On an indictment for a libel published in a newspaper, it appeared 
 that the editor (who was not indicted) before inserting the libel 
 shewed it to the prosecutor, who did not express any wish to suppress 
 the publication, but wrote a reply, which was also inserted. The 
 jury found it to be a malicious libel, and defendants were convicted. 
 The Court held that what the prosecutor said to the editor, and did, 
 did not hold 014 any assurance of impunity to the defendants, so as 
 to render the conviction illegal, and a new trial was refused. R. v. 
 McElderry (1860), 19 U.C.Q.B. 168. 
 
 When an indictment for defamatory libel consisting of words harm- 
 less in themselves, but importing by innuendo an imputation of dis- 
 honourable conduct contains in addition to the enunciation of the 
 incriminating w^ords an allegation of the sense in which they should be 
 understood the Crown will be allowed to prove extrinsic circumstances 
 which impute this meaning to them. It is not necessary to enumerate 
 these circumstances in the indictment, and the accused is sufficiently 
 guarded against surprise by the right that he has to demand particu- 
 lars. See Code sees. 859-860. Failing to do so, he will not be allowed 
 to object to the admission of the evidence above mentioned and the 
 question of its legality is not one which can be reserved for the 
 opinion of the Court of Appeal. R. v. Molleur (No. 1) (1905) , 12 Can. 
 Cr. Cas. 8. 
 
 A person alive to the vindication of his character when assaulted 
 and entitled to the remedy of criminal information must apply with 
 reasonable promptitude. The general rule is stated by Lord Mans- 
 field in R. V. Robinson (1765), 1 W. Bl. 542, where he said: "There
 
 CHAP. XIII.] Indictment. 10046- 
 
 is no precise number of weeks, months or years; but, if delayed, the 
 delay must be reasonably accounted for. The party complaining must 
 come to the Court either during the term next after the cause of 
 complaint arose, or at so early a period in the second term thereafter 
 as to enable the accused, unless prevented by the accumulation of 
 business in the Court, or other cause within the second term ; and this 
 regardless of the fact whether an assize intervened or not. R. v. Kelly 
 (1877), 28 U.C.C.P. 35, 41 U.C.Q.B. (1877), 1, 24. 
 
 It is of the highest importance that the applicant for a criminal 
 information should in all cases lay before the Court all the circum- 
 stances fully and candidly in order that the Court may deal with the 
 matter. R. v. Wilkinson (1877), 41 U.C.Q.B. 1, 25 (citing R. v. 
 Aunger, 28 L.T.N.S. 634 (S.C), 12 Cox 407. 
 
 The granting of a criminal information is discretionary with the 
 Court under all circumstances; the application is not to be enter- 
 tained on light or trivial grounds. In dealing with such an application, 
 the Court has always exercised a considerable extent of discre- 
 tion in seeing whether the rule should be granted, and whether the 
 circumstances are such as to justify the Court in granting the rule 
 for a criminal information. R. v. Wilkinson (1877), 41 U.C.Q.B. 1. 2f). 
 
 There are two things principally to be considered in dealing with 
 such an application; (1) To see whether the per.son who applies to 
 conduct the prosecution, the relator or the informer, has been him- 
 self free from blame, even though it would not justify the defendant 
 in making the accusation; (2) To see whether the offence is of such 
 magnitude that it would be proper for the Court to interfere and grant 
 the criminal information. Both these things have to be considered, 
 and the Court would not make its process of any value unless the 
 Judges considered them and exercised a deal of discretion, not merely 
 in saying whether there is legal evidence of the offence having been 
 committed, but also exercising their discretion as men of the world, 
 in judging whether there is reason for a criminal information or not." 
 R. V. Plimsoll (1873). noted in 12 C.L.J. 227; R. v. Wilkin.son (1877), 
 41 U.C.Q.B. 1, 29. 
 
 "The Court always considers an application for a criminal informa- 
 tion as a summary extraordinary remedy depending entirely on their 
 discretion, and therefore not only must the evidence itself l>e of a 
 serious nature, but the prosecutor must apply promptly or must satis- 
 factorily account for any apparent delay. He must al.so come into 
 Court with clean hands, and be free from blame with reference to the 
 transaction complained of ; he must prove his entire innocence of every- 
 thing imputed to him. and must produce to the Court sucli legal evi- 
 dence of the offence having been committed by the defendant as would 
 warrant a grand jury in finding a true bill against the defendants."
 
 10646? Criminal Libels. [book ix. 
 
 Per Quain, J., in R. v. Plimsoll (1873), noted, 12 C.L.J., p. 228, cited 
 by Hagarty, C.J., in R. v. Kelly (1877), 28 U.C.C.P. 35. 
 
 The Court confines the granting of criminal informations for libel 
 to the case of persons occupying official or judicial positions, and 
 filling some offices which gives the public an interest in the speedy 
 vindication of their character, or to the case of a charge of a very 
 grave or atrocious nature ; leave was therefore refused to the manager 
 of a large railway company to file a criminal information for libel, on 
 the ground that he did not come within the description of persons 
 referred to. Per Armour, J. — ' ' I think the practice of granting leave 
 to file criminal informations in this country, having regard to the 
 social conditions of its inhabitants and the liberties which they enjoy, 
 is, to say the least of it, of very doubtful expediency, and should, in 
 my opinion, be discontinued and, if necessary, abolished by legislative 
 enactment. The very rule adopted in England, that it will only be 
 granted to what I may call ' a superior person ' is the strongest reason, 
 to my mind, why in this country it should never be granted at all. 
 Whatever may be deemed desirable in England, I do not think it 
 desirable that in this country there should exist a remedy for the 
 superior person which is denied to the inferior." R. v. Wilson (1878), 
 43 U.C.Q.B. 583. 
 
 Per Cameron, J. — ' ' There is no real necessity, so far as I am aware, 
 for any one seeking this remedy. Any person libelled has a right to 
 lay an information before a magistrate charging any one who may have 
 libelled him with the offence, and may then by his oath deny the truth 
 of the slanderous charge or imputations." Ibid. Hagarty, C.J., 
 added that it was not to be understood that the Court laid down any 
 absolute rule as to future applications for criminal informations, or 
 that they meant to fetter their discretion in dealing therewith. Ibid. 
 Reporter's note. R. v. Wilson (1878), 43 U.C.Q.B. 583. 
 
 Where the libel charges the person libelled with having, by a pre- 
 vious writing, provoked it, the latter by his affidavit on which he 
 moves for a criminal information is b.ound to answer such charge 
 otherwise the affidavit will be held insufficient. R. v. Edward Whelan 
 (1862), 1 P.E.I. Rep. 220, per Peters, J. 
 
 In Trinity Term, 1876, an application was made for a criminal 
 information for libel in newspapers published on 23rd atid 30th 
 March and 25th May. The delay in not applying to the Court during 
 Easter Term, or until 30th August, was not satisfactorily accounted 
 for, and the Court refused the application, but, in view of the virulent 
 language of the article, without costs. R. v. Kelly (1877), 28 U.C.C.P. 
 35. 
 
 In answer to an application for a criminal information for libel 
 the defendants filed an affidavit stating that they had no personal 
 knowledge of the matter contained in the alleged libels, but received
 
 CHAP. XIII.] Evidence a?^d Defences. 10fi4e 
 
 the information from persons whom they trusted to be reliable and 
 trustworthy; that the Globe newspaper was controlled by the appli- 
 cant, who was an active politician, and had published a number of 
 articles violently attacking one S., who was a candidate for a public 
 office, and the libels in question were published with a view of counter- 
 acting the effect of these articles, and believing them to be true, and 
 without malice. This was held to be no ground for the Court refusing 
 to the applicant leave to file a criminal information for the reiterated 
 publication in a newspaper of matter not pretended either to be not 
 libellous, or to be true in fact. R. v. Thompson (1874), 24 U.C.C.P. 
 252. 
 
 Quaere, whether a criminal information is the course to be adopted 
 for wilful and corrupt misconduct of a Judge holding an inferior Court 
 of record. R. v. Ford (1853), 3 U.C.C.P. 209, 218. 
 
 Where there is foundation for a libel, though it falls short, of justi- 
 fication, an information will not be granted. The Queen v. Biggs, 2 
 Man. R. 18. 
 
 Sec. 6. — Evidence. 
 
 A commission to take the evidence of witnesses abroad in a libel 
 prosecution is properly ordered at the trial where the evidence relates 
 wholly to a plea of justification just entered of record. R. v. Nicol 
 (1898), 5 Can. Cr. Cas. 31 (B.C.). 
 
 "Where a convicted person, instead of being sentenced is discharged 
 from custody upon entering into a recognizance with sureties to appear 
 and receive judgment when called upon, it is only on motion of the 
 Crown that the recognizance can be estreated, or judgment moved 
 against him. In Ontario, a private prosecutor in a prosecution for 
 defamatory libel has no locus standi to make the application. R. v. 
 Young (1901), 4 Can. Cr. Cas. 580 (Ont). 
 
 See Code sec. 947 as to evidence in respect of the publication of an 
 extract from an authorized Parliamentary publication. 
 
 Sec. 7. — Matters of Defence. 
 
 (1) Absolute Privilege. 
 
 (a) Publication by petition to or under authority of Parliament. 
 
 Code sec. 321. 
 
 Certificate of pu])lication by order of Parliaiiiont. Code 
 sec. 912. 
 
 Copy of report may be laid before Court. Code sec. 913. 
 
 Stay of proceedings had on dismissal. Code sees. 912, 913. 
 (&) Publication in judicial proceedings. Code sec. 320. 
 
 (2) Qualified Privilege. 
 
 (a) Fair reports of proceedings in Parliament. Code sec. 322., 
 The Court has power summarily to commit for constructive con-
 
 1064/ Criminal Libels. [book ix. 
 
 tempt notwithstanding sees. 322, 324 and 325 as to fair reports of 
 Court proceedings and fair comment upon public affairs; but the 
 Court will not exercise the power where the offence is of a trifling 
 nature, but only when necessary to prevent interference with the 
 course of justice. Stoddard v. Prentice (1898), 5 Can. Cr. Cas. 103, 
 6 B.C.R. 308. 
 
 The privilege given to a report published in good faith of judicial 
 proceedings does not extend to the publication of declarations made 
 by one of the counsel out of Court and in private conversation. Des- 
 jardins v. Berthiaume, 16 Que. S.C. 506. 
 
 Code sec. 322 refers to libel and not to contempt of Court, and 
 there is still power to commit summarily for constructive contempt, 
 ex. gr., a newspaper editorial to the effect that one of the parties to a 
 pending suit will lose the case. Stoddart v. Prentice (1898), 5 Can. 
 Cr. Cas. 103, 6 B.C.R. 308. 
 
 Extracts from Parliamentary Publications. — Code sec. 321. 
 
 WJiole Publication may be Given in Evidence. — Code sec. 947. 
 
 Reports of Public Meetings. — Code sec. 323. 
 
 Publication of Matter Believed to be True, for Public Benefit. — 
 Code sec. 324. 
 
 (3) Fair Comment. 
 
 (1) Upon Public Conduct. — Code sec. 325. 
 
 (2) Upon Published Book. — Code sec. 325(2). 
 
 (4) Publication. 
 
 (1) In Good Faith, Seeking Redress. — Code sec. 326. 
 
 (2) By Answers to Inquiries. — Code sec. 327. 
 
 (3) By Giving Information to Interested Persons. — Code sec. 
 328. 
 
 (4) After Invitation or Challenge by Complainant. — Code sec. 
 319. 
 
 (5) Truth. 
 
 When Truth a Defence. — Code see. 331. 
 
 Not Guilty May be Pleaded in Addition. — Code sec. 331(2). 
 
 Effect of Plea oyi Punishment. — Code sec. 331(3). 
 
 Plea of Justification. — Code sec. 910. 
 
 {a) In Tivo Senses or Either Sense. — Code sec. 910(2). 
 
 (b) Plea in Writing.— Code sec. 910(3). 
 
 (c) Reply Denying. — Code sec. 910(4). 
 
 A plea of justification must set forth concisely the particular facts 
 by reason of which its publication was for the public good, but must 
 not contain the evidence by which it is proposed to prove such facts, 
 nor any statements purely of comment or argument. R. v. Grenier, 1 
 Can, Cr. Cas. 55. 
 
 A plea of justification, which embodies a number of letters which it 
 is proposed to use as evidence, and contains paragraphs of which the
 
 CHAP. XIII.] Justification. lOli-l^/ 
 
 matter consists merely of comments and argument, is irregular and 
 illegal ; and should be struck from the record, or the illegal averment 
 should be struck out, and the defendant allowed to plead anew. Ibid. 
 
 To an indictment for libel, the language of which was couched in 
 general terms, the defendant pleaded that the words and statements 
 complained of in the indictment were true in substance and in fact, 
 and that it was for the public benefit, etc. It was held that the plea 
 was insufficient because it did not set out the particular facts upon 
 which the defendant intended to relv. R. v. Creighton (1890), 19 
 O.R. 339. 
 
 The existence of rumours cannot be proved in justification of the 
 libel. R. V. Dougall (1874), 18 L.C. Jur. 85. 
 
 In a prosecution for an illegal defamatory libel contained in a 
 new^spaper article condemning an employer's dismissal of employees 
 belonging to a trade union and charging that the distribution of cer- 
 tain gratuities by the employer to his employees was impeUed by 
 motives of selfishness on his part and was for the purpose of winning 
 public approval and favourable public comment through press notices 
 thereof, a plea of justification will not be struck out on the objection 
 that the facts therein alleged do not shew that it was for the public 
 benefit that the publication should be made, if such plea contains a 
 charge that the press notices favourable to the complainant were pub- 
 lished at his instance. If the complainant in a prosecution for defama- 
 tory libel has himself called public attention to the suTjject-matter of 
 the alleged libel by obtaining the publication of newspaper articles 
 commending his conduct therein, he thereby invites public critici.sm 
 thereof and cannot object that the answer to his own articles is not a 
 publication in the public interest. R. v. Brazeau (1899), 3 Can. Cr. 
 Cas. 89 (Que.). 
 
 Where on the trial of a criminal information for libel the Judge in 
 substance told the jury that the defendant, under the pleas of justifi- 
 cation, was bound to shew the truth of the whole of the libel to which 
 the plea is pleaded, and that in his opinion, the evidence fell far short 
 of the whole matter charged; such a direction is not so much a direc- 
 tion on the law as a strong observation on the evidence, which may be 
 made in a proper case without being open to the charge of misdirec- 
 tion. R. V. Port Perry, etc., Co., 38 U.C.Q.B. 431 ; R. v. Wilkins.m 
 (1878), 42 U.C.Q.B. 492, 505 (per Harrison, CI., Wils(.ii. .1. dissent- 
 ing).
 
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